Court throws out Islam-based Gitmo claims

"The three-judge panel also held that the U.S. officials were immune from the torture claims because “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.”

There you have it folks. The United States admits that it not only tortures captives, but that everyone should expect to be tortured by the United States.

We should all be ashamed.

Since the DNC Swamp won't ever talk to our soldiers....

Here's a letter from an American servicewoman who served as a Gitmo guard.
"My daughter was in Gitmo for a year as a Master-at- Arms, E4. (10/04-10/05) She was injured several times by the inmates assaulting her physically. In addition, she knew that when she was doing her job by enforcing the rules, she was threatened by the prisoners if she had to touch them. They would get her. They mixed a cocktail of urine, feces, and semen, and let it fester for days until the right moment. They warned her that she was a target and then they got her, she was assaulted several times by loads of crap thrown at her.

She had to undergo shots to prevent what diseases that she was exposed to. I don’t know why we have women guarding men, especially these animals, but that is the policy. My daughter is a tough cookie and can handle herself. In her year there she did not dishonor herself or our country. When she returned home she had a DVD of Gitmo. They made fresh bread every day!! Part of it showed how the chef’s prepared special meals for the prisoners. If a prisoner refused food the guards were happy to sample the Chicken, rice pilaf, yogurt and fresh baked pita bread, while our guys had crap food from the mess or had to buy it from Burger King.

As part of her duties, in the last month she was there, she was assigned to the hospital ward. She had to force feed those a..holes who offed themselves the other day. They were the meanest of the bunch and had to be tied down to get their food. My daughter and other personnel voluntarily submitted themselves to the force feeding procedure also so that they could do it with the least pain for the captives. It was very unpleasant for her but it helped her and others to understand how to participate in it with the least stress for the recipients. The goal was to keep them alive. She feels that the suicides would not have happened on her watch, but it was going to happen eventually. These guys are warriors. By their death they have achieved a military success in the political world. The media marches on."

Another Inconvenient Truth.
(from michellemalkin.com)

Congratulations Republicans!

W, Cheney, Rove, Rummy and Co have made themselves immune from the rule law.
http://www.flickr.com/photos/firstlight/454496224/

A decision that will warm the hearts of the Swamp Junior Fascists Society (Paulo, Bruce, John D, Terry).

A decision that will sadden anyone who cares about humnan rights and the dream that was America.

Bruce,
You said that letter was from a servicewoman but then you proceeded to post a letter from the mother or father of a servicewoman. Did you "father", a "journalism" teacher show you how to be so sloppy? Ask any person who works in a corrections facility and you will here the same stories of urine, feces, and semen being thrown on guards, but that would require you to do some "reporting" instead of copying articles from the right wing lunatic fringe blogosphere. Maybe your "father", a "journalism teacher" can show you what to do.

To think that we would live to see our country stoop to the practices of lesser, barbaric nations in the treatment of POW's. The irony is that the originators of these practices and the annihilation of human rights were men who have never served their country in the time of war - Rumsfeld, Cheney, Bush, Wolfowtiz, Rove. Humiliating other human beings is the way they get their bravado.

Not to worry though, their days are numbered and soon we will be "free at last, free at last, Thank God Almighty, we will be free at last," and GOOD RIDDANCE as the entire world applauds.

There was no evidence that torture took place and I doubt there was. Remember this is right out of the enemey play book 101. ALWAYS claim torture. These animals never had it so good.

"Janet," how, exactly, does the fact that people throw urine in a U.S. prison make Bruce's story somehow untrue? Or lacking in journalistic integrity?

I think it's animalistic no matter where it's done. I don't care if the letter is coming from the mother or the daughter. Plus, let's remember that these terrorists will do anything and everything to hurt the US. The fake Koran flushing story told to news outlets was another example. They're fighting a PR war from the inside.

They're enemy combatants and certainly shouldn't enjoy the rights a defendant in a criminal proceeding enjoys. They should get the rights of POWs, but that's never really been in question that they're getting those. What the left wants is considerably more.

Bruce's silly little story -- probably apocryphal -- is entirely subject to Janet's proper criticisms.

Beyond that, Bruce forgets one possibility: that at least some of the detainees are entirely innocent, in which case I think we'd all agree that they'd have every reason to be quite hostile to their jailers.

Are they really innocent or are they somewhat guilty? We'll never know, because cowards like Bush and Bruce lack the courage to have the "evidence" see the light of day.

Gitmo is a horrible shame for our country. Almost as shameful as Bush himself.

Finally, a court with some sense. And for those crying about the "rights" of terrorists who want to blow up America and its people, there are some great fares on one-way flights to Syria where you can
pet the heads of terrorists first-hand.

WoW. Why was this even allowed to proceed in OUR court rooms? These are not U.S. citizens and do not enjoy protections of the constitution since they are not part of this great country. Torture is part of war and if someone needs to be tortured so be it. The Gitmo detainees aren't/weren't "dick& jane" walking down the the street on a evening stroll! They are there for a reason and to have all the benefits they do while in jail is insane.

It's never been proven that anyone was tortured at Gitmo. Just like the story of the Koran that was supposedly flushed down the toilet there wasn't true.

It makes no difference if the torturer wears an Syrian uniform, an Iranian uniform or an American uniform, They are criminals. They are the enemies of freedom and justice. They are barbarians. They are a source of shame to the nation that employs them.

Fo those here who support torture, why don't you take that flight to Syria yourself. You'll fit right in. The United States is supposed to stand for something other than the naked use of power to control.

WoW. Why was this even allowed to proceed in OUR court rooms? These are not U.S. citizens and do not enjoy protections of the constitution since they are not part of this great country. Torture is part of war and if someone needs to be tortured so be it. The Gitmo detainees aren't/weren't "dick& jane" walking down the the street on a evening stroll! They are there for a reason and to have all the benefits they do while in jail is insane.

Posted by: Bill | January 11, 2008 5:25 PM

Your ignorance should be remarkable but it's not; it's standard stupidity these days.

"Torture is part of war," you say? Didn't Commander Flightsuit say, in his typically buffoonish style, "we don't torture"? You're getting your right wing zombie talking points wrong, Billy.

As for why the detainees are there, I'd suggest we perhaps have a trial and see what sort of evidence there is. You certainly don't know why they're there -- you only know what Fox News tells you to "think." We put the worst scumbags in the country on trial and then they go to jail. What do we fear by putting these people on trial?

These are not things for you to ponder, Bill, as you're clearly incapable of thought. Go back in your hole.

Another Inconvenient Truth.
(from michellemalkin.com)

Posted by: Bruce | January 11, 2008 1:50 PM

Bruce, isn't this another screenplay being proposed to Fox Studios by the producers of the Path to 911. Michelle Malkin, major enabler of wingnut fiction.

'They also say they were tortured, beaten and humiliated.'

**YAHOO!!!**

Paulo

Since when is torture an American value?

In any other country Bush, Cheney, Rummy etc would have already been sentenced to death for war crimes.

http://www.flickr.com/photos/sagesnow/3874293/

The Gitmo detainees aren't/weren't "dick& jane" walking down the the street on a evening stroll! They are there for a reason and to have all the benefits they do while in jail is insane.

Posted by: Bill | January 11, 2008 5:25 PM

We have no reason to believe that at all.

http://seattletimes.nwsource.com/html/nationworld/2003624102_gitmwp18.html

"The case files also offer insight into the nature of U.S. evidence against the detainees. For example, in half the cases studied, the detainees had been turned over to U.S. forces by Pakistani police or troops in return for financial rewards. Many others were accused of terrorism connections, in part because their Arab nicknames matched those found in a computer database of al-Qaida members, documents show."

http://www.fotofest.org/guantanamo/SaudiReport.pdf

"Bill",

Under the US Constitution, many rights were inalienable, and not subject to US citizenship.

At least, it used to be that way.

But now we are in the Brave New BushWorld.

It is the job of those officials to protect american lives. If torture (or 'annoying' waterboarding) will save one life without even risking the detainees welfare, it is their job. Good for the judges, stepping out of the way so the military can do what they need to do, so more uninformed liberals can feel safe walking the streets.

Everyone of you liberal on this blog are not only ignorant to American History, you are also traders to your own country and shame on you for it. I'll teach you a little history. First, Lincoln kept US civilians in prison WITHOUT a trial that committed acts of terrorism towards the north. FDR had 6 German civilans executed that came to our shores trying to commit terrorism during WWII. They were found guilty in a military commission instead of a civilan court. So NO Bush isn't the first president who has done this and YES it is perfectly legal to keep civilan ENEMY NON COMBATANTS in prison without a trial throughout the war. I find it funny that you idiots keep callng Bush a facist instead of our Jew Hating enemys. And lastly, if you guys are so mad about detainees not going to trial then how come when a 3 judge panel agrees with us then you are up in arms about it? Sounds like you are the facists and want the courts to only agree with you all of the time. I dare one of you guys to debate me right now about the facts I have just laid out!!!!!!!!!

Several comments:
1) Constitution does not apply to everyone in the world, only citizens. Sometimes courts have chosen to extend it as if it was written that way.
2) War is a legally defined term and all countries have the legal right of war. Some rules have been defined to protect those in uniform. Those fighting wars outside of uniform do not enjoy the same legal protection.
3) Most countries have a Secretary of War (or Secretary of Defense as the US has chosen to name the position now) who's job is to run the military and do everything that is legal and in their power to ensure the country for which they serve obtains its objectives. Torture could legally fall unter this, particularly for non-uniformed fighters which legally could also be considered spies.

People get confused in identifying what is illegal and what is just against their own morals and objectives.

It's OK to be concerned on moral or ethical grounds about what people do or don't do. It's also OK to work to change laws. Just don't confuse moral and legal.

From the terrorist perspective:

1) they are fighting out of uniform and therefore should be expected to be treated as spies, if cought. CIA, KGB, Mossad, and any number of other undercover intelligence organizations understand this.

2)If you are killing people intentionally and are not a uniformed soldier, then you most likely are committing some form of murder. Check international laws.

3) Even if they were uniformed soldiers, by intentionally targeting civilian populations (vs. collateral damage which is legally part of war) instead of the military, they would likely expose themselved to war crimes.

4) In the US, if they want to fall under all of our rules, intentially trying to harm, harass or kill someone (Christians, Jews, Atheists, Mormons, Buddists, etc.) because they are of another religion is a hate crime which I believe also may carry the death penalty.

5) Where there is credible suspicion that terror groups have plans to cause more damage or harm, then the President (Republican, Democrat, Independent, other) has the duty to protect the country and its citizens. People do not generally go around sharing the plans in advance and the knowledge needs to be pried from them (i.e. torture, pressure, intimidation, etc.)

Many of the same people that are screaming about the terrorists being tortured are the same ones that screamed we didn't do enough to discover what was going on before 9/11, the first world trade center bombing, embassy attacks, etc. Sorry, but it doesn't work both ways depending on how you feel for the cause at the time. Otherwise Presidents (of any party)and the country will make decisions on polls and nit the right thing to do.

Look how many rights the ACLU and other organizations have fought for and look at what the terrorists have been doing. Killing people for voting (see Sufferage and Fair Voting Acts), treating all people born or naturalized in the US as citizens (women, children, slaves, ethnic populations), killing people for attending schools other than religious schools (see women, women, children, slaves, ethnic populations), etc.

No look at the tactics used by the organizations, including religious groups use to assert their will... Public Beheadings, Firing Squards, Kidnapping to Kill and Kidnapping for Ransom (major income stream), Extortion, Threats, Murder/Threats against family members and the list goes on.

So next time you consider what is right or wrong, legal or not, consider all sides of the story and all of the crimes and consequences before deciding how much a victim people willingly fighting out of uniform are.

The people in Gitmo are not covered by or follow the Geneva Convention or rules of war. These are not enemy soldiers (POW) or criminals and should not enjoy the protections of our society as such. They are defined as terrorists because they do not represent a country.
Maybe we should trust our elected officials, men and women of the military, and most of all our country. Remember we did trie, convict, and hang the non-uniformed enemy in WWII. We have remained free as a society, not because we treat others better than they treat us, but we defeat (kill) them to preserve our freedom, not theirs. Our men and women are not supposed to die for our country, they are supposed to make the other "poor bastard" die for theirs. However, we come back to--they don't represent a country. Wake up and appreciate your freedom, not inspite of our country but because of it.

It's nice to see that the pro-Bush/hate America crowd has joined in on this discussion.

Posted by: Mason Moyer January 11, 2008 8:44 PM

Posted by: Steve | January 11, 2008 8:59 PM

Posted by: Rottie | January 11, 2008 9:28 PM

Nothing like having a bunch of raving idiots on here to call people who oppose torture in our name "anti-American", these nuts (see above) were also probably the same clowns who were voluteering to give up more of their Constitutional rights to BushCo after 9/11.

Go crawl back into your caves, you knuckledragging fascists:
http://www.bushflash.com/14.html

...and take Paulotard with you.

I guess that's it then. From Gitmo to Abu, conservatives can go around claiming these prisons were as gentle as a preschool.

Go ahead & spin that to the Arab world. I'm sure this ensures they'll respect the US even more.

Bottom line...Gitmo works.
This is war people. These people should not even be given trials until this thing is over. We did not put the Germans and Japanese on trial until the war was over. And anyone that disagrees is probably a whiner anyway.

RomanB,

Again, your intelligence astounds us!

When the U.S. releases some of these GITMO mutts back to their own Arab countries to stand trial on terrorism charges...they beg the military to keep them there.
Ever wonder why???

Your swamp cred took another hit!

Paulo

AJF, when you have no arguement throw out the facist/nazi term.

I guess its OK our own soliders get waterboarded, but the enemy combatants, not POWS, not get waterboarded?

These muslim scumbags are suspected terrorists and therefore need to be interrogated as thoroughly as possible, even if that method is considered torture by you liberals. A message to all you liberals: do not take the side of terrorists just because you dislike president Bush. That is inexcusable and idiotic. Radical muslims are the ones who truly use "torture". Get a clue liberals. By the way, Pelosi is as incompetent as they come. As an Italian american catholic myself, pelosi is a monumental embarrasment. She's as catholic as muslims are "peace loving". She's a fraud.

Mason Moyer:

1. Lincoln was wrong and so is Bush. The difference is that Bush could have learned from Lincoln's mistakes.

2. The Germans got what was called a "trial" before they were executed. Your little hero lacks the courage to provide that to the Gitmo detainees.

3. The "war on terror" is a rhetorical device, not a definable conflict. Who signs the surrender papers when we win? By your definition, the detainees stay locked up forever.

4. This appellate court decision had nothing to do with an appeal from a trial on the merits. There's no good reason why we can't conduct a trial.

5. A "trader" is not a bad thing to be. A knuckledragging moron is.

Wow, I've never read more from a bunch of panty wearing people in my life. You have AMERICANS(sic) crying because poor little torturing/beheading *TERRORISTS* were tortured?

You are all pathetic examples of men. You all need to put skirts on with high heels and hike your scrawny butts to a pole and dance for the REAL men and women that serve this friggin country. You crybaby terror loving beatniks.

I can't believe there is even a discussion on this! These people are barbaric and would cut your head off in a second if they could. You people on the left are nuts! They don't enjoy the rights of soldiers or citizens...they are terrorists. Remember, the people who killed over 3000 of us? Isn't 3000 enough for you whacked-out lefist idiots?

You know, having read the opinion, I never would have guessed this news article was about the same case. The above news article just doesn’t do the case any justice.

First of all, the Court of Appeals didn’t “toss” the case as much as it affirmed the District Court’s order dismissing most of the claims. The Court of Appeals only “tossed” the religious infringement claims the District Court refused to dismiss.

Second, the District Court didn’t say the government couldn’t be sued during wartime. The 34 page opinion of the District Court, which can be found here -

http://ccrjustice.org/files/Rasul_DISTGrantDeferringRulingMotionToDismiss_%2002_06.pdf

- says nothing about wartime being a factor in determining whether the government can be sued.

Third, the article above incorrectly cites “immunity” as the basis for the dismissal of the torture claims on the ground that torture was “foreseeable.” “Immunity” had nothing to do with the determination that torture was “foreseeable,” or vice versa.

Foreseeability was one part of a multi-part inquiry to determine whether a party is acting within the scope of his or her employment. This was relevant only because it was claimed that the defendants were all government employees acting within the scope of their duties. If so, then the plaintiffs had to comply with the administrative claims procedure of the Federal Tort Claims Act (FTCA), and the failure to do so deprived the District Court of jurisdiction to hear the plaintiffs Alien Tort Statute (ATS) and Geneva Convention actions. The District Court found that compliance with the FTCA was mandatory since the defendants were federal employees acting within the scope of their duties. As a consequence, those claims were dismissed for lack of jurisdiction.

On appeal, the plaintiffs argued that the military personnel were acting outside the scope of their duties when they allegedly committed torture because torture is never part of their job. Thus, they claimed they didn’t have to comply with the FTCA administrative claim procedure before filing suit, and that the District Court erred in dismissing their ATS and Geneva Convention claims on this ground. The Court of Appeals disagreed.

The Court of Appeals held that torts and crimes occur within “the scope” of an employee’s duties, for purposes of establishing agency, in part, if the conduct was “foreseeable” – meaning “‘a direct outgrowth of the employee’s instructions or job assignment.’” The Court was quick to caution that “foreseeable” in this sense doesn’t mean the same thing as it does in negligence cases, where aberrant criminal behavior is often found unforeseeable. Thus, it was enough to make the alleged torture “foreseeable” under the law of agency that it occurred as an outgrowth of the same custodial and interrogation duties of the defendants, all of which furnished both the occasion and opportunity to inflict the alleged torture. As a consequence, the Court of Appeals held that the District Court correctly dismissed the ATS claims for failure to follow the FTCA’s administrative claims procedure before filing suit.

The upshot is that Mr. Oliphant was plain wrong in stating “[t]he three-judge panel also held that the U.S. officials were immune from the torture claims because, as held by the trial court: ‘torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.’” The foreseeability and immunity issues were entirely unrelated. Significantly, the Court of Appeals never once condoned or approved of torture as the inevitable or foreseeable result of war. The plaintiffs lost on this issue because of a bone-headed procedural default, and not because the Court of Appeals likes torture.

Now, on the other hand, the Court of Appeals’ resolution of the other issues are troublesome. The Court held, for instance, that Guantanamo detainees lack constitutional rights and, therefore, could not claim violations of the Fifth and Eighth Amendments – because they are aliens who are neither are present in American territory or have property in said territory. However difficult it is to believe, there are cases out of the United States Supreme Court appear to support this proposition. The case of Johnson v. Eisentrager, 339 U.S. 763, 770-77, 783 (1950), is one of them. It held that a German national, captured in China, tried, then transported to Germany to carry out the sentence, had no Fifth Amendment due process rights. The fact the petitioner was an enemy alien who never set foot on U.S. soil appeared to be dispositive. (And see United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936), cited by the District Court, which said that “neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect to our own citizens.”)

Where I have difficulty with this line of reasoning is in the fact that Guantanamo is not exactly a foreign territory. Although, as the Court of Appeals points out, Cuba still has ultimate sovereignty over Guantanamo, the United States has effective, day-to-day control over the place, such that it is the only law there. Most certainly, even though Cuba has “ultimate sovereignty” it has exercised no sovereign rights in that area as long as we have been there under our perpetual lease. So the real question is: Just how much sovereignty or control must the United States exercise over a given territory for the Constitution to apply? That issue has not been squarely addressed or answered by the United States Supreme Court. Let’s hope this case gets there on that question.

The other problem I have is the way the Court of Appeals held that “person” under the RFRA. The Court of Appeals defined person to mean the same thing it means under the Fifth Amendment – i.e. a citizen or resident alien (thereby excluding extra-territorial aliens). In doing so, it overlooked the rule of statutory construction that words are supposed to be employed according to their normal import. In this case, a correct interpretation would have defined the word “person” to mean a living, breathing human being – without further qualification.

Finally, to those of you who think the Constitution only guarantees rights to citizens – you are wrong. The U.S. Supreme Court has been very clear that the Constitution also protects the rights of aliens residing in the United States and U.S. territories. (See Johnson v. Eisentrager, 339 U.S. 763, 770-77, 783 (1950); United States v. Verdugo-Urquidez, 494 U.S. 259, 269, 271 (1990); and Plyler v. Doe, 457 U.S. 202, 212 (1982)).

Thank You Chuck D for showing exactly what you liberals are. I made points about what America has done in the past and what America contiunes to do when they catch Non uniformed combatants. Then you go and call me names with no facts. When you can't win an arguement, call the other person a name. You guys are the real fascists because you want to convict my fellow brothers and sisters serving at Gitmo. See, innocent until proven guilty is what REAL AMERICANS want. It breaks my heart to be serving in the military right now and having idiots like you and RomanB thinking Bush is more of an enemy than Radical Islam. (21st century NAZIS) Try one more time to debate me about what Lincoln, FDR, and now Bush did to terrorists. GOOD LUCK!!

The comments on this story simply support my definition of a LIBERAL: a person who apologizes to his beheader for getting blood on his shoes.

I guess its OK our own soliders get waterboarded, but the enemy combatants, not POWS, not get waterboarded?

Posted by: Terry | January 11, 2008 10:58 PM

Terry, I have stated again and again torture is wrong, period. No matter who the victim and who the torurer. It is wrong to waterboard anyone, american or otherwise.

You want american troops torturing people in the exact same ways that the United States used to criticize nations like Nazi Germany, North Vietnam, the Soviet Union, and Iraq for doing. You want our methods to be no different fron theirs.

How can you get more un-american that that?

The incarcerated enemy combatants are treated to warm weather, free and open prayers all day and night long.The liberal Democrats want to give American Civil Rights to a band of Islamic radical jihadists terorists that kill American and Iraqi innocent women and children while hiding in schools, mosques and hospitals to hide their unspeakable crimes.
These people got what they deserve detention in a peaceful place with warm weather. I would propose sending them to Alaska where it is 40 degrees below zero this would give them a reason to pray and repent for their terrorist ways. I'm glad the appeals court never gave them what they did not deserve freedom for those who take ours away everyday throughout the world. In 08 elect a courageous Republican President who will keep us safe as President Bush has done so well. Jerry White, Springfield, IL

AJF,

If you stated it, it must be true (read w/sarcasm).

Have you ever spoke with someone that has been waterboarded? They have the crap scared out of them, but there is no permanent physical damage, so why is it torture?

Mason,
Lincoln suspended habeus corpus because the threshold necessary according to the Constitution had been met. Please read the part about invasion and insurrection. We are not under an invasion or insurrection, therefore habeus corpus cannot be suspended unless you are an activist judge who creates laws out of thin air. Good night.

PS Funny how you throw out that innocent until proven guilty line, I'm laughing at the irony of your arguments.

there is no permanent physical damage, so why is it torture?

Posted by: Terry | January 12, 2008 9:57 AM

Simply the dumbest comment on the Swamp so far this year. I guess John McCain wasn't tortured when they broke his legs and stabbed a bayonet thru his foot was he. After all I saw him standing on his own without the aid of crutches or a walker, so there was no permanent damage.

If under the Bush administration, Catholic Italians were in prison for years after being renditioned, without charges filed, without convictions, without a trial, & tortured at club Gitmo, Bush would have been impeached by now.

But since these are Muslims from countries most conservatives couldn't find on a map, that's fine. It's all justified under the "war on terror".

All those backing Bush can't explain why it's ok to blatently descriminate agianst Muslims in this way. There's never been one good argument made for this stupidity. Face it, you can't come-up with one.

Terry,

You need a new multi-vitamin.

Your recent posts have been exceedingly deficient.

Hey you nutty Wingnuts!

24 is a FICTIONAL TV SHOW, Jack Bauer is a FICTIONAL CHARCTER!!!!

Your support of torture also exposes our military people to torture from other countries, all they'll have to say is the Wingnut Party in America does it so why shouldn't we....you people are morons but I don't include Paulo in that group because he's a tard with a 60 IQ who doesn't know any better.

The wingers show that their lust for blood and torture exceeds that of the worst Gitmo "detainee". I don't see any so-called liberal calling for the release of these prisoners, just that they should be appropriately tried and convicted as the evidence dictates. I'd like to hear your tune if we were talking about American prisoners.

"Everyone of you liberal on this blog are not only ignorant to American History, you are also traders to your own country and shame on you for it."
Posted by: Mason Moyer | January 11, 2008 8:44 PM

Hey, I like Trader Joe's. I didn't realize he was a bad guy. Might want to check your spelling and grammar before you start slinging the "ignorant" card.

* * * * *

Posted by: Mason Moyer | January 11, 2008 8:44 PM

Mason,

I am not a “liberal” – as that term has come to mean in the modern times. However, I don’t believe the cause of conservatism is furthered by either a faulty resort to history or conducting a police state in plain sight. I also have some issues with your “history.”

First, Lincoln’s suspension of Habeas Corpus was unconstitutional. The Constitution gives Congress, and not the President or his officers, the power to suspend the Writ. (See U.S. Const. Art. I, § 9, cl. 2 – which is among the limitations on Congress’ power.) Justice Taney, sitting as a Circuit Judge, said so and ruled against Lincoln and his officers on this ground in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861).

Lincoln admitted his actions were arguably unconstitutional. He justified (or attempted to justify) his actions by claiming we wouldn’t have a Constitution for long if he didn’t act as he did. Given that Missouri, southern Indiana and Maryland (which surrounded D.C.) were hotbeds of Confederate activity, and had severe incidents of violence, rioting and political upheaval, he wasn’t far off the mark. In addition, Congress ratified his actions by voting to suspending the Writ in those places retroactively. The difficulty gathering a quorum in Congress in those days also excused, to a degree, his failure to resort to that body first.

Second, there is no difficulty at all with what FDR did to the German saboteurs who came to the United States. Their actions clearly violated the laws of war on several grounds – including, but not limited to, acting out of uniform and attempting and conspiring to cause unnecessary damage to civilian infrastructure and loss of life. They were tried and convicted by a military tribunal because military tribunals have always had jurisdiction over criminal prosecutions for violations of the laws of war.

Third, neither of the two preceding incidents furnish a legal basis for what people are complaining about here. Holding a P.O.W. for the duration is permissible under international law. But torture and mistreatment are quite different. Torture and mistreatment violate the laws of war, the Geneva Conventions, domestic American law and military regulations. Neither Lincoln nor FDR, nor any of their subordinates, ever authorized anyone to torture or mistreat prisoners. It is precisely this kind of mistreatment that people are complaining about here.

Fourth, both Lincoln and FDR could admit they were wrong, and did so on a number of occasions. Never a word of that sort has ever issued from the President for any of his more-than-arguably unconstitutional behavior.

Fifth, I hope you didn’t mean to write that, “it is perfectly legal to keep civilian ENEMY NON COMBATANTS in prison without a trial throughout the war.” That is simply not the case. “Civilian enemy non-combatant” is a complex oxymoron. Under the Geneva Conventions, one is either a civilian or not, and/or a combatant or not. Civilian non-combatants are given protected status, and, if detained on foreign soil, are supposed to be released the moment the reason for their detention ceases to exist.

In a war against terrorism and terrorists, our enemies are either actual combatants (i.e. terrorists and those who aid and support them), or they are not our enemies at all. Not all of our enemies come from the same country or countries and, thus, it is improper and impossible for us to target non-combatants based on alienage.

Finally, I would like to make the observation that, as a conservative, I expect conservative leaders to act like conservatives. When they stop acting like conservatives, I stop supporting them.

In this regard, conservatism is supposed to be about maintaining “FREEDOM” by preserving traditional values and keeping government out of people’s lives. That’s what Eisenhower, Goldwater and Reagan kept telling us. I believed them when they said it, and I still do. Thus, I don’t see how the causes of freedom or conservatism are furthered by brutality and police-state tactics – even if directed at aliens. If we are supposed to be that shining “city on the hill” like we claim to be, we ought to act like it. If we don’t, we’re not going to inspire anyone in the non-democratic world to adopt our ways unless they, too, like brutality and police state tactics.

Jethro,

Showing off that gov't education again. If you didn't know, Senator McCAin can lift his arms over his soliders from the torture he endured in Hanoi Hilton - you know the confines that lefty Jane Fonda gave four stars? That was torture - physical damage to the body.

Doogie,

thanks for brilliant insight - only from a union person would I get that depth.

"Everyone of you liberal on this blog are not only ignorant to American History, you are also traders to your own country and shame on you for it.
Mason Moyer"

I love it when the real 'base' shows up and tries to 'express itself.

Senator McCain can lift his arms over his shoulders from the torture he endured....

Brilliant insight indeed.

ohwells,

My typo - Senator McCain can NOT lift his arms over his shoulders.

Reasonable people can disagree about the justifiability of torture in the scenario where it's the only, or the best, way to get information that could save thousands of innocent lives... but I doubt that that scenario ever occurs outside "24". The CIA has fairly consistently opposed torture in Gitmo, not only because it's illegal and immoral but more importantly because it doesn't work. Torture is fairly effective at getting people to tell you what you want to hear, but not so effective at getting people to tell you the truth.

Imagine, hypothetically, that one -- just one -- of the hundreds of Gitmo detainees was picked up by mistake and has no actual terrorist connection, and put yourself in his shoes. You say, truthfully, that you don't know anything. They torture you; you repeat the truth, and the torture continues. Obviously, the tactic of telling the truth isn't working, so (since your top priority is to stop the torture) you fall back on Plan B: tell them something they'll believe. If they want to hear about a plot to blow up the Sears Tower, then for God's sake give them a plot to blow up the Sears Tower, and make up some plausible Arabic-sounding names.

Several people have posted that they're not concerned about the "rights" of terrorists who want to kill innocent Americans. I agree that such people have forfeited a large part (though perhaps not all) of their rights -- if they are in fact terrorists. The Gitmo detainees, however, are not convicted terrorists, nor indicted terrorists, nor accused terrorists, but merely alleged terrorists. What's the difference?

"Jerry White is a terrorist." (Nothing personal; I just picked a name at random from the discussion above.) He is now an alleged terrorist, on a par with the Gitmo detainees. I have presented exactly as much evidence for my claim as the Bush administration has presented for the "terrorist" or "unlawful combatant" status of most of the Gitmo detainees. How much of his rights should he therefore lose, and for how long?

In ordinary criminal justice, a certain percentage of people arrested are released without charges, because the police conclude that they got the wrong person. Of those charged, a certain percentage never come to trial because a grand jury or a judge doesn't find enough evidence. Of those that come to trial, a certain percentage are found innocent. And of those convicted, a certain percentage are later acquitted on appeal. I don't know these percentages, but let's guess that each is at least 10%. So at least 30-40% of all people arrested for ordinary crimes turn out to be innocent of those crimes. We accept this error rate because most of them are released reasonably quickly, with no stain on their records, and we need to arrest people temporarily in order to find the ones who are guilty.

Now, is there any reason to believe that the U.S. military, with little background in law enforcement, is dramatically better at arresting the right people than the civilian police? If not, then we have to assume that at least 30-40% of the people detained at Gitmo are innocent -- not "off on a technicality," but truly and completely innocent, in the usual sense of that word: they have no more to do with terrorism than you or I. But since there is no process for them to challenge their detention or the evidence against them, and only a handful of them have been given even military-commission hearings, something like a hundred innocent people (along with, presumably, a number of real terrorists) will be locked up and tortured indefinitely. Is this acceptable to the American people?

It's true that in times of war, suspected spies are often locked up and not properly tried until the war ends. But, like the "war on poverty" or the "war on drugs", the "war on terror" won't have a clear, objective end: there is no enemy to surrender, so in practice the war will continue for exactly as long as the President says it does. In that context, we must be even more suspicious of a process that allows the President's political appointees to lock people up indefinitely without presenting any evidence of any wrongdoing to anybody.

Terry,
But breaking his legs and stabbing a bayonet thru his foot was ok because there was no permanent damage to his feet or legs? Funny how I say legs and you mention arms. Maybe this time you'll respond to what I said. And in your first post you said PERMANENT physical damage and then you just lowered the threshold to physical damage. Just admit you made a mistake and didn't mean there has to be permanent damage for it to be considered torture. It won't make you less of a man to admit you were wrong.

Jethro,

Good call on the detail - physical damage, permanent or temporary. Of which waterboarding has neither.

"If we don’t, we’re not going to inspire anyone in the non-democratic world to adopt our ways unless they, too, like brutality and police state tactics."

Soo this would lead one to believe one way of "inspiring" non-democratic countries to "adopt" our ways is to conform to their brutality. Kinda like - they're brutal, only understand brutal, so we must be brutal... to make them understand. You have stumbled upon the framework from which this new species of conservatives types away from the safety of their homes and offices.

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Posted by: eman | January 13, 2008 2:19 PM

eman:

The plain point of what I wrote was that we are an example for good or bad, and that others might think it is okay to emulate whatever bad stuff we do. History has proven this to be the case. Therefore, doing the bad stuff is inconsistent with our role as that "bright city on a hill. I’m sorry I had to spell it out to you.

If you didn't get it, and could turn my words around to take a snarky jab at conservative keyboard warriors, then you need to go back to sleep. You haven't woken up yet.

I know what you meant.
I isolated those lines because they prompted my own thoughts. That's why I said "you have stumbled upon." Meaning I know you did not mean this... I know better than to insult the Swamp's resident gentle giant.

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Posted by: eman | January 13, 2008 5:44 PM

Aw shucks, now I feel bad for my reply.

I apologize.

[Enjoy it. Those words don't get printed often enough on the Swamp.]

All the same, I still don't think you can say what you said about all conservative leaning bloggers on the Swamp. Not all of them think that torture or mistreatment are good.

There is no need to feel bad or apologize. Although, I admit it feels pretty nice basking in the glory of those words on here. What I said was only in reference to the "new conservative species"...dead-enders/neo-cons/keyboard commandos. I try to get creative in order to avoid the terms and you bust my chops. That's what creativity gets you..misunderstandings. Don't worry, I know all conservatives, like all liberals, are not made alike. You have been and continue to be a reminder of that fact.

Two of the most important differences between civilized democracies and 'rogue states' are the legal system and the obedience to human rights. This means that people only can be detained for years or even be executed after a complicated and lengthy legal procedure which determins, if the suspect actually is guilty. During this procedure the suspect's human rights of course are respected, even if he turns out to be guilty.
The main goal is the protection of the innocent and of values like humanity, fairness, decency, even if the prosecution of criminals or terrorists sometimes may be less effective or at least more complicated. Civilized democracies, and the US in particular, are very proud of these values, which are an important part of their self-esteem.

By detaining suspects for an arbitrary time without any chance of a fair trial, facing judge and jury, all values of a democratic legal system are betrayed. This is the manner of 'rouge states' which just don't care about the innocent as long as the 'enemy' can be prosecuted and destroyed most effectively.
Re-defining measures which previously (by the civilized world including the US) had been called 'torture' as some kind of 'tough interrogation' is just unworthy for the world's (once) leading democracy.
Re-defining terrorist suspects, who (in every other civilized country) are just treated like ordinary criminals, as 'illegal combattants' who have no legal rights and are depending on the verdict of some military- and intelligence- officers is more the manner of military dictatorship than of a democracy.
Speaking of hundreds of prisoners who are just suspects, since none of them ever had been convicted by a court, in general as 'terrorist animals', 'bastards who killed 3000' obviously is absolutely wrong and only can be explained by blind hatred.

Over the last years some hundrets of suspects (who obviously were innocent) have been released, often after years of detention, without having ever heard what they were charged of, without any trial, deprived of any rights, subjected to intimidation, humiliation and some kind of 'torture light'. They got no compensation, no official apology for the injustice they experienced.

Maybe the way, these guys from UK are seeking 'justice', is wrong in legal terms, but anybody who is not just full of hatred, but able to think reasonably and has some sense of decency and justice, should come to the conclusion that these and other innocent victims of this 'war on terrorism' should receive an apology and compensation. What would any of us say if we were treated like that by a foreign state - just 'bad luck, forget about it' ?