War on terror now the criminal investigation of Islamist naughtiness?
posted at 12:30 pm on June 13, 2008 by Ed Morrissey
J.D. Johannes believes that the Supreme Court decision yesterday granting habeas corpus to unlawful combatants for the first time in our nation’s history requires a slight nomenclature change. With American troops now expected to act as policemen instead of warriors, the produce of the Outside the Wire documentary series says “war on terror” is no longer applicable:
The U.S. Supreme Court, by granting the Writ of Habeas Corpus to enemy combatants, has declared the the war on Islamic Terrorism over.
It should now be properly phrased the criminal investigation of Islamic Terrorism.
He includes a clip from his documentary to demonstrate the only agents of habeas corpus on the battlefield — the US military:
The 5-4 decision reverses over 200 years of American war precedent, as well as turn the Geneva Convention on its head. Unlawful combatants now have more rights than POWs, whom the GC forbids access to civilian courts. POWs facing war-crimes charges have to be tried in military tribunals, not civil courts, but terrorists somehow now have better standing than those captured in uniform.
Yesterday, Senator Lindsey Graham suggested that he may pursue a Constitutional amendment to return the US to the proper course on the detention of unlawful combatants. Unfortunately, that may be the only course left open to Congress and the executive branch, which has now twice established a system that granted far more rights and even limited access to appellate courts than ever given unlawful combatants in our history. It will take longer than this session of Congress to construct an amendment that would reverse the Court’s decision yesterday, and the course of the upcoming election may make ratification difficult.
In the meantime, expect the US to start sending detainees back to home countries like Egypt, Jordan, and Afghanistan rather than keep them here. For those who complained about the “rendition” policies of the past (which the Clinton administration started), this court decision leaves the US little choice. We are not about to release Khalid Sheikh Mohammed and his pals so that they can put together another 9/11 and kill thousands of more Americans. If we can’t keep them locked up here and out of harm’s way, we’ll send them where others can do so — if we don’t just follow the strict application of Geneva and simply kill them rather than take them prisoner in the future.
Blowback
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CSI: Kabul
I bet a lot of these terrorists, instead of being captured, are now going to go down fighting.
rbj on June 13, 2008 at 12:34 PM
We should just be killing them in the battlefield then.
We’ll lose intelligence that way, but it’s better than letting them go free.
Esthier on June 13, 2008 at 12:35 PM
I prefer the criminal investigation of Islamist naughtiness. There is no reason we cannot be hilarious as well as determined.
muyoso on June 13, 2008 at 12:37 PM
there are 5 SCOTUS members who should be impeached
jp on June 13, 2008 at 12:37 PM
The democrats would spend more time and money investigating republicans than Al Qaeda for crimes. TThey just want the WOT to go away and not be a issue even for discussion.
Its the Bill Clinton doctrine all over again let americans die in terrorists attacks and launch a few missiles to make it appear they are “Tough” they blow millions on worthless vote buying social programs.
William Amos on June 13, 2008 at 12:38 PM
Graham was showboating. There’s no way an Amendment will be passed, so his proposal was nothing more than empty rhetoric.
The appropriate way to treat this political ruling is to treat it as POLITICAL. Balance of Power between the branches of government cannot exist if there is no pushback against political rulings from the Court. The President should ignore the Court. Seriously. He should ignore it. He swore an oath to protect Americans from the terorists, and giving KSM access to the liberal courts is not consistent with that. The Courts are wholly corrupt and full of left wing lunatic judges who cannot wait to release the Gitmo detainees. Then you’ll have terrorists walking the streets of America, as they apply for bail and are released.
The President should ignore the Court. Congress ain’t gonna impeach him anyway with the clock running out. In that time, he should park the detainees on a deserted island in the middle of the Pacific, get the Navy to guard access to that island, and then wash his hands clean of them.
Sydney Carton on June 13, 2008 at 12:39 PM
The Supreme Court ruled that the War on Terror is unconstitutional.
We’re going to hit again. Hopefully it won’t be nuclear.
indythinker on June 13, 2008 at 12:39 PM
… granting habeas corpus to unlawful combatants for the first time in our nation’s history …
What are you talking about? We did the same thing for the Barbary Pirates back during the …
What? We DIDN’T? But but but …
Tony737 on June 13, 2008 at 12:40 PM
At this point, if you are a terrorist anywhere in the world and you are about to be shot by an American soldier, you can just throw your guns down and surrender. The American soldier cannot shoot you. He must take you prisoner. Then you are put on a plane and taken to America. You are given an American lawyer and you make a habeas motion in American court. Most likely, you will be freed and given a visa to stay in America or perhaps simply offered citizenship.
indythinker on June 13, 2008 at 12:42 PM
I think everyone’s gone off the deep end a bit here. All the Supreme Court ruling means is that U.S. troops have to kill all enemies that attack them, and not take any prisoners. Frankly, it probably saves us a lot of trouble.
Enrique on June 13, 2008 at 12:42 PM
Two points.
Primus:
Because this decision specificly said that although Gitmo was by treaty not US Territory, but that the Constitution still was in force there, as it was a US controlled installation… that means that by that same arguement, and SC decision, that ALL US military installations, even if on foreign soil, are now covered by US Habeus Corpus, and thus under the authority of the US court system.
Thus ANY prisoner brought to ANY Military base, must now be treated as though they were in the US Judicial system.
Secundus: Unless you are a US citizen, it is NOT unlawfull to carry arms against the US, so we can’t “Charge” them with that… we can’t charge them with attempted murder, as they are outside of US Jurisdiction… so, just what “Charge” can we use to hold them?
These two consequences of the Supreme Court rulings, once set before a Liberal Judge (which can now be shopped for), will make it impossible to hold ANY prisoners in the current conflict.
Romeo13 on June 13, 2008 at 12:44 PM
The SCOTUS FIVE sing: War Is Over (If You Want It).
The Jihadists laugh, and sharpen their knives.
Ready to give them all new mouths to warble through.
Yodeling:
The Constitution IS a sucide pact.
profitsbeard on June 13, 2008 at 12:44 PM
I think persons who are being detained for crimes committed in the United States should be given habeas corpus and tried in a civilian US court, such as Khalid Sheik Mohammed.
As for most of the detainees at Guantanamo, they haven’t been involved in crimes in the United States, so on what grounds could a civilian court allow us to continue their detention? They haven’t violated any US laws or committed any legal infractions in the US. US laws only apply in the US, so we can’t exactly try them for, eh… fighting our forces in Afghanistan. That’s not a crime.
There are crimes we could try Khalid Sheik Mohammed for, but not most of the other detainees. Giving all of them habeas corpus defies logic and history.
Simply moving them out of Guantanamo, or giving them POW status, will strip them of their brand new shiny habeas corpus rights, which mocks the entire reasoning behind the ruling.
Seixon on June 13, 2008 at 12:47 PM
That is really the only correct answer now.
The ones we have now should simply, quietly be “set free” on a battlefield in Iraq.
12thman on June 13, 2008 at 12:48 PM
Problem is that we are NOT Constitutionaly at war. War was never declared, and thus a Leftist Judge could easily rule that you can’t have Prisoners of WAR, when you are not in a Constitutionly correct state of War.
Romeo13 on June 13, 2008 at 12:49 PM
Not if we give them POW status, which is bad but not as bad as having 0 ability to detain.
12thman on June 13, 2008 at 12:51 PM
I hope I dont get that duty, I have already patroled off the coast of a lifeless desert sh**hole populated by nothing but criminals and victims. It was called Horn Of Africa Ops.
Squid Shark on June 13, 2008 at 12:51 PM
I may have to alter my thinking, that somehow this great nation will be able to right itself. I will start looking for a cave to live in…
Lunkinator on June 13, 2008 at 12:51 PM
Geneva is actually unclear on irregulars.
Of course, in war, in case of confusion, just shoot them.
Squid Shark on June 13, 2008 at 12:52 PM
Well that part is good. I don’t think that during WWII we had a “war on dive bomerism” or a “war on blitzkriegerism”.
MB4 on June 13, 2008 at 12:57 PM
I hope you don’t mind…I couldn’t resist…
Liberty or Death on June 13, 2008 at 1:01 PM
It’s more like this…….Law and Order: Terrorism Investigations
Who gets to play ADA Jack McCoy?
Dr.Cwac.Cwac on June 13, 2008 at 1:02 PM
… simply kill them rather than take them prisoner …
Two in the chest, one in the head, makes a muj happy, horny and dead.
Tony737 on June 13, 2008 at 1:05 PM
Funny. That’s what I said yesterday.
Dr.Cwac.Cwac on June 13, 2008 at 1:06 PM
The answer is very easy. Those we don’t kill, we hold for a moment before an Iraqi officer and “apprehend” him, and therefore, he is not OUR prisoner of war.
muyoso on June 13, 2008 at 1:09 PM
Isn’t/Wasn’t Korea a “police action”?
You mean we can’t draw any parallels to this?
Dr.Cwac.Cwac on June 13, 2008 at 1:09 PM
Finally, the Socio-Communists got what they wanted:
Fighting our enemies with ‘Candy Canes.’
Indy Conservative on June 13, 2008 at 1:13 PM
Go and read this reaction.
I R A Darth Aggie on June 13, 2008 at 1:18 PM
Yep, but in Korea and Viet Nam, and Desert Storm, we never brought Prisoners to US soil… Last time we had POWs on American soil was WWII I believe, you know, the last time we had a Constitutional War?
Romeo13 on June 13, 2008 at 1:18 PM
Go back and re-read your history. After a string of brilliant/magnificent military victories courtesy of the U.S. Marines and their North African mercenary allies, Jefferson’s secretary of state sold them out and paid a ransom to the pirates in order to secure the release of the U.S. sailors that were being held hostage. It was one of the more shameful episodes in U.S. history — and one of the reasons that Teddy Roosevelt thought that Jefferson was the worst U.S. President of all time. (What would T.R. think of Jimmy Carter?)
I admire Jefferson in many ways, mostly because he was an advocate of a limited federal government and because he HATED the supreme court – but the war with the Barbary pirates was NOT his finest hour.
My collie says:
CyberCipher on June 13, 2008 at 1:19 PM
Well. Why don’t we do this then? Build a huge pen out in the middle of the desert (of the country that we catch these POS) that is in part run by the police/army of that country? I think Sheriff Joe Arpaio could give them some pointers.
Dr.Cwac.Cwac on June 13, 2008 at 1:21 PM
I think putting Al Queda terrorists on trial is a great idea. Let’s start with the bomber of the USS Cole. Care to tell us who provided the bomb material? Yeah! I know! Let’s put that in the public domain, in public courtrooms, where all the world can see!
Former FBI Director Louis Freeh says the bomb residue tests indictated Russian RDX, so (pg282 of his book, MY FBI) he says he personally called his counterpart in Russia and confirmed it.
Yesterday, I got a letter from the FBI re a Freedom of Information Act Request for a copy of the bomb residue test analysis that FBI Director Freeh referred to.
Eight years after the bombing, the FBI refuses to declassify the bomb residue analysis test results. Now…one of the three people who have been water boarded by the US is the head of the USS Cole bomb plot. He’s one of only 2 people to be held accountable for the bombing (both in Gitmo). Put em on trial, and that bomb residue test becomes public. The bomber says he bought the hundreds of pounds of RDX. From who? Families of the Cole finger the Yemeni government. The last Iraqi Perspectives Project Report on Saddam’s Ties to Terror show that the Saddam Fedeyeen prepared something called Operation Basra Revenge, and it sounds a lot like the Cole.
Let’s find out. Put it in the public record.
EXIT QUESTION: does this make soldiers and Marines more or less likely to take prisoners in the heat of combat?
scottm on June 13, 2008 at 1:23 PM
Actually, yeah, we are… even though the words “The United States declares war” were not used, every legal analysis I have read of the declarations re: Afghanistan and Iraq say they meet the constitutional requirements as a declaration of war.
Besides… don’t you think the MoveOn crowd would have challenged them by now so they could prove “Bush Lied!” if they thought they had a leg to stand on?
hindmost on June 13, 2008 at 1:26 PM
I like it, but from a leftist talking point view would that not be the same as the illegal rendition program? I mean, those evil third world barbarian allies of ours might torture them or… make them sad… or somthing…
Romeo13 on June 13, 2008 at 1:26 PM
Two choices.
1. Apprehensive to fire weapons for fear of being prosecuted. Needless deaths of our fine servicemen and servicewomen.
2. Use weapons so as not take prisoners. Get prosecuted for overuse of force.
Either way. SCOTUS has tied one hand behind the back of the military.
Dr.Cwac.Cwac on June 13, 2008 at 1:30 PM
Undocumented combatants.
whitetop on June 13, 2008 at 1:31 PM
Romeo13, you seem to be missing a big point. These AREN’T prisoners of war. We already have established protocols for dealing with prisoners of war.
These are illegal combatants. They are illegal because they dressed up like civilians and hid amongst the civilian population – that’s a big no no in the Geneva Convention.
And the problem is, the SCOTUS just gave them MORE rights than POWs even have!
So right now, if you are captured as a uniformed fighter, you have LESS rights than if you ditch the uniform and start killing civvies.
That’s why this is so screwed up
apollyonbob on June 13, 2008 at 1:31 PM
I was thinking joint operations. Make it appear as if the host country is running the facility, yet we have command and control over the detentions.
Dr.Cwac.Cwac on June 13, 2008 at 1:31 PM
Next: Terrorist-Americans
whitetop on June 13, 2008 at 1:32 PM
“No prisoners!”
– Lawrence of Arabia
mojo on June 13, 2008 at 1:33 PM
Funny thing is that the Geneva convention has changed its language from War, to Armed Conflict… so under the Geneva Convention we’re good…
Whats interesting is that I can’t find any US Law that says we can keep POWs, except under the Treaty obligations of the Geneva accords…
Problem is, that under Geneva, these guys do NOT qualify for Prisoner of War status, as they do not wear any recognizable symbol of their status in a Military or Militia… and are not covered under the “pick up a gun to defend the homeland” rule as they have had time to form militias.
No Uniform? Or Symbol of group identity? No POW status under Geneva… its very clear.
So, as US law must conform to Geneva, these guys could go to the US court, and have hearings on their status… and the courts would grant them… which in turn is the same thing as the Courts did with this decision.
Romeo13 on June 13, 2008 at 1:34 PM
Yeah we’ll have to start using a black prison system, like the CIA had/has.
I mean, it’s retarded, but that’s what we’ll have to do.
apollyonbob on June 13, 2008 at 1:37 PM
I get your point, but the ruling yesterday was that since Gitmo is under US command and control, it must abide by Habeus Corpus. In fact it specificly dismissed the governments arguements that Ownership, treaty obligation, or territorial juisdiction were valid.
Therefore, since ownership nor territory is not the criteria, it implies that Command and Control is.
Remember, with the ability to shop for judges, the MOST liberal interpretation will eventualy come out…
Romeo13 on June 13, 2008 at 1:41 PM
…paid a ransom to the pirates … – Cypher
True, but we didn’t let them have their day in court here in the U.S.
Tony737 on June 13, 2008 at 1:47 PM
Oh, I understand the point, I was answering someone else who wanted to give these guys POW status… which under the Geneva Convention we CAN’T do. So I was looking to see if there was some US Law that would let us do that… somthing from Pre Geneva?
Problem is the best pre Geneva situation to look at would be the US Civil War, but since Lincoln did everything through executive authority, theres not basis in LAW that I can find to hold POWs.
Which was why the whole enemy combatant thing started… but now that the SC has essentialy thrown out our ability to make someone an enemy combatant without going through the whole US Judicial system… we’re hosed.
Romeo13 on June 13, 2008 at 1:52 PM
Oh, it’s worse than that, Romeo13, in part because Allah is wrong in his emphasis.
The whole point of the Geneva Conventions is to prevent States from treating prisoners under their own law. Easy enough to pass a law saying taking up arms against us is illegal, punishable by torture, then applying it to anybody who gets caught. It’s not that prisoners are forbidden to seek relief through their captor’s courts; it’s that the captors are forbidden to seek punishment that way.
Justice Kennedy and the Court majority have now declared that principle inoperative. Captives must be treated according to U.S. law — and, by clear and obvious reciprocity, Americans captured by others must be treated according to their captors’ local laws. Not just soldiers, either — recall that in this case the crux of the matter is whether or not the prisoners are, in fact, “combatants”. It means that other countries are also free to define “combatant” according to their law, which in turn means that kidnapping a civilian contractor becomes perfectly legal under the New Regime; they can define “combatant” however they wish.
In a way it’s a relief to have the Conventions finally declared a dead letter. They have been for a long time, largely because uninformed opinion is that they mean you have to be nice to captives, and that’s what was being enforced against Americans only, with others given a walk. Justice Kennedy has now destroyed the underlying rationale of the Conventions, so we can just forget them.
Regards,
Ric
warlocketx on June 13, 2008 at 2:28 PM
If they are not in uniform then they are spies right? Shoot em’ I can’t believe this. Our ruling elite have completely lost their minds. What’s next? Gun Control for deployed troops? “
ronsfi on June 13, 2008 at 2:40 PM
Fine, send them back to their home countries and hope they are “dealt with” properly.
ThePrez on June 13, 2008 at 3:13 PM
Ouch… very good point. Is it then time to “update” Geneva for the age of asymetric warfare?
Romeo13 on June 13, 2008 at 3:32 PM
“John Marshal has made his ruling. Now let him enforce it.”
-Andrew Jackson
Perhaps we should take a page from ‘Ol Hickory.
Militant Bibliophile on June 13, 2008 at 3:37 PM
One can almost visualize the scene at Normandy, as American troops stagger off the landing craft, encumbered by several volumes of legal precedents, and accompanied by 2 civil rights lawyers in each landing craft. Unarmed, for fear of harming individual German soldiers without probable cause, the Americans shout (politely) that the Germans have the right to remain silent, and that anything they say can and will be used against them in a court of law…
morganfrost on June 13, 2008 at 4:21 PM
Bingo, I ever get sent to a war zone, I’ll order my men to not take prisoners under ANY circumstances. Shoot first, shoot last, shoot while they are surrendering.
Tim Burton on June 13, 2008 at 4:35 PM
Any congressman, senator or presidential candidate who does not clamor for the impeachment of these justices should be sent home. The security of our nation is not taken seriously by any of them.
snaggletoothie on June 13, 2008 at 5:04 PM
Unintended Consequences Alert!
Fraking liberal Supremes. But at least we will always know they meant well.
Maquis on June 13, 2008 at 5:19 PM
I want to know why all the German POWs held on US soil were not granted access to US courts during WW2? I am expecting a lawsuit from Germany now…
James on June 14, 2008 at 10:12 AM
The Geneva Convention is a laugh and a gas too. I want to know where decapitating prisoners is considered in line with Geneva Convention rules.
James on June 14, 2008 at 10:14 AM
http://en.wikipedia.org/wiki/List_of_POW_camps_in_the_United_States
James on June 14, 2008 at 10:16 AM
This is why Israel kills most terrorists instead of capturing and trying them. If you kill a terrorist, there is a 100% certainty that they won’t commit another terrorist act. I’m afraid to say that America is now in a sadder state of affairs than even Israel.
It’s a sad day in the fight against evil. I fear more for America’s safety now more than ever.
-OC
olah chadasha on June 15, 2008 at 6:55 AM