Meet the new gulag, same as the old gulag
By Thoreau
Since this is Easter, let’s talk about the resurrection of Guantanamo. Obama has promised to shut down the detention camp at Guantanamo, because it is customary to release a prisoner each year, and he was unable to comply with requests to release Roderick, Roger, Silus the Assyrian Assassin, and Several Sedicious Scribes from Cesaria. However, while Guantanamo may go away, it shall rise again in the form of Bagram:
President Obama ratified the following charade to make “enemy combatant” determinations at Bagram, which can be the equivalent of life sentences. The initial judgment is made “in the field.” It is reviewed within 75 days, and then at six-month intervals. The reviewing body is the Unlawful Enemy Combatant Review Board, a panel of three commissioned officers. It examines “all relevant information reasonably available.” The detainee is denied access to a personal representative or lawyer. He is denied access to the government’s evidence. He is denied an opportunity to respond in person. He is limited to submitting a written statement without knowledge of either his accusers or the allegations that must be rebutted. After its sham hearing, the UECRB makes a recommendation by majority vote to the commanding general as to whether the detainee is an “enemy combatant.”
Now, if we were only talking about people captured out of uniform in the active war zone of Afghanistan, maybe an argument could be made. I’m not an expert on the Geneva Conventions, so I’ll let somebody else take up the issue of what, exactly, is required for suspected unlawful combatants captured in the heat of battle. I can at least see the argument that when the bullets are flying you can’t follow every procedure, but I would nonetheless be wary of using that as a carte blanche.
However, Bagram isn’t just for people captured out of uniform in the heat of battle in Afghanistan. They’re dragging people from around the world to Afghanistan so they could be held in a war zone, since the case for letting the executive branch do what it wants is strongest least weak when and where the bullets are flying. Yes, just about all of this was going on before Obama, but Obama appears to be ratifying and continuing it.
This thing is on autopilot. Say what you will about Obama, but the machine continues to run unabated, because this is the nature of Empire. Bagram is the new Guantanamo, and we cannot rest easy as the prison at Guantanamo closes. If anything, Bagram will be worse, because it is even farther from the US, in a place even more dangerous and more difficult for journalists and lawyers to reach. In this, at least, Obama is smarter than Bush: If you want to have a gulag, you have to put it in a remote and dangerous locale (like the Soviets did in Siberia), not on a tropical island in a region where planes can fly without being fired upon.
Comment by Eric the .5b —
April 12, 2009 @ 6:22 pm
He totally pinky-swears that they’re not being tortured, though, so we libertarians should shut up and be happy.
Comment by joe from Lowell —
April 12, 2009 @ 8:40 pm
Your evidence for this is…what?
I’ve only seen cases of people captured and shipped there during the Bush administration. Is this the part where people who think executive orders are “pinky-swearing” abandon their principles about the accumulation of power by the executive branch being an expected part of how the modern government operates apart from particular policies, and claim that the executive only seeks to extend and maintain its power in specific areas where it intends to act?
Comment by joe from Lowell —
April 12, 2009 @ 8:42 pm
Oh, and let’s see if we can manage to have a thread about the topic of the post and the ideas raised, without pointless diversions into unrelated actions by the administration, references to fellatio, or the use of the word “partisan” as an amulet against thought.
That would be an interesting turn of events.
Comment by Thoreau —
April 12, 2009 @ 8:57 pm
joe,
The article describes the Obama administration’s procedures at Bagram as:
My understanding of the article is that this procedure was put into place by the Obama administration for a prison holding a lot of people captured far from the battlefield. Moreover, even if we restrict our attention to people captured in Afghanistan, on the generous assumption that nobody will be brought from outside of Afghanistan to Bagram in the future, there is a well known history of innocent people being handed over to US forces by Afghans seeking favors and bounties of various sorts. So this procedure seems woefully deficient even for this particular combat theater, given the history in Afghanistan.
Comment by Thoreau —
April 12, 2009 @ 9:00 pm
Meanwhile, as per Greenwald, the Obama administration is appealing the ruling discussed in the article above, and is seeking to continue to hold prisoners at Bagram without access to outside tribunals.
http://www.salon.com/opinion/greenwald/2009/04/11/bagram/
Given what has been going on at Bagram for several years, arguments premised on Bagram only holding non-uniformed combatants captured on the battlefield are weak at best. Bagram is a cesspool that needs to be cleaned out in the same manner as Gitmo, rather than being used to continue the Gitmo policy under another name.
Comment by joe from Lowell —
April 12, 2009 @ 9:05 pm
Thoreau,
Your post reads:
Did you not mean “it” to refer to the practice of transferring detainees from elsewhere to Bagram? Because that was the assertion I was referring to.
I agree with you about the status-review procedure being inadequate, btw. It violates Boudemienne, and it violates the Third Geneva Convention. I’m looking forward to a SCOTUS decision on this, but as you say, this is a separate question from the matter of whether detainees from elsewhere are being transfered to Bagram to avoid the requirements of Boudemienne.
Comment by joe from Lowell —
April 12, 2009 @ 9:10 pm
The practices of torture and unreviewable detention certainly need to be ended, and we’re 1/2 on that front. However, while there is absolutely no need to have a Gitmo, a lawless prison camp for people captured as terrorists, or the black site prisons that have been ordered closed, or the CIA detention that has been forbidden (since we have perfectly lawful prisons in the United States that will serve that purpose), we actually do need to have a prison at Bagram to hold the people we capture in the Af-Pak war. Guantanamo can be “ended,” but Bagram needs to be reformed.
Comment by Eric the .5b —
April 12, 2009 @ 9:15 pm
So your argument is that we’re misrepresenting innocent blind groping for greater power by your guys in office. (Odd, I thought you always insisted Blues WEREN’T into the broad acquisition of power and only did it for very deliberate, necessary reasons…)
Maybe if someone doesn’t want to go on about how everyone who disagrees with him are “poseurs” who “abandon their principles”?
Comment by Nell —
April 12, 2009 @ 9:15 pm
@joe from lowell:
People kidnaped/captured from places all over the planet and shipped to Bagram are in the same situation as prisoners at Guantanamo, Judge Bates recently found; he ruled that they* have habeas rights. (Not Afghans taken prisoner in Afghanistan and sent to Bagram.)
The case involved three prisoners from other countries who have been at Bagram for six years, and the ruling applies to all those in the same situation, which the government says there are about a dozen of (this via an unnamed source, not officially, because there is still not an official accounting to the ICRC of all the prisoners held there). I reserve the right, based on the lies we’ve been fed for so long, not to believe the unnamed source.
Now, I’d have thought the Obama DoJ would have welcomed the Bates ruling. It would create a floor we could all stand on and know where we were. ‘Rendered’ to Bagram = ‘rendered’ to Guantanamo = habeas. It would mean that people cannot just be picked up and dropped into a military prison in an active theater of war and held there with no charges or ability to challenge their detention.
But no. The Obama administration is appealing Bates’ ruling, challenging the power of any court to review the detention of those picked up anywhere in the world as long as they’re deposited in a military prison in an active theater of war.
This is a seriously disturbing move, as it means that the Obama administration is seeking to do just what the Bush regime did when the courts forced them to recognize Guantanamo prisoners’ rights: treat Bagram as the new lawless zone to replace GTMO.
Comment by joe from Lowell —
April 12, 2009 @ 9:21 pm
And abandoning your principles to do so. Yes.
Shrug. You think a lot of things. I find no compelling reason why I should answer for them. If you’d care to address any argument I’ve made, just go right ahead.
Maybe if someone doesn’t want to go on about how everyone who disagrees with him are “poseurs†who “abandon their principles�
So the answer to my question is “No.” OK, Eric can’t discuss this issue as an issue, but as a stand-in for his continuing drama about teh bad people. All those words, and none of them have to do with issues involving detention.
Anyone else?
Comment by joe from Lowell —
April 12, 2009 @ 9:35 pm
I amend my prior comments:
isn’t quite right. The arguments made by the Justice Department are about maintaining powers that the executive branch has already been enjoying. Any Justice Department is going to argue the pro-executive discretion side. Once the government lawyers get involved and a case reaches our adversarial court system, they are going to argue for the greatest leeway for the executive branch, just as the plaintiffs are going to argue for the greatest restrictions. In criminal cases, the government has a duty to argue for truth, justice, and fairness, rather than just going for the conviction and harshest sentence and counting on the judge to reconcile both side’s absolutist positions. However, in a civil case, especially one dealing with the question of “who decides” rather than what the decision should be, the government’s lawyers argue for the government’s interests, just as their opponents argue for their clients’ interests.
Comment by joe from Lowell —
April 12, 2009 @ 10:06 pm
I actually think that the libertarian observation about there being a structural impetus for the government, and the executive in particular, to seek ever-greater power, completely apart from the beliefs of the particular individuals holding office, is an important insight. The vision of government lawyers’ responsibility to their clients that I described above is a manifestation of this.
For some reason, however, this line of thought seems to completely missing in the explanations I see about the gap between what the Justice Department has been arguing in these holdover cases, and the complete repudiation of every executive-power-enhancing action taken by the previous administration.
I’d be interested in seeing more consideration and explication given to this line of thought by those most familiar with it, because the argument that the problem is having the wrong people in charge – those who push for certain powers because they want to pursue certain policies – keeps running up against the fact that the Obama Justice Department has repeatedly argued in favor of extending to the executive branch the latitude to pursue policies which it is not, in fact, pursuing.
Comment by Thoreau —
April 12, 2009 @ 10:37 pm
joe,
Hmm, interesting point. To the extent that these things have been addressed in executive orders, you’re right that the developments have been largely positive in comparison with the line taken by government lawyers.
I guess that one explanation is that power corrupts slowly, so somebody who doesn’t actually plan to do something….yet….might nonetheless recoil from attempts to limit his power to do so. Maybe the thought in the back of his mind is “I want to do it in the future” or maybe they view it from a different angle. They don’t actually want to do bad stuff, or at least that thought has not yet materialized in their main line of thought, but they view any attempt at oversight or any limits on their discretion as a bad thing.
This is how the road to hell starts. Obama might not yet be corrupt in his heart, but as an occupant of the office he naturally resists any external checks on the office. He will keep his own house clean, thank you very much.
Or maybe he isn’t even that far gone yet, but his lawyers instinctively argue for his powers because they view themselves as representing the executive branch rather than the people of the United States.
Comment by Thoreau —
April 12, 2009 @ 10:48 pm
Of course, Mr. Occam would like to observe that somebody could make a public show of refusing to do something dirty while actually doing it in secret. That would be consistent with resistance to judicial oversight.
Regarding the necessity of Bagram in some form, I think you’re right. If Bagram had a better history, perhaps we could even refrain from letting all of the suspects there avail themselves of US courts. But given the history at Bagram, I think the cases there will require more scrutiny than would be customary for a prison in a war theater, not less scrutiny. Trust is slowly earned and easily lost.
Comment by Eric the .5b —
April 12, 2009 @ 11:24 pm
I’m happy to, just noting what you preceded your little plea with. You like to take swipes and then umbrage when it happens to you.
But hey; I am absolutely standing by for you to throw out some arguments beyond lame accusations of hypocrisy by libertarians.
Whenever you’re ready.
Comment by clyde —
April 13, 2009 @ 1:09 am
…the Obama Justice Department has repeatedly argued in favor of extending to the executive branch the latitude to pursue policies which it is not, in fact, pursuing.
which policies is it not pursuing? you mean the policy of imprisoning people without the ability to challenge their detentions in court?
if you argue in court that a detainee has no habeas rights, and you win the case, then, well, that person has no habeas rights. that isn’t “latitude to pursue [a] policy”, that is the policy.
Comment by max —
April 13, 2009 @ 8:00 am
Very slowly: in the actual Geneva Conventions, an enemy combatant is someone captured on the battlefield, who is engaged in legal forms of combat, but is not in some form of recognized uniform. Whether such a person is, or is not a citizen of Afghanistan is irrelevant. They are entitled to the same rights (but not privileges) as a POW. Note here that a POW can be held (but not punished) for as long as the war continues AND they are not supposed to be removed from Afghanistan unless enemy action could force their release.
Persons, whether they are Afghani citizens or not, detained off the battlefield in Afghanistan are civilians, who may or may not have committed a criminal offense under Afghani law (as administered by the Controlling Power (that is, the US) and/or the surrogate government). They are entitled to whatever rights they have under Afghani law.
Persons detained outside of Afghanistan by the US who are not tried under the law of the country in which they are captured, should be under US law, where ever they actually are. Law follows the flag – US personnel who have the detainees under their control are under US law, except as provided for by treaty and/or convention, and so any detainees should also be under US law. If they are not under US law, they should not be detained by the US, and need to be returned to whatever country has legitimate charges against them, or whatever country they were detained in (which might be the same), or if they cannot be charged or returned to their point of origin, then they should go back to their home country.
I think in the linked article that Fein may either be hyperventilating a bit or confused (as the Bush administration deliberately engaged in an Orwellian modification of the term ‘enemy combatant’ to screw with people’s minds). I think he is on point about the court ruling he cited, which I think is absolutely the correct ruling.
For the record, I cannot tell exactly WHAT stance the Obama administration is actually taking. I am willing to give them a little more time since the Bush administration made an absolute mess of things. That said, all the Guantanamo detainees who were captured in Afghanistan need to go back to Bagram to start with, ASAP.
max
['We'll see.']
Comment by Seward —
April 13, 2009 @ 10:43 am
Whether detaining without access to the standard slate of legal rights those caught in Afghanistan is legal or not, as a practical matter it is probably best to do so. Why? Well, for starters it would help cut down on the Kafkaesque nature of the WoT.
Comment by Eric the .5b —
April 13, 2009 @ 1:40 pm
I’m still standing by for an honest argument from you about the “topic of the post and the ideas raised”, joe. Futile, I know, but I’m into lost causes.
Comment by Sam Hutcheson —
April 13, 2009 @ 1:42 pm
I suggest that you read through the SCOTUS blog on the subject rather than taking Greenwald’s rhetoric at face value. What is happening here is called “due process of law.” It’s not fast or easy. But to ignore it and simply assert something counter to due process because it makes you feel morally superior, as Greenwald seems to be doing these days, is no better than the inverse that brought us to this unhappy state in the first place.
Obama can’t fix the economy in three weeks, and he can’t fix the abuses of justice enabled over the last eight years in a month.
I think everyone would be better served if they actually read the DOJ’s arguments in the case(s) rather than assuming Glenzilla speaks unfettered truth every time he opens the laptop.
http://www.scotusblog.com/wp/us-resists-rights-at-bagram/
Comment by Eric the .5b —
April 13, 2009 @ 2:08 pm
Sam,
What do you see there that makes you disagree with the concerns of people like Greenwald, Thoreau, or myself?
Comment by joe from Lowell —
April 13, 2009 @ 2:12 pm
Piss off, Eric, the grown ups are talking.
Comment by dhex —
April 13, 2009 @ 2:22 pm
[raises glass, as if in a sports bar]
you get ‘em, joe!
Comment by joe from Lowell —
April 13, 2009 @ 2:22 pm
Thoreau,
I don’t think you have to postulate corruption. The branches of government are supposed to push their own interests, much as lawyers for different sides in a legal case are supposed to push their clients’ interests. In both situations, the check is not the self-discipline and restraint of each branch/party to the dispute, checking its own power, but the other branches/parties pushing back, which represents them pushing their own interests and power.
But given the history at Bagram, I think the cases there will require more scrutiny than would be customary for a prison in a war theater, not less scrutiny. Who’s talking about “less scrutiny” than is normally provided to the holding of prisoners in a war zone? Perhaps I’m misunderstanding you?
Now, on the political and policy side of things, that isn’t sufficient. The executive, when actually acting, is supposed to go only so far as it deems wise and prudent and appropriate. However, on the legal question of how much discretion each branch has, unchecked by the others, of course the lawyers are going to argue for the broadest possible reading of their own clients’ discretion, and the narrowest possible reading of their competitors’.
Of course, Mr. Occam would like to observe that somebody could make a public show of refusing to do something dirty while actually doing it in secret. Which brings me back to my original question to you (which answers clyde’s question as well): the transfer of detainees that were not involved in the Af-Pak war to Bagram, in order to avoid the habeas reviews of Boudemienne. You asserted that this is still going on – do you have any evidence that this Bush-era policy is still being pursued?
Comment by joe from Lowell —
April 13, 2009 @ 2:25 pm
Oh, good, dhex is here to turn this into a thread about me.
Thank goodness. There was a slight possibility there might be a discussion about issues taking place, rather than a typical Eric/dhex-heavy thread.
You know, the standard impersonation of a John/RC Dean heavy Reason thread, except without as much legal knowledge.
Thank goodness we dodged that bullet. Good work, fellas.
Comment by Thoreau —
April 13, 2009 @ 2:28 pm
Regarding “less scrutiny”: Erroneous typing. I’d say that Bagram needs more scrutiny than is customary, not merely the usual level of scrutiny.
Regarding the policy that is being continued: I do not know if new prisoners are being transferred to Bagram. I do know that the policy of holding people without trial continues, and from the article linked above it appears that some of the detainees involved in the legal case were brought there from outside the Afghanistan/Pakistan theater. So, at the very least, they are continuing (and defending in court) the policy of detaining people at Bagram who were captured outside that theater.
And I do realize that a system of checks and balances can work when branches assert their own interests, but prosecutors also have a duty to consider more than just the interests of the executive branch. There’s a difference between the White House Counsel and the DOJ.
Comment by Eric the .5b —
April 13, 2009 @ 2:28 pm
I’m impressed – your last post gets close enough for government work, joe.
Here’s the key thing: do we have any evidence – much less strong evidence – that it has stopped?
How do we go about determining whether or not it has?
“Trust the president” is not an answer.
Comment by Eric the .5b —
April 13, 2009 @ 2:35 pm
Joe: I am happy to avoid making the topic about you and to discuss ideas. Admittedly, I can’t stop you from trying to make the topic about you and mean people disagreeing with you, but I fully intend to no longer give responses of any significant length to any content-free posts by you after that particular content-free post.
I await further reasonably thoughtful posts from you.
Comment by Sam Hutcheson —
April 13, 2009 @ 2:37 pm
?
“At stake, the Department said in a new filing in U.S. District Court, is whether the constitutional right to challenge detention should be extended “for the first time to a theater of war on foreign territory over which the United States exercises neither de jure nor de facto sovereignty.—
This seems to me to be a non-trivial issue. Guantanamo had no claims to combat theater or the rules of war; it was clearly a gulag placed specifically out of theatre but once removed from domestic jurisdiction, specifically to create a “disappearance zone” for the last administration’s use. Bagram, while having clearly documented cases of abuse and torture like Gitmo, *is* in a combat zone and should be processed accordingly. From my reading of the SCOTUS blog, the Obama DOJ is asking for an expidited appeal of the extension of habeus rights for three specific prisoners – they are attempting to move the process along as fast as possible – in order to guard against blanket extension of similar rights to all Bagram detainees. This is both prudent and necessary, IMHO, as Bagram serves as the holding cell for actual enemy combatants (now that meaning has been returned to that term post-Bush.) Enemy combatants and POWs do *not* have equal access to domestic law – habeus corpus in this instance – as do civilian detainees.
I recognize there is a large amount of overlap and confusion about who exists in Bagram and what status they should rightfully have under various laws and treaties. The DOJ is asking, reasonably enough, for an expidited ruling on one of those confusions to avoid setting back actions in the other areas. This all essentially rolls back to the Bush admin’s intentional blurring and erasing of clear lines between domestic law, international treaty and the laws of war. This is a huge mess and it will take longer than six weeks to figure it out. The Obama admin stated from the start that they expected to have their reviews completed in 6 MONTHS. With stakes as serious, on both sides of the equation, as these, I think it’s probably best to allow for that 6 month grace period.
The assumption you, Thoreau and Greenwald seem to be jumping to is, IMHO, the inverse of the right wing “Obama hasn’t saved the economy overnight so he’s a failure” cant. You seem to want every wrong perpetrated over the last 8 years to be immediately set perfectly right. That simply can’t happen in a situation and reality as complex as the war in Afghanistan and it’s attached abuses to date.
Comment by dhex —
April 13, 2009 @ 2:45 pm
mr. hutchinson: while i am sympathetic to your point about biases and the general molasses of unraveling systemic or bureaucratic issues, perhaps part of the reason, there’s a broader issue of trust.
those inclined to trust the bush administration spent a good chunk of time poo-pooing concerns about rendition, torture and detention. (and a smaller group seemed to be welcoming – or celebrating – the very concept of torture as part of some sado-sexual issues they were working out in public) those not inclined to trust them, like mr. greenwald, ran in the opposite direction. i think time has shown mr. greenwald’s concerns to be largely correct.
the rub is that those inclined to trust an obama administration – or at least distrust it less than it would a bush administration – are going to find mr. greenwald’s continued vigilance / paranoia to be disheartening. (i presume torture apologists of the bush era wouldn’t notice either way, or presume mr. greenwald was a secret communist homosexual al qaeda operative.)
those disinclined to trust government power – a category which would include greenwald, the eff, aclu, mr. fein, many libertarians, and others – are not going to give someone the benefit of the doubt solely because his name isn’t bush. mr. greenwald is indeed monochromatic, and perhaps obsessive, but he’s not the only voice out there. i don’t think you can say that mr. fein is either a republican operative or a hopeless cynic.
one thing i would have hoped to come out of the bush years would be an even greater presumption of, if not overt wickedness, then at least deep concern towards those who hold the reigns of power.
Comment by joe from Lowell —
April 13, 2009 @ 2:55 pm
Thoreau,
Actually, the only evidence that they were captured outside of the theater that has been submitted is the statements of the detainees themselves about where they were captured – which raises a rather obvious problem in the context of a POW camp. I can get out of here, be transfered to US civilian courts, and make the government prove my guilt if I say I’m not from Afghanistan? “I’m Brian!” “No, I’m Brian!” “I’m Brian, and my wife is, too.” It’s entirely possible that these three were captured outside the theater and had nothing to do with the Afghan War, but if the courts issue a ruling about how prisoners in Afghanistan who say “I’m Brian” are to be treated, than it will apply to all prisoners in Afghanistan who say “I’m Brian.” At a minimum, there has been no review of their claims to have been captured outside of the theater, so the standard they are seeking to establish, and which the government is arguing against, is a claim by a detainee.
If “Trust the President” is an inadequate answer, than “Trust the Plaintiff” is, too.
These are not prosecutors; or rather, they’re not government lawyers acting as prosecutors, but as attorneys engaged in an intra-branch dispute over “who decides.”
You’re using fuzzy language here, in order to define your conclusion; specifically, you’re using language to blur the difference between continuing the Bush-era practice of transferring detainees to Bagram to avoid judicial oversight, vs. dealing with the existing Bagram detainee population. Which, btw, goes to my repeated complaint – the question of whether bad things are actually being done (torture, ghost detentions, transfers to Bagram to avoid judicial oversight) is constantly diminished and minimized, while the question of what to do about old cases of those bad actions is treated as the only subject worthy of drawing a conclusion.
I daresay that there’s a rather substantial blind spot in making the argument that “the new gulag” is “same as the old gulag” if “the new gulag” doesn’t involve torturing people or transferring them there to avoid oversight, and “the old gulag” did.
For my part, I consider it an implausible stretch to believe that a president would ban the use of black sites, where there would no possibility of any oversight or even knowledge of the prisoners at all, but continue to transfer prisoners to Bagram, where they would be registered and visited by the Red Cross, because of a desire to have a place to transfer detainees without oversight. That just doesn’t make any sense.
Comment by joe from Lowell —
April 13, 2009 @ 2:56 pm
Halle-fucking-lujia!
Comment by Sam Hutcheson —
April 13, 2009 @ 2:58 pm
I haven’t implied anyone is a Republican operative. Neither have I suggested anyone was a Democratic operative. Nor do I have a distinct problems with constant vigilance against abuses of power regardless of who holds office. I applaud such vigilance, in fact. But I do think the tone of Greenwald, to use a well known example, is over wrought when leveled against a two month old administration tasked with the Herculean task of reigning in the past administrations power grabs. Greenwald and his companion critics rightfully wound tighter and tighter as the former admin repeatedly and willfully abused and eviscerated Constitutional and human rights. But having been so wound, they seem to find it difficult, to the point of cynicism, to accept that the Obama admin is actually attempting to right some of those wrongs. The thought seems to be that Obama hasn’t issued blanket orders to cease all detainee operations in the theatre of war, hasn’t closed Gitmo without worrying about winding down the machinary that built it, and is thus equally culpable as the outgoing admin. This is categorically wrong, IMHO. We are nearing the three month anniversary of Obama’s taking office. If we haven’t made significant progress on these issues in another 3-9 months I’ll admit (sadly) that the cynics were correct. But until I have some argument or evidence outside of “they haven’t done it immediately, therefore they’re not even trying” I will give benefit of doubt to the new admin.
Comment by Sam Hutcheson —
April 13, 2009 @ 3:04 pm
I’d like to second Lowell’s last post, as well, specifically the point about how important it is to distinguish between “not committing human rights violations any more” versus “figuring out how to deal with the population inherited from the previous administration.”
Comment by joe from Lowell —
April 13, 2009 @ 3:10 pm
Quite so. Additionally, there is the matter that the Bush administration implemented these policies, then defended them in court, so it was entirely reasonable to assume that their legal arguments were aimed at maintaining ongoing programs; while the Obama administration is making arguments in court about programs that we either know have been ended (”enhanced interrogations”) or have no evidence are being continued (transfers to Bagram from outside the theater).
It was reasonable – no, beyond reasonable, obvious – for Greenwald to look at an administration that committed certain bad acts and read its court filings attempting to rebuff outside oversight of those bad acts as being part of an ongoing effort to keep those bad acts happening.
It is not reasonable for him to look at an administration that is not committing those bad acts, and assume that their efforts to keep the decision about how to deal with the fallout of the previous administration’s bad acts “in house,” rather than subject to outside review, as a similar effort to keep those bad acts happening.
Comment by Eric the .5b —
April 13, 2009 @ 3:18 pm
You don’t think that alone would merit applying much more scrutiny and different standards than a straightforward POW detainment facility with a clean record?
I’ll note that skepticism is not cynicism.
However, while this has been an administration that’s been marketing itself as “hitting the ground running”, I think that’s a fair answer. Setting a point beyond which you wouldn’t extend the benefit of the doubt is a reasonable thing to do.
And if in that time period, my concerns are assuaged, I’ll admit (happily) that the optimists were right.
Comment by Eric the .5b —
April 13, 2009 @ 3:25 pm
Agreed; this is why I think these people need to appear in front of courts to at least make the determination of whether they’re being legally detained as POWs or enemy combatants caught in the actual Afghan war theater.
More needs to be done – for instance, formulating what exactly we’re going to do with the actual ECs or POWs beyond un-charged detention during an interminable war. But making a credible pass at reducing the detainees down to those two groups is necessary as soon as possible.
Comment by dhex —
April 13, 2009 @ 3:49 pm
mr. hutchenson: i know you weren’t calling anyone operatives, just using it as the far reaches of reasons why someone might become a hangdog about a topic. (for example, the sudden romantic embrace of the rhetoric fiscal responsibility on the part of some republicans)
“But having been so wound, they seem to find it difficult, to the point of cynicism, to accept that the Obama admin is actually attempting to right some of those wrongs.”
i agree, but i also think they have a perfectly reasonable reason for being so jaundiced – especially in the context of institutional cultures. perhaps it’s easier for a greenwald (whose role was always adversarial to the government) or a fein (who is no longer involved in having to deal with institutional culture habits) to be so critical, but that’s true of anyone on the outside of any organization. how many people who aren’t investment bankers have criticized the behavior of investment bankers in the last few months (or years)? i know i have.
admittedly, i may simply be cynical rather than skeptical. but i remember the patriot act 1.0, and the cultural and political windup around the great and vast threat of militias in the u.s. it seems more like a pathology of the organization than a function of the personalities involved.
Comment by Thoreau —
April 13, 2009 @ 3:59 pm
Bagram, while having clearly documented cases of abuse and torture like Gitmo, *is* in a combat zone and should be processed accordingly.
I would argue just the opposite: Bagram, while being in a combat zone, has clearly documented cases of abuse and torture like Gitmo, and should thus be subjected to a greater degree of scrutiny than a well-run detention facility in a combat zone.
Comment by Eric the .5b —
April 13, 2009 @ 4:11 pm
The premise that the administration certainly isn’t performing those acts is an assumption that those “efforts” by the administration make impossible to verify.
We don’t know what we currently know about the Bush administration’s abuses due to any public executive orders he made at the time. A public executive order to stop those abuses – absent any means of verification – isn’t a reasonable basis for assuming those abuses have ended.
I’d like to believe it’s stopped or is at least stopping. I’d like to believe some poor, abused people are now being treated like human beings. I can’t in good conscience assume that, though.
Comment by Seward —
April 13, 2009 @ 5:01 pm
Sam Hutchenson & joe,
If you don’t like skepticism/cynicism towards government then I suggest you stop conversing with libertarians.
Sam,
I know this wasn’t really your main point …
As for the whole argument about Obama not “fixing” the economy quickly and thus him being a failure, I’m just puzzled at how anyone could make an argument like that. After all, economies worth any salt fix themselves.
Eric the .5b,
Early on in the Bush administration I remember all the talk by Bush supporters on how Bush needed to be given a little time because of all the things he needed to fix, etc. It is said about just about every government executive one can think of down to mayors, etc. Now while it is true that they do need time to adjust, at the same time, there are no official “trial periods” in government. So basically I take any call for a waiting period with a grain of salt. All we really know is what is happening at this time, and waiting for history to justify an action, inaction, etc. makes very little sense to me.
Comment by Seward —
April 13, 2009 @ 5:09 pm
thoreau,
BTW, I had to look this up to see if I remembered correctly, but you are partially wrong about gulags being in remote locales: http://en.wikipedia.org/wiki/Gulag#Geography
Given Stalin’s commitment to industrialization through the expropriation of what was produced on the farm it shouldn’t be all that surprising that urban gulags came into being.
Comment by Sam Hutcheson —
April 13, 2009 @ 5:16 pm
I’d like to believe it’s stopped or is at least stopping. I’d like to believe some poor, abused people are now being treated like human beings. I can’t in good conscience assume that, though.
I understand the sentiment, but it has to be weighed against actual threats to national security. We’ve become accustomed over the last decade to assume “concerns about national security” are boilerplate and bullshit designed to obscure war crimes. It is difficult to stop on a dime and return to a semblance of trust in our leadership, but in this case the distinction between leaders is significant enough for me to attempt that trick.
Comment by Sam Hutcheson —
April 13, 2009 @ 5:21 pm
If you don’t like skepticism/cynicism towards government then I suggest you stop conversing with libertarians.
I have a healthy dose of skepticism myself, on most every debating topic you can think of. I respect skepticism in my interlocuters. But there is a point where skepticism becomes radical skepticism and solipsism, and I exit the bus. There’s a different point where skepticism becomes cynicism, and while I’m as vulnerable to the cynical fallacy as anyone else, I make a concerted effort to exit that bus as well. I understand libertarian skepticism, but I think this example is an instance of such tendencies taking the bus off the road.
Then again, there’s a reason I’m not a libertarian.
Comment by Seward —
April 13, 2009 @ 5:25 pm
Sam,
It is difficult to stop on a dime and return to a semblance of trust in our leadership…
Yeah, well I haven’t trusted any President since at least 1797.
…but in this case the distinction between leaders is significant enough for me to attempt that trick.
I believe that the default skepticism of the libertarian on such matters has better road test scores.
Comment by Sam Hutcheson —
April 13, 2009 @ 5:26 pm
I would argue just the opposite: Bagram, while being in a combat zone, has clearly documented cases of abuse and torture like Gitmo, and should thus be subjected to a greater degree of scrutiny than a well-run detention facility in a combat zone.
Isn’t this a false dichotomy? The options aren’t coming out of the Bush admin simply don’t include, to my knowledge, “a well-run detention facility in a combat zone.” You have Gitmo, Bagram, Abu Ghraib… All of the options are tainted with the stain of torture, abuse and murder. But nonetheless, you still need some sort of detention facility in the combat zones. If there were some other non-Bagram option untainted by the past actions of the government I’d certainly support migrating judiciously to those facilities and closing Bagram completely, but I just don’t know that any such options exist.
We are left only with choices that have stains on the interrogation room floors, I’m afraid. But we can’t simply stop detaining combatants captured in a theatre of war.
Comment by Seward —
April 13, 2009 @ 5:29 pm
Sam,
Well, it seems to me that the time to be most skeptical and untrusting of a politician is not after they have been in office for a year or two, but when they first enter office. Which is why waiting periods and honeymoons are nonsense re: politicians. The feet should be held closely to the fire from the start.
Comment by Sam Hutcheson —
April 13, 2009 @ 5:53 pm
I believe that the default skepticism of the libertarian on such matters has better road test scores.
I believe that ideology should submit to specificity and pragmatism. It is reasonable to distrust governments that give you reason to distrust them. It is unreasonable to distrust all governments on flimsy principles of universal distrust. Power, in all forms, should be monitored and constrained where it attempts to overflow its purpose. Sometimes it’s the government that needs to be so constrained. Sometimes governments need to constrain non-governmental locii of power. And sometimes, in a rare moon, a government will take power and limit it’s own reach. A rare moon, to be sure, but I see little reason to think this is not one of those moons.
Comment by Seward —
April 13, 2009 @ 6:08 pm
Sam,
I believe that ideology should submit to specificity and pragmatism.
I would just note that pragmatism is an ideology.
It is reasonable to distrust governments that give you reason to distrust them.
All governments give one reasons to distrust them. Why? Because governments are made up of people, individual actors, that’s why.
It is unreasonable to distrust all governments on flimsy principles of universal distrust.
While history is no absolute predictor of the future, its record provides a more than non-flimsy basis on which to base one’s principles. So no, universal distrust is not unreasonable.
A rare moon, to be sure, but I see little reason to think this is not one of those moons.
I have as yet to see any evidence that the Obama administration will purposefully curtail executive power. And of course in the economic sphere, a place where liberty lives or dies, we’ve seen a dramatic expansion of power by the federal government in general.
Comment by strasmangelo jones —
April 13, 2009 @ 6:24 pm
It’s a curious thing, to see people turning into rhinoceroses.
Comment by Eric the .5b —
April 13, 2009 @ 6:30 pm
I didn’t say I agreed with the timeframe, just that I thought expecting the matter to take time was reasonable. Sam is rather more optimistic than myself on these matters:
I remain skeptical towards the idea that providing real hearings of some sort for alleged guerrilla fighters incarcerated for years in a remote part of the world meaningfully endangers the national security of the US.
Sam, can you explain why you think it would?
Comment by Seward —
April 13, 2009 @ 7:23 pm
Sam,
On further thought…
pragmatism is not only an ideology, it is one which relies heavily on tradition.
Comment by Sam Hutcheson —
April 13, 2009 @ 8:45 pm
While history is no absolute predictor of the future, its record provides a more than non-flimsy basis on which to base one’s principles.
The vast swathe of history indicates, almost without fail, that governance improves the lives of humans. To draw a different conclusion is to fail to grasp the brutality of the state of nature.
I remain skeptical towards the idea that providing real hearings of some sort for alleged guerrilla fighters incarcerated for years in a remote part of the world meaningfully endangers the national security of the US.
Sam, can you explain why you think it would?
As I read the DOJ’s arguments, there are three individuals who have receieved favorable rulings on their habeus corpus claims. Those three individuals argue that they were taken to Bagram after being detained elsewhere, that they were not enemy combatants on the battlefield and thus can not be held under the rules of war (where habeus does not extend.)
The DOJ has appealed this ruling on the grounds that as written it is too broad, that the wording of the ruling does not include specificity about the three individuals in the suit, and that this could lead to spurrious habeus claims throughout Bagram. This would in turn create undue burden on the government in its attempt to carry out a foreign war. The appeal, as I read it, requests specificity in the language of the ruling in order to avoid this unintended consequence.
The DOJ, recognizing that the three defendants to whom the ruling should apply, has requested that the appeal be expedited in order to minimize their state of limbo.
I find this to be reasonable. I can easily see where a blanket application of habeus to all Bagram inmates would hamper the governments prosecution of the war. If you accept for the sake of argument that the war in Af-Pak is, in fact, prefaced on national security concerns, the application of this ruling against all of Bagram prior to the finding of the appeal would lead to a direct harm to the prosecution of those national security concerns.
pragmatism is not only an ideology, it is one which relies heavily on tradition
I believe I used an ‘and’ in that sentence, no?
Comment by Eric the .5b —
April 13, 2009 @ 10:02 pm
After the last eight years, I find it hard to see that ensuring the US is in fact following the laws of war in the case of Bagram is an undue burden.
How exactly do you see verifying the habeas statuses of 600-odd prisoners hampering the prosecution of the war?
The last administration argued that complying with POW standards for Guantanamo prisoners would have a direct harm, to. Even if a direct harm does exist to asserted military interests, that clearly can’t be the primary concern.
Comment by Seward —
April 14, 2009 @ 7:53 am
Sam,
The vast swathe of history indicates, almost without fail, that governance improves the lives of humans. To draw a different conclusion is to fail to grasp the brutality of the state of nature.
Well, first of all, there is no “state of nature” – it is at best a philosophical abstraction.
As for governance improving the lives of humans generally, that has clearly not been the case historically. It is well known that only in the last two hundred years has a large bulk of humanity lived lives significantly better than pre-state populations. If that had anything to do with states, it was the willingness of individuals who ran states to leave people alone. All of this makes state formation a rather mysterious affair and it is in part why there is so much disagreement over why states formed in the first place. Anyway, for most of human history states have basically been kleptocracies and little more than that.
As for contract theory, I think it is clear that some of the contract theorists had to fantasize about a more brutal state of nature in order to justify the brutal state power which they favored; see Grotius and Hobbes.
I believe I used an ‘and’ in that sentence, no?
Well, since you are doing nothing more than any libertarian generally does – combining specificity with ideology – I’m not quite sure why your original point was.
Comment by Sam Hutcheson —
April 14, 2009 @ 8:03 am
How exactly do you see verifying the habeas statuses of 600-odd prisoners hampering the prosecution of the war?
Extending Constitutional rights carte blanche to a war zone would require the provision of defense attorneys, procedural review, etc for all of the POWs in Bagram. The military is not equipped to provide such services. Providing protection for civilian service providers would significantly impact the military’s ability to carry out their primary objective (execution of a foriegn war.)
Comment by Sam Hutcheson —
April 14, 2009 @ 8:11 am
As for governance improving the lives of humans generally, that has clearly not been the case historically. It is well known that only in the last two hundred years has a large bulk of humanity lived lives significantly better than pre-state populations. If that had anything to do with states, it was the willingness of individuals who ran states to leave people alone. All of this makes state formation a rather mysterious affair and it is in part why there is so much disagreement over why states formed in the first place. Anyway, for most of human history states have basically been kleptocracies and little more than that.
Restating your assumptions doesn’t make them true. If you are going to place a narrative structure onto the arc of history it’s pretty clear that states provide common defense from the sort of warlord kleptocracies you identify as a common feature of early human history. Those kleptocracies are, in point of fact, the reason why more robust and inclusive states evolved. They were, in point of fact, the “state of nature” from which we are constantly attempting to exit.
States, as is any center of power, are prone to overreach and excessive power grabs. Power accumulates, whether in states or aggregations of wealth outside of states. All accumulations of power must be monitored and constrained. There is nothing special about “government” that makes it a special case, either to be less or more constrained than other power centers.
You seem to operate under the fallacious assumption that the “state of nature” is a myth. It’s not. The state of nature is Afghanistan and Somalia. Those are the most libertarian “states” on the planet right now. You’ll forgive me, I hope, if I don’t embrace the model locally.
Comment by Seward —
April 14, 2009 @ 9:14 am
Sam,
Restating your assumptions doesn’t make them true.
Well, if you would rather I could place here the long litany of terrors committed by states (or rather, the individuals who control them).
If you are going to place a narrative structure onto the arc of history it’s pretty clear that states provide common defense from the sort of warlord kleptocracies you identify as a common feature of early human history.
Actually what states tend to be is aggressive towards their neighbors; so while the Roman state may have originally formed as a defense against the Etruscans (another state) – most of this is lost in the mysts of time of course – it quickly turned against its Latin neighbors and subjugated them. And then of course went on eventually to commit genocide against the Dacians (amongst other people). So what states do is provide a platform for ripping off, murdering, etc. groups outside the state. That is the general arc of human history. As for warlord kleptocracies; well, warlords turned their winnings as it were into states as often as not. We see this a lot in the post-Roman world with the rise of the two Gothic kingdoms, the Vandals, etc. Then again, these had been populations which had originally been severely maltreated by the Romans. So what comes around goes around as they say.
States, as is any center of power, are prone to overreach and excessive power grabs.
No, individuals are prone to overreach; all a state does is provide the mechanism for greater overreach. States aren’t organisms.
There is nothing special about “government†that makes it a special case, either to be less or more constrained than other power centers.
Governments have the power to coerce, which is what makes them different from other corporate bodies; especially modern governments. Indeed, that is at the core of the state’s definition according to political science; it is the sole entity with the legitimate access to violence, or at the very least mass violence. So that is what makes the state as a corporate body different from other corporate bodies, particularly in the modern era.
You seem to operate under the fallacious assumption that the “state of nature†is a myth.
As I stated, the term is at best philosophical abstraction.
The state of nature is Afghanistan and Somalia.
Given how arbitrary the notion is I think one could just as easily argue that the state if nature of human beings is small hunter gatherer groups such as are sometimes still found in New Guinea. Its arbitrariness is also seen in the writings of the original contract theorists themselves partly because they postulated original human states which are strongly influenced by the Biblical notion of an original state (even if they disagree with the specific Biblical account) and by just how wrongheaded they turned out to be in light of what modern anthropological, etc. studies have found. Indeed, one could argue rather successfully that the notion of the state of nature is downright anti-Darwinian.
Those are the most libertarian “states†on the planet right now.
Really? A state where contracts are difficult to honor at best is a libertarian state? I don’t think either place resembles a minarchist state. Indeed, they are an anathema to what any libertarian would argue is the best sort of polity.
Comment by Seward —
April 14, 2009 @ 9:35 am
Sam,
By the way, we now know that states often formed for reasons other than “common defense,” and it is probably the case that “common defense” wasn’t that significant of a factor in state formation, particularly early on (this is based on the lack of fortifications at many the early sites). I myself think that religion and various cults played the most significant part in early state formation; that concerns a different kind of insecurity associated with the world of humans following the Neolithic revolution.
Comment by Sam Hutcheson —
April 14, 2009 @ 11:05 am
Really? A state where contracts are difficult to honor at best is a libertarian state?
Yes, actually. Without a state apparatus to enforce the rule of law, contracts are meaningless. You want an example of modern humanity without a state apparatus, look at the examples of failed states – Somalia and Afghanistan. These are the reality-based examples of stateless human relations in the modern world. If reality contradicts your ideological hope-casting I would suggest you modify your ideological assumptions.
I don’t think either place resembles a minarchist state.
First, “minarchism” is a useless, meaningless term without merit. Saying “I’m for the least amount of coercion that still does the job” is a self-confirming truism, at least in the modern west. The question is always *how much coercion is “just enough.”* Minarchism doesn’t even attempt to answer that question.
Secondly, the entire libertarian conceit is that drastically curtailing the powers of the state will lead to freedom and commonly accessible happiness. Yet when we look at locations where the powers of the state are in fact drastically curtailed we see…Somalia and Afghanistan. Without the power of the state – including coercive powers – the rule of law, contractual or otherwise, dissolves into the air and you are once again returned to the state of warlord kleptocracies.
Indeed, they are an anathema to what any libertarian would argue is the best sort of polity.
Sure, but the problem is that the libertarian’s “best sort of polity” is a myth. People don’t behave in a manner consistent with such a theoretical construct.
Comment by Sam Hutcheson —
April 14, 2009 @ 11:09 am
By the way, we now know that states often formed for reasons other than “common defense,†and it is probably the case that “common defense†wasn’t that significant of a factor in state formation, particularly early on (this is based on the lack of fortifications at many the early sites). I myself think that religion and various cults played the most significant part in early state formation; that concerns a different kind of insecurity associated with the world of humans following the Neolithic revolution.
I think that every primate on the planet forms tribes for protection and socialization, and pretending homo sapiens is somehow above this inate instinct is the height of hubris. Deride group formation however you like; call it cultism, imply it is based on religious coercion, suggest off hand that it is only due to “insecurity” or whatnot; none of that is going to change the facts on the ground. Humans form groups. All the time. Witout fail. States are our last, best attempt (so far) to harness the group forming instinct into something less violent and more useful.
Comment by Seward —
April 14, 2009 @ 11:41 am
Sam,
You want an example of modern humanity without a state apparatus…
By invoking the term minarchy I clearly do not. Who are you arguing with exactly?
First, “minarchism†is a useless, meaningless term without merit.
It is fairly a well defined term, actually. Whether it has merit is another matter.
Minarchism doesn’t even attempt to answer that question.
Actually it does, and very clearly. Government with a minimum of functions, namely courts, police, and a military. Like any other ism there is dithering around the margins – e.g., a public health service – but is more than well defined and it does provide an answer.
Yet when we look at locations where the powers of the state are in fact drastically curtailed we see…Somalia and Afghanistan.
The powers of the state are dramatically enhanced in these places actually. Which is why the Taliban when it was in power in Afhganistan enforced quite drastic laws which curtailed personal liberty. It seems to me what you are really arguing for is the virtues of a centralized state within a specific geographic locale.
Anyway, neither of these countries were stateless; all had states within a state and in the case of Somalia that remains the case. Indeed, we can note that throughout the past decade various parts of Somalia have declared themselves to be states. So if a failed state exists there it is the state that used to be Somalia; which basically deserved to fail.
Indeed, one of the things that is problematic about the monopolies on power which states are supposed to be hold is that monopolies are problematic generally.
Without the power of the state – including coercive powers – the rule of law, contractual or otherwise, dissolves into the air and you are once again returned to the state of warlord kleptocracies.
Well, I would suggest that the rule of law, etc. broke down in Somalia long before the collapse of the Somali state. So the individual states rose up out of that process are the result of what Somalia’s rulers were doing in the 1960s and 1970s.
I think that every primate on the planet forms tribes for protection and socialization, and pretending homo sapiens is somehow above this inate instinct is the height of hubris.
Sure. In the case of early state formation that protection and socialization concerned the protection of crops, etc. from the evils of nature and Gods associated with nature as anything. The archaeological record clearly supports this.
Humans form groups. All the time. Witout fail.
Yeah, they do. Indeed, libertarians celebrate the voluntary nature of this formation.
States are our last, best attempt (so far) to harness the group forming instinct into something less violent and more useful.
States provide some useful means by which to curb conflict; that might make them necessary, but that it does not make them sufficient for human society. Being a good Smithian I would just note that most of what is necessary for human society lies far outside the state.
Comment by Seward —
April 14, 2009 @ 11:55 am
Sam,
I must address some of this…
Deride group formation however you like;
WTF?
…call it cultism…
Cult is a neutral anthropological term.
…imply it is based on religious coercion…
Given what we know of the power of the priestly casts in most early societies – particularly their use of hallucinogens and secret mazes and the like – I don’t know why you would find religion as a unifier of human populations problematic. These people didn’t live in the 21st century; religion and religious belief pervaded everything like science does today, and the practitioners of religion were extremely important people. This is not controversial in the field of anthropology.
…suggest off hand that it is only due to “insecurity†or whatnot…
Well, I think that the Neolithic revolution brought with it a lot of insecurity and opportunity of course; and most of that had little to do with attacks by other humans. Indeed, it seems that several generations and more would pass before the latter would become a significant concern for the early states.
Comment by Sam Hutcheson —
April 14, 2009 @ 12:13 pm
Government with a minimum of functions, namely courts, police, and a military.
“Minimum” does not define anything. If you want to limit government to the police state, foreign and abroad, that defines your terms better, but it seems a little odd that a self-identified libertarian would be embracing state as police state model.
Comment by Seward —
April 14, 2009 @ 2:10 pm
Sam,
“Minimum†does not define anything.
Sure it does. Now perhaps it doesn’t define things as precisely as you would like, but that is another matter.
…but it seems a little odd that a self-identified libertarian would be embracing state as police state model.
It clearly isn’t a police state model. A police state and a minarchy are quite different things.
Comment by Eric the .5b —
April 14, 2009 @ 2:20 pm
Personally, I prefer discussions that don’t involve the predictable veer into a statist trying to argue and “disprove” entire long-standing schools of thought he’s come across.
Also, something strikes me about Afghanistan and Somalia. When we talk about light-skinned people who’ve live in a certain millieu, we talk about clans and peoples and even, quite straight-facedly, kings and kingdoms. When dark-skinned people live in similar circumstances, we call it warlordism or anarchy.
Comment by Eric the .5b —
April 14, 2009 @ 2:37 pm
I’m afraid that doesn’t answer the question. Reviewing whether habeas or Geneva applies to individuals isn’t “[e]xtending Constitutional rights carte blanche” to anyone. It’s almost precisely the opposite.
Further, “providing protection for civilian service providers” is something the US military happens to do on a large scale already. Simply asserting that something would be a significant and undue burden does not demonstrate that it is either. After the last eight years, it’s hardly a sensible standard to assume that any military expediency certainly overrules human rights.
Comment by joe from Lowell —
April 14, 2009 @ 3:18 pm
Hold it, Eric.
They’re not “reviewing” the habeas status of every prisoner. A broad ruling on this would GRANT habeas status to every prisoner who claims to have been captured elsewhere.
They’d be reviewing the conditions of their detention, their treatment, and whether they should continue to be held – but the “they” in this sentence is “American civilian courts.” They would be reviewing these subjects by granting these prisoners the right to petition civilian courts for habeas corpus.
The outcome the three plaintiffs’ lawyers are seeking is not some kind of review carried out by the military about whether or not they are entitled to petition for such writs. The plaintiffs are seeking a judgement that they are entitled to petition for a write of habeas corpus.
So what we’re looking at here is an argument that anyone held at Bagram who claims “I’m Brian” is entitled to be brought bodily to the United States, so a civilian court judge can review the facts of their case and determine whether they should be released, or otherwise have the conditions of their detention modified.
Right now, they’re at 600 people. Of course, there are people coming and going all the time. I don’t think it’s empty rhetoric to discuss setting up a system to bring all of those people before American civilian courts in the states would impose a meaningful burden on the prosecution of the war.
Reviewing the status of prisoners in a war zone is a task for the “regularly-constituted tribunals” called for under Article 3 of the Geneva Convention. We need to get those up and running. The administration is coming up with a process for reviewing the status of the Guantanamo detainees; they should apply that to Bagram, not establish the doctrine that a prisoner at a POW camp in a war zone has the right to appear before a US judge on American soil by claiming to have been captured elsewhere.
Comment by Seward —
April 14, 2009 @ 3:19 pm
Eric the .5b,
Yes, there is in some ways very little difference between the “states” which make of Somalia and that which made up of Ireland prior to the coming of Henry II. Yet the leaders of the Irish states were/are called kings (ruiri), overkings (rà ruirech), etc.
Comment by Seward —
April 14, 2009 @ 3:37 pm
Eric the .5b,
Well, more to the point, I’d argue that allowing for the executive branch to handle this stuff is just setting up all sorts of potential pitfalls.
Comment by Sam Hutcheson —
April 14, 2009 @ 5:53 pm
Personally, I prefer discussions that don’t involve the predictable veer into a statist trying to argue and “disprove†entire long-standing schools of thought he’s come across.
If this is meant as a jab at me, I assure you I am aware of what people think they are saying when they claim to be minarchists, and I adjudged those claims to be empty and meaningless. You can not debate policy by arguing that “Goldilocks wants her porridge *just right.*”
Also, something strikes me about Afghanistan and Somalia. When we talk about light-skinned people who’ve live in a certain millieu, we talk about clans and peoples and even, quite straight-facedly, kings and kingdoms. When dark-skinned people live in similar circumstances, we call it warlordism or anarchy.
Again, if this is aimed at me you don’t know me well enough to level such a charge. Not in the least. You are far, far off base. To use an example from Seward @69, the Irish clans, just like the Scottish clans, were warlords, just like the Normans warlords that overthrew the Saxon warlords. Pigmentation has nothing to do with it.
Comment by Seward —
April 14, 2009 @ 8:39 pm
Sam Hutcheson,
Well, more to the point, by describing them as warlords it makes your argument seem more sound than it actually is. In reality there really isn’t much difference between oligarchies, warlord polities, or kingdoms because it isn’t the existence of a state that is important, it is how that state is constituted. A state which has a small political class is thus a menace, one with a large political class is less so.
…just like the Normans warlords that overthrew the Saxon warlords.
Given that most of state history has been under the rubric of states like the Normans who conquered Anglo-Saxon England, I’m not quite sure how you reconcile this with your claims about the wonderful history of the state.
…I assure you I am aware of what people think they are saying when they claim to be minarchists…
Are you making an argument about false consciousness here? To be blunt, if that is indeed the case I see no further reason for conversation, because false consciousness is non-sense.
You can not debate policy by arguing that “Goldilocks wants her porridge *just right.*â€
And you cannot debate policy without having a goal for that policy. I suppose you don’t have a goal, eh?
Anyway, how about we not make this discussion about ourselves?
Comment by Sam Hutcheson —
April 15, 2009 @ 10:48 am
A state which has a small political class is thus a menace, one with a large political class is less so.
On this we can agree, I think. I would argue that the US currently has a large, if not perfect polity. Certain elements are oligarchic in nature but I think the last two election cycles have been a strong response against the growing power of oligarchical elites. (All of which is now thoroughly tangential to how reasonable the current admin’s response to detainees at Bagram may or may not be.)
Given that most of state history has been under the rubric of states like the Normans who conquered Anglo-Saxon England, I’m not quite sure how you reconcile this with your claims about the wonderful history of the state.
I’m not sure I’ve made a claim to “wonderful history”, only that the history of state formation is better than what it replaced. Princely kingdoms were better than warlords and empires built on military brutality. Feudal kingdoms – improved on their princely predecessors. Nation states improved upon monarchies. “Nations of ideals” improved on nation states. All of these are better than the insecurity of roaming around as tribal bands. My point is not to defend any given state structure as perfect, but to claim that states provide useful and meaningful returns for indviduals and groups and to pretend otherwise is naivety taken to an extreme.
Are you making an argument about false consciousness here?
Nope. I’m stating that your term – minarchism – is meaningless, in much the same way St. Anselm’s “greatest of all possible Gods” is meaningless.
And you cannot debate policy without having a goal for that policy. I suppose you don’t have a goal, eh?
On what policy? We started talking about a very specific thing – Bush era torture and abuse and the most reasonable means for the current admin to redress those abuses. I argued; contra Thoreau, Greenwald, etc; that the current admin has not been given enough time to meaningfully address the complexities of the situation and that their actions to date do not betray their promises to reign in torture, merely that they were conservative in their reviews and approachs. (In a forum where I knew the personalities of my interlocuters better I might rephrase that to say they are “not being rash”, because I honestly think it would be rash to not move carefully and conservatively in these cases.)
That conversation then evolved into a debate of general political philosophy, which be necessity takes it one step removed from individual policy goals.
Comment by Eric the .5b —
April 15, 2009 @ 1:57 pm
Perhaps a nit, but I’m afraid I’m not aware of your qualifications or standing to abjudge anything, much less schools of thought (would that be a circuit court?
). Beyond that, I can only say that trying to shift a discussion into a first-principles debate over the ideology of the people you’re discussing something else with can often be mistaken for trolling.
Sam, I’m not sure what “charge” I’ve leveled at you to make you so defensive. It was a general observation, something my saying “we” should have clued you to.
Yes, that would be consistent terminology – as would calling that North America an “anarchy” due to its lack of a single, central government.
Consistency isn’t necessarily accuracy.
All I’m noting is that a lot of things called “anarchy”, even (or especially) by many breeds of anarchists, merely boil down to “no single, central organization I want to call a government”, even if there are plenty of other things about that waddle and quack despite nobody wanting to say “duck”. The “warlords” of Europe, including those Saxons and Normans, built societies and systems of laws. Aside from the not-entirely-convincing example of Iceland, medieval Europe wasn’t an anarchy. Tribal and clan governments in Somalia and Afghanistan aren’t anarchy, either. They’re just not standard, modern Western nation-states.
Comment by Eric the .5b —
April 15, 2009 @ 2:13 pm
Reviewing that, you’re right; I misunderstood.
I think that would be safe to characterize as “meaningful”. Whether it’s undue is a separate question.
There’s more than the Geneva Convention that applies, though. If those people are not prisoners of war, we can’t do the Bush “enemy combatant” shrug and say the military can indefinitely imprison, torture, or kill them as they please.
Comment by joe from Lowell —
April 16, 2009 @ 10:13 am
They SHOULD “review the habeas status of every detainee,” btw. The executive branch should establish some kind of system of figuring out who’s a POW to be held as a POW, and keep them at Bagram, and who’s a terrorism suspect to be transfered to either the civilian courts, or put in front of a court martial.
Let me just say, after the last 8 years, I have a great deal of sympathy for this position. There certainly is an argument to be made that Bagram needs a top-to-bottom fumigation, carried out by people who had nothing to do with how it was operated under Bush.
Of course not. Upon a finding of guilt, they become convicts, like everyone else convicted by a court. There are still standards for the treatment of criminals, and still a due process.
Comment by Eric the .5b —
April 17, 2009 @ 12:03 pm
Sorry for the late reply, but on all of that, we definitely agree, Joe.