Lindsey Graham must have decided that he wants to keep his job. Yesterday he left Eric Holder baffled during Senate Judiciary Committee Hearings, simply by asking him: Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

This dialogue then followed:

GRAHAM: If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?

HOLDER: He would certainly be brought to justice, absolutely.

GRAHAM: Where would you try him?

HOLDER: Well, we’d go through our protocol. And we’d make the determination about where he should appropriately be tried. [...]

GRAHAM: If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?

HOLDER: Again I’m not—that all depends. I mean, the notion that we—
GRAHAM: Well, it does not depend. If you’re going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you’re criminalizing the war, that if we caught bin Laden tomorrow, we’d have mixed theories and we couldn’t turn him over—to the CIA, the FBI or military intelligence—for an interrogation on the battlefield, because now we’re saying that he is subject to criminal court in the United States. And you’re confusing the people fighting this war.

NYM made the same point as Mr. Graham last week.

4:40 video

Courtesy of our elite law schools, Shearman & Sterling, and a liberal Supreme Court majority, some news agency reports that federal judges are busy right now turning captured jihadis loose.

Complying with a Supreme Court ruling last year, 15 federal judges in the U.S. courthouse (In Washington, D.C.) are giving detainees their day in court after years behind bars half a world away from their homelands.

The judges have found the government’s evidence against 30 detainees wanting and ordered their release. That number could rise significantly because the judges are on track to hear challenges from dozens more prisoners. ...

Bush administration Defense Secretary Donald Rumsfeld once promised Guantanamo held “the worst of the worst.” The judges here have rejected pleas for release from eight detainees, but they have concluded the government doesn’t even have enough evidence to keep 30 other detainees behind bars.

“There is absolutely no reason for this court to presume that the facts contained in the government’s exhibits are accurate,” District Judge Gladys Kessler wrote in ordering the release of Alla Ali Bin Ali Ahmed. He was repatriated to Yemen after a seven-year stay at Guantanamo, where he was brought as a teenager.

“Much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second- and third-hand hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said,” Kessler said. She ruled the government failed to prove the detainee was part of or substantially supported Taliban or al-Qaida forces.

How can a case against a foreign enemy apprehended by another government possibly be prosecuted within the rules of domestic criminal procedure? Khalid Shaikh Mohammed obviously was never Mirandized. What can Eric Holder and Barack Obama possibly be thinking? Are these people hopelessly naive?

Andrew McCarthy doesn’t think so. He thinks they know exactly what they’re doing.

We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda’s case against America. Since that will be their “defense,” the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see — in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America’s defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.

Read the whole thing.

the late Yousef Mohammed al Shihri

Thomas Joscelyn reports that another released Guantanamo prisoner who rejoined al Qaeda was this time permanently detained by Saudi security forces.

On Oct. 13, a former Guantanamo detainee named Yousef Mohammed al Shihri was killed in a shootout at a checkpoint along the Saudi-Yemeni border. Al Shihri and his accomplices were stopped by Saudi security forces after their suspicious behavior drew attention.

Two of the travelers, including al Shihri, were reportedly dressed as women. Saudi security personnel decided to search the al Qaeda car and its passengers, but al Shihri and the others opened fire. Al Shihri and one other al Qaeda member were killed in the shootout, while a third was arrested. One Saudi security officer was also killed. ...

Yousef Mohammed al Shihri was repatriated to Saudi Arabia in November 2007 along with thirteen other Saudi citizens. At least several of them have returned to al Qaeda’s ranks. One of those who rejoined al Qaeda is Said Ali al Shihri, who has become the deputy chief of al Qaeda in the Arabian Peninsula and was reportedly involved in the September 2008 attack on the US embassy in Sanaa, Yemen. According to memos prepared at Gitmo, Said Ali al Shihri is Yousef Mohammed al Shihri’s brother. However, according to a report by Caryle Murphy in the Christian Science Monitor, Saudi authorities have said the two al Qaeda terrorists were brothers-in-law.

Regardless, Yousef and Said were relatives. And their stories demonstrate the pitfalls of the US government’s transfer and release decisions. Prior to their transfers, US intelligence officials at Guantanamo had determined that Said was “a known al Qaeda operative.” Moreover, when they inquired about Yousef, they found that he was considered one of the more dangerous Saudis held at Guantanamo.

In a memo prepared at Guantanamo, US intelligence officials reported that:

A foreign government service provided information on detainees held at Guantanamo Bay that they designated as being high priority targets, in order of precedence. [Yousef Mohammed al Shihri] is number four on the list.

The “foreign government service” is likely Saudi intelligence, as that organization would have the most information on Yousef and his fellow Saudi al Qaeda compatriots. Well more than 100 Saudis were detained at Guantanamo, so Yousef must have been considered especially dangerous to be listed as number four on the list.

In addition, US intelligence officials alleged that Yousef Mohammed al Shihri made his allegiances and animosity for America well-known long before being transferred to Saudi Arabia. Regarding Yousef Mohammed al Shihri, memos prepared at Guantanamo alleged:

The detainee stated he considers all Americans his enemy. The detainee decided that he hates all Americans because they attack his religion, Islam. Since Americans are the detainee’s enemy, he will continue to fight them until he dies.

The detainee pointed to the sky and told the interviewing agents that he will have a meeting with them in the next life. …

The detainee stated that the FBI, the United States and the interrogators are the enemy.

Despite all of this, Yousef and Said were transferred to Saudi custody. They both graduated from the Saudi jihadist rehabilitation program and then joined nine others in a planned escape from Saudi soil. They fled to Yemen, where they joined al Qaeda in the Arabian Peninsula, which is currently one of the strongest al Qaeda branches. Said lives on to fight another day, while Yousef now gets to test his theory of the afterlife.

Typical ordinary Afghans commonly frivolously detained by the United States

Another of the innocent inhabitants of the Middle East, erroneously and unjustly detained by the Bush Administration at Guantanamo Bay then freed in 2007, has resumed his former life and become a prominent and effective leader in his home community.

Fox News.

A former Guantanamo Bay inmate is leading the fight against U.S. Marines in the Helmand province of Afghanistan, a senior U.S. defense official confirmed to FOX News on Tuesday.

Mullah Zakir, also known as Abdullah Ghulam Rasoul, surrendered in Mazar-e-Sharif in Northern Afghanistan in 2001, and was transferred to Gitmo in 2006. He was released in late 2007 to Afghan custody.

Now as the United States is pushing ahead with the massive Operation Khanjar in the southern province of Afghanistan, Zakir is coordinating the Taliban fighters. Some 4,000 U.S. Marines and hundreds of Afghan forces have faced some resistance as they sweep across the province, reclaiming control of districts where Zakir and his comrades were running a shadow government.

Zakir was released from Afghan custody around 2008, according to the New York Post. He re-established connections with high-level Taliban leaders in Afghanistan and Pakistan after his second release.

Taliban chief Mullah Omar appointed Zakir in mid-2008 as senior military commander, according to the newspaper.

Zakir quickly became a charismatic leader, helping establish an “accountability commission” to track spending and monitor activities of Taliban leaders in the districts where they held power and were running a shadow government, according to the Post.

Explaining why Zakir was released from Gitmo, the defense official said, “We were under incredible pressure from the world to release detainees at Gitmo. You just don’t know what people are going to do.

“He was no worse than anyone else being held at Gunatanamo Bay,” the official added. “He was not going to be tried for war crimes so we decided to release him. Either he was not thought to have committed a crime or we didn’t have enough evidence to prosecute him.”

The defense official shifted some blame for Zakir’s activities to Afghanistan. “The country which agreed to take him promised to take steps to mitigate the threat he posed.

Uighurs in Paradise

Back in 1959, well before Vietnam, there was a very funny Peter Sellers comedy called The Mouse That Roared.

Impoverished by the collapse of its only industry, the tiny European Duchy of Grand Fenwick proposes to declare war on the United States, lose, and then achieve prosperity via US reconstruction assistance and aid to a defeated foe.

American charity to wartime enemies was sufficiently notorious in the post-WWII era to provide themes for comedy, but it never occurred to George Marshall or Harry Truman to dispatch captured members of Axis forces to tropical resorts in the manner described by yesterday’s New York Times.

Almost exactly seven years after arriving at Guantánamo in chains as accused enemy combatants, and four days after their surprise predawn flight to Bermuda, four Uighur Muslim men basked in their new-found freedom here, grateful for the handshakes many residents had offered and marveling at the serene beauty of this tidy, postcard island.

In newly purchased polo shirts and chinos, the four husky men, members of a restive ethnic minority from western China, might blend in except for their scruffy beards. Smelling hibiscus flowers, luxuriating in the freedom to drift through scenic streets and harbors, they expressed wonder at their good fortune in landing here after a captivity that included more than a year in solitary confinement. ...

“Before we were asking, ‘Why are the Americans doing this to us?’ ” said Mr. Abdulahat. Now, he said, with others nodding in agreement, “We have ended up in such a beautiful place….

While some less affluent residents said they felt it was unfair to offer jobs and citizenship to men the United States itself would not take, many others shrugged and expressed pride at Bermudan hospitality. As the men venture from the seaside cottage where they temporarily live until they get jobs and figure out next steps, people often come up to shake their hands and wish them well, and the men said they were deeply touched.

Their homeland of Xinjiang, a largely Muslim region in western China where many residents chafe under Chinese rule, is landlocked, and many of the Uighur detainees saw an ocean — still a distant, mysterious presence — for the first time ever through fences at Guantánamo.

Now they can play in the waters. Khaleel Mamut, 31, said he went fishing on a boat on Saturday and caught his first fish ever. “I was so excited,” he said. “You just drop the hook in the water and you get a fish.” Hearing that fishing did not always bring such quick results, one of the other men quipped that perhaps the fish were joining in Bermuda’s welcome.

They have been promised work visas and, in perhaps a year or so, possible citizenship, their American lawyers said. That would give them passports and a right to travel.

slideshow

Tired of living in hopeless poverty driving sheep across the Gobi’s trackless sands? Get yourself an AK-47 and start taking potshots at US troops. Maybe you, too, will be captured and awarded a new life in a tropical resort at US taxpayers’ expense. Allahu Akhbar!

Thomas Joscelyn has news on the Obama Administration’s latest tropical retirement for terrorists at US taxpayers’ expense breakthrough.

Surviving German and Italian prisoners of war of the WWII era, who were, after all, lawful combatants fighting in uniform as members of military forces typically observing the laws and customs of war, were by comparison lodged in Spartan conditions behind barbed wire and commonly required to perform agricultural or construction labor. Those Axis POWs must be feeling a trifle slighted. No one ever offered to release them into new lives in vacation playgrounds.

Palau is not the only resort island willing to take the Uighurs detained at Guantanamo. The Obama administration has transferred four Uighurs to Bermuda, which is, of course, much closer to the continental U.S. than Palau. Understandably, the Obama administration has placed travel restrictions on the Uighurs. ABC News reports that they are not allowed to travel to the U.S. without prior consent.

This alone is somewhat of a reversal by the administration, since it was reportedly considering freeing some of the Uighur detainees in the U.S. at one point. One wonders what our European allies will think, too. Leading European nations were only willing to consider taking detainees, including the Uighurs, if the administration showed a willingness to release them on U.S. soil. While the administration has found a home for the Uighurs, it fails to satisfy the quid pro quo conditions that our allies have demanded. Keep an eye out for Europe’s reaction to this news, and whether attitudes across the pond evolve. The reaction of European politicians could very well be: If the Obama administration won’t even allow former detainees to travel to the U.S., then why should we free them in our own nations?

So, who are Bermuda’s new residents? And why would the Obama administration place travel restrictions on them?

All four of them are members or associates of the Eastern Turkistan Islamic Movement (otherwise known as the Turkistan Islamic Party). The ETIM/TIP is a U.S. and UN designated terrorist organization affiliated with al Qaeda and has attacked civilians in China, as well as reportedly plotted against other targets elsewhere, including the U.S. embassy in Kyrgyzstan. According to the State Department, ETIM/TIP members have also fought alongside the Taliban and al Qaeda in Afghanistan. And last year the organization threatened to attack the Olympic Games in China.

The four Uighurs attempted to deny any relationship with the ETIM/TIP, the Taliban, and al Qaeda during their CSRTs. But their denials are not credible. In the context of their denials they made important admissions.

For example, all four of the Uighurs admitted during their combatant status review tribunals (CSRTs) at Gitmo that they received training in the Taliban’s Afghanistan. And all four of them received this training at an ETIM/TIP terrorist training facility in Tora Bora, a key area once controlled by the Taliban and al Qaeda.

Three of the four Uighurs transferred to Bermuda also admitted that they had firsthand ties to senior terrorists such as Hassan Mahsum and Abdul Haq – the leaders of the ETIM/TIP. Haq was recently designated an al Qaeda terrorist by the Obama administration’s Treasury Department, which noted that he is also a member of al Qaeda’s elite Shura council. Mahsum was killed in a Taliban and al Qaeda stronghold in northern Pakistan in 2003.

As Stephen Hayes describes, first you make sure that US forces Mirandize captured enemy fighters.

When 9/11 mastermind Khalid Sheikh Mohammad was captured on March 1, 2003, he was not cooperative. “I’ll talk to you guys after I get to New York and see my lawyer,” he said, according to former CIA Director George Tenet.

Of course, KSM did not get a lawyer until months later, after his interrogation was completed, and Tenet says that the information the CIA obtained from him disrupted plots and saved lives. “I believe none of these successes would have happened if we had had to treat KSM like a white-collar criminal—read him his Miranda rights and get him a lawyer who surely would have insisted that his client simply shut up,” Tenet wrote in his memoirs.

If Tenet is right, it’s a good thing KSM was captured before Barack Obama became president. For, the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee.

Then, you arrange $11.1 million a head retirement packages to the South Seas for your prisoners. Yes, 17 Uighurs into $200 million comes to $11.1 million semolians.

Fox News:

Palau says its decision to temporarily take the 17 Uighurs, or Chinese Muslims, being held at the Guantanamo Bay prison was a “humanitarian gesture.”

But the South Pacific island may have been motivated more by 200 million other reasons.

Two U.S. officials told the Associated Press that the U.S. was prepared to give Palau up to $200 million in return for accepting the Uighurs and as part of a mutual defense and cooperation treaty that is due to be renegotiated this year.

Figures on Palau’s federal budget weren’t immediately available, but if it is close to its size in 1999, when it was $71 million, the deal with the U.S. would in effect more than double the nation’s spending and make it the fastest growing economy in the world.

Frankly, I bet you could get very close to every terrorist simply to put down his AK-47 and retire for a considerably smaller one-time payment.

Of course, it’s hard to imagine a more effective recruiting promotional deal. I can see Achmed the al Qaeda recruiter delivering his spiel even now, “And if the soldiers of the great Shaitan capture you, they will only provide you with attorneys from Sherman & Sterling before funding your retirement to a life of leisure in a tropical paradise surrounded by beautiful maidens serving you Mai Tais. Inshallah!”

Ralph Peters has a simple solution to the indefinite detention conundrum which keeps wet liberals like Marc Ambinder up all night sobbing into their pillows over the neglected “rights” of terrorists given quarter and taken alive.

Silly narcissistic people, like Ambinder, who make moral statements along with their fashion statements and for the same reasons, will never recognize the inevitable fruits of their eager intrusion into the issue. Bang! goes the gun in the hand of the US soldier or intelligence officer who now knows better than to take any prisoners who are going to serve as the focus of such a costly, idiotic, and self-lacerating domestic debate.

There can be little doubt that what Ralph Peters advocates will de facto be the never-expressed policy.

We made one great mistake regarding Guantanamo: No terrorist should have made it that far. All but a handful of those grotesquely romanticized prisoners should have been killed on the battlefield.

The few kept alive for their intelligence value should have been interrogated secretly, then executed.

Terrorists don’t have legal rights or human rights. By committing or abetting acts of terror against the innocent, they place themselves outside of humanity’s borders. They must be hunted as man-killing animals.

And, as a side benefit, dead terrorists don’t pose legal quandaries.

“In my long experience in Washington, few matters have inspired so much contrived indignation and phony moralizing as the interrogation methods applied to a few captured terrorists.”
—Dick Cheney

Rich Lowry hits Obama’s nail right on the head.

Put Barack Obama in front of a Tele PrompTer and one thing is certain—he’ll make himself appear the most reasonable person in the room.

Rhetorically, he is in the middle of any debate, perpetually surrounded by finger-pointing extremists who can’t get over their reflexive combativeness and ideological fixations to acknowledge his surpassing thoughtfulness and grace. ...

It’s natural, then, that his speech at the National Archives on national security should superficially sound soothing, reasonable and even a little put upon (oh, what President Obama has to endure from all those finger-pointing extremists).

But beneath its surface, the speech—given heavy play in the press as an implicit debate with former Vice President Dick Cheney, who spoke on the same topic at a different venue immediately afterward—revealed something else: a president who has great difficulty admitting error; who can’t discuss the position of his opponents without resorting to rank caricature, and who adopts an off-putting pose of above-it-all righteousness.

Read the whole thing.

Coming soon to a city near you?

Congressional Republicans (1, 2) and democrats are raising serious questions about Barack Obama’s plans to release terrorist detainees from the US holding facility in Guantanamo Bay into the United States, pointing to already existing statutes barring entry to recipients of terrorist training and introducing further legislation to block the president’s plans.

Jennifer Rubin, at Commentary, thinks Obama has painted himself into a corner on this one, and is going to incur serious political costs whichever way he decides in the end to proceed.

So what does the president do now? To go back on his promise to close Guantanamo would mean incurring the wrath of not only the Left in the U.S., but of the fawning European leaders and public who praised his decision to shut the place down. And it would, of course, be a humiliating admission that his initial pronouncement — made even before Eric Holder visited Guantanamo — was ill-conceived. He can try to fudge the issue or delay, but ultimately he has to do one or the other: proceed to close Guantanamo and begin releasing the detainees, or admit error and adhere to the Bush policy of housing dangerous terrorists there. It is not “a false choice,” but a very real one. We’ll see which audience, American or European, he is willing to offend.

The Obama Administration has an answer: release them in the United States and put them on welfare. Before long, presumably, ACORN will be taking them to the polls to vote democrat.

Thomas Joscelyn quotes a news agency report and comments.

John Hawkins finds the Annointed One embarrassing to watch on 60 Minutes.

Many of us, that at times during our lives, have believed we could do a better job than the President of the United States, just as we thought we’d do a better job than the coach of the Pittsburgh Steelers or the network executive who greenlighted Real Chance of Love.

The problem tends to be that what looks so crystal clear from the outside, usually in hindsight, appears confusing, muddled, and difficult to fathom when you’re actually going through it.

That’s why experience matters, particularly executive experience, and it’s a big part of the reason why Barack Obama has done such a mediocre job so far.

Obama is a silver-tongued political novice who has managed to be in the right place at the right time.

Now, if you’re a hammer, every problem looks like a nail. And if you’re a politician like Barack Obama, who has gotten everything he has in life by being slick and sounding confident, every problem looks like something that can just be talked away.

That tendency was on display in his Sixty Minutes interview, a ‘grilling’ which would be considered a softball interview for a Republican (”Wow, that’s a great swingset for your kids to play on. How are they liking the White House so far?”) but was still probably tougher than any interrogation Obama has received since he entered the White House. (After all, he even admitted that he gets lost in the White House “repeatedly.”)

Each time Obama got a tough question, he did what sociopathic politicians have doing for decades: he lied, dodged, and talked out of both sides of his mouth.

Read the whole thing.

Mohamed Abdullah Al Harbi aka Abul Hareth Mohammed al-Awf

Another US-released Guantanamo detainee, Mohamed Abdullah Al Harbi aka Abul Hareth Mohammed al-Awfi, has been reported captured by the Yemeni government while working as a high level al-Qaeda operative.

The (Yemen) Interior Ministry says it sent back the Saudi national, Ahmed Owaidan al-Harbi, on Thursday, 20 days after his arrest in eastern Yemen. The ministry hasn’t released any details on al-Harbi’s case.

The extradition comes two days after Yemen returned another Saudi national who was once held at the U.S. prison in Guantanamo and later became an al-Qaida operative in Yemen. Officials say that suspect, Abu al-Hareth Muhammad al-Oufi, surrendered himself

Evan Kolhmann’s NEFA report on The Eleven: Saudi Guantanamo Veterans Returning to the Fight provides a revealing profile.

However, contrary to his account before the ARB panel, the U.S. military learned from its own sources that al-Harbi had allegedly been “in Chechnya for approximately nine months in 1999… A source reported that the detainee underwent basic training and physical training in Chechnya.” ... Aside from his purported tour of duty with the mujahideen in Chechnya, according to the U.S. military, al-Harbi was also recognized by a “senior al Qaida lieutenant” as “possibly being at his site, a guest house in Kabul,
in 1998 or 1999.”

In the late fall of 2001, Mohammed al-Harbi traveled on a religious pilgrimage to the Saudi city of Mecca for the holy month of Ramadan. It was “at this time he decided to travel to Pakistan and provide assistance to the Afghani refugees that were residing at camps on Pakistani soil.”...

Al-Harbi gathered together at least 14,000 Saudi Riyals and US$8,000 (a total of approximately $12,000) and on the eighth day of Ramadan (November 24, 2001), traveled from Jeddah, Saudi Arabia to Karachi, Pakistan. ...

According to intelligence obtained by the U.S. military, Mohammed al-Harbi was a “member” of Al-Wafa al-Ighatha al-Islamiya, a thinly-veiled fraudulent charitable front for Al-Qaida terror financing. As cited previously, Al-Wafa “claimed to be a charitable organization, but it was common knowledge that al Wafa delivered weapons and supplies to Afghanistan fighters in Tora Bora… Al Wafa provided money of all currencies, including United States Dollars, to those fighters who needed it.” The Pentagon further alleged that al-Harbi had been identified as “one of approximately 400 Arabs who claimed to be members of a subset of al Wafa… [who] were actually Mujahedin fighters in Afghanistan.”...

Al-Harbi was … quick to deny the charges that he had “received hand grenade, machine gun, pistol, map reading and explosives training” at Al-Qaida’s Al-Farouq terrorist training camp; that he had served as a “fighter in Kandahar, Afghanistan”; and, that he had participated in the battle of Tora Bora in late November 2001, and had been seen fighting there. ...[He] continued to stubbornly maintain his innocence. ...

On November 9, 2007, al-Harbi was released from U.S. military detention in Guantanamo Bay and transferred to the custody of local security forces in Saudi Arabia.

Less than six months after returning to Saudi Arabia, Mohammed al-Harbi fled with a group of other Saudi Al-Qaida members to sanctuary in neighboring Yemen. It is not known when, how, or why al-Harbi was able to escape the custody of the Saudi government. On January 23, 2009, the Al-Fajr Media Center published new video footage of joint sermons delivered by a group of Saudi and Yemeni Al-Qaida leaders in a recording titled, “From Here We Will Begin and in Al-Aqsa We Shall Meet.” One of the men featured in the video was former Gitmo detainee Mohammed al-Harbi, carrying the official title of “Field Commander of the Al-Qaida Organization in the Arabian Peninsula.” During his speech, al-Harbi threatened:

“I say to America’s collaborators… the Saudis… the grenade of our brother Ali al-Mabadi, may Allah have mercy upon him, is in our hands, and by Allah, we shall fulfill his oath or die trying—unless you seek forgiveness from Allah for the war that you are waging against Islam and the Muslims. And we warn our imprisoned brothers to avoid the ‘attention and advice program’ which is administered by the ignorant oppressor Mohammed Bin Nayef and his criminal helpers like Dai Turki al-Atayan—who headed the delegation of psychological investigators sent to Cuba, and helped the Americans to conduct psychological examinations and to extract confessions from us using psychiatric methods employed in the prisons of Saudi Arabia against the mujahideen. [These methods are used] in order to persuade us to stray from Islam and our path using every tool and method through the plan of advice… Finally, we say to the Christian countries which are preparing for war in Saudi Arabia and which are supporting the Christian war against the Muslims: by Allah, we are surely coming for you! By Allah, we are surely coming for you! We are walking the path of our former brothers, like Shaykh Yousef al-Ayyiri, Shaykh Esa al-Awshin, Khaled al-Haj, Turki al-Dandani, Ali al-Mabadi, and other lions of Allah who have been slain in Saudi Arabia. And we say to the police and [internal] investigations [system] of the Saudis, and to those who guard the Jews and the Christians: repent to Allah for the deception and treachery that you are culpable for when you guard the entrances to their embassies, their secret temples, their population centers, and their military and intelligence bases. The one who gives fair warning cannot [afterwards] be blameworthy, O’ servants of the Dirham and the Dinar.”

It was the Bush Administration that released this particular lamb. Just imagine the caliber of the people the Obama Administration is going to be releasing.

And hopefully right next to where the insufferable ass who wrote this lives:

The total population of terrorists ebbs and flows all the time. When the number goes up by one hundred, no one much notices. If the number goes up by one hundred because we release some previously identified terrorists, there is or will be a public outcry. But it’s the same consequence.

Fewer terrorists are better than more terrorists, to be sure. But a terrorist we release is not obviously worse than a terrorist who was free in the first place.

We evaluate outcomes differently when we feel we are in control or should be in control. We should examine this intuition carefully, since it is not always justified.

We also treat an outcome differently when we feel it allows an enemy of ours to “get back at us.” I suspect this difference in feeling is not usually justified and that it is the primary driver behind the fear of releasing terrorists.

I can think of “political theater” reasons why an attack from a released terrorist would be worse than an attack from an “already free” terrorist. Overall I do not yet feel that we are thinking about this issue rationally.

Tyler Cowen is obviously so smart that he’ll simply rationalize all those terrorists into utter irrelevance before they can shoot him or blow him up.

While somehow I really suspect, in my heart of hearts, that the learned economics professor would very vehemently object to becoming a personal part of his own thought experiment, on the other hand, from his disinterested point of view, releasing tens or hundreds of murderous fanatics far, far from the DC suburbs where they most probably will harm no one other than some Iraqi or Afghan civilians, or the occasional US soldier, constitutes a perfectly acceptable exercise in statistical theory.

New York Times notes that another satisfied client of Shearman & Sterling has returned to his normal life.

The emergence of a former Guantánamo Bay detainee as the deputy leader of Al Qaeda’s Yemeni branch has underscored the potential complications in carrying out the executive order President Obama signed Thursday that the detention center be shut down within a year.

The militant, Said Ali al-Shihri, is suspected of involvement in a deadly bombing of the United States Embassy in Yemen’s capital, Sana, in September. He was released to Saudi Arabia in 2007 and passed through a Saudi rehabilitation program for former jihadists before resurfacing with Al Qaeda in Yemen.

His status was announced in an Internet statement by the militant group and was confirmed by an American counterterrorism official.

“They’re one and the same guy,” said the official, who insisted on anonymity because he was discussing an intelligence analysis. ...

Mr. Shihri, 35, trained in urban warfare tactics at a camp north of Kabul, Afghanistan, according to documents released by the Pentagon as part of his Guantánamo dossier. Two weeks after the terrorist attacks of Sept. 11, 2001, he traveled to Afghanistan via Bahrain and Pakistan, and he later told American investigators that his intention was to do relief work, the documents say. He was wounded in an airstrike and spent a month and a half recovering in a hospital in Pakistan.

The documents state that Mr. Shihri met with a group of “extremists” in Iran and helped them get into Afghanistan. They also say he was accused of trying to arrange the assassination of a writer, in accordance with a fatwa, or religious order, issued by an extremist cleric.

However, under a heading describing reasons for Mr. Shihri’s possible release from Guantánamo, the documents say he claimed that he traveled to Iran “to purchase carpets for his store” in Saudi Arabia. They also say that he denied knowledge of any terrorists or terrorist activities, and that he “related that if released, he would like to return to Riyadh, Saudi Arabia, wherein he would reunite with his family.”

“The detainee stated he would attempt to work at his family’s furniture store if it is still in business,” the documents say.

This terrorist, let’s recall, was released by George W. Bush and Dick Cheney, along with dozens of others who have rejoined the jihad. Obama has 245 he can release.

Barack Hussein Obama opened his administration by addressing America’s first priority: the protection of terrorists and illegal combatants.

The Guantanamo Detention Center is to be closed “within a year.”

The CIA is to close its network of covert overseas detention facilities.

Interrogation methods used by US Intelligence agencies will be limited to those approved by the US Army Field Manual

New York Times story
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Spook86 predicts that the worst of the lot will go to the Federal Maximum Security Prison in Florence, Colorado, and that the new load on the federal court system will provoke the creation of a new Federal Security Court system.

MacRanger predicts that the impact of the Obama reforms will assure a lot fewer illegal combatants are taken alive.

left:Ali al-Kurdi, Right: Mohammed el-Qahtani in Yemen jail

Susan J. Crawford, the convening authority for military commissions, Bob Woodward gleefully reports, has announced that she is unwilling to try Mohammed el-Qahtani (the intended 20th 9/11 hijacker who missed his flight) because interrogation techniques applied to him, including “sustained isolation, sleep deprivation, nudity and prolonged exposure to cold” impaired the poor chap’s health and thus amounted to torture.

Crawford . . . .said the combination of the interrogation techniques, their duration and the impact on Qahtani’s health led to her conclusion. “The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture, she said.

He says, if discomfort, embarrassment, and water poured on your face are torture, he was tortured himself.

Sustained isolation, sleep deprivation, nudity and prolonged exposure to cold I experienced in basic training. Waterboarding I experienced later during escape and invading training.

Here we have a Bush Administration official, with a long record of working for Dick Cheney, by the way, inhibited from prosecuting a principal participant in the worst attack on the United States in history costing the lives of 3000 innocent civilians
because she is willing to regard discomforts used in interrogation essentially identical to stresses endured by US military personnel in training as “torture.” Once Crawford is gone and some Obama appointee is in her place, we’ll have hairy Pathan mass murderers released because some corporal crushed their spirits with a cutting remark.

All this demonstrates that the Bush Administration approach of military commissions operating at Defense Department level in the full view of the domestic media and the humanitarian bien pensant left was always insane. The correct procedure was always minimum formality and drumhead courts martial for illegal combatants and captured terrorists under the immediate local US military authority followed by speedy dispatch to the Muslim Paradise at rope’s end.

Barack Obama is widely expected to fulfill his campaign promise to close the US detention center at Guantanamo, if not on Day One of his administration, as soon as can practically be arranged.

The prison at Guantanamo Bay has been made into a symbol of Bush Administration offenses by the left, and its closing will appropriately signal the left’s victory in the struggle with George W. Bush for public perception of reality. But, delightful as the consummating moment of wet liberal humanitarianism’s triumph ought to be, clever democrats like Obama can probably already predict the ultimate consequences.

Simply transferring jihadis to US federal prisons will amount to moving them to the US domestic justice system, with all of them armed and equipped with top flight representation right out of America’s best law schools and white shoe law firms. Renditioning Guantanamo inmates to remote foreign locations where leftwing reporters and attorneys from Shearman & Sterling are in shorter supply would be effective, but rendition has been made into a dirty word.

The Bush Administration, squirming and wriggling ineffectively under continual liberal attack, already released all the likely safe bets and questionable case prisoners.

Reuters reported yesterday on just how well that worked out.

The Pentagon said on Tuesday that 61 former detainees from its military prison camp at Guantanamo Bay, Cuba, appear to have returned to terrorism since their release from custody.

The Pentagon declined to give the names of the 61 released detainees, but at least one, Abdullah Saleh al-Ajmi, is pretty well known. He blew up seven Iraqi security force officers and himself in a suicide bombing last April 26th.

I’d say Barack Obama is in a no win situation.

Former CIA officer Reuel Marc Gerecht predicts that Barack Obama, faced with the same threats, will wind up making the same choices as George W. Bush for the same reasons.

President-elect Barack Obama has promised to ban waterboarding and other pain-inflicting soliciting techniques, as well as rendition. He has also promised to close the Guantánamo Bay prison.

More broadly, liberal Democrats in Congress intend to deploy a more moral counterterrorism, where the ends — stopping the slaughter of civilians by Islamic holy warriors — no longer justifies reprehensible means. Winning the hearts and minds of foreigners by remaining true to our nobler virtues is now seen as the way to defeat our enemies while preserving our essential goodness.

Sounds uplifting. Don’t bet on it happening.

Mr. Obama will soon face the same awful choices that confronted George W. Bush and Bill Clinton, and he could well be forced to accept a central feature of their anti-terrorist methods: extraordinary rendition. If the choice is between non-deniable aggressive questioning conducted by Americans and deniable torturous interrogations by foreigners acting on behalf of the United States, it is almost certain that as president Mr. Obama will choose the latter. ...

Rendition… is what Americans do when they realize that active counterterrorism against jihadists prepared to use mass-casualty weapons is an ethical, juridical and operational tar pit. It isn’t an ideal solution — American intelligence officers have no control of the questioning, and Washington can become beholden to foreign security services — but it’s a satisfactory compromise. Just ask Samuel R. Berger, the national-security adviser for President Bill Clinton, who no doubt worked through all the pitfalls when he first approved extrajudicial rendition.

In addition, the C.I.A. is able to guard the secrecy of foreign-liaison operations more effectively, especially from Congressional prying, than it can its own activities. It has also certainly paid close attention to how the press tracked some of its clandestine international flights carrying terrorism suspects after 9/11, and will in the future undoubtedly make it much harder to sleuth out who is going where.

A dense bipartisan moral fog surrounds rendition. Former senior Clinton officials can still deny that they sent anyone away in order that he be tortured. Few are as honest and frank as Walt Slocombe, a Clinton undersecretary of defense who once remarked that the difference between Democratic and Republican rendition was that Democrats “drilled air holes in the boxes.”

The US has sometimes resorted to playing loud Rock n’ Roll to break prisoners’ will to resist. And some musicians are offended at their being selected for use as negative reinforcement.

Andrew O Selsky:

Blaring from a speaker behind a metal grate in his tiny cell in Iraq, the blistering rock from Nine Inch Nails hit Prisoner No. 200343 like a sonic bludgeon.

“Stains like the blood on your teeth,” Trent Reznor snarled over distorted guitars. “Bite. Chew.”

The auditory assault went on for days, then weeks, then months at the U.S. military detention center in Iraq. Twenty hours a day. AC/DC. Queen. Pantera. The prisoner, military contractor Donald Vance of Chicago, told The Associated Press he was soon suicidal.

The tactic has been common in the U.S. war on terror, with forces systematically using loud music on hundreds of detainees in Iraq, Afghanistan and Guantanamo Bay. Lt. Gen. Ricardo Sanchez, then the U.S. military commander in Iraq, authorized it on Sept. 14, 2003, “to create fear, disorient … and prolong capture shock.”

Now the detainees aren’t the only ones complaining. Musicians are banding together to demand the U.S. military stop using their songs as weapons.

A campaign being launched Wednesday has brought together groups including Massive Attack and musicians such as Tom Morello, who played with Rage Against the Machine and Audioslave and is now on a solo tour. It will feature minutes of silence during concerts and festivals, said Chloe Davies of the British law group Reprieve, which represents dozens of Guantanamo Bay detainees and is organizing the campaign. ...

Not all of the music is hard rock. Christopher Cerf, who wrote music for “Sesame Street,” said he was horrified to learn songs from the children’s TV show were used in interrogations.

“I wouldn’t want my music to be a party to that,” he told AP.

Bob Singleton, whose song “I Love You” is beloved by legions of preschool Barney fans, wrote in a newspaper opinion column that any music can become unbearable if played loudly for long stretches.

“It’s absolutely ludicrous,” he wrote in the Los Angeles Times. “A song that was designed to make little children feel safe and loved was somehow going to threaten the mental state of adults and drive them to the emotional breaking point?” ...

Some musicians, however, say they’re proud that their music is used in interrogations. Those include bassist Stevie Benton, whose group Drowning Pool has performed in Iraq and recorded one of the interrogators’ favorites, “Bodies.”

“People assume we should be offended that somebody in the military thinks our song is annoying enough that played over and over it can psychologically break someone down,” he told Spin magazine. “I take it as an honor to think that perhaps our song could be used to quell another 9/11 attack or something like that.”

Hat tip to serving military officer.

John Rosenthal, in Policy Review, demonstrates that, contrary to widespread belief, Bush Administration standards on coercive interrogation were actually stricter than standards enforced within the European Union on police interrogation.

Frankfurt, Germany, 1 October 2002, early morning:

In the Frankfurt Police Headquarters, the atmosphere is tense. Deputy Police Chief Wolfgang Daschner is losing patience. On the previous day, his officers arrested one Magnus Gäfgen, a 27-year-old law student. Gäfgen is suspected of having kidnapped 11-year-old Jakob von Metzler, son of the banker Friedrich von Metzler. Two days earlier, Gäfgen had personally collected a 1-million-euro ransom payment. But there is no sign of the boy and Gäfgen has refused to give police interrogators accurate information about his whereabouts. A police psychologist, observing the questioning, describes Gäfgen’s responses as a “pack of lies” [Lügengebäude]. Deputy Police Chief Daschner fears that Jakob’s life may be in danger. In a memorandum, he writes: “We need to ascertain without delay where the boy is being held. While respecting the principle of proportionality, the police have an obligation to take all measures in their power to save the child’s life.”

Daschner decides to act. He dispatches police inspector Ortwin Ennigkeit to the office in which Gäfgen is being held for interrogation. Ennigkeit’s assignment: to make Gäfgen talk — if necessary by threat of torture. Indeed, Daschner has resolved not only to threaten Gäfgen with pain, but to carry out the threat if his prisoner is not otherwise forthcoming. A doctor has been found to supervise the proceedings.

In the interrogation room, Ennigkeit tells Gäfgen that a “special officer” is on his way. If Gäfgen does not tell Ennigkeit where the boy is, the “special officer” will “make him feel pain that he will not forget.” On Gäfgen’s own account, the formula is still more menacing: the officer “will make you feel pain like you have never felt before.” “Nobody can help you here,” Ennigkeit tells him, according to Gäfgen’s testimony. “We can do whatever we want with you.” On Gäfgen’s account, moreover, Ennigkeit already begins to rough him up: shaking him so violently that his head bangs against the wall and hitting him in the chest hard enough to leave a bruise over his collarbone. Gäfgen’s testimony is consistent with the tenor of Daschner’s instructions, which, on Daschner’s own admission, called for the “use of direct force” [ Anwendung unmittelbaren Zwangs].

In any case, whether the mere threat of pain has been sufficient or the latter has had to be supplemented by the “use of direct force,” within minutes of Ennigkeit’s entering the interrogation room Gäfgen talks. He tells Ennigkeit where Jakob is to be found. Police rush to the location and find the boy dead, his corpse wrapped in plastic and submerged under a wooden jetty in a pond.

Guantánamo Bay Prison Camp, Cuba, ten days later:

The atmosphere in Joint Task Force 170 is tense. The task force has been set up to obtain intelligence from detainees, but the effort is lagging and army interrogators are losing patience. They have discovered that one of the detainees appears to have been directly involved in the 9/11 plot. Mohammed al-Qahtani attempted to enter the United States in early August 2001, but was turned back by immigration officers in Orlando, Florida. Telephone intercepts of conversations of 9/11 facilitator Mustafa al-Hawsawi indicate that al-Qahtani was slated to serve as the missing “twentieth hijacker” on September 11. Plot leader Mohammed Atta is known to have been at Orlando International Airport on the day of al-Qahtani’s arrival, presumably to meet him. Al-Qahtani was sent back to his native Saudi Arabia and then traveled to Afghanistan. In mid-December, two months after the start of Operation Enduring Freedom, he was taken prisoner on the Pakistani border along with 29 other suspected al Qaeda members apparently fleeing the Battle of Tora Bora.

In early October 2002, the questioning of al-Qahtani has been going nowhere. Interrogators and staff psychologists are convinced that he is lying: repeating prefabricated cover stories, no matter how implausible, as required by al Qaeda security protocols. He insists, for example, that he traveled to the United States to import used cars and that he was in Afghanistan merely to purchase falcons.

The first anniversary of the 9/11 attacks has only just passed. A spike in intelligence has American officials on high alert. On October 8, Bin Laden deputy Ayman al-Zawahiri releases an audio statement threatening new attacks against America and American allies. The commanders of JTF170 decide they need to act. On October 11, Major General Michael E. Dunlavey sends a memo to U.S. Army Southern Command requesting authorization to use more aggressive interrogation techniques with the detainees. ...

JTF170 requests authorization to threaten detainees with “painful consequences” if they fail to cooperate. As it so happens, this is precisely the method used by German police inspector Ortwin Ennigkeit a mere ten days earlier to obtain the cooperation of Magnus Gäfgen. Following the advice of Department of Defense general counsel William J. Haynes, the request for authorization of this method is . . . refused.

In June 2005, the child-murderer and law student Magnus Gäfgen lodged a complaint against Germany with the European Court of Human Rights. In his complaint, Gäfgen accused Germany of having violated his rights under the European Convention on Human Rights and, more specifically, of having violated the prohibition on torture contained in Article 3 of the Convention.

On June 30, 2008, the European Court of Human Rights rejected Gäfgen’s complaint and cleared Germany of the charge of tolerating torture. The Court found that the treatment to which Daschner and Ennigkeit subjected Gäfgen did not reach the threshold required to be considered as torture. ...

While the (European Court of Human Rights) found that the Frankfurt police’s treatment of Gäfgen did constitute “inhuman treatment,” it accepted the Frankfurt District Court’s judgment that under the circumstances this treatment did not warrant punishment.

The compassion shown for the perpetrators in the Frankfurt court’s judgment is striking. In adumbrating the “massively extenuating circumstances” that on its view militated against the application of sanction, it notes that “for both of the accused, it was exclusively and urgently a matter of saving the child’s life.” It is “also to be taken into account,” the Court adds a bit further on, “that g’s [Gäfgen’s] provocative and unscrupulous manner of answering questions had strained the nerves of the investigators to the breaking point (aufs äußerste strapazierte). Trained in law, he knew how to formulate and present his responses, so that they constantly produced doubts, hopes, and disappointments and provided no certainty.” “Moreover,” the Court continues, “the situation was extraordinarily chaotic. The police personnel had been on duty overtime. They were worn out and tired. The accused E. [Ennigkeit] had worked through the night and the accused D. [Daschner] had only slept for a few hours. The overwrought sensibilities of the accused substantially reduces their guilt, since they lowered their inhibitions to acting. Neither man could take any more. Furthermore, both of them had led irreproachable lives up to that point.” And so on.12

One may well wonder whether the accusers of Donald Rumsfeld and other Pentagon officials would be prepared to acknowledge “massively extenuating circumstances” in their cases. But if the desire to save the life of an eleven-year-old boy is an extenuating circumstance, how can the desire to prevent a follow-on attack to 9/11 and to save potentially thousands of innocent lives not be one? And if the difficulty involved in questioning a wily and arrogant 27-year-old student who has been “trained in law” is an extenuating circumstance, how can the difficulty involved in questioning an evasive and potentially dangerous al Qaeda operative who has been trained in operational security measures not be one?

To deny the same degree of forbearance to American officials and personnel involved in the war on terror is to imply that irregular combatants forming part of terrorist organizations deserve greater legal protections not only than ordinary prisoners of war, but indeed than ordinary citizens. Such an absurd — and for the United States suicidal — logic could only be embraced by persons who are fundamentally committed to seeing American counter-terrorism efforts fail.

During time of war, the Ancient Romans closed the doors of the Temple of Janus, symbolizing the cessation of normal operation of of the Law during war-time.

Barack Obama fought back against Sarah Palin’s convention speech attack yesterday, but just look at Obama’s idea of an effective counter-offense.

Jake Tapper:

“I have said repeatedly that there should be no contradiction between keeping America safe and secure and respecting our Constitution,” Obama said. “During the Republican convention, you remember during the Republican convention, one of them, I don’t know if it was Rudy or Palin … they said, ‘Well, ya know, Sen. Obama is less interested in protecting you from terrorists than … reading them their rights.’”

(It was Palin, who said “Al Qaeda terrorists still plot to inflict catastrophic harm on America—he’s worried that someone won’t read them their rights?”)

“Now, let me say this,” Obama continued, “first of all, you don’t even get to read them their rights until you catch them. So, I don’t know what, they should spend more time trying to catch Osama bin Laden and we can worry about the next steps later. Hah! I mean, seriously! These folks.

“Catch ‘em first!”

Obama said his position on this “has always been clear. It has always been clear. If you’ve got a terrorist, take ‘em out. Take ‘em out. Anybody who was involved in 9/11 –- take ‘em out.”

But, the former constitutional law professor argued, “What I have also said is this: that when you suspend habeas corpus—which has been a principle, dating before even our country, it’s the foundation of Anglo-American law—which says, very simply, if the government grabs you, then you have the right to at least ask, ‘Why was I grabbed?’ and say, ‘Maybe you’ve got the wrong person.’

“The reason you have that safeguard,” he said, “is because we don’t always have the right person. We don’t always catch the right person. We may think this is Mohammed the terrorist, it might be Mohammed the cab driver. You may think it’s Barack the bomb thrower, but it might be Barack the guy running for president.

“The reason that you have this principle is not to be soft on terrorism, it’s because that’s who we are,” Obama said as the crowd rose to its feet, applauding. “That’s what we’re protecting. Don’t mock the Constitution! Don’t make fun of it! Don’t suggest that it’s un-American to abide by what the founding fathers set up! It’s worked pretty well for over 200 years!

Rather than demonstrating Obama’s appreciation of the American Constitution and its roots in Magna Carta and the English Common Law, Barack Obama is really proving the incapacity of the American liberal establishment, including most conspicuously himself, to understand the most elementary distinctions in law, or to remember as far back in time as Vietnam, Korea, or WWII.

Being liberal means having so little respect for tradition and the past that the current armed conflict must be treated by liberals as if it was the first such crisis in human history. From the liberal perspective (which is shared, I must admit, to a very large extent by the current administration), we must invent new policies and procedures for functioning in time of war. Never before, it seems, in the history of the United States have US forces actually dealt with enemy prisoners or illegal combatants.

Obama, and the rest of the American intelligentsia, is oblivious to the fundamental chasm between domestic civilian life and the very different and distinct regime of war. As the engraving above illustrates, the same distinction long predates habeas corpus, Magna Carta, and the Common Law of England. In the time of the Roman Republic, the principle of Inter arma, silent leges (“The laws are silent during the clash of arms.”) was well understood. The Romans closed the doors of the Temple of Janus during war-time to signal the inaccessibility of divine justice when Roman soldiers were fighting for their fatherland in the field.

No contradiction in supposing that habeas corpus, all the rights and immunities of American citizenship, all the protections of our system of laws, attorney representation and jury trials pertain to enemies of the United States captured overseas bearing arms against US forces and operating in open and flagrant violation of the customs and usages of war?

The notion that latrunculi. armed criminals taken prisoner in the course of their attempting to kill US soldiers, persons representing no country, wearing no uniform, and operating under no lawful authority or command, and routinely violating the laws and customs of war should be considered to have the same rights as a US citizen charged domestically with a crime is completely impractical and totally insane.

Obama’s position is intrinsically self-contradictory. On the one hand, we are apparently perfectly entitled to “take out” Osama bin Laden and persons involved in 9/11. But if US forces reduce to possession alive a bearded jhadi with AK-47 in hand, who moments earlier hurled a grenade at them, it’s time to Mirandize him and give him the phone number of Ron Kubbe. Are we to assume that issues of possible error and uncertainty and all the necessity for proof and assurance required in the case of ordinary illegal combatants vanishes in relation to persons believed to have been “involved” with 9/11?

The University of Chicago Law School should never have hired Obama. His understanding of the limits of the Law is defective, and he is not even sensitive to the grossest sorts of contradiction in his own theory.

Hilzoy thinks she can, but her arguments amount only to extravagant assertions that everyone, everywhere, and at all times, in peace and in war, tra la! has the same judicial rights and the same access to US courts as a US civilian accused of a domestic crime in peacetime residing in the United States.

who has habeas rights? And where do they extend? The court’s answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

Shooting at US forces in Afghanistan or conspiring in Karachi to arrange attacks on the civilian populations of US cities are the kinds of circumstances in which people normally enjoy the protections of US citizenship and the protection of US courts? Apparently that’s what Hilzoy, a graduate of Princeton, thinks.

Hilzoy:

if we accept the government’s argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.

This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important.

From Hilzoy’s perspective, there is no legal distinction whatsoever between the United States and foreign soil, no issues of distance, remoteness, or lack of US sovereignty matter. There is no difference between US citizens and aliens, and there is no difference between peace and war.

One expects Hilzoy (and perhaps Justice Kennedy, too) to leap in front of the muzzle of some frontline marine’s rifle, crying out: “Don’t you shoot that chap in the turban (the one firing the AK47)! He’s entitled to counsel, a fair trial, and a full course of appeals before he can be punished. Don’t you go violating his rights, you brute.

In JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), the Supreme Court ruled:

1. A nonresident enemy alien has no access to our courts in wartime.

2. nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

observing:

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied [339 U.S. 763, 778] protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States. ...

To grant the [339 U.S. 763, 779] writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.

So how does Justice Kennedy arrive at a different conclusion?

at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany.

The only readily comprehensible distinctions Justice Kennedy makes are Bush has shilly-shallied around too long. There should have been more timely military trials and the Guantanamo Naval Station is somehow more under “the absolute and definite control” of the US Government than a prison operated by the US Army in Germany in 1950 was, while WWII involved a different historical context and mission, i.e. was the “Good War.”

(1) perhaps has some merit. (2) simply amounts to a rationalization.

Justice Kennedy’s arguments are weak, and they are clearly self-interested. What this is really all about, as in Rasul, is plain Judicial Branch imperialism and overreaching, the refusal to accept limits to jurisdiction or the supremacy of the Executive in time of war.

Justice Kennedy has produced a very irresponsible opinion, which will surely result in the release of some dangerous and fanatical enemies of the United States, very probably leading to further loss of American lives. Members of today’s American intelligentsia, even those sitting on the Supreme Court, are commonly incapable of seeing what was obvious even to the Ancient Romans, who closed the Temple of Janus in time of war to symbolize the fact that inter arma enim silent leges.

Justice Anthony Kennedy opined, awarding Habeas corpus protection to illegal combatant non-citizens captured overseas bearing arms against the United States in violation of the laws and customs of war.

Justice Kennedy’s ruling will undoubtedly open a Pandora’s box of legal argument and judicial obfuscation which will effectively paralyze the Bush Administration’s hesitant and overly scrupulous efforts to bring mass murderers operating entirely outside the law to justice.

Five of eight members of the Supreme Court have demonstrated themselves to be self-important nincompoops determined to assert judiciary authority over the executive and to strike poses, while demonstrating a truly horrifying obliviousness to legal and historical precedent and common sense.

All this is, of course, the fault of the Bush Administration, which carelessly also overlooked all precedent, and then tried to invent new forms of military justice conformable to the whims, notions, and fantastical scruples invented by its opponents in the establishment media. President Bush and the rest of the civilian administration should simply have avoided injecting themselves into the matter, and thereby allowing entry to lawyers and courts, at all. The administration should have relinquished all authority connected with prisoners captured overseas to the military authorities.

Those military authorities should have authorized local commanders quickly and on the spot by drumhead courtmartial to establish the status of these kinds of prisoners as illegal combatants required to be condemned to death by military custom and law, and those local commanders should have been instructed upon such determination to hang them.

Another satisfied customer of Shearman & Sterling LLP

International Herald-Tribune:

Al-Arabiya television reports that a former Guantanamo detainee carried out a recent suicide bombing in the northern Iraqi city of Mosul.

A cousin says Abdullah Saleh al-Ajmi, a Kuwaiti released from Guantanamo in 2005, was reported missing two weeks ago and his family learned of his death Thursday through a friend in Iraq.

The cousin, Salem al-Ajmi, told Al-Arabiya on Thursday that the former detainee was behind the latest attack in Mosul, although he did not provide more details.

Three suicide car bombers targeted Iraqi security forces in Mosul on April 26, killing at least seven people.

Mosul is believed to be the last urban stronghold of al-Qaida in Iraq.

His Wikipedia entry lists the US Military’s Administrative Review Board’s Summary of Evidence

A Summary of Evidence memo was prepared for Abdallah Salih Ali Al Ajmi’s Combatant Status Review Tribunal, on (redacted) . The memo listed the following allegations against him:

The detainee retreated to the Tora Bora region of AF and was later captured as he attempted to escape to Pakistan.

On September 2, 2003 (just under two years after 9/11), four of Shearman & Sterling’s finest Thomas Wilner, Neil H. Koslowe, Kristine A. Huskey, and Heather Lamberg Kafele filed a Petition for writ of Certiorari on behalf of Al Ajmi and eleven others.

Mr. Wilner wrote:

All these prisoners have asked for is a fair hearing, one in which they have the chance to learn the charges against them and to rebut the accusations before a neutral decision maker.”

Subsequently, the prisoner denied everything:

Al Ajmi denied participating in Jihad.

Al Ajmi stated he went to Pakistan to learn and memorize the Koran—he never traveled to Afghanistan.

Al Ajmi denied any contact with the Taliban. He acknowledged that he had previously confessed to the allegations he was being asked to comment on—but those were false confessions:

“These statements were all said under pressure and threats. I couldn’t take it. I couldn’t bare [sic] the threats and suffering so I started saying things. When every detainee is captured they tell him that he is either Taliban or Al-Qaida and that is it. I couldn’t bare [sic] the suffering and threatening and the pressure so I had to say I was from Taliban [sic] .”

Al Ajmi denied participating in military operations against the coalition.

Al Ajmi denied being placed in a defensive position by the Taliban:

“I am not an enemy combatant. I said this only because I was under pressure and threats and suffering.”

In response to the allegation that he admitted spending eight months in the front line at the Aiubi Center in Afghanistan, Al Ajmi responded:

“I never entered Afghanistan. I never fought with anyone. My intentions were to stay four months only but under the circumstances I had to stay for eight months. I never fought. My intentions were never to go to Afghanistan my intentions were to go to Pakistan.”
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Appearing again before an Administrative Review Board, he responded to board member questions:

Al Ajmi My role was [sic] in this Tabligh [sic] to call people to pray, to do good. To let people know that there is an end to this world so they can pray and do well.

Board Member Is it a religious organization?

Al Ajmi Yes it is.

Board Member Al Ajmi I believe that your dedication to your religion is genuine, what direction or path will that dedication take should you be released?

Al Ajmi For peace.

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Al Ajmi was repatriated to Kuwait November 3, 2005, where he was freed on bail, while he awaited trial. His trial began in March 2006, and he and five others were acquitted on July 22, 2006.

On April 26, in Mosul, seven members of the Iraqi security forces were killed by suicide car bombing, thus proving the excellence of the legal services provided by leading American law firms like Shearman & Sterling.

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Hat tip to Major DRH.

Baltimore Sun:

Part 1

Part 2

Sample (from Part 1): On why Due Process is not applicable to war-time military operations:

The strictures that bind the Executive in its role as a magistrate enforcing the civil laws have no place in constraining the President in waging war:

Soldiers regularly in the service have the license of the government to deprive men,the active enemies of the government, of their liberty and lives; their commission so to act is as perfect and legal as that of a judge to adjudicate …. Wars never have been and never can be conducted upon the principle that an army is but a posse comitatis ofa civil magistrate..

Military Commissions, 11 Op.Att’y Gen. 297, 301-02 (1865) (emphasis added); see also The Modoc Indian Prisoners, 14 Op. Att’y Gen. 249, 252 (1873) (“it cannot be pretended that a United States soldier is guilty of murder if he kills a public enemy in battle, which would be the case if the municipal law was in force and, applicable to an· act committed under such circumstances”).. As Attorney General Speed conciuded, the Due Process Clause has no application to the conduct of a military campaign:

That portion of the Constitution which declares that ‘no person shall be deprived… of his life,liberty, or property without due process of law,’ has such direct reference to, and connection with, trials for crime or criminal prosecutions that comment upon it would seem to be unnecessary. Trials for offences against the laws of war are not embraced or intended to be embraced in those provisions…. The argument that flings around offenders against the laws of war these guarantees of the Constitution would convict all the soldiers of our anny of murder; no prisoners could be taken and held; the anny could not move. The absurd consequences that would of necessity flow from .such an argument show that it cannot be the true construction-it cannot be what was intended by the framers of the instrument. One of the prime motives for the Union and a federal government was to confer the powers of war. If· any provisions of the .. Constitution are so in conflict with the power to carry on war as to destroy and make it valueless, then the instrument,instead of being a great and wise one, is a miserable failure “a felo de se.”

I thought it was a fine piece of work, placing the issues in the correct historical perspective, citing proper precedents, and arriving at just and accurate conclusions. The Bush Administration ought to have released it immediately upon its production, and staunchly publicly defended it.

Alex Gibney (William Sloane Coffin’s stepson) sporting orange ribbon

The Washington Post reports on Tinseltown’s latest de rigeur fashion accessory seen everywhere at the recent Academy Awards celebration.

There was a dollop of politics. When Alex Gibney won for his documentary “Taxi to the Dark Side,” about the use of torture in the war on terror, the director said he made it to honor his father, a former Navy interrogator, who was outraged at abuses revealed at Abu Ghraib and Guantanamo. “Let’s hope we can turn this country around and move from the dark side to the light,” Gibney said.

Out on the red carpet, Paul Haggis (the director whose “Crash” won Best Picture in 2006) said he didn’t know what accounts for all these deeply dark, brooding, troubled films. But isn’t it obvious, he asked, flashing an orange ribbon on his lapel. Orange, why orange? “It’s Guantanamo,” his Max Azria-clad wife, Deborah, said, showing off her orange bracelet, which read: “Silence + torture = complicity.” Suddenly, we noticed—orange ribbons and bracelets everywhere.

Paul Haggis & Deborah Rennard

79-year-old Bay Area Congressman Tom Lantos is unfortunately a moderate liberal and a democrat, but he is also a Holocaust survivor and a refugee from Hungarian Communism.

AP reports that some visiting leftwing Dutch legislators recently tried telling him that the US should close its Guantanamo Bay internment facility, and Tom Lantos put them in their place.

Dutch lawmakers who visited the Guantanamo Bay military prison this week said they were offended by a testy exchange in Washington with a senior congressional Democrat.

The lawmakers said that Rep. Tom Lantos, D-Calif., chairman of the House Foreign Affairs Committee, told them that “Europe was not as outraged by Auschwitz as by Guantanamo Bay.”

Lantos, a Holocaust survivor, was responding to arguments that the United States should shut down the prison, located on a U.S. naval base in Cuba, the lawmakers said. Mariko Peter, a member of the Dutch Green Party, who began the exchange with Lantos, said she took notes of the remarks. ...

Before the Guantanamo exchange, the lawmakers had discussed a debate in the Netherlands about whether the country should maintain its 1,600 troops serving in NATO’s Afghanistan operations.

“You have to help us, because if it was not for us you would now be a province of Nazi Germany,” Lantos said, according to the Dutch lawmakers.

“The comments killed the debate,” said Harry van Bommel, a member of the Socialist Party. “It was insulting and counterproductive.”

There are times one really wishes Tom Lantos was a Republican.

Abdullah Mehsud aka Noor Alam

AFP details the unhappy end of one of the innocent lambs unjustly detained by the Bush Administration. Poor Abdulah Mehsud was captured at Kunduz in Northern Afghanistan in December of 2001 and detained for 25 months before being released in March of 2004.

A former Guantanamo Bay prisoner wanted for the 2004 kidnapping of two Chinese engineers in Pakistan blew himself up with a grenade during a clash with (Pakistani) security forces on Tuesday, officials said.

One-legged Taliban militant Abdullah Mehsud killed himself to avoid capture after troops raided his hideout, interior ministry spokesman Brigadier Javed Cheema told AFP. ...

“Abdullah Mehsud blew himself up with a grenade and died when security forces raided his hideout. Three of his accomplices were arrested,” Cheema said.

Mehsud, 32, became the leader of Pakistani Taliban insurgents based in South Waziristan in 2004, after Pakistani forces launched military operations in the troubled tribal region.

In October 2004, Islamic militants led by Mehsud pressed their demand for an end to the army moves by kidnapping two Chinese engineers working on a multi-million-dollar hydroelectric dam project in South Waziristan.

One of the hostages died in a botched rescue bid in a major embarrassment for Pakistan, which counts China as its closest ally and biggest military supplier.

Mehsud, who spent 25 months in the US-run “war on terror” prison at Guantanamo Bay in Cuba until his release in March 2004, escaped after the incident.

He had been hunted by Pakistani forces ever since. Officials said he had recently been involved in lauching cross-border attacks on NATO and US-led forces in Afghanistan.

“Intelligence reports pointed out his presence at a house and security forces mounted the raid. He sneaked into Zhob from Waziristan,” Cheema said.

Zhob, in southwestern Baluchistan province, borders South Waziristan.

The militant leader and his companions exchanged heavy gunfire with security forces for hours after the house was surrounded late Monday, police said.

“When our forces finally entered before dawn this morning a man blew himself up to avoid being captured. He was identified later as Mehsud,” Zhob police chief Atta Mohammad said.

Six leading liberal international do-gooder organizations, including Amnesty International, Cageprisoners, the Center for Constitutional Rights, the Center for Human Rights and Global Justice and NYU School of Law, Human Rights Watch and Reprieve, have issued a report titled Off the Record, which allegedly identifies 39 individuals secretly detained in the War Against Terror.

The list, compiled on the basis of public sources, government officials (i.e., Pouting and Leaking Spooks), and witness interviews, includes: “off the Record”

Individuals whose detention by the United States has been officially acknowledged and whose fate and whereabouts remain unknown:

1.Hassan Ghul

2.Ali Abd al-Rahman al-Faqasi al-Ghamdi (Abu Bakr al Azdi)

3.Ali Abdul-Hamid al-Fakhiri (Ali Abd-al-Hamid al-Fakhiri, Ibn al-Shaykh al-Libi)

Individuals about whom there is strong evidence, including witness testimony, of secret detention by the United States and whose fate and whereabouts remain unknown:

4.Mustafa Setmariam Nasar (Abu Musab al-Suri, Umar Abd al-Hakim)

5.& 6. Two, possibly three, Somalis [Names Unknown] (one of whom is either Shoeab as-Somali or Rethwan as-Somali)

7.Mohammed Naeem Noor Khan (Abu Talha, Talaha)

8.Abdul Basit

9.Adnan [Last Name Unknown]

10.Hudaifa

11.Mohammed [Last Name Unknown] (Mohammed al-Afghani)

12.Khalid al-Zawahiri

13.Ayoubal-Libi

14.Abu Naseem

15.Suleiman Abdalla Salim (Suleiman Abdalla, Suleiman Abdalla Salim Hemed, Suleiman Ahmed Hemed Salim, Issa Tanzania)

16.Yassir al-Jazeeri (Yasser al-Jaziri, Abu Yasir al-Jaziri, Abu Yassir Al Jazeeri, Yasser al-Jazeeri)

17.Mohammed Omar Abdel-Rahman (Asadallah)

18.Majid [Last Name Unknown] (Adnan al-Libi, Abu Yasser)

19.Hassan [Last Name Unknown] (Raba’i)

20.[First Name Unknown] al-Mahdi-Jawdeh (Abu Ayoub, Ayoub al-Libi)

21.Khaled al-Sharif (Abu Hazem)*

Individuals about whom there is some evidence of secret detention by the United States and whose fate and whereabouts remain unknown:

22.Osama bin Yousaf (Usama Bin Yussaf, Usama bin Yusuf, Usamah bin-Yusuf)

23.Osama Nazir

24.Sharif al-Masri (Abd-al-Sattar Sharif al-Masri)

25.Qari Saifullah Akhtar (Amir Harkat-ul-Ansar Qari Saifullah)

26.Mustafa Mohammed Fadhil (Moustafa Ali Elbishy, Hussein, Hassan AH, Khalid, Abu Jihad)

27.Musaab Aruchi (Mosabir Aroochi, Masoob Aroochi, Abu Mosa’ab al-Balochi, Abu Mosa’ab Aroochi, Musaad Aruchi, al-Baluchi)

28.Ibad Al Yaquti al Sheikh al Sufiyan

29.Walid bin Azmi

30.Amir Hussein Abdullah al-Misri (Fazal Mohammad Abdullah al-Misri)

31.Safwan al-Hasham (Haffan al-Hasham)

32.Jawad al-Bashar

33.Aafia Siddiqui

34.Saif al Islam el Masry

35.Sheikh Ahmed Salim

36.Retha al-Tunisi

37.Anas al-Libi (Anas al-Sabai, Nazih al-Raghie, Nazih Abdul Hamed al-Raghie)

38.[First Name Unknown] al-Rubaia

39.Speen Ghul

Flushed with self-importance, these enlightened organizations proceed to issue a series of “recommendations,” which are really demands.

The United States must cease use of secret or unacknowledged detention.

For those individuals currently detained by or at the direction of the United States, the United States and relevant foreign governments must:

Make known the names and whereabouts of detainees;

Provide immediate access by the International Committee of the Red Cross (ICRC) to all detainees the organization seeks to visit;

Charge detainees with a recognizable criminal offense and promptly bring them to trial before a court that meets international fair trial standards or release them;

and Allow detainees access to lawyers and to communicate with family members.

The United States must not detain family members of terrorism suspects based on their family relationships.

The United States must make known the names, fate, and whereabouts of all individuals it has detained in the “War on Terror,” even if they have been released, transferred to the custody of another state, or are dead.

The United States must provide reparations, including compensation, to individuals it has secretly detained.

Other governments must not facilitate secret detention: they should not assist or cooperate in secret detention operations, and should disclose information about such operations that comes into their possession.

Brad Warbiany has been reading liberal journalists and democrats, and (worse!) taking their nonsense seriously.

Brad writes:

Fear has become the name of the political game, and the stakes are high. Unlike World War II, we’re not asked to ration sugar or observe meatless meals. Instead, we’re asked to suspend habeas corpus, willingly submit to National Security Letters and warrantless domestic wiretapping. Of course, we’re asked to provide implicit trust to the government to faithfully protect us, while acting as watchdogs to snitch on our untrustworthy family, friends, and neighbors at the first sign of wrongdoing. We’re watching as crucial controls on government, going back to the Magna Carta in 1215, are being removed…

There was never, ever any occasion from 1215 to the present day, in which prisoners of war had the benefit of habeas corpus. Still less, spies, saboteurs, and other illegal combatants, who did not even enjoy the privileges and immunities associated with the status of prisoner of war, and who were traditionally executed out of hand, by hanging.

What should still be regarded as determinative is the Supreme Court’s decision in Johnson v. Eisentrager, 339 U.S. 763 (1950), which held:

Modern American law has come a long way since the time when outbreak of war made every enemy national an outlaw, subject to both public and private slaughter, cruelty and plunder. But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and non-resident enemy aliens who at all times have remained with, and adhered to, enemy governments. …

But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act. …

If this [Fifth] Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. …

We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

Brad Warbiany continues:

The time comes that I have to ask myself a simple question: Is it worth it?

What level of uncertainty of a terrorist attack should we allow in our lives in order to be certain that we’re not subjects of a police state? It has become a sad state of affairs when I’m more concerned that the actions of my own government will cause me trouble than the actions of extremists who have sworn an intent to kill me. In a world where we’re asked to submit to intrusive surveillance on a daily basis, and further to do so gladly and “for our own protection”, I wonder if it wouldn’t be better to simply take my chances without their blanket of security?

Might there be better ways of reducing terrorism than turning our own country into a prison, while engaging in a foreign policy which causes those who didn’t hate us 5 years ago to start? Nearly 40 years of effort have proven that our tactics in fighting a war on drugs have proven futile and counterproductive, while damaging American society in the process. Should we take a step back and evaluate whether our tactics fighting international terrorism have been futile and counterproductive, while damaging American society in the process?

“Turning our own country into a prison” is just a bit of an exaggeration, is it not?

What intrusive surveillance has the gentleman experienced? I wonder, outside the revolting and irrational practices of airline security, which have gotten worse recently, but which long predate 9/11 and the current administration, going back to the 1960s when Castro’s Cuban regime initiated the practice of airline hijacking.

The government is widely believed to be practicing some forms of mechanical surveillance, data-mining electronic and telephonic communications, in search of messages transmitted between terrorists.

This sort of thing has been going on for a very long time, all the way back to the WWII era, when the predecessor agency of the NSA was opening every telegram.

In 1945 Project SHAMROCK was initiated to obtain copies of all telegraphic information exiting or entering the United States. With the full cooperation of RCA, ITT and Western Union (representing almost all of the telegraphic traffic in the US at the time), the NSA’s predecessor and later the NSA itself were provided with daily microfilm copies of all incoming, outgoing and transiting telegraphs.

Are either Mr. Warbiany or myself really inconvenienced by the NSA’s Echelon program datamining our emails, presumably in search of such obvious giveaway signals as the presence of provocative texts like “Allahu Akhbar!”, “the anthrax is on the way,” or “the nuclear bomb goes off at noon”? Our emails are, in a sense, “read” by machines already simply in the process of being transmitted across the Net.

Do I really even care if some clerical employee pulls my sarcastic “Allahu Akhbar!” email out of the pile, and eyeballs it for a fraction of a second? Not much. In fact, a lot less than I like having to remove my shoes at the airport.

It is somewhat difficult for those of us on the sidelines to evaluate sensibly the necessity and propriety of the secret operations of our intelligences services in time of war. We do know, however, that no successful incident of mass terrorism has taken place on US soil since 9/11, and we have good reason to believe that there are a lot of people trying. So somebody, somewhere, must be doing something right.

As to international opinion, what can one expect? The international leftwing intelligentsia, and its media outlets, have always hated the United States. They hate the United States more vigorously when the United States actually does something in the world, it’s true. But it would be insane to base US foreign policy upon the preferences and desires of our rivals and adversaries, on the one hand; and even worse to base it upon the goofy and pernicious world view of the international community of leftist bien pensants on the other.

KSM tells a story exculpating some Guantanamo detainees, which could conceivably be true.

I’m asking you to be fair with Afghanis and Pakistanis and many Arabs which been in Afghanistan. Many of them been unjustly. The funny story they been Sunni government they sent some spies to assassinate UBL then we arrested them sent them to Afghanistan/Taliban. Taliban put them into prison. Americans they came and arrest them as enemy combatant. They brought them here. So, even if they are my enemy but not fair to be there with me.

Khalid Shaikh Mohammed in pre-capture days

In addition to his confession (published below), the DOD transcript contains a final statement by Khalid Shaikh Mohammed amounting to an apologia and justification.

KSM (through translator):

In the name of God the most compassionate, the most merciful, and if any fail to retaliation by way of charity and. I apologize. I will start again. And if any fail to judge by the light of Allah has revealed, they are no better than wrong doers, unbelievers, and the unjust.

KSM:

For this verse, I not take the oath. Take an oath is a part of your Tribunal and I’ll not accept it. To be or accept the Tribunal as to be, I’ll accept it. That I’m accepting American constitution, American law or whatever you are doing here. This is why religiously I cannot accept anything you do. Just to explain for this one, does not mean I’m not saying that I’m lying. When I not take oath does not mean I’m lying. You know very well peoples take oath and they will lie. You know the President he did this before he just makes his oath and he lied. So sometimes when I’m not making oath does not mean I’m lying.

KSM:

What I wrote here, is not I’m making myself hero, when I said I was responsible for this or that. But your are military man. You know very well there are language for any war. So, there are, we are when I admitting these things. I’m not saying I’m not did it. I did it but this the language of any war. If America they want to invade Iraq they will not send for Saddam roses or kisses they send for a bombardment. This is the best way if I want. If I’m fighting for anybody admit to them I’m American enemies. For sure, I’m American enemies. Usama bin Laden, he did his best press conference in American media. Mr. John Miller he been there when he made declaration against Jihad, against America. And he said it is not no need for me now to make explanation of what he said but mostly he said about American military presence in Arabian peninsula and aiding Israel and many things. So when we made any war against America we are jackals fighting in the nights. I consider myself, for what you are doing, a religious thing as you consider us fundamentalist. So, we derive from religious leading that we consider we and George Washington doing same thing. As consider George Washington as hero. Muslims many of them are considering Usama bin Laden. He is doing same thing. He is just fighting. He needs his independence. Even we think that, or not me only. Many Muslims, that al Qaida or Taliban they are doing. They have been oppressed by America. This is the feeling of the prophet. So when we say we are enemy combatant, that right. We are….

The way of the war, you know, very well, any country waging war against their enemy the language of the war are killing. If man and woman they be together as a marriage that is up to the kids, children. But if you and me, two nations, will be together in war the others are victims. This is the way of the language. You know 40 million people were killed in World War One. Ten million kill in World War. You know that two million four hundred thousand be killed in the Korean War. So this language of the war. Any people who, when Usama bin Laden say I’m waging war because such such reason, now he declared it. But when you said I’m terrorist, I think it is deceiving peoples. Terrorists, enemy combatant. All these definitions as CIA you can make whatever you want. Now, you told me when I ask about the witnesses. I’m not convinced that this related to the matter. It is up to you. Maybe I’m convinced but your are head and he [gesturing to Personal Representative] is not responsible, the other, because your are head of the committee. So, finally it’s your war but the problem is no definitions of many words. It would be widely definite that many people be oppressed. Because war, for sure, there will be victims. When I said I’m not happy that three thousand been killed in America. I feel sorry even. I don’t like to kill children and the kids. Never Islam are, give me green light to kill peoples. Killing, as in the Christianity, Jews, and Islam, are prohibited. But there are exception of rule when you are killing people in Iraq. You said we have to do it. We don’t like Saddam. But this is the way to deal with Saddam. Same thing you are saying. Same language you use, I use. When you are invading two- thirds of Mexican, you call your war manifest destiny. It up to you to call it what you want. But other side are calling you oppressors. If now George Washington. If now we were living in the Revolutionary War and George Washington he being arrested through Britain. For sure he, they would consider him enemy combatant. But American they consider him as hero. This right the any Revolutionary War they will be as George Washington or Britain. So we are considered American Army bases which we have from seventies in Iraq. Also, in the Saudi Arabian, Kuwait, Qatar, and Bahrain. This is kind of invasion, but I’m not here to convince you. Is not or not but mostly speech is ask you to be fair with people. I’m don’t have anything to say that I’m not enemy. This is why the language of any war in the world is killing. I mean the language of the war is victims. I don’t like to kill people. I feel very sorry they been killed kids in 9/11. What I will do? This is the language. Sometime I want to make great awakening between American to stop foreign policy in our land. I know American people are torturing us from seventies. [REDACTED] I know they talking about human rights. And I know it is against American Constitution, against American laws. But they said every law, they have exceptions, this is your bad luck you been part of the exception of our laws. They got have something to convince me but we are doing same language. But we are saying we have Sharia law, but we have Koran. What is enemy combatant in my language?

KSM:

Allah forbids you not with regards to those who fight you not for your faith nor drive you out of your homes from dealing kindly and justly with them. For Allah love those who are just. There is one more sentence. Allah only forbids you with regards to those who fight you for your faith and drive you out of your homes and support others in driving you out from turning to them for friendship and protection. It is such as turn to them in these circumstances that do wrong.

KSM:

So we are driving from whatever deed we do we ask about Koran or Hadith. We are not making up for us laws. When we need Fatwa from the religious we have to go back to see what they said scholar. To see what they said yes or not. Killing is prohibited in all what you call the people of the book, Jews, Judaism, Christianity, and Islam. You know the Ten Commandments very well. The Ten Commandments are shared between all of us. We all are serving one God. Then now kill you know it very well. But war language also we have language for the war. You have to kill. But you have to care if unintentionally or intentionally target if I have if I’m not at the Pentagon. I consider it is okay. If I target now when we target in USA we choose them military target, economical, and political. So, war central victims mostly means economical target. So if now American they know UBL. He is in this house they don’t care about his kids and his. They will just bombard it. They will kill all of them and they did it. They kill wife of Dr. Ayrnan Zawahiri and his two daughters and his son in one bombardment. They receive a report that is his house be. He had not been there. They killed them. They arrested my kids intentionally. They are kids. They been arrested for four months they had been abused. So, for me I have patience. I know I’m not talk about what’s come to me. The American have human right. So. enemy combatant itself, it flexible word. So I think God knows that many who been arrested, they been unjustly arrested. Otherwise, military throughout history know very well. They don’t war will never stop. War start from Adam when Cain he killed Abel until now. It’s never gonna stop killing of people. This it the way of the language. American start the Revolutionary War then they starts the Mexican then Spanish War then World War One, World War Two. You read the history. You know never stopping war. This is life. But if who is enemy combatant and who is not? Finally, I finish statement. I’m asking you to be fair with other people.

PRESIDENT:

Does that conclude your statement, Khalid Sheikh Muhammad?

KSM:

Yes.

PRESIDENT:

Alright.

Debra Burlingame, at the Wall Street Journal, explains how Kuwaiti oil money successfully transformed Guantanamo Bay detainees from bloodthirsty killers into a human rights worthy cause.

He was the first American to die in what some have called “the real war.” Johnny “Mike” Spann, the 32-year-old CIA paramilitary commando, was interrogating prisoners in an open courtyard at the Qala-I-Jangi fortress in Afghanistan when the uprising of 538 hard-core Taliban and al Qaeda fighters began. Spann emptied his rifle, then his sidearm, then fought hand-to-hand as he was swarmed by raging prisoners screaming “Allahu akbar!”

The bloody siege by Northern Alliance and U.S. forces went on for several days, only ending when 86 of the remaining jihadi fighters were smoked out of a basement where they had retreated and where they murdered a Red Cross worker who had gone in to check on their condition. Spann, a former Marine, is credited with saving the lives of countless Alliance fighters and Afghan civilians by standing and firing as they ran for cover. His beaten and booby-trapped body was recovered with two bullet wounds in his head, the angle of trajectory suggesting he had been shot execution style.

One of the committed jihadis who came out of that basement, wounded and unrepentant, was “American Taliban” John Walker Lindh, now serving a 20-year sentence in a federal prison. Another who was shot during the uprising and pulled out of the basement along with Lindh was Nasser Nijer Naser al-Mutairi. Today, the 29-year-old is living somewhere in Kuwait, a free man.

The true story of Mr. Mutairi’s journey, from the uprising in Qala-I-Jangi to Guantanamo Bay’s military detention camp to the privileged life of an affluent Kuwaiti citizen, is one that his team of high-priced lawyers and the government of Kuwait doesn’t want you to know. His case reveals a disturbing counterpoint to the false narrative advanced by Gitmo lawyers and human-rights groups—which holds that the Guantanamo Bay detainees are innocent victims of circumstance, swept up in the angry, anti-Muslim fervor that followed the attacks of September 11, then abused and brutally tortured at the hands of the U.S. military.

Mr. Mutairi was among 12 Kuwaitis picked up in Afghanistan and detained at Guantanamo Bay in 2002. Their families retained Tom Wilner and the prestigious law firm of Shearman & Sterling early that same year. Arguably, it is Mr. Wilner’s aggressive representation, along with the determined efforts of the Kuwait government, that has had the greatest influence in the outcome of all the enemy combatant cases, in the court of law and in the court of public opinion. The lawsuit filed on their behalf, renamed Rasul v. Bush when three cases were joined, is credited with opening the door for the blizzard of litigation that followed…

Mr. Wilner, a media-savvy lawyer who immediately realized that the detainee cases posed a tremendous PR challenge in the wake of September 11, hired high-stakes media guru Richard Levick to change public perception about the Kuwaiti 12. Mr. Levick, a former attorney whose Washington, D.C.-based “crisis PR” firm has carved out a niche in litigation-related issues, has represented clients as varied as Rosie O’Donnell, Napster, and the Roman Catholic Church. Mr. Levick’s firm is also registered under FARA as an agent of a foreign principal for the “Kuwaiti Detainees Committee,” reporting $774,000 in fees in a one year period. After the U.S. Supreme Court heard the first consolidated case, the PR campaign went into high gear, Mr. Levick wrote, to “turn the Guantanamo tide.”

In numerous published articles and interviews, Mr. Levick has laid out the essence of the entire Kuwaiti PR campaign. The strategy sought to accomplish two things: put a sympathetic “human face” on the detainees and convince the public that it had a stake in their plight. In other words, the militant Islamists who traveled to Afghanistan to become a part of al Qaeda’s jihad on America had to be reinvented as innocent charity workers swept up in the war after 9/11. The committed Islamist who admitted firing an AK-47 in a Taliban training camp became a “teacher on vacation” who went to Afghanistan in 2001 “to help refugees.” The member of an Islamist street gang who opened three al-Wafa offices with Suliman Abu Ghaith (Osama Bin Laden’s chief spokesman) to raise al Qaeda funds became a charity worker whose eight children were left destitute in his absence. All 12 Kuwaitis became the innocent victims of “bounty hunters.”..

Mr. Levick maintains that a year and a half after they began the campaign, their PR outreach produced literally thousands of news placements and that, eventually, a majority of the top 100 newspapers were editorializing on the detainees’ behalf. Convinced that judges can be influenced by aggressive PR campaigns, Mr. Levick points to rulings in the detainee cases which openly cite news stories that resulted from his team’s media outreach.

The Kuwaiti 12 case is a primer on the anatomy of a guerilla PR offensive, packaged and sold to the public as a fight for the “rule of law” and “America’s core principles.” Begin with flimsy information, generate stories that are spun from uncorroborated double or triple hearsay uttered by interested parties that are hard to confirm from halfway around the world. Feed the phonied-up stories to friendly media who write credulous reports and emotional human interest features, post them on a Web site where they will then be read and used as sources by other lazy (or busy) media from all over the world. In short, create one giant echo chamber.

Yesterday’s Wall Street Journal featured a lead story about the Bush Administration’s failure to convict Omar Ahmed Khadr, a Toronto-born jihadi captured as an illegal combatant in Afghanistan in July of 2002, after he had thrown a grenade which fatally wounded Sgt. First Class Christopher Speer, a US medic.

Efforts to bring Mr. Khadr to trial via one of the Bush Administration’s controversial military tribunals has been dogged by litigation, and the prosecution has found it impossible to get intelligence agencies to open their secret files or to obtain testimony from the eyewitnesses, military personnel who are inaccessible because they’re serving during wartime at remote locations around the world.

The frustrated Army prosecutor Major Groharing nonetheless defended this preposterous and futile enterprize, arguing:

The difference between us and al Qaeda is that when we had him on the battlefield, we didn’t summarily execute him.

The Bush administration, and Major Groharing, are both crazy.

The attempt to deal, in peacetime and civilian fashion, via legal trials with attorneys, witnesses, and appeals to higher levels of the judiciary, is simply incompatible with the exigencies of war.

Mr. Khadr was an illegal combatant, bearing arms against the military forces of the United States. He violated the customs and usages of war by attacking a medic. He was never entitled to quarter. He should not have been made prisoner. He should not have received medical attention. He should merely have been summarily executed on the spot at the time.

Our cause being just, our conformity to the customs and usages of war, our not firing on medics are all quite sufficient to distinguish us from al Qaeda.”

When it came to incinerating gunowners;

Janet Reno did not have a lot of qualms.

But, suddenly, here’s Janet Reno questioning the right of the Bush Administration to deny illegal combatants, captured overseas bearing arms aganst the military forces of the United States, the identical Constitutional Rights possessed by United States citizens in times of peace.

Bloomberg

They are all linked at the earlier post here.

Andrew McCarthy refutes some of the allegations made by critics from the left:

1) That the bill deprives prisoners of habeas corpus.

First, Congress cannot “suspend” habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans — that is, according to the Supreme Court, U.S. citizens and those aliens who, by lawfully weaving themselves into the fabric of our society, have become part of our national community (which is to say, lawful permanent resident aliens). To the contrary, aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it, do not have any rights, much less “basic rights,” under our Constitution.

2) Habeas corpus is required to permit prisoners to defend Geneva Convention rights.

it remains a settled principle that treaties are compacts between sovereign nations, not fonts of individual rights. Alleged violations are thus grist for diplomacy, not litigation. Treaties are not judicially enforceable by individuals absent an express statement to the contrary in the treaty’s text. By contrast, Geneva’s express statements indicate that no judicial intervention was contemplated.

This, no doubt, is why the Geneva Conventions, qua treaties, have never been judicially enforced. Consequently, if Congress had actually denied al Qaeda detainees a right to use Common Article 3 to challenge their detention in federal court (and, as we’ll soon see, Congress has not done that), that would merely have reaffirmed what has been the law for over a half century.

If the political representatives of a nation believe one of its citizens is being unlawfully held at Gitmo, the proper procedure is for that nation to protest to our State Department, not for the detainee to sue our country in our courts. In fact, several nations have made such claims, and Bush administration has often responded by repatriating detainees to their home countries … only to have many of them rejoin the jihad. In any event, though, there would be nothing wrong with declining to allow habeas to be used for the creation of individual rights that detainees do not in fact have under international law.

Patterico has published the first two parts of a series of five interviews with “Stashiu,” a 23-year veteran US Army nurse who was stationed at the Guantánamo detention facility, working in its Behavioral Health Services department with inmates with psychological and/or behavioral problems.

We will be linking the later parts of the series as they appear.

Part One: Introduction.

I know Zarqawi,” the terrorist said to the American. “I am going to have Zarqawi cut off your family’s head while you watch. Then he will cut off your head.”

The terrorist said it all in a matter-of-fact way, looking the American straight in the eye.

The American was not frightened. There was little danger that the terrorist was going to carry out his threat . . . at least any time soon.

The terrorist was a detainee at Guantánamo Bay, Cuba, and the American was an Army nurse who worked with Guantánamo detainees with psychological and/or behavioral problems. For six months, he spoke with detainees on a daily basis, and built a rapport of sorts with some of the most troublesome terrorists at Guantánamo.

He spoke with me recently, and I will be telling his story in several posts over the coming days.

Part Two: Stashiu arrives at GTMO, and tells us what the terrorists are like.

Stashiu is not able to share specific details of conversations he had with specific individuals, for reasons having to do principally with patient confidentiality, and in part with operational security. But he can give you, the reader, a good overview of what types of human beings are being detained at Guantánamo Bay.

I asked him that very question: what are the detainees like? Stashiu said:

For many of them, think Ted Bundy. Educated, charming, and without conscience for those they consider infidels. Some are truly ill and were taken advantage of because of it. For example, one routinely asked us for an explosive suicide vest so he could assassinate Osama Bin Laden or George Bush for us, whoever he could find first (he was completely serious).

Part Three: Hunger strikes, suicides and suicide attempts, and mental illness.

Detainees Take Advantage of Concessions and Spread False Propaganda

I asked about the recent New York Times Magazine article about Guantánamo, which provided an in-depth look at the hunger strikes and suicide attempts. (I linked to and excerpted heavily from that article in this post.) The article, which was based on interviews with numerous people at Guantánamo, made several points, including these:

The Colonel in charge made numerous concessions to the terrorists in terms of living conditions.
Intelligence officials resisted the Colonel’s changes because they made interrogation more difficult, as the interrogators could not use promises of better living conditions as a carrot.

The suicide attempts and three successful suicides were an organized event designed to create worldwide sympathy for the detainees’ plight — and the detainees who committed suicide did so in part by taking advantage of the Colonel’s measures to improve living conditions.
Of the article, Stashiu said:

The article is amazingly accurate and even-handed. The things that COL Bumgarner tried were good-faith efforts to make the best of the situation. Many of the detainees also made good-faith efforts to improve things, but I believe that any concessions were hijacked by the extremists and used against everyone else’s efforts. For example, the lights being dimmed, extra bedding, etc… were all used to facilitate the successful suicides. But, before those changes had not been at least tried, the extremists escalated the rhetoric against us saying, “See? They will not do anything to make things better!”

As the article explains, there were competing objectives among the detainees. Simply, we were in a Catch-22. If concessions were made, one group would say that they could get even more by continuing to cause problems. If concessions weren’t made, the reasoning was that they just weren’t applying enough pressure. There is a hardcore group of AQ there that will try to turn everything they can to their advantage. They circulate untrue stories of torture, poisoned food, desecrated Korans, and many other things. This keeps the tensions high and then they find a way to light the match.

Part Four: Treatment of the detainees

The attacks on military personnel could be brutal, he explained:

We were told about one female medic who had to have major reconstructive surgery on her face following a detainee assault. She was too close to the beanhole (door opening) and the detainee was able to reach out, grab her head, and pull her face-first into the steel frame of the door, shattering most of the facial bone structure.

As medical personnel we would occasionally forget that these were detainees and treat them as we would regular patients. The guard force was usually very alert and prevented us from inadvertently risking ourselves, but this happened too quickly for anyone to prevent. Of course, we were all very careful about proximity for a long time after that…

I asked Stashiu: what was the most surprising thing about your life at GTMO? He replied that, while you might think it would be something about the detainees, to him the most surprising thing was actually the behavior of the Navy Master-at-Arms — the guard force for Guantánamo. Stashiu said that these guards are generally 18 to 20 years old, and are consistently showered with human waste products thrown at them by detainees — yet as a general rule, they stay remarkably professional and do not allow themselves to be antagonized. Stashiu found their behavior the most impressive part of his stay at Guantánamo.

Part Five: Stashiu reacts to Big Media pieces about GTMO.

Stashiu confirmed something not everyone realizes: detainees are still being interrogated at GTMO — and are apparently still giving up good information.

What harsh techniques are being used to extract this information? The answer to that question will shock you.

A couple of recent pieces in the media have suggested that some of the detainees actually enjoy their interrogations. For example, in a passage that reminded me of Monty Python’s “Comfy Chair” sketch (from the show about the Spanish Inquisition), Rich Lowry said this:

Interrogators rely on the soft sell. Detainees sit in a La-Z-Boy chair during interrogations, and beverages and movies are available to put them at ease. The most effective interrogator is said to be an older woman who adopts a nurturing attitude…

So I asked Stashiu: are the detainees really pampered in interrogations? He said:

For some, they eagerly await days until “reservation” (interrogation) and there are frequently requests to see their interrogator. This is why I said that some fear to return home or they would be killed as traitors. They get to smoke (sometimes 4 or 5 packs at once, uggh!), watch new-release DVDs that have been screened by Intel so they don’t get current events, eat pizza or fast-food, listen to music, smoke a hooka, etc…. The better stuff they give up, the more the interrogators get for them. All of this has been previously released to the public, but you never hear about it in the MSM.

How Neal Katyal expresses his gratitude to the US:
Defending Osama bin Ladin’s driver, Salim Ahmed Hamdan

This month’s Yale Alumni Magazine interviews celebrity alumnus Georgetown Law Professor Neal K. Katyal, ‘95JD Yale Law, preening over his victory in Hamdan v. Rumsfeld, which challenged the authority of the President to consign illegal combatants to trial by military courts, and which elicited the absurd majority opinion, written by Justice Stevens, which erroneously applies the language of Article 3 of the Geneva Convention, viz.,

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions (to):

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause…

to illegal combatants and terrorists captured outside the territory of the United States.

Katyal shares with the Yale Alumni Magazine the heart-warming story of his moving reply to Hamdan, when the imprisoned jihadi asked: “Why do you want to help me?”

So I paused for a long time, and then I said that I was doing this because my parents came to America to give their children better opportunities, and I couldn’t imagine another country on earth in which I would be able to do what I have been able to do. My parents came here from India, literally with eight dollars in their pockets, each of them. And what bothered me the most about the president’s order is that it said only foreigners would get this military justice system. If you were an American citizen, then you got a civilian trial. But if you were a green-card holder or a foreigner, then you got something really inferior. That was the first time that I felt our country was so fundamentally on the wrong path—and I had to do something.

I can relate to Mr. Katyal’s strong feelings of gratitude and appreciation toward the United States, as I come from immigrant background myself. My grandparents arrived here from Lithuania in the 1890s.

Professor Katyal and my father have a lot in common. Both were of the first generation brought up and educated in the United States. Both were grateful for the opportunities offered by the United States, though my father was not so quite so fortunate as Professor Katyal, who attended Dartmouth and Yale Law School.

Because his own father was dying of miner’s asthma, my father had to quit school after 8th grade and go to work in the coal mines to help support the family. But he was still grateful to grow up in the United States, rather than in Russian-occupied Lithuania, grateful for both America’s political freedom and for her economic opportunities, even though he had much less access to the latter than some others.

Despite the things they have in common, still, I cannot help reflecting that my father’s gratitude toward this country expressed itself in forms distinctly different than Professor Katyal’s, forms more recognizable as gratitude. I feel sure that my father left America better off by his relatively obscure contributions, a lifetime of hard labor and wartime military service, when he died in 1997. If Professor Katyal passed away tomorrow, I’m afraid I would find it very difficult to say the same of his more celebrated ones.

I do agree with Professor Katyal on one thing, though. I too cannot “imagine another country on earth in which (he) would be able to do what (he) ha(s) been able to do.”

How my father expressed his gratitude to the US:
Serving in the Marine Corps in the South Pacific

Winchester Model 1897 trench gun

The Bush Administration has been widely criticized for the allegedly unprecedented policy of interpreting the definitions of portions of the Geneva Conventions. And Senators McCain, Graham, and Warner recently waged a very public battle in the Senate specifically to ensure “that there be no attempt to redefine U.S. obligations.”

Bush Administration opponents are mistaken. There is a very prominent case of the United States refusing to accept the definition of treaty terms used by the enemy, and openly defying world opinion.

In WWI, the US military issued Winchester Model 1897 slide-action shotguns to US troops, along with buckshot-loaded cartridges. Each 12 gauge round contained nine size 00 buckshot. The shotguns featured a bayonet lug, and a perforated metal cover to protect the hand from the barrel becoming over-heated by rapid fire.

The shotguns were found to be desirable weapons, very useful for clearing trenches and in close combat. They were particularly popular with the Marines, who put them to conspicuously good use in Belleau Wood.

Germany, in 1918, protested US use of shotguns firing multiple projectile buckshot ammunition as a violation of Section II of the 1907 Hague Convention (the Geneva Convention’s predecessor treaty), which forbade belligerents to employ arms, projectiles, or material calculated to cause unnecessary suffering.

But, as W. Hays Parks, Special Assistant for Law of War Matters, Office of The Judge Advocate General, U.S. Army, notes in a 1997 paper, DA-PAM 27-50-299, the United States interpreted the Hague Treaty differently, rejecting the German protest.

The highly-effective use of the shotgun by United States forces had a telling effect on the morale of front-line German troops. On 19 September 1918, the German government issued a diplomatic protest against the American use of shotguns, alleging that the shotgun was prohibited by the law of war.

After careful consideration and review of the applicable law by The Judge Advocate General of the Army, Secretary of State Robert Lansing rejected the German protest in a formal note.

Threats to punish captured American soldiers found armed with shotguns met the stern US warning that any unjustified measures taken against US prisoners of war would be retaliated in equal measure upon captured Germans.

The reality is that international agreements of this kind invariably include substantial quantities of broad and unspecific statement, inevitably requiring interpretation. Someone has to decide whether 00 buckshot constitutes the kind of projectile “calculated to cause unnecessary suffering.” Someone has to decide today whether keeping someone in a cold room, or subjecting someone to “water-boarding,” constitutes torture.

What is remarkable is that, in the old days, Germany would argue for definitions which were in Germany’s interest, and United States officials would argue for interpretations which were in the interest of the United States. Today, our leading media outlets, a substantial portion of the body of active participants in policy debate, the former Secretary of State, and even three prominent Republican senators are found shouting their heads off in the public square, demanding that the United States adopt interpretations as inconvenient to US interests as possible.

Some of us find all this more than a little grotesque.

Jim Dunnigan’s Strategy Page reports the Judge Advocate General Corps’ military lawyers have grown far more numerous and influential, and that far too many of its members are on the wrong side:

Big brawl going on in the Pentagon between the JAGs (Judge Advocate General, the lawyers) and the operators (combat and intelligence types.) JAGs have become more important, decade by decade, over the last sixty years. This has happened in parallel with the growing influence of lawyers in civilian society. However, lawyers doing what they do has brought them into conflict with the operators. For example, the war on terror has created a murky legal area for captured terrorists. Many JAGs want to give the captured terrorists most of the privileges of civilians, or even soldiers, accused of criminal acts. This creates a conflict with the combat and intel officers, who do not want to give the terrorists access to the identity of informants within terrorist organizations, or other information they have on the terrorists, and how they got it. In the civilian world, the prosecution has to let the defense know all this stuff. That’s why there’s a witness protection program, or cases where the government will not prosecute in order to preserve valuable intel. But such procedures don’t work when most of your witnesses are living in a combat zone, and many of your intelligence collection techniques will be worthless if the enemy knows what they are, putting your own troops at greater risk.

On top of all this, the size of the JAG force has grown some ten percent since the end of the Cold War, while everyone else has shrunk by about a third. As a result, the senior JAGs in each service wants to be three star generals, instead of the current two star.

Now the JAGs are aware of the circumstances under which U.S. troops are fighting, and the importance of OPSEC (Operational Security, keeping info about your activities from the enemy). Even so, many JAGs seem to lose their perspective, and advocate strongly for giving the terrorists the information. Operators believe the JAGs are grandstanding, especially by saying one thing to uniformed people, and something else to the media and Congress. The situation has divided the JAG community as well, and it’s getting ugly.

Lindsey Graham (R-SC) has got to be an idiot. AP reports that Graham said:

If it‘s seen that our country is trying to redefine the Geneva Convention to meet the needs of the CIA, why can‘t every other country redefine the Geneva Convention to meet the needs of their secret police?” Graham asked.

The entire point of the Geneva Conventions is reciprocity. A signatory only promises to take prisoners, treat them decently, not use germ warfare or poison gas, not because they are trying to prove who is more humanitarian than whom, but merely so that their own troops will enjoy the decent treatment and the enemy’s restraint.
But our enemies, in recent years, have rarely been civilized European states, like Germany, who are signatories. Our enemies lately have been terrorists and illegal combatants, who simply torture, murder, and mutilate the remains of any Americans so unfortunate as to fall alive into their hands.

It is the misapplication of the Geneva Convention, and the unwarranted extension of its privileges to latrunculi (pirates and brigands), which jeopardizes US troops, by preventing just punishment for violation of the customs and usages of war. Obviously, the way you protect your own troops is to deny Geneva Convention protections to those who do not live up to its prescriptions, not by giving away Geneva Convention status to to our adversaries, however they choose to behave.

“Oh, I say, old boy, go right ahead and kill every prisoner out of hand. Use poison gas and germ warfare, if you like. Butcher all the non-combatants you please. But we Americans are simply too good, and fine, and pure to stoop to mistreating you. Keep the secret of the location of the diabolical device which will blow up one of our major cities, and kill a hundred thousand Americans. We certainly won’t beat it out of you.”

Democrat control of either house of Congress will almost certainly result in grandstanding Congressional committees investigating alleged violations of international law and human rights in the detention and interrogation of terrorists. It has been generally recognized that restraints on US Intelligence operations imposed as a result of the 1970s Frank Church-led CIA hearings had a great deal to do with the government’s failure to prevent the 9/11 attacks. The consequences of another Congressional Intelligence witch hunt are likely to be just as devastating.

The Washington Post reports that CIA officers are buying Congressional politics insurance.

It takes our own unique combination of vicious partisanship, habitual domestic treason, and opportunistic litigation to produce the need for such insurance for those who protect America from foreign enemies. We could translate Juvenal’s Quis custodiet ipsos custodes? differently today: Who will defend our defenders

CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program…

Justice Department political appointees have strongly backed the CIA interrogations. But “there are a lot of people who think that subpoenas could be coming” from Congress after the November elections or from federal prosecutors if Democrats capture the White House in 2008, said a retired senior intelligence officer who remains in contact with former colleagues in the agency’s Directorate of Operations, which ran the secret prisons.

“People are worried about a pendulum swing” that could lead to accusations of wrongdoing, said another former CIA officer.

The insurance policies were bought from Arlington-based Wright and Co., a subsidiary of the private Special Agents Mutual Benefit Association created by former FBI officials. The CIA has encouraged many of its officers to take out the insurance, current and former intelligence officials said, but no one interviewed would reveal precisely how many have bought policies…

The insurance, costing about $300 a year, would pay as much as $200,000 toward legal expenses and $1 million in civil judgments. Since the late 1990s, the CIA’s senior managers have been eligible for reimbursement of half the insurance premium.

In December 2001, with congressional authorization, the CIA expanded the reimbursements to 100 percent for CIA counterterrorism officers. That was about the time J. Cofer Black, then the CIA’s counterterrorism chief, told Bush that “the gloves come off” and promised “heads on spikes” in the counterterrorism effort.

“Why would [CIA officers] take any risks in their professional duties if the government was unwilling to cover the cost of their liability?” asked Rep. Rob Simmons (R-Conn.), a former CIA officer, during congressional debate that year.

Although suing federal officials for their actions is not easy, it is possible; the Supreme Court left the door ajar in two rulings. It ruled in 1971 that six narcotics agents could be sued for monetary damages arising from a warrantless search. Eleven years later, it held that government officials should be immune from civil liability only if their conduct does not violate clear statutory or constitutional rights that should be known by “a reasonable person.”

William L. Bransford, a senior partner at the law firm that defends people who take out the insurance, said he is unaware of any recent increase in claims. But agency officials said that interest has been stoked over the years by the $2 million legal bill incurred by CIA officer Clair George before his 1992 conviction for lying to Congress about the Iran-contra arms sales; by the Justice Department’s lengthy investigation of CIA officers for allegedly lying to Congress about the agency’s role in shooting down a civilian aircraft in 2001 in Peru; and by other events.

CIA employees outside the counterterrorism field who are eligible for reimbursement include the agency’s supervisors, attorneys, equal-opportunity- employment counselors, auditors, polygraph examiners, security adjudicators, grievance officers, inspectors general and internal investigators, he said. One in 10 eligible employees sought reimbursement last year, Mansfield said, adding that the fraction from previous years and a breakdown on those in the counterterrorism field were not immediately available.

The Financial Times reports

the White House on Tuesday confirmed that Gordon England, deputy defence secretary, sent a memorandum to senior defence officials and military officers last week, telling them that Common article III of the Geneva Convention — which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial — would apply to all detainees held in US military custody.

The Administration is knuckling under to the Supreme Court’s preposterous application of Geneva Convention status in Hamdan.

The sanctimonious do-gooder element is burbling with joy. Dave Hoffman aptly compared Hamdan with Brown, and he’s perfectly correct.

As in Brown, the Hamdan decision takes a leap of faith in the legitimacy of particular justices’ self-righteous moral intuitions as a basis for overruling objective law, counting on the sentimentality of the general public to affirm politically over time the Court’s decision.

There is a difference, though. The Brown decision was made at a time when state segregation represented a strange anachronism, when the laws under scrutiny were nearly universally despised, when the legal fruit was already overripe and ready to drop off the vine of its own accord.

The principle of reciprocity in the laws and usages of war has considerably greater vitality and reason behind it than Jim Crow ever did. The entire point of the Geneva Convention is to encourage humane treatment of prisoners of war on the basis of reciprocity. Signing the Convention is a promise that, if you do not abuse our soldiers who fall into your hands, we will also spare yours.

Justice Stevens’ generosity in the awarding of honorable status, rights, and protections to illegal combatants really represents a fraudulent check written at the expense of American fighting men.

When Justice Stevens effeminately promises that illegal combatants, terrorists, murderers, and brigands will all be treated as honorable adversaries, attempting to preclude the American fighting man, exposed to the hazard of falling alive into the hands of a merciless and barbarous enemy, from punishing violations of the customs and usages of war, he goes far beyond his own legitimate perogative. The decision to spare this enemy’s life, or that, belongs to the man who bested him, not to some theorist and scribbler sitting in a marble building in the District of Columbia.

In WWII, my father served in the USMC on Guadalcanal. He told me that the Japanese had people able to speak English, and in the long tropical nights, the Japanese forces would amuse themselves by imitating the pleas for assistance of a wounded American lying helpless between the fighting lines. Naive young Marines often had to be restrained physically from climbing out their foxholes and dashing off into the night to the rescue of their miserable and suffering fellow Marine. Every now and then, an individual hero would break free, and go out there. They always found him the next day, crucified with Japanese bayonets to a palm tree, his reproductive organs cut off and stuffed insultingly in his mouth. The Marines on Guadalcanal consequently took no Japanese prisoners, except for the purpose of short and forcible interrogation.

In today’s absurd world, bourgeois lawyers, safe in the United States and far from the fighting (who know nothing of war) would interpose their own opinions and emotions between the just revenge of American fighting men and a cowardly and dishonorable enemy.

The answer to Justice Stevens is simple. US forces will need to be certain to take no illegal combatants alive.

Mark Steyn heaps plenty of well-deserved ridicule on Justice Stevens’ Hamdan ruling.

There are several ways to fight a war. On the one hand, you can put on a uniform, climb into a tank, rumble across a field and fire on the other fellows’ tank. On the other, you can find a 12-year-old girl, persuade her to try on your new suicide-bomber belt and send her waddling off into the nearest pizza parlor.

The Geneva Conventions were designed to encourage the former and discourage the latter. The thinking behind them was that, if one had to have wars, it’s best if they’re fought by soldiers and armies. In return for having a rank and serial number and dressing the part, you’ll be treated as a lawful combatant should you fall into the hands of the other side. There’ll always be a bit of skulking around in street garb among civilian populations, but the idea was to ensure that it would not be rewarded—that there would, in fact, be a downside for going that route.

The U.S. Supreme Court has now blown a hole in the animating principle behind the Geneva Conventions by choosing to elevate an enemy that disdains the laws of war in order to facilitate the bombing of civilian targets and the beheading of individuals. The argument made by Justice John Paul Stevens is an Alice-In-Jihadland ruling that stands the Conventions on their head in order to give words the precise opposite of their plain meaning and intent. The same kind of inspired jurisprudence conjuring trick that detected in the emanations of the penumbra how the Framers of the U..S Constitution cannily anticipated a need for partial-birth abortion and gay marriage has now effectively found a right to jihad—or, if you’re a female suicide bomber about to board an Israeli bus, a woman’s right to Jews.

Cicero in response to Hamdan v. Rumsfeld:

IV. atqui, si tempus est ullum iure hominis necandi, quae multa sunt, certe illud est non modo iustum verum etiam necessarium, cum vi vis inlata defenditur… insidiatori vero et latroni quae potest inferri iniusta nex?

quid comitatus nostri, quid gladii volunt? quos habere certe non liceret, si uti illis nullo pacto liceret. est igitur haec, iudices, non scripta, sed nata lex, quam non didicimus, accepimus, legimus, verum ex natura ipsa adripuimus, hausimus, expressimus, ad quam non docti sed facti, non instituti sed imbuti sumus, ut, si vita nostra in aliquas insidias, si in vim et in tela aut latronum aut inimicorum incidisset, omnis honesta ratio esset expediendae salutis. silent enim leges inter arma nec se exspectari iubent, cum ei qui exspectare velit ante iniusta poena luenda sit quam iusta repetenda.

etsi persapienter et quodam modo tacite dat ipsa lex potestatem defendendi, quae non hominem occidi, sed esse cum telo hominis occidendi causa vetat, ut, cum causa, non telum quaereretur, qui sui defendendi causa telo esset usus, non hominis occidendi causa habuisse telum iudicaretur. quapropter hoc maneat in causa, iudices; non enim dubito quin probaturus sim vobis defensionem meam, si id memineritis quod oblivisci non potestis insidiatorem interfici iure posse.

(Translation, JDZ:)

IV. But if there is any occasion on which it is proper to slay a man, and there are many, surely that occasion is not only just, but even necessary, when violence is offered, and must be repelled by violence… And what death can be unjust when inflicted on a secret plotter and outlaw?

Why do we have an army, why do we own swords? Surely it would not be justifiable for us to have them at all, if it were never justifiable to use them. There is, therefore, a law, O judges, not written, but born with us, which we have not learnt, nor received by tradition, nor read, but which we have taken in and imbibed from Nature herself; a law which we were never taught, but for which we were made, which we were never trained in, but which is ingrained in ourselves: namely, that if our life is in danger from plots, or from open violence, or from the weapons of brigands or enemies, every means of securing our safety is honorable. For the laws are silent in the midst of the clash of arms, and do not expect themselves to be waited upon, when he who waited would be obliged to bear an unjust injury rather than exact a just punishment.

The law very wisely, and tacitly, gives a man the right to defend himself, and it does not merely prohibit homicide, but forbids anyone carrying a weapon for the purpose of murder. It is the intended purpose, not the carrying of the weapon, which constitutes the offense. The man who used a weapon to defend himself would not be deemed to have armed himself with the intention of committing murder. Let this principle then be remembered by you in this trial, O judges; for I do not doubt that I shall make good my defense before you, if you only remember, that which it is impossible to forget: that a plotter against oneself may be lawfully slain.

-Marcus Tullius Cicero, PRO T. ANNIO MILONE ORATIO, [In Defense of Titus Annius Milo], X:IV.

Members of the Trans-Atlantic intelligentsia today live unprecedently comfortable and domesticated lives, and enjoy such affluence and personal security that instead of worrying about the basics of survival (like people in the past) they are apt to seek the perfection of their selves. They take care to obtain the finest educations, they select and pursue the most prestigious and gratifying careers, they exercise and jog, and they contemplate with great care all questions of ethics. Even ordinary and banal matters, like cooking lobsters, to them commonly rise to levels of grave and serious concern.

So exquisite and precieux have become the souls of our contemporary elites that they simply cannot bear to contemplate the idea of themselves (or anyone else) inflicting suffering on human or animal, crustacean or terrorist.
——————————————
When I was a little boy, I once had a dog I loved very much, but who was unfortunately a very bad dog. You couldn’t walk him on a leash: he was strong, willful, and could pull even an adult off his feet.

My dog would obey no one. He terrorized the neighborhood, and frequently treed one neighbor’s cat. One day, he escaped from our backyard, and proceeded to the unimaginable atrocity of attacking a neighbor’s freshly washed sheets drying outdoors on a clothes-line. He tore most of them to shreds, and soiled the rest. My father had to face a female neighbor’s righteous wrath, and he had to make expensive restitution.

I woke up one morning shortly afterward to find my beloved dog missing.

I was heartbroken, but my parents explained that, though he was a wonderful dog, he had not really been happy living in a town (where he would get into trouble playing with people’s bed sheets). So they decided it would be best for him to go and live on a farm in the country, a place where dogs could run free.

The farm was a wonderful place, and a dog could have fun all day doing all the things he liked to do. The farmer was delighted to own such a wonderful dog, and this was the best possible arrangement for everyone. I missed my dog, of course, but I was happy to think of him happy, safe, and enjoying himself.

Many years later, when I was an adult, my father admitted to me that he took that dog up on the mountain, fired both barrels of his 12 gauge shotgun into him, and walked away.
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In a lot of ways, our intelligentsia today are like children. They have no first hand experience commonly of the harsh and difficult choices adults have to make. And, like children, they are naive and sentimental, and do not understand evil.

What the rest of us need to do for Justice Stevens, Andrew Sullivan, and the Trans-Atlantic chattering classes generally is just explain that those Islamic terrorists weren’t happy in Afghanistan, Iraq, or Guantanamo Bay. They were only getting into trouble. So we had to let them all go off and live on the farm, where they could run free, set off all the bombs they like, and do all those other fun Islamic things they like to do. The farmer had never seen such wonderful terrorists, he said. He used to raise terrorists, he said. He loved terrorists, and he was delighted to adopt these.