This thread is now mostly about legalities about GITMO. The United States should be getting out of Afghanistan and devoting those resources to Iraq where they have a chance of continuing to bear fruit to the advantage of the U.S. Pakistan is disintegrating and nothing's to be done about that. The problem is Pakistanian nukes and Iranian nukes. If our being in Afghanistan doesn't play to the amelioration of these concerns, we have no reason being there at all. The new U.S. general in charge, Special Forces experience and all, is much too wishy-washy to get any job done except sacrificing U.S. soldiers to the great wishy-washy. They are dying for that right now! If you won't/can't kick ass get the hell out! So what the shit is the big deal about WSS and GITMO or MM and Bush and GITMO and all that compared to Iranian and Pakistanian nukes, real and credibly projected? I'm supposed--or anyone else?--to check off the respective posts of WSS and MM on GITMO and decide, Lordy!--that one beat the other? Well, in my estimation, MM beat up WSS pretty damn good! Just one more thing: If the U.S. shouldn't have been in Iraq and Afghanistan in the first place how the hell did we get there and what the hell do we do about it now? That reverses the efficacy of the MM and WSS give and take except WSS didn't raise the point. He's stuck in the GITMO context, but it's obvious MM is not and has only been responding to WSS--much too generously.

--Brant
USASF Vietnam

I've reviewed every post on this thread, William, and when you parse away name-calling and bad manners by all parties, Michael made a good case for how Bush properly detained enemy combatants at GITMO and how Obama is screwing things up. You did not do a good job of Obama elevation in regard to the legal issues. I'm the one who did the good job of Bush-bashing here, but not over GITMO; I didn't touch that. I did it in a few paragraphs at most. I don't think you ever attempted, at least on this thread, to make a concise declarative statement of your position, but obscured it through verbiage, facts and factoids. Just what was Bush supposed to do with those guys?

Cuba is sovereign over the totality of Cuba. Every year the U.S. sends a check for the rent and every year Cuba does not cash it. The U.S. is conforming to the treaty that set up its base to begin with. I believe like the British in Hong Kong the Americans will eventually have to leave as the treaty is time-constrained. Is an American oil company drilling for oil 10 miles offshore?

--Brant

William, this entire thread is essentially an attack on you. Read again Michael's opening article above. It then devolved into this military detention at Guat. thing. However, Michael's big target wasn't you but Obama. Obama is even worse than he depicted. Bush made all this possible with his "Compassionate Conservatism" and the invasion of Iraq which I was against at the time. What the military should do with enemy combatants is a small issue. America is being flushed down the toilet. It's not coming back in any form I want to experience. Not in my lifetime. I'm an American without an America. At 65 Years old I doubt if I can adjust very well no matter where I live. I'll fight the good fight as long as I can. Maybe I'll riot in the streets with the college kids. Regardless, I know I'm going down with the ship.

I was drunk when I wrote the previous post. I'm not usually so crude. I'd have to read it again to know if I owe you an apology, but time is short and I have to go bring Mom home from the hospital.

--Brant

Brant is welcome to wade into discussion at any point, on any issue. I wish he would. I wish we knew what someone other than Michael and I think about US detention at Guantanamo. But . . . instead it's Texas BBQ Championships. Blowtorches, bad faith personified, sniveling, rodents, burnt behinds . . . and tub-thumping about hating America.

Michael Moeller and I take different sides on many of the issues wrapped up in Guantanamo, and we clash mightily on the import of the history -- and differ profoundly on interpretation of details.

It's not personal, it's controversy. It's not about his ass or my ass, it's not some kind of Mexican Wrestling hoe-down. It's a set of serious issues that beset the US. The issues are not going to be decided in a thread at SOLO, no matter how long. They certainly shouldn't be decided on personalities, or gang colours, or whim or snark, or pre-existing conditions. And should Michael Moeller take the pennant in this discussion, in your opinion, is that because Lindsay says so, because the debates are too long, because it's all too difficult to follow save for spin . . . ?

You obviously spend time reading SOLO, Brant. Why don't you venture an opinion on something at issue in this thread? What's the problem? You've spoken on my, Michael Moeller's, and Lindsay's personality defects -- and made reference to (perhaps invited) ad hominem arguments. But that's hardly engaging in discussion or debate.

Why not give the thread another review -- and instead of score-carding the participants and jeering from the sidelines, make some effort to put your own opinions about detention policies in play? You are an American. Presumably you have been, like Michael has been, watching the situation and its development since 2001.

You say you don't have time "to wade through interminable verbiage." Well, make time, if you want your opinion to have some heft. Some of these court decisions are hundreds of pages long, and the regulations, statutes, orders, and other documents at issue are thousands of words and sometimes in hideously complex legalese. Michael's and my remarks are brief in comparison. At least between the two of us we have managed to lay out the timeline of the major policy decisions and the major turning points and court decisions, and we've put links to most of the material in discussion. So . . . there's enough to gnaw on there, Good Soldier.

So, why not venture an opinion about something other than surface features? Get in the game, Brant! Ask some questions, demand some clarifications, contest some factual claims, or nail me to the wall for some awful error you have discovered in my reasoning or conception.

WSS

(I apologized backchannel to Brant for the snarky 'too drunk, too old' comment)

Now spread that blowtorch to Sewer Kelly's ass.

WSS: "Too old. Too drunk. Too inattentive."

Your estimation of me. Never mind what you were responding to. Just let me have it.

You were responding to my post in which I said apropos your previous post: "Too long."

Let's say your basic position is correct and MM's is not. Who's to know this without reading between the between the lines? Not me. I can't defend you. I wanted to, if you were right and MM wrong. I don't have time to wade through interminable verbiage. MM's long posts were in response to yours. I can hardly believe he took the time. He's, I'm sure, the only person reading anything on SOLOP who took the time to read what you wrote and analysised it and replied to it in detail. I don't think you did the same with his responses to yours save to get some obscure purchase for a further response. I could figure that much out.

I can understand how a Canadian would tend to give Obama a pass: It's the Americans and people abroad who have relied on America who are getting screwed first. The Canadians and the French have the luxury of animadversion upon America, exemplified by Bush, but not us Americans, who see a whole shitload of shit being dumped directly upon them.

You're the kind of guy I could've been a friend with--if you were foundationed on the basis of truth. MM, I'll never be a friend with. I'd love to be able to put a blowtorch to his tail, but the smell of burned flesh is coming off your ass. I even have to admit I don't recall Linz ever saying anything about you that wasn't true insofar as I could figure out. You hate America and you hate Objectivism and I think for the same reason. Me? I have some serious reservations about America but I want to protect her and Americans--Americans who feel the same way.

--Brant
maybe too smart for the conversation, but hard liquor ... At least that'd get William off the spit. I'm quite willing to be too old, drunk and inattentive in order to do that. But I didn't drink enough, am only 65 (granddad was writing books--two at once--when he was 90) and, by golly, haven't been inattentive enough!

Anybody else want to ad h. me? I've only given Linz a pass. He can as much as he wants. Everybody else is fresh meat!

I think Scherk is acting like a desperate, helpless, sniveling little rat trapped in a corner.

The only thing that surprises me is that you're surprised. I have said from the get-go this guy is bad faith personified. It's good that it's on show, for anyone masochistic enough to wade through the verbiage. Have a great, rodent-free weekend!

On another thread Scherk said: "I value reason highly -- critical thinking, close observation, analysis, weighing, comparing". Really?

His lasts posts were so bad, I figured I would just let him live with himself. But his subtle and not-so-subtle attacks on my character have prompted me to respond, in part for now as I am going out of town for the weekend.

Blantant Misrepresentation

This one I find amazing. In debating the Army Regulation, Scherk writes:

Scherk: "I think both you and Roberts mean CSRTs mirror only a part of 190-8, a small part, section 1-6."

Oh, that's exactly what we mean. That is the section of the regulation that expressly deals with detention of enemy prisoners of war. Scherk "thinks" we mean this section? He "thinks" so? Roberts directly cites it in his opinion: "The Implementation Memo requires
only that detainees’ witnesses be 'reasonably available,”'App. J to Pet. for Cert. in No. 06–1196, at 155, a requirement drawn from Army Regulation 190–8, ch. 1, §1–6(e)(6)".

What was the section pointed-to in Hamdi as an example for Bush asked to comply with, you ask?

"There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status
under the Geneva Convention. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, §1-6 (1997)."

Scherk tries to pass this off as "one small part" of the Army Regulation, even though that is the very section that deals with the detention of the enemy combatants of war and is cited in both opinions as the section of compliance. Also notice the mention of "prisoner of war status" for Scherk's next tidbit.

He finds part of a subsection [5.1(e)] dealing with "Spies and Saboteurs" under the section dealing with "Civilian Internees". That's right, subsection 5.1(e) of the broader category of Civilian Internees. Who, pray tell, ever considered terrorists as spies and saboteurs? Where, oh where, has anybody ever stated such a thing? The Hamdi quote above expressly says "prisoner of war status".

Its rather obvious why he did it. He did so he could parse the language and provide the quote about a trial, and put it together with another section to make it seem like they should be receiving counsel at a military trial. Here is the full quote:

"Suspected spies and saboteurs will be afforded the same human rights treatment as the CI, and in case of trial, will be accorded the rights of fair and regular trial prescribed by the GC and by this regulation."

What does Civilian Internees say? "The CI may be tried by general court-martial that must sit
within the occupied territory. The CI will not be tried before summary or special court-martial."

Notice the "may be tried".

Let's review. In order to try and make an argument that these detainees should be receiving a trial with legal counsel: (1) he pretends like he doesn't know what section Roberts is referring to, even though its cited in the opinion, (2) he ignores the obvious that these are enemy prisoners of war, (3) makes it seem like civilian internees fit the description, (4) digs up a subsection on spies and saboteurs, (5) quotes the language about a trial, (6) does not quote the other section that says they "may be" entitled to a trial, but (7) relies the information that in the case of trial they receive counsel.

Then he has the audacity to end with: "If I understand you correctly, Michael, you would have been happy if Bush had made use of 190-8 to deal with detainees from the War on Terror. If so, fair enough."

Thus making it seem as if Bush should have granted trials with counsel under the category of "spies and saboteurs" and instead Bush choose to grant them less.

What a slimy piece of shit. All to make an argument. All to evade the fact that when Bush was asked to comply, he did and provided more. This creature has the audacity to make attacks on my character about "distortions" and "fucking around".

For the record, let's take a look at what the REAL provision provides (cited above in Roberts decision):
-persons advised of their rights before hearing
-right to call witnesses
-right to testify
-not be compelled to testify
-decision by preponderence of the evidence
CSRT adds:
-military officer to serve as personal representative
-appeal with in DOD who can order reexamination of evidence and institute proceedings
-detainee given summary of evidence, including classified information
-member of tribunal required to search for exculpatory evidence

Distortion of My Position

Scherk: "Your concern with extralegal detentions is shared by leftists and human rights groups... The 'big production' I failed to make was to pound in the irony, once again, of your being in bed with eeek! leftists rejecting any notion of Executive Detention under an Obama regime (while you defend the same under Bush)".

Then turns around and writes: "You are inclined to give a Bush the power to detain at will anyone he considered an unlawful enemy combatant." And then proceeds to engage in ludicrous caricature, as if that is my position.

Just take the second statement for a moment. I expressly denied this position: "Bottom line: he is not claiming the right to detain anybody without factual support that they are, in fact, an enemy combatant at war with the US." I also stated that *I*, personally, would support CSRT or pre-Bush Army Reg 190-8 with adjustments. Scherk himself says "fair enough" if I agree with Army Reg. 190-8, which blantantly represents on top of everything else.

Could this creep knowingly distort my position any more?

In fact, he is wrong on both counts. I never accepted the characterization as "extralegal" as Bush was acting within precedent. As I said, one can disagree with the scope of the procedures while not "nailing his hide to the wall" because of the nature of the combatants and what US precedent and even the Geneva Conventions say about such combatants. Even Scherk says that he might be "inclined to agree" that Quirin would not afford these prisoners ordinary protections of war, but he suggests "the scope is too narrow". Furthermore, when Bush was asked to give more by the Court, he did, and then some. He was step-in-step with legalities. Now Obama wants to turn back the clock on Bush's compliance and in defiance of the Court (who reversed themselves by striking down Bush's complaince)--i.e. Obama's actions are truly "extralegal".

Scherk will leave it to other leftists "hold his feet to the fire"--like Pelosi, Leahy, and Crew did after his speech. Boy, those same Dems that held Bush's "feet to the fire" are really holding Obama's "feet to the fire", aren't they, folks? Scherk will leave it up to them. For his own part, Scherk will busy himself ranting and raving about "moral stains" on America and the entirety of Bush policy, even though Obama plans to turn back the clock on even Bush's compliance and in defiance of the Court--the opinion Scherk agrees with. No, Scherk claims that Obama is busy trying to put the "darkness of the Gitmo year behind him".

Contradiction a la Scherk via Gonzales

Let's consider his treatment of Gonzales. He urges us to consider the statement from Gonzales that he finds damning as the definitive statement on Bush policy. Take it as definitive (with Scherk's spin, of course), and let's not be concerned with other considerations. He then turns around rejects Gonzales's statement about it not being "haphazard", even after Gonzales lays out the lengthy process in detail. He chides me for not considering other sources and states I am merely accepting Gonzales's "boilerplate" and "the best spin by the Bush apparat".

Oh, I see. If somebody Scherk disagrees with makes a statement that he believes supports his point, then its definitive. If the same person makes statements refuting his notion, then its "boilerplate" and "the best spin". Anybody up for a contradiction a la Scherk with a side order of conspiracy theory?

I think Scherk is acting like a desperate, helpless, sniveling little rat trapped in a corner. I'll be back on Monday.

Michael

is to understand it's not torture and it's not detention but war itself and the essential triteness of all this stuff on this thread comparatively.

The moral stature of the U.S. is all soooooo important. Well, how about 100,000 or more Iraqi soldiers killed and bulldozed into common graves in Iraqi War I for Oil? Everyone knew they were dead meat from day one, including S. Hussein. That's why he filled those exposed positions with his inferior forces.

Remember when the U.S. so carefully albeit implicitly suggested to S. H. that he had a free rein to invade Kuwait? Well, he got the message--and went ahead!

I may be stupid, but I'm not willfully ignorant! I see real things!

--Brant
Bush spinmeister not

Sherk,

You have exhausted my patience. You made a lengthy post 3 posts ago concerning Eisentrager, Boumediene, Hamdan, Quirin, Kurnaz, the Bush 2001-04 time frame, among other things. I only got to Eisentrager and the early Bush years. You then say you want to wrap it up with more basic questions and leave it at that, so I dropped responding to all the other stuff and responded to that. Then you give a fresh barrage of questions covering such things as Quirin and Kurnaz and find my lack of response Kurnaz "troubling". Say what?

And you didn't even comprehend my arguments involving Eisentrager and the timeline in the first place!!! You say I misquoted you because I left out the "extrajudicial arc" thingy. I already preempted this argument by explaining why it was not "extrajudicial" and distinguished it from Obama based on your own call for a timeline. Let me repeat: at the time Bush had precedent for what he did, even if you disagree with the "scope". Obama does not now that Boumediene has been decided. This went right over your head. But this did not stop you from putting words in my mouth and saying I "am in bed with eeeekkk leftists" re "extralegal" detention. Jesus H. Christ, pay attention to the fucking timeline.

And I am the one who "distorts", "misrepresents", and "fucks around".

Again, you did not even comprehend the argument. My quote of "big production" was not to say you were favor "indefinite detention"--I just got done telling you I agreed you don't support that!! Once again, my point was that your whole argument unrelentlessly and ceaselessly focuses on this point against Bush. You completely hand-wave away and obstinately refuse to assess Obama on those very same terms.

In fact, you did it again!! You say those leftist and human rights groups will "hold his feet to the fire". What about you Scherk!!!!!! Are you going to hold his feet to the fire? Apparently not. I tried.

I have answered every argument against the Bush policy in great detail and explanation. Your last two posts completely misrepresent my views, and, by your own words, you engage in "caricature". You have yet to even answer my simple argument about Obama dragging detainees into federal court, not to mention many of my counter-arguments.

Therefore, I will summarily dismiss the rest of your case with one easy stroke.

Every single objection, every single "troubling" circumstance, every single problem with the cases that you have also applies to Obama to the extent he uses military commissions. He offered no change military commissions that corrects your complaints from what Bush had in place.

Do you support his military commissions? If you do, then your arguments are moot. You and Obama have just vindicated Bush policy. To the extent he exclusively uses these military commissions, you can count on me not to criticize him.

If you do not support his military commissions, then you are once again against Obama. This leaves you with one option of left--namely, dragging the terrorists into federal court. Is this want you want?

End of Story.

MM: I apologize for calling you what I called you.

WSS: I've been down Obama's throat for two years, never mind the five months he's been President. How much shit does he have to shovel before you understand he's Bush worse and Bush was bad? Bush got "the surge" right--right inside all his wrongs.

You have a funny idea about the staining of America's ideals. Andrew Jackson's Indian wars? The Mexican War? The War Between the States? The subjugation of the Philippines? WWI and WWII (consequently--plus Communism in Russia, Naziism, the Cold War, Communist China, Korea, Vietnam and Pol Pot). The ideal of America is minding other people's business. They paid a high price so we can bask in the legacy of U.S. WWII heroism. This exempts you, of course. At best I can calculate about 300,000,000 people were killed by war and disease and genocide in the 20th Century because the U.S. went mucking around. And the beat goes on, but the country is getting enfeebled.

LP: What did you say your contribution to this thread was?

--Brant

Concerning Enemy Prisoners Of War, Retained Personnel, Civilian Internees And Other Detainees

MM: I support military commissions. For detention, CSRT was more than adequate for detainees to challenge their detention. I would support the lesser, pre-Bush Army Reg. 190-8 with some adjustments.

Okay. Does this mean simply that you support 190-8, in part, instead of CSRTs? Judge Roberts' dissent in Boumediene stated: the Executive designed the CSRTs to mirror Army Regulation 190–8; this is another thing I am not completely clear on. I think both you and Roberts mean CSRTs mirror only a part of 190-8, a small part, section 1-6. What kind of adjustments are proper and necessary, in your opinion?

To my understanding the issuance of Bush's Military Order was designed to escape the strictures of the entire 190-8, especially its inclusion of Geneva conventions -- to allow unbridled interrogations and avoid the necessity of complying with armed forces law.

As I understand the regulation, 190-8 details the treatment of several classes of people detained in war: prisoners of war/uniformed enemy soldiers, retained personnel (chaplains, medical corps, etc), civilian internees -- and 'other.' There are no easy, simple correspondences with 'enemy combatants' or 'unlawful combatants,' but there is mention of judicial and courts-martial proceedings and charges (some that could lead to execution), and mention of suspected spies and saboteurs and "persons under definite suspicion of activities hostile to the security of the United States."

In the case of spies and saboteurs and other persons subject to detention on national security grounds, the regulations afford the same human rights treatment as civilian internees and "in case of trial, will be accorded the rights of fair and regular trial prescribed by the Geneva Conventions and by this regulation." The trials referred to are Courts-Martial in which detainees are granted assistance of a qualified advocate or counsel.

(for those who are following the details of these arguments, have a close look at the material in Army Reg. 190-8.)

If I understand you correctly, Michael, you would have been happy if Bush had made use of 190-8 to deal with detainees from the War on Terror. If so, fair enough.

Gonzalez

I used the Gonzalez excerpt to offer a snapshot of the situation that prevailed in February 2004, some three years after the Bush military order setting up the regime at Guantanamo. I also used it to highlight the concept and reality of 'indefinite detention without charge' . . .

I suggested that what Gonzalez put before the American Bar Association Standing Committee on Law and National Security was policy. Now, you write that your point in going through a timeline is to judge policy by processes put in place, "NOT speeches." You write of Gonzalez that he was just "one of the lawyers that wrote memos concerning what actions the president could take in light case history, Geneva Conventions, and Presidential War Powers."

I am baffled.

Considering the venue and considering Gonzalez's position as counsel to the Presidency, it seems clear to me that Gonzalez was before the Bar Association to explain Bush policies as they obtained at that moment. I don't understand why this cannot be stipulated. Yes, we are looking at the entire sweep of Bush era policies, challenges, court rulings and arguments. Was the case Gonzalez put in February 2004 an explication of the Bush administration policy and legal rationale as it stood? You say no . . .

Here's Gonzalez: As a result, while we have set forth our legal authorities clearly in legal briefs, in the debate over the fairness and prudence of the Government’s actions in the war on terror, the voice of the Government has remained essentially unheard.

Who is this we he's talking about? Whose voice is he representing to the crowd?

You recount the tiresome and aggravating experience with detainee issues in "enemy territory," and I appreciate that background. I find it disheartening that we cannot even find common ground in this matter of what was the situation in early 2004.

Let me put a finer point on it. I think all the seven years of Bush and five months of Obama should be considered. Of course we are going to look at CSRT, MCA, DTA, the court petitions, precedents, decisions, appeals, and ultimate outcomes. But we should also figure out what position was held that aroused such opposition . . . and that is why I quoted Gonzalez stating and defending actual Bush policy.

Because it was that Bush policy that was contested. The Bush policy was new, broke new ground, established a new line. The Bush policy, contra 190-8, specifically outlawed any recourse whatsover outside of the Executive branch.

Here's more of Gonzalez from that same speech:

To suggest that an al Qaeda member must be tried in a civilian court because he happens to be an American citizen – or to suggest that hundreds of individuals captured in battle in Afghanistan should be extradited, given lawyers, and tried in civilian courts – is to apply the wrong legal paradigm. The law applicable in this context is the law of war – those conventions and customs that govern armed conflicts.

I think this gets to the heart of the matter, and to the heart of the disagreements between the Moeller position and Scherk position (if we can use this as shorthand). The Law of War. The Conventions and Customs. The Bush detainee directive was a fresh, unilateral tweaking of those conventions and customs. It is my position that this was a mistake, that it could not stand, that it would lead to a real diminution of America's moral standing in the world.

Quirin redux . . .

Gonzalez continues:

The Supreme Court’s 1942 decision in Ex parte Quirin acknowledged that the President’s war powers include the authority to capture and detain enemy combatants at least for the duration of a conflict, an authority that was well-settled by the time of that decision. More to the point with respect to Hamdi and Padilla, the Supreme Court has made clear that this power extends to enemy combatants who are United States citizens.

As I have argued, Bush miscalculated -- perhaps on the advice of such as Gonzalez, Rumsfield, Cheney -- that the Bush doctrines would hold. With regard to Quirin, I have detailed the facts below. You, Michael, argue as does Gonzalez, that Quirin was precedent for authority to capture and detain and designate people as not subject to the protections offered a ordinary prisoner of war. I might agree, but suggest that scope is too narrow: most importantly the ruling established the right of a president to convene a military commission -- and for that commission to carry out its business of trying and punishing crimes of war.

While the military's right to detain, try and punish 'unlawful alien enemy combatants' was necessarily part of the decision, we should take note of an essential distinction -- that between "unlawful combatants" and "lawful combatants." Both lawful and unlawful combatants can be detained, but only unlawful combatants can be tried and punished for acts which contravene the laws of war. In the case of unlawful combatants, the trial and punishment may be by military commissions. In previous conflicts there were captured combatants deemed to be prisoners of war (lawful) and 'other' (unlawful).

There are parallels and discontinuities in the cases of 1942 and 2001-2009.

What I found most striking about the Quirin decision was the contrast between the circumstances of those eight detainees and the hundreds of detainees at Guantanamo. In a matter of two months, the eight saboteurs were captured, subject by name to executive order, investigated (by the FBI and military), tried (by military commission), had their Supreme Court appeal heard . . . and were finally put to death in the electric chair.

I contrasted this with the long sojourn of Kurnaz, Michael. You had no comment. This is troubling.

In the same way that you repeat Roberts' assertion that CSRT process afforded 'ample opportunity' for a detainee to put forward exculpatory evidence, and that you accept Gonzalez's boilerplate, you accept assurances without reviewing for yourself any contrary material. So, if Gonzalez states that the determinations "does not mean their label as 'enemy combatant' is 'haphazard,'" that's good enough for you. Of course, he is not referring to pre-CSRT procedures applied to alien detainees, but to such as Padilla, an American, who was, of course, later tried in civilian court . . .

That is disappointing, to say the least, that you only accept the best spin by the Bush apparat. Again I suggest you have a look at the Kurnaz case. Five years of detention as an enemy combatant for someone who was by no means what Bush was looking for.

Blameless, Right and Bold versus Culpable, Left and weak

So, after all this to-ing and fro-ing, huffing and puffing, citing and tub-thumping and private relitigation, what do I think of your attitude to war, freedom, rule of law, culpability?

You are inclined to give a Bush the power to detain at will anyone he considered an unlawful enemy combatant. You give every benefit of the doubt to the actions of a Bush administration over seven long years. You leap for the throat of your new president five months into his administration.

Your hardline stance makes this kind of caricature possible:

Bush was blameless. Bush made no mistakes. The Military Order of November 13, 2001 was entirely justified and should never have been challenged in any of its effects. All its effects were good. All the detainees are terrorists. No mistakes were made. Everyone who gave Bush advice on the inside was right. Everyone who advised Bush on the outside is wrong. Right is right. Left is wrong. Always.

I frankly love and admire America. I especially love its ideals of justice, freedom, rule of law -- its high moral character. My country is a staunch ally, we fight side by side in Afghanistan, we defend American greatness and stand with it in times of need and solidarity. When the attacks of September 11th happened, and in the aftermath, the moral standing of Americal was obvious to all its allies and to its enemies. That America would retaliate, that the Taliban would fall to American arms was also obvious.

But something happened in American policy and practice that lessened the lustre and glory and righteousness of America, Michael. Something happened in Guantanamo, in Iraq, in Abu Graib. The nexus of issues that are represented in Guantanamo, from detentions to torture, stained America's reputation and associated it with stances and actions that poorly represent the great American ideals.

FIN

I've done my best to lay out objections to your arguments, Michael, and done my best to offer context and support for my opinions. I think I can safely leave the judgement of my efforts to somebody else; who knows, maybe Lindsay will issue the Supreme SOLO decision. I have enjoyed the exchanges to some degree and will keep my eye on the issues as Obama attempts to put the darkness of the Guantanamo years behind him.

You have an able mind, and a facility for argument. I hope you curb your tendency to distort and misrepresent, and that you try to understand that objections to Bush policies are not mere Marks of the Beast!

WSS

Thanks, Michael, for putting your analyses in perspective -- especially your time behind enemy lines in Liberal Academia.

I'll ask for a few further clarifications -- which should deepen and broaden understanding of your arguments -- and then leave you and your fellow Americans to the issues. I tried to find a common ground in my previous post, but realize that is probably impossible for you to agree to a common ground at all. It seems that those who oppose or critique the Bush policies at issue are an enemy formation, to be reviled. That's too bad. It makes for SOLO theatrics, but doesn't offer much else.

CSRTs

I think I now understand what you mean when you write CSRT. Correct me if I am wrong, but sometimes when you write CSRT you aren't simply referring to Combat Status Review Tribunals alone. When you write CSRT process you aren't always referring to the process laid out in the CSRT military order by itself, but are also referring to the entire trial by commission, review and appeal process that had come to pass between the time of the first CSRTs established in 2004 and the end of the Bush administration.

My discussion points were based on the fact that CSRTs only review status as "enemy combatants." They do not try charges. They are not able to determine if a detainee is a prisoner of war. They can only accept or reject a previous designation. The only appeals open to its decisions are via annual review by a body called an Adminstrative Review Board. Why CSRTs were a concern with me, and the courts (especially with Judge Hens Green) is the possibility that they were fundamentally unjust -- inefficient if you like.

You write that, "under CSRT, Bush added in full legal counsel on appeal AND an appeal 'in court' (as opposed to MC's)."

I don't know what this means. Where was full legal counsel on appeal added, please? And please be clear what you are talking about. If you meant that Bush added recourse to appeal decisions of Combat Status Review Tribunals (beyond those reviews by ARBs), you can specify where this was accomplished, when this addition was made and where can we read the text. Are you talking about DTA provisions that kick in once OARDEC ARB procedures had been exhausted? If so, can you explain how this would be "under CSRT"?

Bear in mind that in the Kurnaz case, Judge Green found CSRT procedures grossly inadequate. Bear in mind that exculpatory 'secret' evidence was not pressed on the tribunal by the untrained 'representative' -- that ARB review rubberstamped the detention, and that another year would pass before Kurnaz was dumped on Germany. Apparently only a personal entreaty by Chancellor Merkel to Bush led to the final release. What was this guy being detained for, Michael? Why did he spend five years behind bars? Don't you want to know?

We might argue that on the whole no major, dangerous mistakes were made, or that in the end innocent detainees had been released, but I hold that the very procedures designed to 'review' field decisions did not do a good job and stained claims to justice.

Have you heard of or given an eye to Lt. Col. Stephen Abraham? He worked in the OARDEC system and was a CSRT Tribunal member. Please review his affadavit in the Al Odah case. Have a look at other internal opposition to the CSRT process from within.

It's not just "leftists" who found the CSRT proceedings not what they were promised to be.

"Big Production"

Now that Boumediene has been decided and goes a step further and grants habeas, we have the spectacle of Obama ignoring the Court's decision by saying he will detain people without trial and offering no outline concerning how he plans to jury-rig this around the Court's decision. Scherk doesn't want to make a "big production" out of this--i.e. "don't bother me, don't bother me, don't bother me".

Oh, what horseshit. ValliantQuoated as if I had said I don't want to make a big production about indefinite detention. Let's have a look at the actual sense of the sentence from which Michael has crimped.

Nor will I make a big production about the hysterical concern with unlawful 'preventive detention' (especially considering that the entire extrajudical arc of Guantanamo was based on raw executive power to detain any alien under any circumstances while at war) . . .

You really don't need to distort the argument of your opponent to put your own across, Michael. Your concern with extralegal detentions is shared by leftists and human rights groups. They will hold Obama's feet to the fire on the subject of the 'fifth category.' The 'big production' I failed to make was to pound in the irony, once again, of your being in bed with eeek! leftists rejecting any notion of Executive Detention under an Obama regime (while you defend the same under Bush).

It is sad and revealing that you don't even acknowledge the eeek! leftist rejection, even when it has been brought to your attention several times in several different ways. Your reputation as a straight shooter suffers when you fuck around like that, Michael.

Mr De Jure, Meet Mr De Facto

You misunderstand my point here (I underline two passages to heighten the contrast):

WSS: The Bush legal rationale was that Cuba had actual de jure sovereignty over Guantanamo -- not the US -- thus no one being detained there could challenge their detention in US courts.

MM: Sorry to say, Scherk, Bush and his lawyers (who examine precedent to make these decisions of where to detain) are just not as clairvoyant as you. In fact, Bush did NOT assert "de jure sovereignty" over Cuba, as Scherk claims.

. . . this kind of plain and simple misreading makes discussion with you tiresome at times. The legal pretense is that Cuba is sovereign. In reality, of course, the US exerts complete and utter control. You know and I know that Bush argued that detainees were beyond US judicial oversight because of the Cuban issue . . . to pretend otherwise, and to fuck around with what I actually wrote is pretty sloppy and stupid.

One more posting, and you can issue yourself a medal.


WSS

"A classic case of someone who goes in with a pre-determined conclusion—Bush is a jackass at all times and in all respects; Obama is the Messiah—vs. someone who bases his position on facts."

An excellent distinction, Linz. Someone who actually does base his position on facts would, of course, conclude that Bush is a jackass at all times and in all respects.

He would, on the other hand, conclude also that Obama is not the Messiah.

JR

Perrental Advisory: subjects of following comments should grasp that said comments are made in good faith, good humour and good will. Hopefully, no emoticons required:

1) Mr. P says of Mr. M: Michael Moeller is one of the finest men alive, deeply committed to reason, honesty, and justice.

Correct.

2) Mr. P. goes on: He's also far too reserved and polite most of the time.

Correct again. But who's talkin'???!!!

3) This forum is the only place you'll ever see his more assertive side and that is always and only a consequence of the fact that there are times when even the most saintly of men can't suffer fools gladly.

Premise: that it's saintly to suffer fools gladly. That's conventional crap. It is not saintly to suffer fools (much less knaves) gladly, but diabolical. Sadly, Mr. M. himself, having made his magnificent presentation on this thread, has seen fit to apologise to the fool Gaede, whose contribution has consisted of silly, irrelevant and usually incoherent verbal spasms, after which he even had the temerity to call Mr. M. a "prick." I hope Mr. M. is not about to apologize similarly to the fool and knave Scherk. He should be basking in his victory, not apologizing for it.

4) He does have a fire in the belly for Law, which you see on display here, and thank heavens for it.

The ever-calculating Mr. Scherk made the miscalculation that Mr. M. did not have the detailed knowledge or sufficient fire in his belly to go after his nonsense. He was left prostrate on the ring floor, gasping for breath and grasping for arguments. A classic case of someone who goes in with a pre-determined conclusion—Bush is a jackass at all times and in all respects; Obama is the Messiah—vs. someone who bases his position on facts.

Now that MM is no longer a _____ ,and I accept his apologies, I must deal with Jeff who calls me mentally lazy.

It's not that. It's that I don't have time in my life to research and write a detailed article like Michael can and does with a complex chain of legal reasoning. If I tried to do that my other circumstances as they are presently would crush me.

I hope to display my aggie in a few years. Considering my family's history I have as many as 25 years left before my brain rots and I'm only good for sitting on my front porch and shooting revenue officers should they come too close to my still. I know LP has bad news for me, but I will maintain the contrary opinion.

--Brant
JR--you must make allowances for MM as the red cape must make allowances for the bull

"My 'stupidity' comment was in haste as I was getting annoyed at the thread veering off into irrelevancies, such as the impropriety of 'the state.'"

Yes, Brant. You see, Michael Moeller was becoming so annoyed at the behavior of Michael Moeller, who had introduced the topic of anarchism (and the legitimacy of the State) into Michael Moeller's pristine (if somewhat illiterate and ever so exquisitely uninformed) thread, that he blew up and called you stupid.

Surely you understand.

Helpfully,

JR

Jeff,
You leave me with a loss for words. Thank you, dear friend. As you know, the respect and admiration is--and always has been--mutual.

Brant,
My "stupidity" comment was in haste as I was getting annoyed at the thread veering off into irrelevancies, such as the impropriety of "the state". My apologies.

Michael

"I wish MM wasn't such a prick since I agree with most of what he says."

Since he chastised you for your perpetual mental laziness (which he mistakenly called stupidity) it's understandable why you would feel this. But you are as wrong as it's possible to be. Michael Moeller is one of the finest men alive, deeply committed to reason, honesty, and justice. He's also far too reserved and polite most of the time. This forum is the only place you'll ever see his more assertive side and that is always and only a consequence of the fact that there are times when even the most saintly of men can't suffer fools gladly.

Far from being the caricature of an aggressive attorney you're picturing he is quite pleasant, even excessively laid back. He does have a fire in the belly for Law, which you see on display here, and thank heavens for it.

The world, and you personally, should be grateful that such a man exists at the moment. Linz and others, in their own words, have frequently cried out in righteous wonder "where are the New Founders?" Count yourself lucky that you've been allowed the privilege, at a cost of nothing more than your time and a little mental focus, of reading one here.

MM has made the objective case for the detention of enemy combatants during war referencing Iraq.

In Vietnam enemy combatants were frequently set free after capture and they had to be fought twice. Consequently fewer prisoners were taken.

The problem with Bush is not so much his comportment during the Iraq War but that he invaded Iraq in the first place.

I wish MM wasn't such a prick since I agree with most of what he says.

What the heck. Most lawyers are just that and I assume he's soon going to be one.

My grandfather wrote some about habeas corpus in his book "The Bill of Rights, Its Origins and Meaning," available on line through Questia.

--Brant

Scherk,

I am not interested in "victory laps" and receiving applause, as nice as those may be. It my previous bouts about Gitmo, I have been detained almost exclusively in enemy territory. We can disagree and bash each other to death over this issue. The rough and tumble and all that. Its a hot button issue. My primary motivation is to give Gitmo a defense because I think it is right and deserves a proper defense. In fact, this whole Gitmo argument has distracted me from more important and pressing concerns and annoyed me.

At any rate, I think the Left has used this issue as a club to wage a moral jihad. In the process, the media has spun myths about Gitmo out of control. I don't think they ever wanted honest debate. That's my opinion and I will share some personal experience.

I had one professor who helped spearhead a national committee for discussing the legal issues of Gitmo--on the side of the detainees. To her credit, she gave fair treatment to the cases in the allotted time for this issue. She had one guy come into speak who was a Justice Department lawyer under Clinton, then a holdover into the Bush Administration. He was on the side of the detainees.

This guy spent half of his time airing his personal greivances against the Bush Administration and how "they listened to nobody", which made him resign. This is suppose to be about the legal issues--who the fuck cares about his personal greivances!!!

When he does get around to laying out the legal issues, he focuses almost exclusively Ex parte Milligan--one of the cases the detainees were relying on. However, this case does not deal with the tough issues of alien combatants and detentions abroad. He runs roughshod over Quirin and Eisentrager, even though they form the basis of the government's case. If he wanted to make the strongest case for the detainees, he needed to give these thorough treatment. He worked for the government, he knows the government's position, but he acted like they had no case. That is rotten when considering its a speech to students.

I had another professor who was a hardcore 60's liberal, befuddled professor type. Nice guy, though, and gave me fair treatment considering our bouts on other issues. He regarded the detainee issue as the great moral issue of our age. Since it was a moral issue to him, he wasn't concerned with the legal history, as his treatment consisted of handing out a bunch of editorials from the NY Times. Anyway, he has a bigshot from a prestigious law firm come in to talk as this guy is handling one of the detainee cases.

Throughout his talk, he of course mixes in the obligatory anti-Bush screed. He dealt somewhat with the cases, but he was there to mostly discuss the process received by the detainees. He gives us the sob story of his client being wrongfully swept up in a broken plot to blow up a US Embassy. My eyes were wet. Seriously, how did he expect us to objectively judge without hearing the government's evidence? Mind you, his own country handed him off to the Bush Administration and refused to take this guy back for trial.

He then goes on about all the failures and defects of CSRT. Does he bother to mention what was in place before Bush? Does he bother to mention what previous cases say about rights to challenge detentions? Or even the Geneva Conventions? None of it. Hell, when he was done, I remember talking to another student who still did not understand how CSRT worked.

Here's my point: there was not even a pretense of objectivity in all of this. They have knowledge as you don't get to the positions these guys were in by being a dope. Yet, they just didn't seem to care. They were out to indict Bush and Gitmo and everything else be damned.

It left me raw.

Michael

I will try to be brief, as even these require some lengthy answers.

Scherk: "The common ground seems to be centred on the issue of extrajudicial indefinite detention of the kind you fear Obama will visit on some of the remaining 240 Guantanamo detainees."

At the time of 9-11, I would not use the words "extrajudicial" nor "indefinite" to describe detention. It assumes a priori that the President acted outside authority at the time. You have to take account of the nature of the combatant and what legal authority says about Presidential War Powers. That is why I pointed to Ex parte Quirin. In fact, one of the things the case says is that the President has the power to detain combatants for the duration of hostilites. The Geneva Convention says the same thing. This is what makes the first sentence from Gonzales's quote unremarkable. Every war is "indefinite" at the outset. If people want to argue that these powers should be reexamined because of the nature of the War on Terror, fine, make the argument. But let's not make post hoc judgments.

Scherk: "You claim that I support this -- some version of the pre-CSRT, pre-DTA, pre-MCA situation that obtained from the beginning of the War on Terror to mid-2004. I don't."

No, that was not my point. I know from your argument against Bush that you do not. My point was simply this: those who excoriate Bush for pre-CSRT, then turn around and applaud Obama are talking out of both sides of their ass because of "preventive detention". MY primary beef with Obama is dragging the detainees into federal court. Its completely unnecessary as far as due process concerns go, and is certain to set more guilty terrorists free. This is what I was calling "reckless".

Scherk: "I am not sure what you support or supported"

I support military commissions. For detention, CSRT was more than adequate for detainees to challenge their detention. I would support the lesser, pre-Bush Army Reg. 190-8 with some adjustments.

Further, my position is that habeas for aliens is not only unnecessary, but invites disaster. I think Congress was perfectly within its powers to strip habeas from the MCA. Without going into habeas, I will say that the Boumediene majority is certainly aware of the consequences. This is why they obstinately refused to overrule Eisentrager, and instead dreamed-up a new test, with brand new territorial distinctions, in an effort to draw an imaginery legal circle around Guantanmo Bay.

In any event, this does not mean I want to nail Bush's hide to the wall for pre-CSRT. They instituted some form of military procedure, not even the court knew the details, so it is impossible for me to judge. Even if I found the scope lacking--and I would have if Hamdi's brief statement about these procedures is true--Bush had justification for what he did, as I argued in my first answer. One can disagree about the scope of the procedures, and still maintain some perspective about the post-9/11 era, especially as it relates to the scope of Presidential War Power.

Even assuming Bush's intentions and actions were as rotten as the Left claims in the 2001-04 time frame, Bush was asked by the Court to raise the standards and given an example. He complied and went well beyond the example given. In the process of shooting Bush down again, the Court also shot themselves down, including their initial reasoning. When looking at the totality of Bush policies, it simply defies logic to say he was interested solely in "raw Executive power".

Even if one disagrees with initial policy, can Bush's alleged sins be forgiven for exceeding compliance pointed-to by the Court? Nope. I am afraid that, no matter what he did, he "stole" an election and the Left is never going to let go of Bush derangement.

Scherk: "Do you stipulate that this was the policy of the Bush administration?"

First, Scherk, my point in going through the timelime is that you judge policy by the processes put in place, NOT speeches. Gonzales was just one of the lawyers that wrote memos concerning what actions the president could take in light case history, Geneva Conventions, and Presidential War Powers. As I have given above, if you want to examine their "policy", you need to look at what he put in place over the course of his presidency. I won't recount those arguments.

As to Gonzales's statement, the first sentence is nothing new as both Quirin and the Geneva Conventions say that exact same thing about no right to release until the cessation of hostilities. The same thing for the end of the paragraph, which states: "But nothing in the law of war has ever required a country to charge enemy combatants with crimes, provide them access to counsel, or allow them to challenge their detention in court."

This is decidely true. Presidential war powers have never included those things, nor do the Geneva Conventions. The fact is, under CSRT, Bush added in full legal counsel on appeal AND an appeal "in court" (as opposed to MC's).

To answer your question: No, this is not the policy of the Bush Administration if you look at the entirety of his presidency, he actually went beyond this statement. The statement is a justification for pre-CSRT military proceedings, and not out of whack with Presidential War Powers--whether this offends the Left's sensibilities or not.

I fear, Scherk, you are putting the worst possible spin on his statement that they "need not be guilty of anything". I think he is simply stating that war crime charges do not have to be brought and detainees do not have to be found guilty while hostilities are still going on. That's true, Scherk, under Presidential War Powers prosecution for war crimes does have to happen until the war is over.

I assume you took it to mean that Bush claimed the right to detain anybody--anywhere--without regard to whether they have actually done anything? I went and looked up the speech and read the whole thing. Its actually a good speech. The speech makes many of the points I have made, and I would urge others to read it. He goes into the reasoning behind why some of those things above are not granted to detainees--that alone makes it worth the read. People can judge whether these ideas are crazy.

In any event, he means that they should not be treated like common criminals, and instead be treated as war criminals according to the rules of war. As he says, this does not mean their label as "enemy combatant" is "haphazard". He goes into detail on the factual determination--more detail then I ever knew concerning pre-CSRT. Bottom line: he is not claiming the right to detain anybody without factual support that they are, in fact, an enemy combatant at war with the US.

Michael

You are welcome to the detail I provided in my last post, Michael.

There is little common ground between our positions, which is not surprising. Considering that the Boumediene decision was a four/five split, after deliberation on complex issues of principle, precedent and international law, it's unlikely we two will provide anything more decisive here in an interminable SOLO thread.

So, let's consider wrapping up the detainees issue.

I'll see if I find some common ground. Then, I think I will leave the lectern to you. Certainly the SOLO jurists will decide the case in their usual sober, evenhanded manner.

The common ground seems to be centred on the issue of extrajudicial indefinite detention of the kind you fear Obama will visit on some of the remaining 240 Guantanamo detainees. You claim that I support this -- some version of the pre-CSRT, pre-DTA, pre-MCA situation that obtained from the beginning of the War on Terror to mid-2004. I don't. I am not sure what you support or supported, whether the 2001-2004 regime of Bush/Gonzalez or some other state of affairs that prevailed at some point between late 2004 and Jan 22, 2009.

Gonzalez expressed in the neatest summary the state of affairs in Febrary 2004: "[C]aptured enemy combatants, whether soldiers or saboteurs, may be detained for the duration of hostilities. They need not be 'guilty' of anything; they are detained simply by virtue of their status as enemy combatants in war."

Do you stipulate that this was the policy of the Bush administration?

WSS

Obama is a disaster for freedom.

Bush was a disaster for freedom, and he set the stage for Obama.

While this thread is basically a joke, MM has the upper hand against WSS if for no other reason than Obama is the worst US President imaginable who could also get away with what he is doing, so far, and manage to function without having even the US Congress stopping him.

I don't think the US will recover from the still unfolding Bush/Obama disaster in my lifetime. Instead of WSS coming to the US for serious medical help he can't get in a timely way in Canada, he's soon going to have to hop on a plane to India or Thailand. Me too. Americans are going to have to learn how to grow and can vegetables, slaughter pigs and boil shoes for soup. We're already begging the Chinese to keep buying our soon-to-be-inflation-destroyed bonds. They're too smart for that, but not smart enough not to have bought them in the first place.

--Brant
is there intelligent life in the universe?

Its a real downer after a great 4th to come back to this mess of Scherk's. He grabs an issue from here, one from over there, hideous analyses and context to the cases, omission of important details all over the place, flinging out facts with no context, but he sure does assert it boldly. To be honest, I don't think I have ever seen a bigger mess in an attempt at legal analysis.

Scherk's Case Against Obama

In his unrelenting screed against Bush, Scherk completely sweeps under the rug the fact that all his complaints also apply to Obama--in spades--and then proceeds to pretend like nobody saw this sleight-of-hand.

All of Scherk's outrage directed against Bush detention policy--such as challenging detention, receiving counsel, access to exculpatory evidence and the rest of the litany issued by Scherk--ALSO apply to Obama as he has stated he will detain them without trial. Scherk's whole litany applies equally to Obama's category of preventive detention.

Putting aside all of my other points and objections re Obama's policy that Scherk has thus far completely evaded, he practices another sleight-of-hand that does not make it pass the laugh test. After quoting Gonzalez, Scherk writes:

"Oddly enough, this sounds like the 'preventive detention' you ascribe to Obama. Ironic that you champion the raw, undiluted Executive power of Bush circa February 2004, while squawking about the horrors to come under the new administration."

Let's get this straight, if Bush does something, Scherk will launch himself into an unrelentless screed about all the failures and "raw, undiluted Executive power". If Obama proposes something that "sounds like it", then Scherk dismisses it off-hand, and I quote: "Nor will I make a big production about the hysterical concern with unlawful 'preventive detention'". Nice argument Scherk!!! You have truly outdone yourself.

I do declare that Scherk has just TKO'ed Obama. I do appreciate him making my case.

And this is assuming the comparison Bush and Obama is valid--its not. The timeline of 9-11 actually works against Scherk as he omits significant details in his history of "the first years of Guantanamo Bay", which he repeatedly reminds us is key.

After 9-11, the captured terrorists were not considered prisoners of war and thus not deserving of protections under Army Regulations and the Geneva Conventions. This is certainly justifiable as they were not members of armed forces, did not wear insignia/uniforms, did not carry arms openly, etc., which all other countries seeking those protections are required to comply with. Hence, they are not entitled to any challenges to detention afforded by Army Regulations and the Geneva Conventions. That was the reality after 9-11, dear Scherk. In fact, the military did have procedures in place, the details of which have not been disclosed.

Only by ignoring the nature of the combatants and the requirements of Scherk's vaunted Geneva Conventions can Scherk claim Bush gave himself powers "extreme in scope". The scope for whom is the obvious question.

THEN Hamdi comes down and the plurality says they should be afforded more rights, specifically citing Army Regulation 190-8 as an example, in spite of the fact that almost all aliens and do not meet the standards of the Geneva Conventions. How does Bush comply, you ask?

Instead of quoting Gonzalez, perhaps Scherk should have dug a little deeper and compared the detention policies that were in place before Bush with the detention policies after Bush. Here is the Army Regulation in place before Bush. This is modeled after the Scherk's esteemed Geneva Conventions and grants no right to call witnesses, conduct discovery, have even a "personal representative", no appeal--all the things Scherk endlessly complains about. Scherk may just have a problem with the Geneva Conventions after all.

By contrast, CSRT under Bush adds in many of these features. In fact, it was specifically designed to exceed this regulation. If fact, it is the most due process afforded any enemy combatant to challenge detention anywhere in the world, at any time in history. Period. Rather odd that his process goes above and beyond what the court specifically cited as an example of compliance when Bush is busy enacting his "Executive fiat". This is what Scherk refers to as a "another shack built in haste" by Bush.

THEN Boumediene comes along and strikes down CSRT, which exceeds the example the Court gave in Hamdi. Interesting bait-n-switch by the Court. However, Scherk cannot be bothered with these important details when stating that the Court struck them down every step of the way as he rails on about the defects of CSRT. He really should keep this stuff in mind as he blathers repeatedly and endlessly about "grave defects" in the process--bringing it up in virtually every paragraph.

Now that Boumediene has been decided and goes a step further and grants habeas, we have the spectacle of Obama ignoring the Court's decision by saying he will detain people without trial and offering no outline concerning how he plans to jury-rig this around the Court's decision. Scherk doesn't want to make a "big production" out of this--i.e. "don't bother me, don't bother me, don't bother me".

Scherk told me: "While Michael may disagree with the majority's decision, it stands as law.". Perhaps he should tell Obama as well.

Eisentrager

This is precisely why I wanted details from Scherk. In between the lengthy quotes, Scherk's statements and sparse analysis prove to me that Scherk not only does not have knowledge of the issues, his "vexation" for the fate of the aggreived terrorists is completely feigned. He is grasping at any straw he can find in order to desperately hold on to a position.

Poor Scherk is at home "vexing" about territorial jurisdiction, Bush's alleged "rationale" of "de jure sovereignty" over Gitmo, and how it applies to the detainees. But consider what would have been required of Scherk to "vex" over territorial issues when Bush initially placed them in Gitmo:

1. That he read the Cuba land-lease agreement, which states that Cuba is the sovereign over Guantanmo
2. And in an act of amazing foresight, the Court would later establish this de facto/de jure distinction to get around Eisentrager's clear holding that habeas is NOT extended to territories of which the US is not sovereign.

Sorry to say, Scherk, Bush and his lawyers (who examine precedent to make these decisions of where to detain) are just not as clairvoyant as you. In fact, Bush did NOT assert "de jure sovereignty" over Cuba, as Scherk claims. The de jure/de facto distinction was created BY THE COURT after Bush put the detainees in Gitmo, namely, the combination of the Rasul and Boumediene cases.

What Bush DID rely on is that the land-lease states that Cuba is the sovereign over Guanatanmo Bay, and the Eisentrager clearly held that prisoners of war are not granted habeas in territories over which the US is NOT sovereign.

Its rather odd, to say the least, that Scherk relies on the "territorial jurisdiction" quote from Eisentrager via Scalia's dissent as Scalia is using it to prove the exact opposite of what Scherk should want it to prove. He is saying that the judiciary does NOT have the territorial jurisdiction and thus the power to grant habeas because this is NOT US sovereign territory. Hell, if Scherk read two paragraphs later, he would realize that Scalia flat out says this:

Scalia: "Eisentrager thus held—held beyond any doubt—that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign."

Lest there be any doubt about Bush's motivations to put them in Gitmo, I will give you a obvious fact free of charge: if he wanted to avoid the majority's territorial wrangling mess, he could have simply put the detainees in prisons in Iraq or Afghanistan. They would not have been able to LATER make this de jure/de facto distinction to justify granting habeas as it perfectly complies with Eisentrager. Bush would have completely avoided the Court's justification for granting habeas. Would you assert that Bush purposely put himself in a territorial mess in order to thwart his own ambitions? If this is an attempt to "shield detainee disposition by his own fiat", he sure did a poor job of it!!!

You see, Scherk, part of legal analysis is reading between the lines. As Scalia noted, habeas has never applied to aliens held abroad. Eisentrager is the on-point precedent. The majority created the de jure/de facto stuff to distinguish Boumediene from Eisentrager. This is a clear and transparent attempt by the majority to grant habeas to aliens while not having to overrule Eisentrager. The Court should have just been honest and said they want to grant habeas to alien combatants.

Speaking of habeas, Scherk quotes Scalia about "lesser procedures", he cites MCA "quashing habeas suits", he speaks of "extrajudicial arcs", and whatnot. Its all just sorta thrown out there, left to the reader to assume something ominous is going on. All it really does is show Scherk has zero understanding of habeas.

I will tackle this next...more later.

Michael

Thank you, Scherk, for providing more detail to your arguments. You see, none of your first posts indicated any grasp of the issues and provided no support for your wild assertions, i.e. there was nothing to debate because there was nothing to respond to. Very frustrating for me.

As it is the 4th and I don't have time to respond to all of this right now, I will cover CSRT first as that is the easiest, but requires a long post just to rectify that. Tomorrow I will get to the rest of your myopic view of history.

CSRT

Let's start here because you are playing fast and loose with the facts of CSRT. First let's note that you did not point to any errors of mine. You spent half of a lengthy post trying to rectify my "confusion" as to some other "MCA proceedings" when CSRT (under the MCA) was the very thing in dispute. That, and the fact you did not know there was an appeal. This made me think you had not read the cases. However, you seemed to have rectified that defect, which makes the argument more interesting.

My point was that your cite (and Obama's) of the lack of convictions is completely disingenuous. You compound the error with this quote:

Scherk: "As of December 2007, 534 Guantanamo detainees had been deemed by CSRTs to be enemy combatants. Think about it, Michael. There are 240 left at Guantanamo. Where did the other three hundred go?"

One possibility is that I have an aversion to admitting error. Another possibility is that you have an aversion to details, or you have an Obama-like aversion to full disclosure and are very fond of omitting important facts.

The fact is, Scherk, many of the detainees choose not to avail themselves of the process. Of those who did go through the initial process, NONE of them saw the process through to appeal in the DC Circuit at the time Boumediene was reviewed by SCOTUS, and then SCOTUS struck down the process.

So instead of referring to "Objectivist boogey-men" and whatnot, answer me this Scherk: how can they be convicted if they do not see the process through, which later gets struck down? Glaring omission on your part.

What happened INSTEAD is that after the initial CSRT, the detainees went to federal court seeking habeas. Why is this so important? Because the detainees never sought full remedy under the law, nor gave the federal court any chance to correct alleged defects in the process. Pay attention here, Scherk, because this is key: the Supreme Court should never have heard the Boumediene case because it was not ripe for judicial review. In other words, the Supreme Court did not wait for a federal court ruling on whether the process complied with "the laws of the US and the Constitution" before they struck it down on habeas grounds.

This is also significant because you hurl a bunch of other assertions into mid-air without any surrounding context. Here it is:

"In the CSRT review of combatant status, the detainees were offered only a 'special representative' who does not act as an advocate to the detainee. The full raft of evidence was available to the representative, but not to the detainee, and the representative was unable to discuss or disclose any exculpatory evidence to the detainee if it was classified."

First, Scherk, can you tell me, in the history of the US, how many other prisoners were granted any sort of counsel to challenge detention? None. Can you tell me how many were granted access to classified information? None. This is established precedent for US prisoners of war.

Further, do you explain why they were not granted full counsel at the initial stage, and instead a personal representative? Nope, you leave that conspicuously omitted. It is BECAUSE classified information was being disclosed. They do this to prevent leaks of classified information. Scalia even notes the instance of the Blind Sheik where, once classified info was disclosed to his lawyers, it was within the hands of Osama bin Laden within two weeks.

You also neglect to mention that the detainees are granted full access to legal representation when challenging the Constitutionality of the process on appeal, including challenging the factual record of the tribunal.

As to exculpatory evidence, your statement is just plain wrong. Quoting Roberts: "As noted, the CSRT procedures provide ample opportunity for detainees to introduce exculpatory evidence—whether documentary in nature or from live witnesses—before the military tribunals." The detainees are granted a summary of the classified information, including exculpatory evidence. The reason it is through a "personal representative" and not directly to a lawyer or the detainee is because it is classified information, as argued above, and the US has NEVER permitted such access.

The majority does not even dispute this. Instead, the majority imagines a "hypothethical" in which exculpatory evidence comes to light after CSRT and before the Court of Appeals because the DTA does not deal with that situation. As Roberts noted, this argument is "thin ice beneath the feet". If new exculpatory evidence comes to light, all the Court of Appeals has to do is remand the case back to the tribunal for review in light of the new evidence.

Waving your magic wand and off-handedly dismissing all these things Roberts, in particular, points out will not make them magically disappear.

Now back to my original point. For argument's sake, let's say that access to full legal counsel only on appeal is a defect, for instance. Its not, given US precedent and policy with regards to classified information at the initial stage, but let's say that it is. The Court of Appeals never had the chance to correct this defect, much less examine its constitutionality. The Court of Appeals COULD have mandated this and corrected any other alleged defect, but SCOTUS took the Boumediene case before the Court of Appeals ever had the chance. In the majority's anxiousness to grant habeas amidst much huffing and puffing, they exceeded their authority by hearing a case before it was even ripe for judicial review.

In other words Scherk, if anything, this is an instance of "raw judicial power". They did not wait for the processes that BOTH the President AND Congress put in place to complete via review by an Article III court before they took the case and made a judgment. This is what I mean when I state your understanding of the separation of powers comes from "outer space". Citing back to me that the Framers founded this doctrine does not help your case.

Given all this clarification and amplification on just one issue, I am highly amused at your charges of "slophound" and the like. I give you credit for bravado. Accurate portrayal of the facts? Not so much.

More tomorrow.

Michael

The good folk here are those who post with honesty and stick to linear debate. Scherk has a certain entertainment value which he sadly under-utilizes by specializing in schism reportage and epithet tossing.

Mr Perigo is a good guy too, which is why it is extremely difficult to catch him out, if that was one's imperative.

Too old. Too drunk. Too inattentive.

Small steps, small sips, big guy. Easy does it.

WSS

Too long.

--Brant

Michael Moeller, I appreciate the lengths you take to avoid examining the genesis of Guantanamo detention policies post-9/11.

Anyhow, let's scrape away the crust of vituperation and the clapping of the yardboys and see how you answered my last questions:

I asked "who set up Guantanamo under special rules that put 'suspected enemy combatants' beyond reach of US law?"

You didn't answer, which is fine -- but it seems like you avoid looking at the first years in which Guantanamo operated. It's as if you are offering an insider's take on an important sporting event, but the commentary omits anything that happened in the first two quarters.

It's a simple issue -- when Camp X-Ray was first set up and populated, there was no Detainee Treatment Act. There was no Combat Status Review Tribunal. There was no Military Commissions Act (2006). There was a Military Order and there was a legal rationale that Bush and his allies hoped would stand. The Bush legal rationale was that Cuba had actual de jure sovereignty over Guantanamo -- not the US -- thus no one being detained there could challenge their detention in US courts.

That's the starting position on the field, the facts of the matter.

Johnson v Eisentrager

Now, Michael, you mention Eisentrager:

What did Eisentrager (1942) say about aliens, the jurisdiction of US courts, and their access to habeas? Again, the prisoners were on trial for their life, not challenging detention.

Johnson v Eisentrager was decided in 1950, not 1942. Eisentrager was a spy caught in China working for the Japanese after the German surrender. He was tried and convicted and sentenced to life in prison. The Supreme Court decided that Eisentrager and respondents were not subject to US civilian law review/habeas writs:

Our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments.

. . .

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.

It's this phrase -- "the alien's presence within its territorial jurisdiction" -- that was the key to the Johnson v Eisentrager decision. The contrast with the Guantanamo detainee cases is stark, as you note (although you misplace the case in time). With the 1950 case, the war was over, the sentences were laid, and the Supremes did not revisit the convictions. Of course, this was one of the cases which the Bush camp believed supplied precedent for rejecting any habeas writs for detainees.

To quote your second favourite dissident Supreme, Antonin Scalia, "Eisentrager thus held—held beyond any doubt—that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign."

Scalia's Boumediene dissent also quotes from the Eisentrager decision: '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 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.'

So, to answer your question, Michael, the 'jurisdiction of US courts' at issue in Eisentrager was fairly simple as these things go**; in the cases of hundreds of detainees passing through Guantanamo, not so simple.

Scalia again on this issue:

The Germans had been tried by a military commission for violations of the laws of war; the present petitioners, by contrast, have been tried by a Combatant Status Review Tribunal (CSRT) whose procedural protections, according to the Court’s ipse dixit, “fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.” [ . . . ] The difference between them cries out for lesser procedures in the present cases. The prisoners in Eisentrager were prosecuted for crimes after the cessation of hostilities; the prisoners here are enemy combatants detained during an ongoing conflict.

Which brings us back to the issues that vex some and don't seem to trouble you or Scalia unduly: Are all of those detained at Guantanamo actual enemy combatants under the writ of the Bush Military Order? Moreover, is the CSRT gate/review sufficient and correct in its adjudication?

This question is swept off the table in your responses, but forms the central issue for me.

CSRT Blunders

Scherk also does not have time to explain my "blunders" regarding CSRT. You mean like stating they do not have an appeal or that I "confused" this with MCA proceedings?

I have already clearly laid out what I saw as your confusion, below, as best I could. Initially I thought you had made a minor mistake in reading. In your original posting, you stated "One can argue whether the due process of the enemy combatants given CSRT process under the Military Commissions Act receive adequate due process, and I argue that that do." You further wrote (in reference to the three convictions noted by Obama) "[D]o you bother to ask why only 3 made it through the CSRT process?"

I countered that the Combat Status Review Tribunals adjudicate one simple thing -- status as an enemy combatant, a role heretofore held only by Bush. I wrote:

The CSRT process adjudicated, in secret, with hindered counsel and no appeal, whether a detainee would be deemed an enemy combatant. That's all. The CSRT is not a body that tries charges.

As its name suggests, Michael, it was a latter-day attempt to justify the very presence of detainees at Guantanamo. The original Bush order had no recourse for anyone whom he deemed an enemy combatant.

Scherk's characterization of CSRT as not adjudicative is not accurate.

You are not making sense with this assertion, Michael. You made a mistake in your original blurtings, and in understanding what I was stating. Fair enough. We all make mistakes. The blunder is in not owning the initial error. Instead you compound it. I wrote above, and I emphasize, "The CSRT process adjudicated." You write immediately above that I characterize it as not adjudicative. What the fuck, man?

[MM] Quoting Roberts: "The majority is equally wrong to characterize the CSRTs as part of that initial determination process. They are instead a means for detainees to challenge the Government’s determination...The CSRTs operate much as habeas courts would if hearing the detainee’s collateral challenge for the first time: They gather evidence, call witnesses, take testimony, and render a decision on the legality of the Government’s detention...If the CSRT finds a particular detainee has been improperly held, it can order release."

In other words, Scherk, these tribunals do make a legal determinations based on evidence, witnesses, testimony, etc. The majority's argument is that this is not an adequate substitute for habeas.

The CSRT is the Combat Status Review Tribunal, set up by Defence Department fiat. The CSRT came after Supreme Court decisions against Bush in Hamdi v. Rumsfeld and Rasul. In the CSRT review of combatant status, the detainees were offered only a 'special representative' who does not act as an advocate to the detainee. The full raft of evidence was available to the representative, but not to the detainee, and the representative was unable to discuss or disclose any exculpatory evidence to the detainee if it was classified.

The Supreme Court (despite Roberts dissent) found this CSRT process wanting. Of course, the whole sketchy exercise was set up to ratify the field decision that the detainees were a danger to America. Looking at a case such as Kurnaz shows us clearly that an innocent person could be detained for five years even while exculpatory evidence was found within the classified material. It is instructive that such error has never been admitted.

In any case your misrepresentation was this: "[O]nly three people going through the CSRT process, which demonstrated you are also not familiar with the whole legal process." As I corrected your misreading, "The CSRT does not convict anyone of any crimes." As of December 2007, 534 Guantanamo detainees had been deemed by CSRTs to be enemy combatants. Think about it, Michael. There are 240 left at Guantanamo. Where did the other three hundred go?

Oh wait, that was Scherk. Details and reading just aren't Scherk's thing

Um, no, slophound. You apparently have an aversion to admitting error. So be it. The errors stand. Again, the point I made, citing Obama, was that only three convictions resulted from the Military Commissions. Now, you may argue that the three convictions out of hundreds of detentions is the fault of Obama, the Supremes, Congress, the Leftists, awful civil libertarians, Scherk, Brant Gaede, or any other combination of boogeymen or non-Objectivists. But the fact remains that Bush's initial policies could not and did not stand. They were drafted in haste, implemented in haste, and were checked for executive overexuberance.

You may wish that the magical 2001/2002 regime in Cuba was held up as legal. It was not. Bush lost every step of the way . . .

Oh, reading, oh questions, oh justify my big white ass

you know, like asking me to justify Obama dragging detainees into civilian court when it is the first category listed in Obama's speech--the very same speech Scherk links to on this thread AND posts in its entirety.

Um, glory be, Michael, you are on a roll. I did not post the Obama speech to the National Archives in its entirety. I posted an excerpt that covered the five categories -- one of which you appear to believe Obama 'invented,' the so-called "preventive detention." I nowhere asked you to justify Obama -- I asked if you could clarify your charges.

Although he does not explain and uses open-ended questions to make his point, Scherk is apparently hanging his hat on the fact that CSRT was enacted before the DTA and MCA.

Um, no . . . I was checking to see if you might lay out the chronology.

• 2001 -- Bush executes an order establishing military commissions to try captive at Guantanamo. There is no appeal
• 2002 -- Bush argues that Guantanomo is not US soil, so captives have no rights under the Constitution or the normal system of justice
• 2004 -- the Supreme Court quashes the 'extraterritorial' argument -- Guantanamo captives are within the scope of US civil law and may bring habeas suits
• 2004 -- the Supreme Court orders that Bush must provide a means for detainees to challenge their designation as enemy combatants
• 2004 -- Wolfowitz orders CSRTs
• 2005 -- the Detainee Treatment Act is passed restricting captives from initiating new habeas suits
• 2006 -- the Supreme Court denies the executive the sole authority to set up military commissions -- ruling that authority lies with Congress
• 2006 -- the Military Commissions Act is passed. It effectively quashes all outstanding habeas suits
• 2008 -- Boumediene is issued. The Bush arguments fail. The CSRT is "inadequate." Detainees retain habeas rights

You put the Ham in Hamdan

To prove what, exactly? That, in response to SCOTUS's Hamdan decision (and in compliance with that decision and regulations on military tribunals), the executive branch can put a process in place faster than the time-consuming/lengthy process of Congress drafting and getting a bill passed in response to the Hamdan decision?

Well, Michael, my main point had been that Bush miscalculated, attempted to shield detainee disposition from anything but his own fiat. The secondary points are obvious and stated earlier: the messes of the subsequent years, and the messes that Obama faces, all are bound up in the initial fuck-up. There was zero process for challenging detentions, until 2004 . . . after the Bush administration's policies were found faulty.

As for Hamdan v Rumsfield, instead of cryptic nods in its direction, you might want to acknowledge details from the decision. Essentially, the court found grave defects in the process of the military tribunals. Both defendent and attorney could be barred from viewing some evidence, defendant's attorney could also be barred from discussing some evidence with the defendant. Hearsay, unsworn testimony and evidence derived from torture was admissible; in addition, and perhaps most importantly, appeals were made available only to the Executive. All of these defects, the court found, rendered the commissions as laid out by Bush in violation of the Uniform Code of Military Justice. So, um, yes, the Supremes found the special military commissions instituted under Military Commission Order No. 1. illegal under both military law and the Geneva Convention.

And, um, yes, Hamdan led to the Military Commissions Act of 2006. Whatever you are talking about in the above blurt I have no idea.

Executive power, raw, boiled and fried a la Gonzalez

I understand why you don't want to acknowledge much of the chronology or many of the salient the details, Michael. It's not pretty. At every step, Bush detainee doctrines failed the tests. The initial legal fictions fell, the subsequent Gonzalez/Rumsfield bandaids failed . . . and the sum total convictions through the military tribunals were . . . three.

After Congress got around to passing a bill, does Scherk mention that Bush has to then comply with the authority granted? Does Scherk mention that, under this bill, Bush's policy has to further pass Constitutional muster in an Article III court? Let's review: Bush's authority was limited by Congressional grant AND had to pass Constitutional review. This is what Scherk refers to as "raw executive power".

Nope, sorry, Signor Moeller-Vallianti. You are mixing up the first two quarters with the action in the third. Certainly Bush had to accede to orders of the court finding his previous set-ups unlawful. That is obvious. And that was my point, dumbfuck.

The raw executive power was what Bush assigned himself in 2001 and fought hard to keep throughout the following years. The aim of the administration was to shield detainees from any recourse to law outside the executive. The aim failed. Thus the mess. Only by ignoring the early days of the policy can we gloss over the objections to it. By fairly facing up to the over-reach of Bush, we can understand the mess that was left to be corrected. For example, before the inadequate CSRTs were forced on Bush, it was clear that Bush gave himself extreme scope. Here's Alberto Gonzalez, preceding any of the rulings that gutted the Bush doctrines, in a February 24, 2004 speech to the American Bar Association:

Under these rules, captured enemy combatants, whether soldiers or saboteurs, may be detained for the duration of hostilities. They need not be 'guilty' of anything; they are detained simply by virtue of their status as enemy combatants in war. This detention is not an act of punishment but one of security and military necessity. It serves the important purpose of preventing enemy combatants from continuing their attacks. Thus, the terminology that many in the press use to describe the situation of these combatants is routinely filled with misplaced concepts. To state repeatedly that detainees are being held without 'charge' mistakenly assumes that charges are somehow necessary or appropriate. But nothing in the law of war has ever required a country to charge enemy combatants with crimes, provide them access to counsel, or allow them to challenge their detention in court.

Oddly enough, this sounds like the "preventive detention" you ascribe to Obama. Ironic that you champion the raw, undiluted Executive power of Bush circa February 2004, while squawking about the horrors to come under the new administration. Speaking of horror upon horror, have you heard the latest from the Commander in Chief? How about the proposal floated last month for 'voluntary executions'?

It came from 'Outer Space'!

Scherk's wild assertions are apparently based on an understanding of the separation of powers that comes from outer space.

No, Signor. The separation of powers were determined in your constitution. That the Bush policy was unconstitutional was decided in Washington, DC -- at One First Street N.E. to be precise.

Thanks for your time so far, Michael. If you spent half the time on reading and understanding the arguments of your critics, you might be less tangled up in error and misrepresentation.

I have sympathy for your impatience and for your insistence that Obama has ushered in unimaginable legal dangers. That there are some detainees who are implacably opposed to the US and who would, if freed, do their damnedest to hurt Americans, and who, moreover, have been held for seven years without legal judgement of any kind, and who are unable to be tried in any constituted proceeding either military or civilian -- because there is no evidence that they are terrorists or members of Al Qaeda or whatever, or because that evidence is tainted by torture -- this would be a mess and a blot on US justice.

That Bush wasn't able to convict any of them is one thing. That you expect Obama to do more and better than Bush is another thing, albeit touching.

Murat Kurnaz, five years of detention

One case you might skim over -- if not read and think about -- is the very intriguing case of Murat Kurnaz. I mentioned it earlier, and meant it as an example of the shoddy treatment of some of the detainees at Guantanamo under the CSRT process that you champion.

Are you even glancingly familiar with this case, Michael? Here's one link to a brief summary, here's a news story, and another. You can even find the heavily redacted decision of Judge Hens Green if you looked for it, but you won't, will you?

Maybe after you have done a few more victory laps around the SOLO track ("Yo, I crushed Scherk! Yeargh! Me! I won, whoo-hoo!"), you could explain to the assembled how Murat Kurnaz was to have achieved justice under the Bush doctrines . . . at the very least I hope you might understand that opposition to the early detention regime feared that the Kurnaz situation was not an anomaly.

Qurin

Re Quirin, close readers here may be cognizant of the relevant details. Briefly, the Supreme Court rejected a challenge to FDR's authority to convene a specific military tribunal to try eight specific people for violation of the rules of war. The tribunal had judged a fairly straightforward case of German sabotage by enemies who had landed by submarine, set explosives, and then disposed of their uniforms and fled into civilian cover. Several of the saboteurs were subsequently executed for particular war crimes.

In the immediate aftermath of Bush's November 2001 Military Order setting up the original detention regime Guantanamo, the administration cited Quirin as the precedent establishing his authority.

Two problems with this, both understandable when you compare the details of the decided case (Quirin) and the cases later at hand (Kurnaz, Hamdi, Boumediene et al, not to mention the hundreds of other names).

Firstly, the defendents in Quirin were named in the particular proclamation by FDR. They were able to seek and were granted immediate Supreme Court judicial review and were represented by counsel in their military commission proceedings.

Secondly, the Geneva Conventions had not yet been drafted, ratified or made US law. As seen by Hamdan, the Supremes have since 1942 explicitly bound the US to Geneva provisions.

Thirdly, the time between the acts of sabotage and the executions was short. The eight landed on June 13, 1942. The FDR order establishing the commission to try them for war crimes was posted on July 2. The Supreme Court heard the arguments July 29th and 30th, and decided the 31st. Six of the convicted were electrocuted on August 9th.

The court upheld the and provided the right to judicial review.

Compare the speedy arc of justice enjoyed by Quirin and his crew, with that of Kurnaz or the other detainees.†

You put the Boom in Boumediene

As for Boumediene v Bush, it is important to read both the dissents and the judgement. While Michael may disagree with the majority's decision, it stands as law.

To summarize, the court ruled that the Military Commissions Act (MCA), as written, denied federal court jurisdiction for habeas petitions, and that this was a violation of the Constitution. The court ruled that detainees at Guantanamo Bar have rights under the Fifth Amendment with regard to due process and the Geneva Conventions, that Detainee Treatment Act was no substitute for a habeas writ. The court ruled that detainees can challenge the adequacy of review contained in the MCA.

Back to regular conniptions regarding the Satanic Forces Destroying America

I thank you again for an entertaining visit to Outer Moelleristan. I salute Lindsay in raising you up to the medals dais, where you can join the silent members of his KASS Kommissariat. You are the all-time champion of SOLO sophistry, now that Valliant has retreated to the Bunker.

I wish you well in the new role.

WSS

_____________

** -- 'these things' are never simple, of course. The Eisentrager decision has been subject to some high court dancing of a fine and fancy fashion. Read the commentary on Rasul at the Center for Defence Information Law Project ('argh, leftists!!! I can't read leftists!'). Here's a small telling sample against anyone who thinks these decisions are simple:

The court in Rasul held that Braden overruled the "statutory
predicate" for Eisentrager, as a result of which Eisentrager
did not bar habeas corpus jurisdiction over the claims of the
Guantanamo Bay detainees. As explained first by Stephens
during oral argument, the way in which Eisentrager unfolded was
in part due to the Ahrens decision impacting on how the habeas
statute would have been applied, which prompted the Court of
Appeals to engage in analytical gymnastics over fundamental
principles, which then became the focal point of reviewed for
the Supreme Court. Ahrens therefore was an integral part of
the legal landscape driving the outcome of the Eisentrager
litigation; but as seen above, Ahrens was later overruled.

Even so, as Rasul points out, the Supreme Court in Eisentrager
actually did go ahead and provide a review of the petitioners'
claims, finding among other things that the petitioners were
enemy aliens and, in fact, had received a trial and conviction
by a competent tribunal.

Even so, as Rasul points out, the Supreme Court in Eisentrager
actually did go ahead and provide a review of the petitioners'
claims, finding among other things that the petitioners were
enemy aliens and, in fact, had received a trial and conviction
by a competent tribunal.

† Readers interested in the standing of case before the military tribunals in Guantanamo can consult the US Defence Department's Military Commissions page. This contains full coverage of the commission cases, from pending proceedings such as the September 11 Co-conspirators to convictions such as
the Australian David Hicks.

You're a good guy. Nothing to do with me or anyone else.

--Brant

You are a character, but have no character to be assassinated. I know this is old, but ...

--Brant
can't say more unless I kick WSS where it hurts

I would never attack a juggler, but I might go for the jugular...although you do seem to have "addled" me on the difference between juggler and jugular.

Brant is a Brandroid. That means the content of an argument counts for nothing, only the politeness with which it is couched (even as they, the Brandroids, engage in unconscionable character assassination of the kind they direct at me). Michael wasn't even impolite; he simply went for the very exposed "juggler." Brant doesn't get it. He was therapized by the psychopath Nathan, so one should make allowances.

A seemingly effortless series of bouts with Scherk re-appearing each round all the more punch-drunk. (I'd likened it to a boxing match before seeing Linz's commentary.)

(Brant's gone soft too: "bully" Michael.)

I guess research on Wikipedia and the Huffington Post can only take you so far.

You left out Andrew Sullivan.

Congrats on your knock-out victory, Mr. Moeller. But this is no excuse to retire from the ring.

Scherk spins a mighty fine fairy tale of "legal limbos" and "magical detention islands". About the only thing missing from this fairy tale is how Bush transported the detainees through holes in the closet walls. After much bluster and fire concerning his grand knowledge of history, Scherk presents these facts in support of his position...wait for it...wait for it...nothing. Scherk goes on to intimate vast knowledge of the court cases and presents...wait for it...wait for it...no analysis. He simply can't waste his time with such petty details, and then proceeds to call me "slovenly". Who are you trying to fool, Scherk?

I guess research on Wikipedia and the Huffington Post can only take you so far.

Scherk blathers about "raw executive power"--which he probably picked up on the DailyKos--and how this all began with Bush. Scherk chastises me for not being aware of the history since 9-11 (and presents what?). That is one possibility. Another possibility might be that Scherk is appalling ignorant of the history of detention policy since 1789.

Related questions:

-What due process were prisoners of war given in prior US wars to contest their detention? How does this compare with the due process to contest detention under Bush? Hint: the answer to the first question is none.

-What was the outcome of Ex parte Quirin (1942) regarding Presidential powers with respect to military tribunals? Mind you, this was not simply to challenge detention, but prisoners on trial for their life. Scherk makes vague references to ominous executive orders issued earlier than CSRT. What was Bush's 2001 order for use of military tribunals modeled after? Hint: the case is referenced in the first question. Ah, but everything started with the evul Bush, says the Obama-fanatic.

-What did Eisentrager (1942) say about aliens, the jurisdiction of US courts, and their access to habeas? Again, the prisoners were on trial for their life, not challenging detention. Hint: They were not granted habeas, while those challenging detention in Boumediene were--what Scalia rightly calls a "crazy result". Ah, it was that evul Bush again cutting new ground.

Scherk also does not have time to explain my "blunders" regarding CSRT. You mean like stating they do not have an appeal or that I "confused" this with MCA proceedings? Oh wait, that was Scherk. Details and reading just aren't Scherk's thing; you know, like asking me to justify Obama dragging detainees into civilian court when it is the first category listed in Obama's speech--the very same speech Scherk links to on this thread AND posts in its entirety.

Although he does not explain and uses open-ended questions to make his point, Scherk is apparently hanging his hat on the fact that CSRT was enacted before the DTA and MCA. To prove what, exactly? That, in response to SCOTUS's Hamdan decision (and in compliance with that decision and regulations on military tribunals), the executive branch can put a process in place faster than the time-consuming/lengthy process of Congress drafting and getting a bill passed in response to the Hamdan decision? After Congress got around to passing a bill, does Scherk mention that Bush has to then comply with the authority granted? Does Scherk mention that, under this bill, Bush's policy has to further pass Constitutional muster in an Article III court? Let's review: Bush's authority was limited by Congressional grant AND had to pass Constitutional review. This is what Scherk refers to as "raw executive power".

Scherk's wild assertions are apparently based on an understanding of the separation of powers that comes from outer space.

Maybe, just maybe, one day Scherk will take a break from speaking in tongues in the Obama Chautauqua Tent and reassess his Bush/Gitmo hysteria in light of the facts.

Michael

Scherk, I do believe that's your weakest post ever ... and Galt knows the competition is stiff. There is neither meat nor bone to it, just rhetorical adipose (the Adipose were a race of vaguely humanoid blobs of fat).

I'm disappointed. Your Bush Derangement Syndrome and demented Obama-worship had the salutary effect in this instance, as you yourself observed, of awakening the erratically impressive Mr. Moeller from his slumbers and goading him to ever-greater heights. In this last post you've given him absolutely nothing to respond to (though I hope he finds something). There goes my entertainment. I don't think anyone has been so comprehensively embarrassed since Campbell's conspiracy theories as you have been by Moeller, but I'm sorry it's all over so soon.

BTW, one of these days you'll get it through your head that Objectivists care not one whit for opinion polls and consensus and are indeed "extremists"—for reason and freedom—proudly. But since it matters so much to you to be hip, you should know that your relativist/nihilist pomowanking milieu is not long for this earth.

Thanks, Michael for the reply. I am flattered that you take the time to add ham, doll clothing, pacemakers, sun hats and dancing shoes to your previously bony argument. You make a long, if unfocussed case for Bush contra Obama, if a boisterously argued one. However, stripping away the pettifogging, the Valliantesque lawyerly side-issues, the errors of emphasis, fact and scope, your three basic points shine out from the lengthy waffle:

1) Bush did no wrong
2) Bush didn't do anything wrong
3) Actually, Bush and his administration were quite correct, whereas Obama's actions on Guantanamo and detention policies will bring unimaginable awfulness upon the land

I excuse the usual SOLOesque chestbeating and posturing. It's the main entertainment offered here. Alongside "Obama is a Muslim," and "Obama is the same as Amadinejad" and "Obama is worse than Mussolini," we now have the joyously stupid "Executive Power is Always Good!" Congratulations on your elevation to the Pantheon of Objectivist Extremists.

I won't waste time re-correcting your blunders with regard to the CSRT process, the meaning of 'due process' or the many ramifications of covering your eyes when confronted with opposing views. Nor will I make a big production about the hysterical concern with unlawful 'preventive detention' (especially considering that the entire extrajudical arc of Guantanamo was based on raw executive power to detain any alien under any circumstances while at war) . . .

The biggest defect in your arguments as presented, of course, is that you play peekaboo with what actually happened in the world of detentions between September 11, 2001 and the present. You pretend that the world of Guantanamo began sometime in 2005, you ignore the novelty of the Bush edicts following 9/11, and you entirely evade the context of the struggle to reject executive fiat.

Most importantly, your argument dodges the most obvious questions: who set up Guantanamo under special rules that put 'suspected enemy combatants' beyond reach of US law?

Related questions:

-- when was the CSRT process set in place, and why?
-- when was the DTA set in place, and why?
-- when were the MCA procedures set in place, and why?

The most charitable analysis I can offer to your patchy, slovenly analyses is that you really don't care about history, nor about facts, nor about due process, nor about America's standing in the world. You are much more interested in appearing as a victor in the tepid pond that is SOLO.

I therefore doubt you could actually explain what has happened since November 2001. I doubt you understand the issues that were decided in Hamdan, in Rasul, in Boumediene. Considering that you barely comprehend the function of the Combat Status Review Tribunals, and considering that you find the dissents in Boumediene more important that the actual decision, I truly doubt you could even comprehend the damage that Bush is responsible for.

Thus, if I lay out what is an obvious and true statement -- that the Bush admin built a fairy-land magical detention regime in an ex-territorial limbo, and incarcerated people there solely on Presidential fiat -- and buttress it with the obvious and true statements that cited executive orders and legislation were subsequent to the Bush magic detention island, your argument for Bush skitters for the irrelevant margins.

Finally, I fully expect that when confronted with the case of, say, Kurnaz, you would somehow lay the blame for the treatment of such detainees on Obama -- or in a pinch -- Scherk.

WSS

"Today, Obamadinejad is crowing about the withdrawal of US troops from Iraqi cities. I didn't hear him crowing about The Surge, which made such a thing remotely feasible, and which he opposed."

He most certainly is crowing about the achievements of Bush and Petraeus. As of October 29th last year this is how much had already been handed over to the Iraqis... which includes most of the former hotspots.

You're in luck, MM; I've no more time for bullying assholes. This is a bully WSS thread, of course, but if he has anything going for him he can't be.

--Brant

You want respect from me when you call me "stupid" and "very stupid"? My "rambling and senseless posts"? Hanging out with LP has addled you.

--Brant

Just for the record, you're the one who brought up anarchism, butthead. I never mentioned it, myself, until it was irrelevantly thrown in my face. And even then, I replied only by reversing the ignorant joke line about anarchism being taken seriously by any sane individual over the age of fifteen that had been hurled my way. All I did on my own was refer to ignoramuses who act as though Republicans are friends of individual liberty and who describe minding one's own business as "appeasement."

JR

What makes you think I would accept any characterization of Mr. Riggenbach's? I fully realize that from your rambling and senseless posts that you are stupid--very stupid, in fact. But can you at least grasp that when I say "anarchist-free zone" I am not interested in debating that topic nor having it pollute this thread? I would appreciate it very much if you could respect that.

JR referred to "limited state." He didn't say "limited government." Maybe he meant them to be the same, but not all anarchists do. Societies are governed, regardless. The state as I see it is government gone off on its own devouring the citizenry with death in war and taxes, etc.

--Brant

"How's that?"

Predictable and illustrative of a lack of reading comprehension. Given that you reject government per se, naturally you will repair to a moral and political equivalency. No surprise there. However, this does not address any specifics of issues 1-8, which is what I asked for. In any event, would you please go poison another thread with your anarchist premises, preferably one of the many threads devoted to that topic?

"Now, if you have nothing to contribute to the actual issues on this thread . . ."

Oh, you wanted reactions to the "issues" on this thread? Well, your hysteria over Obama is richly comical, but your apparent belief that he's fundamentally any different from the Republican who preceded him is even more richly comical.

How's that?

JR

Ah yes, the absurd concept of limited government vs. the enlightened concept of unlimited gang warfare. Good for you. Any and every action by the government is anathema to you. We get it. Stunning stuff. Now, if you have nothing to contribute to the actual issues on this thread, I would be much obliged if you would take your substance-free screeds to one of the many threads devoted to anarchism.

"I am delighted that you took time away from your writing schedule to weigh in here."

Think nothing of it. Clearly I'm needed in a place where minding one's own business is called "appeasement," and some people apparently believe that the absurd concept of the "limited State" should be treated with respectful seriousness.

JR

"Today, Obamadinejad is crowing about the withdrawal of US troops from Iraqi cities..."

When the natural consequence of that withdrawal occurs, we shall see whether he ever mentions it again, ever.

If a bloodbath IS averted, it will be surprising, and a direct result of the good work done in the Surge, imo.

You are a beaut. I am delighted that you took time away from your writing schedule to weigh in here. What are you working on now: "American Revisionism II: Why the Founding Fathers Suck and Native Americans Should Own US Territory"? Or is it: "How I Found Love in Medieval Iceland: An Anarchist's Memoirs"?

Speaking of anarchism, are you still pretending anybody over the age of 15 (and not mentally ill) should take it seriously?

The only ignoramuses in this debate are those who think appeasement of Islamofascism serves the interests of individual liberty. The only dishonest ignoramuses are those who claim their adversaries acquiesce to Republican assaults on individual liberty.

The only ruffled feathers on this thread belong to Obama-worshipper Scherk. In fact, that flapping hen has been well and truly plucked, plucked being a synonym for Moellered.

Today, Obamadinejad is crowing about the withdrawal of US troops from Iraqi cities. I didn't hear him crowing about The Surge, which made such a thing remotely feasible, and which he opposed.

. . . who pretend with a straight face that Republicans are friends of individual liberty?

Way to go, Scherk!

JR

Sherk provides an actual, solid opinion (hooraaayyy!!!), but only on one topic and leaves the rest aside (booooooo!!!). I will leave it to others to judge why Scherk focuses exclusively on Gitmo, mostly just issue #1, and fenced and waggled on the rest.

In any event, I do appreciate at least the one firm conclusion--that's all I wanted. Now, Scherk, first let me say your questions as to why Obama's proposal is a mess was contained in your 3rd post, which I have not responded to yet. Can you hold off with your complaints about my lack of response until I actually respond? Thank you.

For those interested in the legalities of the Gitmo issue, this is a very important post as Scherk trots out mischaracterizations and untruths that have run rampant in the media. Its a long post, but hopefully worth the read.

Let's take a look at Scherk's conclusions:

"the aftermath of a fucked up policy that was struck down."
"Here it is again with bells on: Bush and Co fucked up bigtime."
"My position is that Obama inherited a mess."
"Bullshit. The Bush administration operated in a magical stateless world in which offshore detainees would forever remain in legal limbo, untouched by US courts. As we all know, that was a grave miscalculation. As we all know, the ultimate decisions did not shield Bush policies, did not leave the detainees in extra-legal limbo."

What facts does Scherk use to justify his conclusions?

Scherk Justification #1: The exerpt from Obama pointing to the 3 convictions. I already explained why this happened as SCOTUS needed to rule on the AUMF, on the MCA, and the host of issues involved--appeals that stretched almost the entire length of Bush's presidency as the Boumediene decision was handed down in June of 2008. Scherk glosses over this.

Instead, he repeats the leftist canard about alleged blocked access to the courts. Scherk, they were granted a right of appeal to federal court by law. The Bush Administration has no power to stop this. Are you submitting that the Bush Administration cannot read or were unaware of the law they were prosecuting under? By my count, six detainee cases made it to the Supreme Court with at least a dozen more pending on appeal. Scherk, do you know the chances of a case getting heard on federal appeal, much less by the Supreme Court? Minute. This alleged blocked access has to be the envy of just about every criminal defendant in the country.

Scherk Justification #2. The Supreme Court striking down the Bush process under the MCA. The only problem is Scherk, you leave the SCOTUS decision floating in mid-air without a shred of analysis. What would you think of a person who justified Japanese internment or sending a black slave in free territory back to his owner by citing SCOTUS cases that made those rulings? Extreme examples, but you get the point, i.e. you need some analysis of why the majority opinions are correct.

Its rather ironic that you call for "facts" considering your mischaracterizations illustrate you aren't at all familiar with the facts, but rather that you are familiar with leftist criticisms. Let's "unpack" a few of these, as you like to say.

Scherk Mischaracterization #1: this was a policy dreamed up by the Bush Administration to subvert the rule of law and in a "magical stateless world" where they are left in "legal limbo". Wrong. Bush did not spin the policy out of thin air, he was granted this authority by Congress under the Military Commissions Act (and previously the AUMF). Make your beef with Congress.

Scherk Mischaracterization #2: that the Bush Administration attempted to place them extra-territorial so they would remain "untouched by the courts". Wrong. Congress determines the jurisdiction of the federal courts, NOT the executive branch. In fact, Congress did grant a right of appeal to federal court for rulings under the MCA. Furthermore, the federal courts determine whether they have jurisdiction over habeas appeals, NOT the executive branch. In fact, they did hear the cases. Bush had no control over either of these being separation of powers and all that.

Scherk Mischaracterization #3: the CSRT was a "shack built in haste" carried out in "secret with no appeal". Wrong. Under the Detainee Treatment Act, the DC Circuit Court of Appeals is given review of the CSRT proceedings "to make sure CSRT proceedings are consistent with the Consitution and the laws of the United States" (see Roberts' dissent in Boumediene). One of the issues raised was whether this meets the standards of the Due Process Clause. Not only did the majority in Boumediene not decide this, they admitted that it might satisfy that clause (again, see Roberts' dissent) Ergo, your claim that courts "picked this apart" is false.

If you read your own Wiki cite (and Roberts' dissent), Bush's "shack built in haste" was modeled after tribunals in an Army regulation meant to comply with due process and Article 5 of the Geneva Convention.

In Defense of Bush

As to the three convictons, the CSRT is not a separate process, it is part-and-parcel of a multiple-level legal review under the DTA and MCA, dude. In other words, CSRT (and the rest of the review process) is what is being rejected under the MCA as a substitute for habeas. I will say more about this in a second, but first could you do yourself a favor and actually read the Boumediene case to see how it all fits together before you start making claims about how things work? Here is the Boumediene v. Bush opinion (see the top of the page for links to the various opinions). Now, instead of citing the result back to me, you want to take a stab at why the majority is right and thereby justify your claim that Bush created a "mess"? Your other justifications and mischaracterizations have fallen flat so far.

Again, Scherk's characterization of CSRT as not adjudicative is not accurate. Quoting Roberts: "The majority is equally wrong to characterize the CSRTs as part of that initial determination process. They are instead a means for detainees to challenge the Government’s determination...The CSRTs operate much as habeas courts would if hearing the detainee’s collateral challenge for the first time: They gather evidence, call witnesses, take testimony, and render a decision on the legality of the Government’s detention...If the CSRT finds a particular detainee has been improperly held, it can order release." (Italics mine.)

In other words, Scherk, these tribunals do make a legal determinations based on evidence, witnesses, testimony, etc. The majority's argument is that this is not an adequate substitute for habeas. But as Roberts points out, "The majority can deprecate the importance of the CSRTs only by treating them as something they are not." And you are following right along with what you have read in the media.

Roberts' further point is that the due process granted meets the substitute for habeas set in earlier Hamdi decision, i.e. it represents a habeas "collateral attack". He is saying that these same justices are now ignoring their own precedent by declaring this inadequate without setting any standards for what level of due process the detainees should receive". Instead, the majority opts for an ad hoc case-by-case basis. In other words, Scherk, it is the majority's opinion--which you are relying on for justification--that is a "mess".

The most important factor of Bush's policy is that this legal process begins with military tribunals where the legal standards are geared towards war, not civilian criminal prosecution. As Roberts points out, these tribunals are “'tailored to alleviate [the]uncommon potential to burden the Executive at a time of ongoing military conflict.' For example, the Government could rely on hearsay and could claim a presumption in favor of its own evidence." Scherk, the military is not a police force with forensics and everything else, therefore the legal process needs to reflect the difficulties in capturing suspects, obtaining evidence, etc. in time of war. Hence, the need for these tribunals to allow for such things as hearsay evidence and a presumption in favor of the government.

Nobody is claiming that this is some "magical" formula that guarantees at least some terrorists will not be released. Who on earth made that argument, for Christ's sake. Its ironic that Obama cites the number of released prisoners, because if he gets his way by dragging them into civilian court, he WILL guarantee that more will go free as the process will have to meet all the heightened standards that go along with prosecuting civilian criminal defendants.

In short, Bush's process is not a mess as it is a uniform process granted to all the detainees, it meets the standards of the Due Process Clause, and it takes account of the fact that these detainees are captured by the military in wartime.

Obama's ad hoc mess of a plan

NOW, let me contrast with the approach Obama laid out to see what a "mess" is. Here is transcript of Obama's speech before the National Archives.

(1) Category 1--Trials in federal court. This means the detainess will go before civilian judges and juries with the federal rules of criminal procedure in place. This means they will receive all the standards granted to civilian criminal defendants that do not take account of the exigencies of war, as I argued above. This is certain to set more terrorists free, many of which will end up in the US.

Contrast this with the Bush's policy, which uses military tribunals and an appeal to federal court. Here, the appeals court has to abide by the rules of the military tribunal (geared towards wartime) because the tribunal is the trier of fact, not a lower federal court. Ergo, this process takes account of the special rules for war prosecution.

(2) Category 2--Military Commissions. First, notice, that Obama is well aware of the problems of federal court when he writes: "They [military tribunals] allow for the protection of sensitive sources and methods of intelligence-gathering; for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot be effectively presented in federal Courts." Yet, he still wants to go ahead in federal court "when feasible". Why?

Secondly, the two alleged "reforms" he mentions that supposedly rebuke Bush policy and bring the tribunals in line with "due process" are (1) coercive testimony being inadmissible, and (2) selecting of lawyers. Again, coercive testimony was already outlawed under the MCA, which Bush was obliged to follow. The detainees were already getting the most high-profile lawyers in the country working pro bono. I know, I met one of them and heard him speak.

[Edit 06/30/2009: I forgot to include Obama's 3rd proposed reform--shifting the burden of proof of hearsay evidence to the proponent. The burden was previously on the opponent. Big deal. His paragraph begins by claiming that these changes will bring MC's within the rule of law. What law would that be? Under federal rules of evidence hearsay is generally inadmissible, unless it falls under exceptions/exemptions.]

Therefore, to the extent he uses these military commissions, he is vindicating the Bush policy, which Scherk claims was a "mess".

(3) The 3rd and 4th categories deal with the release and transfer detainees. What happens when no other countries will take these monsters, as Bermuda already has an uproar over it and they are having trouble finding other countries? Release into the US, that's what.

(4) Category 5--"Preventive Detention", as it has been labeled. Here he says he is going to detain people who pose a threat to the US, but cannot be prosecuted. He says flat out he is not going to release them. However, he makes no mention if they will receive any sort of due process. No mention of who is going to determine which terrorists fall in this category if the courts are out of the picture. None. Zip. Zero. Nada. The onus of proof is on Scherk here to prove they will receive some sort of due process, because, as I just stated, Obama makes no mention of it. He simply will not release people that fall in this category, however that is determined. Again Scherk, if you are qweasy with Bush's policy, what do you think of that? Oh, and don't forget to provide evidence to support the detainees receiving some due process under this category according to official Obama policy.

Speaking of the burden of proof, you also asked me to prove he "invented" this category. Again, the burden of proof is on you as I cannot prove a negative. I know of no instance where detention has been laid out in this manner. It is up to you to prove this scheme has a precedent, not me.

(5) Here is the kicker. He will use federal court "when feasible". When is that, exactly? He will use military commissions "best tried through military commissions" according to their advantages. Oh, that clears it up. He will use preventive detention when certain detainees are dangerous and cannot be tried. How much of a threat and determined by whom? If the courts and their procedures are out of the picture, who makes that determination and according to what standard? None is given.

So instead of a uniform standard under Bush policy that applies to all detainees, we have Obama declaring that he will channel detainees into various categories "when feasible", "when best", and "when they pose enough of a threat but can't be tried". Some detailed/clear plan, that. What it amounts to is an ad hoc case-by-case determination by god only knows what authority.

I will end with this quote from Roberts regarding the majority decision in Boumediene: "How the detainees’ claims will be decided now that the DTA is gone is anybody’s guess." Obama just increased the odds of the crapshoot ten-fold.

Michael

Asking Michael Moeller for clarification has uncertain results. Calling for precision is "mindboggling," asking him for some meat on the bald bones of his assertions is "sourcing him to death." Asking him to defend his opinions with some fact from the real world is an attempt to "bury me in a call for references." Such drama.

Here's Michael with a response on my queries regarding Obama and the vexing issues surrounding Guantanamo for which he has offered some more meat (I insert in italics the cogent part of my post that he omits).

The danger of Obama

I would ask you to clarify several items.

• Obama's goes beyond Bush and grants no due process. Those who criticized the Bush policy have no qualms.

I take issue with the casual casuistry regarding the unnamed those people from your first response. You wrote "those who demanded habeas . . . have no qualms . . . if Obama's goes beyond Bush and grants no due process."

That assertion was wrong. Those who demanded habeas do have qualms, strong gualms. I gave pertinent reference to human rights and civil rights groups who criticized the implications of any extra-legal detentions. But here's what you write in rejoinder: "I am not interested in debating what leftist critics said . . . that side point is irrelevant to me."

Scherk: "That's a dodge worthy of the finest Italian Barrister, Michael. Is this going to be a pattern in your responses?"

Scherk, that was no dodge. First of all, the talking heads on cable and many of the editorials on places like Real Clear Politics praised him for bringing this the detainee issue under "the rule of law" (their favorite phrase). I don't deny some Leftist critics made light of "preventive detention", but the overall response from the Left was laudatory following his speech.

It's ultimately a small point, but I highlighted the "qualms" response because it is indicative of misdirection. 'Talking heads on cable' and references to 'leftists' and their praise for "the rule of law" are different from the original assertion that those who called for habeas protection had no qualms about the possibility of 'preventive detention' for some of the Guantanamo detainees. The notion that human rights are only a concern of "leftist critics" who "made light" of Michael's idea of preventive detention is wrong.

I said I wanted to put this issue aside because I was not interested in what Leftist critics think, I was interested in what you think on the matter.

So you say. I doubt it. I think you were anxious to avoid admitting error, or at least admit exaggeration or misdirection. Maybe there is a lawyer in you urging to get out.

I wrote what I thought. I will amplify -- when you lay out a suite of interlocking opinions, and give no warrant for them, as you did and continue to do, claiming reckless endangerment in the present administration's policy on detainees, then it's your argument under examination, it's for you to explain. I don't accept your embedded conclusions; it's a fallacy of presumption to base conclusions on debatable grounds. So, I don't accept your ill-wrought framing of the related issues.

I lay out the due process as documented in the Boumediene case (there's a source for you)

Really? First you said, "One can argue whether the due process of the enemy combatants given CSRT process under the Military Commissions Act receive adequate due process, and I argue that that do."

Whatever argument was presented by Bush and Co at the Supreme Court failed. Thus the situation the US faces today -- the aftermath of a fucked up policy that was struck down. Can you really not figure out what I think? Here it is again with bells on: Bush and Co fucked up bigtime.

With regard to the "CSRT process," I suspect you have conflated the Combat Status Review Tribunals with the Military Commissions Act proceedings. Your query below further suggests this:

[D]o you bother to ask why only 3 made it through the CSRT process? Because they were hung up in federal court by the detainees' lawyers with more than a dozen appeals for habeas and related issues!!

The CSRT process adjudicated, in secret, with hindered counsel and no appeal, whether a detainee would be deemed an enemy combatant. That's all. The CSRT is not a body that tries charges, dude. Two entirely different things. Another Bush era justice shack built in haste.

Above you write: "[O]nly three people going through the CSRT process, which demonstrated you are also not familiar with the whole legal process."

I didn't write of three "going through the CSRT process," you did. Maybe you figured that my sentence could only refer to the CSRT. Here's what I wrote: "Since the Bush military commissions couldn't pass muster before the Supreme Court, and since the tribunals managed to try only 3 detainees, Obama attempted to resurrect the tradition of military commissions without the features your Supremes rejected. If you have a better idea, Michael, spit it out."

Perhaps my shorthand lines about Obama's attempts to resurrect the tradition confused you, and for that I apologize. I should have been clearer. I don't presume to extraordinary knowledge of the long tortuous process by which the Bush policies were picked apart by the courts.

and you claim "don't know the answer" and it is "mess". Again, a non-answer with no justification for inability to form a judgment, or why the situation under Bush was a "mess".

Bullshit. The Bush administration operated in a magical stateless world in which offshore detainees would forever remain in legal limbo, untouched by US courts. As we all know, that was a grave miscalculation. As we all know, the ultimate decisions did not shield Bush policies, did not leave the detainees in extra-legal limbo. Do you seriously lay the entire mess at the feet of Obama? I doubt it.

And speaking of justifying minutia, did you provide any support for saying that Obama brought the military commissions in line with what SCOTUS wanted? I even gave you his superficial changes (already in effect) directly from Obama's speech (another source). Did you alter your position there?

I will alter my position, yes, if necessary. As I understand it, Obama tried to halt all proceedings already underway by military commissions at the start of his term, but was stymied by court. I am not sure what you are arguing here . . . one the one hand everything was fine pre-Boumediene, on the other hand Obama has made only superficial changes (already in effect), but on the third hand, his ad hoc changes are dangerous.

My position is that Obama inherited a mess. Yours is to deny that the Bush regime made a mess.

I see all that you write on this issue, but it doesn't add up, unless I accept the spin you put on every factoid, unless I close my eyes at the sleight of hand. The confident tone you use is appealing, but in several areas your argument is built on partisan scaffolding alone. And at times you game the language and play peekaboo with what real people really stated.

I admire Obama for stating things like this, below. The background to this is of course the stark moral landscape of Guantanamo itself.

For over seven years, we have detained hundreds of people at
Guantanamo. During that time, the system of Military Commissions at
Guantanamo succeeded in convicting a grand total of three suspected
terrorists. Let me repeat that: three convictions in over seven years.
Instead of bringing terrorists to justice, efforts at prosecution met
setbacks, cases lingered on, and in 2006 the Supreme Court invalidated
the entire system. Meanwhile, over five hundred and twenty-five detainees
were released from Guantanamo under the Bush Administration. Let me
repeat that: two-thirds of the detainees were released before I took office
and ordered the closure of Guantanamo.

********************

Michael, some parting comments: In your zeal to avoid the gaps and lacunae in your loose screed against Obama's policies in these areas, you raised the notion of "preventive detention." If you had been straightforward and laid out your concerns in some other manner, if you had written about what Obama said and what it might mean, engagement would have been far easier. I bet we agree that there are serious, confounding, puzzling issues that will be front and centre once the detainees are dispersed. As Obama's remarks make clear, there is a fifth category of detainees, those who will be a danger to the security of the US and the free world, who should not be released into the wild or dealt with in the same fashion as the other four categories.

You asked what I thought, and I took that to be a question in the sense of "what is the solution?" Frankly I don't know a solution. I doubt you have a solution that doesn't involve turning back the clock to some magical time and magical place where all the detainees would have been found guilty by some means and all would have been behind bars forever. I suspect that that magical time had magical commissions that would remain untouched by US courts. I am surprised you didn't follow the two links I gave to what you waved away as "leftist critics" -- those links sketch out the challenges that surround disposal of the fifth category.

Where we differ is that you seem to assert that the existence of the fifth category is a fresh, horrid invention. It's not. It's a fact, a consequence of Bush adminstration jury-rigged policies. Bear in mind that keeping Guantanamo open, with detainees neither on trial in civil courts, nor before tribunals, nor released as under Bush -- this would have the same effect for the fifth category: detention without charge or trial (I add at bottom the full text of Obama's remarks that pertain to five categories).

I'd advise using my critiques to hone the knives in your kit, rather than pretend that they are already as sharp as they can be. I see that your latest response is much more robust and responsive than this one. I look forward to reading it and answering over the next few days. Sorry that you will be leaving us . . .

WSS

_____

We are currently in the process of reviewing each of the detainee cases
at Guantanamo to determine the appropriate policy for dealing with them.
As we do so, we are acutely aware that under the last Administration,
detainees were released only to return to the battlefield. That is why we
are doing away with the poorly planned, haphazard approach that let those
detainees go in the past. Instead, we are treating these cases with the
care and attention that the law requires and our security demands. Going
forward, these cases will fall into five distinct categories.

First, when feasible, we will try those who have violated American criminal
laws in federal courts - courts provided for by the United States
Constitution. Some have derided our federal courts as incapable of
handling the trials of terrorists. They are wrong. Our courts and juries of
our citizens are tough enough to convict terrorists, and the record makes
that clear. Ramzi Yousef tried to blow up the World Trade Center - he was
convicted in our courts, and is serving a life sentence in U.S. prison.
Zaccarias Moussaoui has been identified as the 20th 9/11 hijacker - he
was convicted in our courts, and he too is serving a life sentence in prison.
If we can try those terrorists in our courts and hold them in our prisons,
then we can do the same with detainees from Guantanamo.

Recently, we prosecuted and received a guilty plea from a detainee - al-
Marri - in federal court after years of legal confusion. We are preparing to
transfer another detainee to the Southern District of New York, where he
will face trial on charges related to the 1998 bombings of our embassies
in Kenya and Tanzania - bombings that killed over 200 people. Preventing
this detainee from coming to our shores would prevent his trial and
conviction. And after over a decade, it is time to finally see that justice is
served, and that is what we intend to do.

The second category of cases involves detainees who violate the laws of
war and are best tried through Military Commissions. Military commissions
have a history in the United States dating back to George Washington and
the Revolutionary War. They are an appropriate venue for trying detainees
for violations of the laws of war. They allow for the protection of sensitive
sources and methods of intelligence-gathering; for the safety and security
of participants; and for the presentation of evidence gathered from the
battlefield that cannot be effectively presented in federal Courts.

Now, some have suggested that this represents a reversal on my part.
They are wrong. In 2006, I did strongly oppose legislation proposed by
the Bush Administration and passed by the Congress because it failed to
establish a legitimate legal framework, with the kind of meaningful due
process and rights for the accused that could stand up on appeal. I did,
however, support the use of military commissions to try detainees,
provided there were several reforms. And those are the reforms that we
are making.

Instead of using the flawed Commissions of the last seven years, my
Administration is bringing our Commissions in line with the rule of law. The
rule will no longer permit us to use as evidence statements that have been
obtained using cruel, inhuman, or degrading interrogation methods. We
will no longer place the burden to prove that hearsay is unreliable on the
opponent of the hearsay. And we will give detainees greater latitude in
selecting their own counsel, and more protections if they refuse to testify.
These reforms - among others - will make our Military Commissions a
more credible and effective means of administering justice, and I will work
with Congress and legal authorities across the political spectrum on
legislation to ensure that these Commissions are fair, legitimate, and
effective.

The third category of detainees includes those who we have been
ordered released by the courts. Let me repeat what I said earlier: this has
absolutely nothing to do with my decision to close Guantanamo. It has to
do with the rule of law. The courts have found that there is no legitimate
reason to hold twenty-one of the people currently held at Guantanamo.
Twenty of these findings took place before I came into office. The United
States is a nation of laws, and we must abide by these rulings.

The fourth category of cases involves detainees who we have determined
can be transferred safely to another country. So far, our review team has
approved fifty detainees for transfer. And my Administration is in ongoing
discussions with a number of other countries about the transfer of
detainees to their soil for detention and rehabilitation.

Finally, there remains the question of detainees at Guantanamo who
cannot be prosecuted yet who pose a clear danger to the American
people.

I want to be honest: this is the toughest issue we will face. We are going
to exhaust every avenue that we have to prosecute those at Guantanamo
who pose a danger to our country. But even when this process is
complete, there may be a number of people who cannot be prosecuted
for past crimes, but who nonetheless pose a threat to the security of the
United States. Examples of that threat include people who have received
extensive explosives training at al Qaeda training camps, commanded
Taliban troops in battle, expressed their allegiance to Osama bin Laden,
or otherwise made it clear that they want to kill Americans. These are
people who, in effect, remain at war with the United States.

As I said, I am not going to release individuals who endanger the
American people. Al Qaeda terrorists and their affiliates are at war with the
United States, and those that we capture - like other prisoners of war -
must be prevented from attacking us again. However, we must recognize
that these detention policies cannot be unbounded. That is why my
Administration has begun to reshape these standards to ensure they are
in line with the rule of law. We must have clear, defensible and lawful
standards for those who fall in this category. We must have fair
procedures so that we don't make mistakes. We must have a thorough
process of periodic review, so that any prolonged detention is carefully
evaluated and justified. [Link]

I appreciate the praise and support.

As to my alleged breaches, one day we will have it out on thread as to whether a theory of induction is needed. Not now, though. In the meantime, take this thread and Mr. Perren's thread as evidence for the necessity of a theory of induction;)

Michael

(5) Yes, I was referring the memos, as I stated. Yes, I was referring to Cheney's call for more documents referring to the efficacy the interrogation techniques. Yes, the CIA denied him. However, what you fail to take account of re Obama is that could override the CIA and order them released. It is within his Presidential powers. If he was so concerned about transparency, why did he not order them released? Worse, he did an about-face and declared subsequent documents and photos should not be released because they are sensitive national security information. The same argument his critics used against him in releasing the memos in the first place!!

The ACLU lawsuit does not matter one wit. As often happens with sensitive national security information, courts will grant the government a secrecy order and the documents will not see the light of day. Those secrecy orders are almost NEVER denied when it comes to national security. Obama released those memos on his own.

Furthermore, if the documents do not buttress Cheney's arguments as Levin claims, why in the world would Obama not release them? Their release would only serve to discredit Cheney, i.e. he had every reason to release them. And you neglect to cite other people in "the know", such as former CIA and National Intelligence Directors who lined up behind Cheney's position.

Again, if Obama was going to release sensitive information and let the enemy in on how these enhanced interrogations are conducted, why not lay everything out and let the public be the judge of enhanced interrogations? What do you make of such disingenuous partial disclosure?

While McCain stated he would disband at least waterboarding, you again neglect to mention that he excoriated Obama for threatening criminal prosecutions. If you are going to compare McCain and Obama and only highlight their similarities, why don't you also mention the differences? The differences are important on not only these issues, but a host of other issues. For instance, during the Presidential debates, McCain called for a "spending freeze". Now, how does that stack-up against Obama spending his way to the moon and back?

On prosecutions of the OLC lawyers and Bush Administration officials, were you asleep during that whole episode, Rip Van Winkle? Even on this website one individual agreed with those calling for prosecutions. How did you miss the furor over this?

This article quotes Holder's now infamous statement that about pursuing the investigation "wherever it takes us" when he was under Congressional testimony. Obama released the memos, and then let the media and Congressional leaders call for a "Truth Commission" and heads to roll. Just go back and read Andrew Sullivan's blog during this whole episode, since you seem so fond that imbecile.

Initially Obama said there would not be prosecutions. Then the very next day he came back with a press conference saying that Bush officials and the lawyers would be open to prosecutions, as relayed in this article.

Meanwhile, Cheney was issuing an assault on this monstrosity and Obama was taking on considerable criticism. Also, Pelosi was caught in a bunch of lies and her feet were being put to the fire. Now, did Obama finally abandon these calls for prosecutions out of nobility? Or was it because he was getting scorched by criticism and some his fellow Dem's would be caught in the firing line if prosecutions were pursued? You be the judge. (BTW, Cheney discarded Obama's carcass by the side of the road when that debate was said and done.)

(6) Here is an article and another one showing Obama's 20+ "czars". This includes "a pay czar, regulatory czar, border czar, cyber czar, and Great Lakes czar". I believe the previous high for a President was 8. I did not know any of their names before these articles, is that important? What is important is that Obama is issuing authority to strong-arm god knows how many industries to people who are not elected and not accountable to anybody. Good idea, Scherk?

The Atlantic points out new restrictions will embody "broad principles" to set standards for the entire financial industry (i.e. including non-TARP companies), including the pay of executives, but unsure how "stringent regulators will make them". How stringent do you think this "pay czar" will be when making sure to "give full-throated voice to the moral outrage of its voters"? Don't you find the very concept of a "pay czar" determining the compensations of executives ominous?

(7) Beneath the rambling about futures and derivatives and whatnot, may I take your statement that "you don't like it" as another strike against Obama?

(8 ) Jesus Christ, Scherk. I ask you what you think about nationalized healthcare, and you cite back to me a Pew poll on what Americans think? (Which, btw, does not even address the question of nationalized healthcare directly.) Why aren't you also showing polls where Americans disapprove of closing Gitmo or approve of waterboarding?

Here is a poll from Rasmussen showing 29% favor a healthcare system run by the government vs. 39% who disfavor it. So effing what!! What do you think? (BTW, note that when put on ballot initiatives, universal coverage has not passed in a single state, including states like Oregon.)

How do I think it will play out? How do you expect a "competition" to play out where one of the competitors makes the rules and has a gun? You are right on one account, private insurance will not be totally outlawed as Congress has exempted themselves from the system under Teddy Kennedy's bill.

And no, Canada is not "unique". Same waiting lists, same lack of beds and doctors and services, same old people being sentenced to death by the government because they don't have as much worth to government coffers. You don't feel compelled to criticize Obama for trying to institute this in America?

It doesn't matter whether you like it? It should--it's your life they are controlling.

More tomorrow on your last post, which will perhaps be my last post.

Michael

This last post of yours was mind-boggling. What are you trying to do, reference/source me to death? Most of these points were/are well-known in the news and not at all controversial. At best, you do not follow the news. At worst, you are practicing diversion.

Just so I don't get accused of being "dodgy" again, I will respond to this last post with your desired references and the response before that on my list of issues 5-8. Note, I do not have the time to keep digging up references for you and delving into the minutia of every detail, especially when you do not answer any questions directly. I will do it for the next two responses, but after that you need to do your own homework, capiche?

Scherk: "That's a dodge worthy of the finest Italian Barrister, Michael. Is this going to be a pattern in your responses?"

Scherk, that was no dodge. First of all, the talking heads on cable and many of the editorials on places like Real Clear Politics praised him for bringing this the detainee issue under "the rule of law" (their favorite phrase). I don't deny some Leftist critics made light of "preventive detention", but the overall response from the Left was laudatory following his speech.

I said I wanted to put this issue aside because I was not interested in what Leftist critics think, I was interested in what you think on the matter. Did you criticize Bush on the basis of due process for the detainees? Are you going to stand against Obama for doing worse by the Left's own standards? You still have not provided an answer.

Speaking of "dodgy", you have scarcely responded to any questions. I lay out the due process as documented in the Boumediene case (there's a source for you), and you claim "don't know the answer" and it is "mess". Again, a non-answer with no justification for inability to form a judgment, or why the situation under Bush was a "mess". All you provided for evidence was only three people going through the CSRT process, which demonstrated you are also not familiar with the whole legal process.

And speaking of justifying minutia, did you provide any support for saying that Obama brought the military commissions in line with what SCOTUS wanted? I even gave you his superficial changes (already in effect) directly from Obama's speech (another source). Did you alter your position there?

The revival of the fairness doctrine was all over the news in Jan/Feb, and you pretend that you never heard of the proceedings. Again, go to a place like Real Clear and search and you will find testimonies from Axelrod, Holder, and whoever that Michigan senator was (forget her name) who was behind bringing the fairness doctrine under a different guise.

As to Chrysler/GM, you say "lawd gawd only knows" and ask me how I see it playing out. Again, a non-response.

Then the stimulus and bank bailouts. You intimate that it may have been necessary to stave off a crisis, as that is the official Obama line--but again retreat to skepticism and say: "who knows?". Again, a non-response.

That is just the first 4 on my list!! Instead of answering me directly, you are attempting to bury me in a call for references on just about every statement and ask for details on every piece of minutia.

Scherk, I am beginning to conclude that you in fact do know, but are obstinately refusing to take sides against Obama.

More to come.

Michael

Michael, thanks for the spirited rejoinder.

I'll keep my comments here to a set of the related topics of so-called "enhanced interrogation," Cheney, Bush, McCain, Guantanamo, Military Commissions Acts, Supreme Court, civilian courts, National Archives speech, the 'torture memos,' the Combatant Status Review Tribunal, leftist critics, so-called side issues, the rule of law, "the documents," 'the criminalization of politics," and the kitchen sink.

The points your article put forth were extended by your subsequent responses, so I will try again to unpack the grab-bag and encourage you to support your assertions.

Bush, McCain and detainee/torture policy

First to consider are the actors and actions you note, extending under the rubric of "public policy 'facts.'"

• Bush would have kept Guantanamo open
• McCain would have erred egregiously in rescinding "enhanced interrogation" policy
• McCain would have kept military tribunals, and no detainees would have been tried in civilian court
• Any mess concerning detainee policy has nothing to do with Bush

These are your straightforward assertions. Can you support them with more than opinion?

The danger of Obama

I would ask you to clarify several items.

• Obama's raised the specter of "the criminalization of politics"
• Obama refused to release "any documents"
• Obama ignored the precedent of military tribunals
• Obama invented "preventive detention"
• Obama provided no guidelines for detainee disposal
• Obama will drag dangerous terrorists into civilian courts
• Obama's goes beyond Bush and grants no due process. Those who criticized the Bush policy have no qualms.

Can you add some flesh to the bones of contention, and provide some quotes, cites, links or references to moor any of this?

Misdirection

I take issue with the casual casuistry regarding the unnamed those people from your first response. You wrote "those who demanded habeas . . . have no qualms . . . if Obama's goes beyond Bush and grants no due process."

That assertion was wrong. Those who demanded habeas do have qualms, strong gualms. I gave pertinent reference to human rights and civil rights groups who criticized the implications of any extra-legal detentions. But here's what you write in rejoinder: "I am not interested in debating what leftist critics said . . . that side point is irrelevant to me."

That's a dodge worthy of the finest Italian Barrister, Michael. Is this going to be a pattern in your responses?

If you put forward strong claims as winnowed in the lists above, the strong claims require strong evidence. Ignoring counter-evidence hardly advances any rational discussion.

WSS

Not to deflect the most excellent Mr. Moeller from wiping the floor, as he is doing, with the militantly anti-excellence Mr. Scherk, the poor man's Rick Giles for whom mediocrity and blind Obama-worship are "normal," but ...

I don't think for a second McCain would have closed Gitmo once he was confronted with the realities about which Obamadinejad is in denial. Neither would Bush, had he been elected for an impossible third term. Gitmo was exactly right.

And yes, it's to the eternal shame of Peikoff and ARI that they attacked Bush when the Commander-in-Chief needed support. They attacked Bush as I did for not being KASS enough, while telling people to vote for white-flag Dem-scum across the board, as I most emphatically did not. The fatwa was a disgrace, and I'm proud to have been the first and almost only Objectivist to have said so. Messrs Moeller and Perren were about my only allies. Just about everyone else who knew better was too cowardly to step up. And here I include Hsieh, Valliant and Fahy, even though I still count the latter two among my friends and am wholly supportive of James's project. I regard them, and Leonard, as overall heroes in the scheme of things in fact, notwithstanding that reprehensible, indefensible lapse. But a disgrace it was. They will never admit it, but it was the SOLO campaign that shamed them into dropping the fatwa in 2008.

I should say that in the big-picture philosophical battle at hand, I regard Mr. Moeller as just about my only ally still ... someone who gets intrinsicism vs subjectivism and all the rest all the way down and doesn't make either mistake (as a rule—sometimes he does and I privately KASS him ). Such a person would be suffocated by ARI and disgusted by TAS, and could flourish only on SOLO.

Scherk: "Moeller is a hardline partisan of Ayn Rand, and unapologetic supporter of the ARI faction."

I am not sure I would use the term "partisan", but I am an ardent and unapologetic supporter of both Ayn Rand the person and her ideas. As to being a "unapologetic supporter of the ARI faction", I do not think that is accurate. The only ARI activities I have ever engaged in were attending two speeches, one by Peikoff and one by Brook. I was strongly against the fatwa. I was also appalled at the non-response on the enhanced interrogations issue. Those are just two issues. Although I am familiar with a lot of the (older) works of the ARI people and agree with many of them, I rarely read their output anymore, or any Objectivist output for that matter. Ergo, I often do not know what their stance is on a current issue; although, naturally, I suspect we agree on many issues being that I share the same core philosophy.

(1) Firstly, as to McCain and Gitmo, McCain making the same error does not excuse Obama's error. Secondly, you are ignoring important differences between the two, as you do in other comparisons between them. McCain would have kept the military tribunals and not dragged them into civilian court, which is where Obama has placed himself in a box with egregious consequences.

Thirdly, do you bother to ask why only 3 made it through the CSRT process? Because they were hung up in federal court by the detainees' lawyers with more than a dozen appeals for habeas and related issues!!

The Federal District Courts were all over the map in regards to the President's powers under the AUMF and due process with regards to enemy combatants that were American citizens. This had to be resolved by SCOTUS. When the AUMF was rejected, Congress had to draft new legislation and came back with the MCA. Again, the Left was unsatisfied and appeals were pursued for the President's powers under this Act and the further issue of enemy combatants who were not American citizens. SCOTUS again needed to decide this in order to give direction to the Administration. The appeals process for all these cases stretched almost the entire length of Bush's presidency.

You are missing wide swaths of the detainee history and story.

And no, it was not "a mess". If you read the Boumediene dissents, you would realize that the detainees were granted lawyers, were informed of their crimes and the reason for them, had the chance to call witnesses, and had the right of appeal in federal court. In short, I was fine with the current process as a "better idea", to answer your question.

Obama very well knows that he under rules of evidence in civilian courts many of the terrorists will not be convicted and will have to be released. Since we cannot pay off Bermuda forever, most likely many will be released in the US. Not very appetizing for most Americans and Obama's popularity, hence his invention of a new category of "preventive detention".

And no, Obama did not revamp military commissions in any way, shape, or form. The two changes he mentions in the speech (testimony obtained by coercive interrogation inadmissible and the selecting of lawyers) were already in effect. Jesus, the detainees were getting high-profile lawyers from the most prestigious law firms in the country from the inception of these cases. Furthermore, he provides no guidelines or details on how he plans to devy them up between federal court and military tribunals, how he plans to deal with rules of evidence, how he plans to deal with released terrorists who no country will take, etc etc. His ad hoc approach is reckless and you are about to find out what a real "mess" is.

Scherk, I am not interested in debating what leftist critics said, as I could pull a ton of articles with glowing praise after the National Archives speech concerning how Obama brought the situation within "the rule of law"". That side point is irrelevant to me.

What I want is your opinion on the 5th category. Apparently you think the Bush policy was a "mess" and perhaps agree with those who say it undermines the rule of law. Well, here is part of Obama's cure. If you don't agree with the due process under Bush policy outlined above, what do you make of "preventive detention"?

(2) When the revival of the fairness doctrine was first brought up, Administration surrogates Axelrod, Holder, and Gibbs were either non-responsive to questions, or left the door open for its revival. It was not until later (about a month and a half), after much outrage and criticism, that the Obama Administration came out against the fairness doctrine, especially considering it was going to get shot down in Congress (and did). If Obama wanted to live up to his campaign promise not to bring back fairness doctrine, why were his surrogates not stating so? Why did they continue to leave the door open?

The "diversity" initiatives differ from the fairness doctrine in name only. They were going to break up ownership of radio stations accordingly based on race, sex, etc. and the content to follow. Same doctrine, different guise, so don't tell me the fairness doctrine is "dead". One of the senators behind it even admitted as much.

(3) Shall I take it that the GM/Chrysler issue is a strike against Obama for you? I prefer more definitive statements. How do I think it will "play out"? Oh, I dunno, perhaps the same way the Post Office, Amtrak, and the DMV have played out. How do you think it will play out? Are you waiting and hoping it will be different this time?

(4) You find the debts "staggering"? Again, I need something more definitive, is this another strike against Obama for you?

Scherk, this is a gem: "As for the bank bailouts, I don't know if the infusions prevented a complete meltdown, credit collapse, and sucking vortex of doom in the world's financial system. That's the line the Obama administration and the banksters peddle, but who knows?".

"Who knows"? Are you serious? Because they say its needed to prevent collapse, it might be so?

Do you not have any theoretical or empirical basis for saying its a disaster? Do you think throwing incomprehensible gobs of money after failed insitutions, and mixing in government control, is going to resolve the problem? Good money after bad instead of letting failed companies go bankrupt? The assets don't disappear into thin air, Scherk, the remaining capital shifts to stronger hands and encourages greater prudence in investment and management of companies. You are not sure if this squashing creditor's rights (and preventing this reallocation of capital) is preferable to Obama assuming control and handing a Christmas gift to the Leftist birthchild UAW like he is Santa Claus? You are not sure abandoning economic calculation via profit/loss in favor centralized edicts is a good idea to prevent an economic crisis?

To help you with your judgment, Scherk, consider the banking panics of the late 1800's and the Panic of 1907, which involved little to no government intervention. They were short-lived and economic progress resumed rapidly. Compare that with heavier government involvement in the 30's and 70's and the prolonged economic downturns. Consider Japan trying the same meddling with banking in the early 90's, which resulted in "The Lost Decade". Consider that many companies go in and out of bankruptcies without destroying the industry or having a widespread, reverberating effect on the economy as a whole.

You see, Scherk, I think you have completed the circuit and adopted the flip-side of the skeptic coin, i.e., the belief that anything is possible.

More tomorrow and your 2nd reply.

Michael

Continuing my response to Michael's points and questions:

(5) Obama disbanding enhanced interrogation. First, he releases memos he thinks buttress his case for torture, but refuses to release any documents that vindicate the efficacy of these interrogations, and has the audacity to refer to his actions as "transparency".

I think you meant "case against torture." The so-called enhanced interrogations wrapped up some time before the inauguration, Michael. I think you are referring to the Yoo, Bybee and Bradbury memos which were released in March under pressure from the looming ACLU suit. I don't know if you are quoting Obama directly with the 'transparency' quote, but put below the paragraphs from his statement upon release.** I think you might be referring to Cheney's request that the CIA release classified interrogation documents. As it turns out, the CIA refused him. Do you have evidence that Obama had a hand in that refusal? It seems that those unspecified documents are subject to another FOIA suit and under embargo according to CIA rules. Whether or not the documents support Cheney's claims is in dispute -- by folks privy to the information.

Fine, he can change policy being a consequence of elections and all that. However, he also raises the specter of criminal prosecutions for policy difference--the criminalization of politics that the Founders sternly warned against. An action that cuts out the very core of the American political process, and something that no subsequent administration has done to a previous administration. You dig this brand of "change", Scherk?

Let's unpack this. Firstly, McCain would have made the same policy change. The difference between the two candidates on torture was negligible. Secondly, can you point to any evidence at all that anyone from the OLC will face criminal investigation, let alone prosecution (I assume you refer to the memo authors in the reference to "policy differences")? Can you show us any warrant for your belief that somehow Obama will usher in "criminalization of politics"?

(6) Obama's appointment of upteen "czars" to control various factions of economy. Its bad enough they are hiring/firing various CEO's and controlling the pay of management in companies receiving TARP funds, but Obama's cronies are also trying to control the pay of managers in banks who did NOT receive TARP funds. Think he is overstepping his reach a little, Scherk?

Name three of these economic-control czars, Michael, and we will see what you are talking about. With regard to TARP-assisted companies and their remuneration schemes, Treasury rejigged its push earlier this month; I think you may be referring to Kenneth Feinberg, the 'pay czar,' and his mandate. This CNNmoney story doesn't draw a clear picture of control of non-TARP entities, nor does this story from the Wall Street Journal. What is the source of your information?

(7) Obama's pursuit and resurrection of cap-and-trade that represents a huge tax on energy and has the power to destroy the energy industry in this country, including raising the cost of just about every good produced. You like this environmentally-driven wacko energy policy, Scherk? In the midst of a severe economic recession/depression?

I don't like it one bit. In my eyes, cap and trade is a strange mixture of futures markets and hedge funds, and could lead to the same gaming of the system as with financial derivatives. If there is no global warming caused by man, of course, any action -- from carbon taxes to cap and trade regimes are useless. If there is global warming caused by man, then governments around the world will act. You might not think it is that simple, but let's see what happens in Copenhagen and with the movement of the Waxman bill through the Senate. I don't know your views on global warming, but suspect that you are not among the three Objectivists on earth who are concerned with it.

(8 ) Obama's attempt to nationalize healthcare. Oh wait, excuse me, the "public option" where the government "competes" with private industry. In other words, paving the way for a government takeover of healthcare. You like your nationalized healthcare up in Canada, Scherk?

Well, your Congress is in the midst of the process to reform the health insurance scheme in America. My bet is that some form of universal coverage will emerge from their labours. The goal of universal coverage is extremely popular in the US, as noted in the latest Pew poll on the issue (see below). Whether the US scheme will resemble that of France, the Netherlands, Denmark, or other First World countries, there is zero likelihood of a single-payer system or a disappearance of private insurance. I don't know if the 'public option' will form part of the emergent bill, though I think the chances are positive. How do you think it will play out?

As for the socialist hellhole I live in, Canada's health scheme is unique, and it doesn't matter if I like it or not -- universal health coverage is on par with the American love for mom and apple pie in the Canucki polity. The kiss of death for any party up here is to tamper with that basic principle. I figure the US will move alongside the rest of the industrialized democracies and mandate universal coverage in some manner. The sky may fall, and the sky may stay up. Certainly a few Objectivist heads will explode.

WSS

_________

** Obama's statement about the "torture memos"

The Department of Justice will today release certain memos issued by the
Office of Legal Counsel between 2002 and 2005 as part of an ongoing court
case. These memos speak to techniques that were used in the interrogation of
terrorism suspects during that period, and their release is required by the
rule of law.

My judgment on the content of these memos is a matter of record. In one of my
very first acts as President, I prohibited the use of these interrogation
techniques by the United States because they undermine our moral authority
and do not make us safer. Enlisting our values in the protection of our
people makes us stronger and more secure. A democracy as resilient as ours
must reject the false choice between our security and our ideals, and that is
why these methods of interrogation are already a thing of the past.

But that is not what compelled the release of these legal documents today.
While I believe strongly in transparency and accountability, I also believe
that in a dangerous world, the United States must sometimes carry out
intelligence operations and protect information that is classified for
purposes of national security. I have already fought for that principle in
court and will do so again in the future. However, after consulting with the
attorney general, the director of national intelligence, and others, I
believe that exceptional circumstances surround these memos and require their
release.

First, the interrogation techniques described in these memos have already
been widely reported. Second, the previous administration publicly
acknowledged portions of the program and some of the practices associated
with these memos. Third, I have already ended the techniques described in the
memos through an executive order. Therefore, withholding these memos would
only serve to deny facts that have been in the public domain for some time.
This could contribute to an inaccurate accounting of the past, and fuel
erroneous and inflammatory assumptions about actions taken by the United
States.

In releasing these memos, it is our intention to assure those who carried out
their duties relying in good faith upon legal advice from the Department of
Justice that they will not be subject to prosecution. The men and women of
our intelligence community serve courageously on the front lines of a
dangerous world. Their accomplishments are unsung and their names unknown,
but because of their sacrifices, every single American is safer. We must
protect their identities as vigilantly as they protect our security, and we
must provide them with the confidence that they can do their jobs.

Going forward, it is my strong belief that the United States has a solemn
duty to vigorously maintain the classified nature of certain activities and
information related to national security. This is an extraordinarily
important responsibility of the presidency, and it is one that I will carry
out assertively irrespective of any political concern. Consequently, the
exceptional circumstances surrounding these memos should not be viewed as an
erosion of the strong legal basis for maintaining the classified nature of
secret activities. I will always do whatever is necessary to protect the
national security of the United States.

This is a time for reflection, not retribution. I respect the strong views
and emotions that these issues evoke. We have been through a dark and painful
chapter in our history. But at a time of great challenges and disturbing
disunity, nothing will be gained by spending our time and energy laying blame
for the past. Our national greatness is embedded in America's ability to
right its course in concert with our core values, and to move forward with
confidence. That is why we must resist the forces that divide us, and instead
come together on behalf of our common future.

The United States is a nation of laws. My administration will always act in
accordance with those laws, and with an unshakeable commitment to our ideals.
That is why we have released these memos, and that is why we have taken steps
to ensure that the actions described within them never take place again.

_________

Pew poll excerpt:

Thanks to Michael Moeller for putting some flesh on the bones of an argument against President Obama and his policies. I am encouraged that MM doesn't need to use penis analogies or call him President Benito Obamadinejad or Chavez-Obama or ally himself with loopy "Obama is a Muslim" whatnots. Moeller is a hardline partisan of Ayn Rand, and unapologetic supporter of the ARI faction. It is refreshing to read a SOLO response that steers clear of the kook swamp.

Now, Michael has little to say about US policy and statements toward Iran, so I will leave that aside, though it would certainly be interesting to discover his line on Iran in this Iran thread. He does mentions some poll results and throws up a number, but without reference, I can't comment, except to correct his musings here:

Let's not forget Scherk's trotting out of Obama's approval ratings, which he neglected mention have dropped to the mid-50's over the past few months.

The question was "When is the US going to rise up against Mullah Obama?" in a posting by Marcus Bachler in which Marcus opined, "Obama probably shares Ahmadinejad's fantasy of wiping Israel off the map too," insisting that Iranians protesting against election fraud put Americans to shame.

If Michael wants to answer Marcus's question, great. He changes the context with his statement, however: In the contest of his personal popularity vs. his policy popularity, something has to give. I agree with this. But in terms of an uprising against the President, the next scheduled uprisings are in November 2010 and November 2012, as I stated.

Michael does put forward some eight distinct opinions, which he calls "facts" I'll do him the courtesy of responding to half his questions here in this post, and half later.

(1) The closing of Gitmo with no "exit strategy". Besides ignoring the precedent for military tribunals, this policy is frought with hazards, such as dragging dangerous terrorists into civilian courts and the fact that evidentiary standards in civilian courts aren't meant to deal with war situations (eg. the battle over the use of hearsay evidence).

Any post-Bush president would have closed Guantanamo. The alternative president, McCain, would have closed it, believing its existence damaged U.S. credibility abroad. Since the Bush military commissions couldn't pass muster before the Supreme Court, and since the tribunals managed to try only 3 detainees, Obama attempted to resurrect the tradition of military commissions without the features your Supremes rejected. If you have a better idea, Michael, spit it out.

Putting those dangers aside, the sparse details Obama later gave on his "exit strategy" include a category called "preventive detention". As he laid out in his speech before the National Archives, this would include those suspected terrorists that represent a danger to America, but cannot be tried and convicted. Is this his attempt to circumvent the problems of prosecuting in civilian court? If so, he is blazing new trails. One can argue whether the due process of the enemy combatants given CSRT process under the Military Commissions Act receive adequate due process, and I argue that that do. Here, however, Obama is raising the prospect of giving them no due process at all. Where are all those who demanded habeas and prattled about the "rule of law" in criticizing the Bush policy (using CSRT process)? Apparently they have no qualms if Obama's goes beyond Bush and grants no due process. What about you, Mr. Scherk?

I don't know the solution, Michael. The mess left in the wake of Boumediene v Bush and the Federal judgements on resettlement of detainees is just that, a mess. Since the new act must be in line with habeus rights, what options are realistically open to the US? What is your solution? As far as I can tell, no one thought the implications through, and so the 200+ detainees are mostly in limbo. For those interested in Obama's speech at the National Archives, link courtesy of Huffington Post.

As for the claim that some unnamed 'them' have nothing to say about the fifth category of detainees (which Obama does not refer to as "preventive detention"), not true. Have a gander at the 77 pages of comment that follow the transcript linked above, or see the commentary on a bruited Executive Order covering their disposition, and see also the Atlantic story that details the rejection by human rights and civil rights groups of any such extra-legal detentions.

No qualms?

(2) Let's not forget Obama's attempt to revive the fairness doctrine under a different guise. You like that Scherk?

What are you talking about? The Fairness doctrine is dead. If you mean the FCC 'diversity initiatives' or its so-called 'localism' proceedings, perhaps you can point to something factual we can discuss. What's the danger as you see it, and how much do these bureaucratic gambits resemble the dead doctrine in fact?

(3) Obama's nationalization of GM and Chrysler. In the process, Obama turns the "rule of law" on its head by throwing secured creditors under the bus (who are first in line under bankruptcy laws) and handing over the reins of control to the government and the UAW. Sherk, do you like that investors are being denied their rights under the laws of the US so that the government and unions can assume control of a US industry?

I don't like the split pushed on Chrysler and GM creditors, no. Treasury forced a gruesome deal on them in both cases. What the US will do with a 60% stake in an automaker, lawd gawd only knows. How do you see it playing out after the reorganization is complete? And does the US own Chrysler with only an 8% stake?

(4) Obama's stimulus package balloons and bank bailouts that raises the debt to levels of all previous presidents combined--ALL. As to the claim that "Bush and Reagan did it too", take a look at this video for a sense of perspective. If you object to Bush on such grounds, what do you have to say for Obama, Scherk?

Don't presume so much, dude. The numbers of the current deficit are staggering, and I am amazed that Obama (and Bush before him) was able to push such gargantuan spending bills through Congress. I don't know how the US will manage to pay down its debt (as the Liberals managed to do up here in Canuckistan). As for the bank bailouts, I don't know if the infusions prevented a complete meltdown, credit collapse, and sucking vortex of doom in the world's financial system. That's the line the Obama administration and the banksters peddle, but who knows?

Again, Scherk mocks those who see the above policies as a significant threat to liberty and declares they are wedded to ideology in spite of the facts. I submit that Scherk's mockery and apologia represent his distance from the facts and lack of any coherent ideology, or at least a lack of an ideology in favor of liberty.

You are a smart guy and a decent wordsmith, Michael Moeller, with a wide base of knowledge for your opinions. I hope you can use this to lay down some tart and timely material for SOLO. Although it's somewhat flattering to see Scherk larded throughout your piece here, I think you should be writing some Op-Eds and articles without me as a foil.

I mock the hootingly stupid "Obamadinejad" and all the over-the-top crap in these threads on Iran.

Since your arguments don't indulge in such flat-out buffoonery, I don't mock you . . .

(thanks, Lindsay, for blue-stickying Michael's piece. I hope you use both the lash and the grape to get him on the front page more often)

WSS