A September 16th Mentality

18 Jun

Barack Obama has hailed the recent Supreme Court decision, which held that detainees in Guantanamo Bay’s detention camp are entitled to habeas corpus. The McCain campaign said,

Senator Obama is a perfect manifestation of a September 10th mind-set . . . He does not understand the nature of the enemies we face,” McCain’s national security director Randy Scheunemann told reporters on a conference call.

Former CIA director James Woolsey, who is advising the McCain campaign, concurred, saying Obama has “an extremely dangerous and extremely naive approach toward terrorism . . . and toward dealing with prisoners captured overseas who have been engaged in terrorist attacks against the United States.”

Remember the blind Sheikh, Omar-Abdel Rahman? Connected to the 1993 World Trade Center bombing, we arrested him and his co-conspirators and convicted them under the rule of law. He rots in jail for life. Why can’t we do the same to Qaeda suspects? How do we reconcile our rule of law, our constitution, our moral and legal obligation not to torture, with what we’ve done since 9/11? How does 9/11 justify violation of principles that date to 1215?

Obama said the government can crack down on terrorists “within the constraints of our Constitution.” He mentioned the indefinite detention of Guantanamo Bay detainees, contrasting their treatment with the prosecution of the 1993 World Trade Center bombings.

“And, you know, let’s take the example of Guantanamo,” Obama said. “What we know is that, in previous terrorist attacks — for example, the first attack against the World Trade Center — we were able to arrest those responsible, put them on trial. They are currently in U. S. prisons, incapacitated.

“And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world and given a huge boost to terrorist recruitment in countries that say, ‘Look, this is how the United States treats Muslims.’

Obama is merely arguing that the United States needs to follow its own laws and treaty obligations when it comes to people imprisoned by the United States on American soil, (which the Guantanamo Bay Naval Base most certainly is). If we don’t do that, then what, precisely, are we fundamentally fighting for?

The McCain camp can accuse Obama of having a 9/10 mentality all it wants. They?

They have a pre-1215 mentality. A September 16, 1787 mentality. A July 3, 1776 mentality.

20 Responses to “A September 16th Mentality”

  1. Russell June 18, 2008 at 10:45 am #

    The Constitution applies to citizens of the United States. In many cases, it also applies to residents of the United States. The blind Sheikh committed a crime in the United States while residing in the United States. He and all his accomplices were directly involved in a crime on US soil. That’s why they were tried in the US according to US laws. The enemy combatants held at Guantanamo are just that, enemy combatants. An entirely different set of laws and procedures apply to them.

    Come on, you’re an attorney. Why is it difficult for you to understand these differences? Forget the rhetoric and politics. Look at this from an objective legal position. You’re quoting laws and provisions that apply to subjects and citizens, which the Guantanamo prisoners are not.

  2. Buffalopundit June 18, 2008 at 11:04 am #

    They’re in custody on US soil.

    Are you suggesting that accused criminals who are neither citizens nor residents who are in custody on US soil are not subject to the rights and privileges afforded under the Constitution?

    If a Chilean tourist murders someone in Manhattan, do we lock him up without charge or trial for 7 years? And waterboard him, to boot?

    Unlawful enemy combatants may be held without the right to habeas corpus under the Geneva Convention, according to the operating statute. But do we simply hold them without charge indefinitely? Or until our “war against terrorism” ends? When, and who, will determine the end of the “war against terrorism”? “Terrorism” has been committed since time immemorial, and will never end and never be “defeated”, whatever that means.

    The distinction has been that lawful combatants are to be held as POWs. Unlawful combatants are not subject to the Geneva Convention and may be prosecuted under the domestic law of the custodian state. However, “Article 5 of the Geneva Convention requires that a tribunal determine whether a person is entitled to POW or civilian status. Thus, every captured individual should be presumed a prisoner of war until determined otherwise by a competent tribunal.”

  3. Russell June 18, 2008 at 11:12 am #

    There you go. You stated the distinction yourself. You know the Constitution does not apply to these combatants, yet you still carried on as if it did in your original post. So the real question is not about the Constitution or the Magna Carta, but when will we act against these prisoners and when will a tribunal be formed. That’s the real legal question and issue without the rhetoric and politics. I knew you were just playing with the law in order to further your candidate. Shameful.

    The case of the Chilean tourist is not related to any of these cases in question and is governed by other treaties, agreements and precedents.

  4. Buffalopundit June 18, 2008 at 11:37 am #

    You must have misread what I wrote.

    I said the Geneva Convention, which is a treaty and contract that the US signed, did not require habeas corpus for unlawful combatants. What it does require, and which the US did not do, is a hearing to find that they are unlawful combatants, and they are presumed to be POWs until that hearing has been held.

    I don’t believe that the US constitution would deny habeas corpus for anyone detained for illegality by the US on US soil.

    It has everything to do with the Magna Carta, the Constitution, and the rights of man upon which this country was founded, and on which it prides itself on. Democracy dies behind closed doors. It dies when we imprison people without charge indefinitely. I know you and McCain and Bush are in support of such behavior, and that it somehow keeps us safe from something. But I disagree, and I think that it cheapens any battle or war that we fight in the name of freedom and democracy to simultaneously debase and disregard those principles.

    After all, current Republican dogma holds that the Constitution is not a document that is open to interpretation, but must instead be read under its original intent. If the founding fathers intended that we behave in some undemocratic, imperial manner and torture people in our custody, I’d love to have that pointed out to me.

    Ultimately, your protestations notwithstanding, since Marbury v. Madison, the Court has declared what the law is. What it decided last week is that you’re wrong and I’m right. Obama’s right; McCain and Bush are wrong. What it decided underscores that the constitution has everything to do with this, and you’re wrong.

    I think “torture and indefinite detention without criminal charge” isn’t really going to be a winning platform for the Republicans this year. I think that the Republican fearmongering and setting aside of the constitution has sort of run its course in terms of popularity. I think that for McCain surrogates to accuse Obama of having a 9/10 mentality is not only laughable, but also just lame and pathetic.

  5. Denizen June 18, 2008 at 12:02 pm #

    Pretty much what Alan said. Using the behavior of a fascist state to preserve “freedom” and “democracy” is just a tad fucked up. Ya dig?

  6. Eric P. June 18, 2008 at 12:38 pm #

    BP says, regarding McCain & Co. – “They have a pre-1215 mentality. A September 16, 1787 mentality. A July 3, 1776 mentality.” Well said (or written).
    Russell, like so many Republicans, doesn’t seem to believe in our system of goverment. I believe he wants a police state to make us all feel safe. Denizen’s comment is right-on.

  7. Russell June 18, 2008 at 12:47 pm #

    Don’t overstate the ruling of the Court. It was a 5-4 ruling with a very strongly worded dissent pointing out why you’re wrong. It also sounds like the Court is buying the fearmongering you’re accusing the Republican Party of. I guess these Justices just aren’t as intelligent and sophiscated as you.

    For those lamenting the demise of democracy in the US over this issue, keep in mind what our Chief Justice pointed out:
    Roberts filed a separate dissent, defending the alternative process to judicial hearings, calling them “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

    I assume “ever afforded” dates all the way back to the founding of this country and includes the period when our founding fathers presided. That would provide your original intent and behaviour you asked for.

  8. Buffalopundit June 18, 2008 at 12:59 pm #

    The Federalist No. 84:

    “[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone . . . are well worthy of recital: ‘To bereave a man of life . . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls ‘the BULWARK of the British Constitution.’” C. Rossiter ed., p. 512 (1961) (quoting 1 Blackstone *136, 4 id., at *438)

  9. Chris Smith June 18, 2008 at 1:12 pm #


    Physicians for Human Rights, an advocacy group based in Cambridge, Mass., that investigates abuse around the world and advocates for global health and human rights, did not identify the 11 former prisoners to protect their privacy. Seven were held in Abu Ghraib between late 2003 and summer of 2004, a period that coincides with the known abuse of prisoners at the hands of some of their American jailers. Four of the prisoners were held at Guantanamo beginning in 2002 for one to almost five years. All 11 were released without criminal charges.

    Those examined alleged that they were tortured or abused, including sexually, and described being shocked with electrodes, beaten, shackled, stripped of their clothes, deprived of food and sleep, and spit and urinated on.

    Welcome to America

  10. Russell June 18, 2008 at 1:15 pm #

    Nice try, but this does not apply. You said it yourself. We are talking about enemy combatants. Publius makes it clear that this paper is referring to rights of subjects to a king or citizens of a republic. What you are doing is exactly what Hamilton warned would happen, in this paper, if a list of rights were included in the Constitution. Namely:
    “…and on this very account, would afford a colorable pretext to claim more than were granted.”

  11. Buffalopundit June 18, 2008 at 1:19 pm #

    And yet among the only rights included in the original Articles of the unamended Constitution was that of habeas corpus.

    BTW, Guantanamo is US soil, for the record.

  12. Chris Smith June 18, 2008 at 1:22 pm #


    An eight-month McClatchy investigation in 11 countries on three continents has found that Akhtiar was one of dozens of men — and, according to several officials, perhaps hundreds — whom the U.S. has wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old personal scores or bounty payments. McClatchy interviewed 66 released detainees, more than a dozen local officials — primarily in Afghanistan — and U.S. officials with intimate knowledge of the detention program. The investigation also reviewed thousands of pages of U.S. military tribunal documents and other records. This unprecedented compilation shows that most of the 66 were low-level Taliban grunts, innocent Afghan villagers or ordinary criminals.

    At least seven had been working for the U.S.-backed Afghan government and had no ties to militants, according to Afghan local officials.

    In effect, many of the detainees posed no danger to the United States or its allies. The investigation also found that despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners. Prisoner mistreatment became a regular feature in cellblocks and interrogation rooms at Bagram and Kandahar air bases, the two main way stations in Afghanistan en route to Guantanamo.

    In 2002, a CIA analyst interviewed several dozen detainees at Guantanamo and reported to senior National Security Council officials that many of them didn’t belong there, a former White House official said.

    Despite the analyst’s findings, the administration made no further review of the Guantanamo detainees. The White House had determined that all of them were enemy combatants, the former official said.

    Rather than taking a closer look at whom they were holding, a group of five White House, Justice Department and Pentagon lawyers who called themselves the “War Council” devised a legal framework that enabled the administration to detain suspected “enemy combatants” indefinitely with few legal rights.

  13. Russell June 18, 2008 at 1:33 pm #

    Once again Pundit, enemy combatants, not citizens. Is there something blocking your comprehension? Scalia, Alito, Thomas and Roberts all got it. Even Kennedy and some of the others not mentioned acknowledged it. Why is it so difficult for you?

    Chris, posting stories that people were tried, convicted, sentenced and punished for and attempting to pass them off as mainstream events is shameful.

  14. Buffalopundit June 18, 2008 at 1:41 pm #

    @Russell: Yes, I understand that you and your Republican brethren are in concurrence that the protections of the United States Constitution do not apply to foreign nationals in US custody on US soil. Scalia’s dissent was more political manifesto than judicial opinion.

    How many of the detainees at Guantanamo have been through their tribunal to determine whether they qualify as unlawful enemy combatants under the terms of the Geneva Convention and federal law?

    Simple question: As to the unlawful combatants held at Guantanamo Bay, what is to happen to them, and when?

    Also, find a thesaurus. You’ve overused “shameful” today.

  15. Russell June 18, 2008 at 2:16 pm #

    The alternative process Chief Justice Roberts alluded to has been held up by legal challenges and processes. You can’t have it both ways. Due process has held up the tribunals.

    Scalia’s dissent is part of the Court record whether you like it or not. And I’d much rather side with Scalia and Roberts any day over Ginsberg and Souter.

    If you and your little friend didn’t act so shamefully so often today, I would have had no need to overuse the term. I happen to think it’s the best term to describe your actions. I don’t need to look up alternative terms or flowery expressions in order to make myself look intellectually superior or to boost my own ego as you seem so inclined.

  16. Buffalopundit June 18, 2008 at 2:29 pm #

    I think making political hay out of a political issue is less shameful than supporting the abrogation of constitutional protections that date back to 1215 in common law countries. I happen to like democracy and openness. You and the rest of the Republican establishment don’t. You guys like the US’s detention camps to be run as if we were some third world banana republic. Really, I get it.

    Maybe, since it’s on the island of Cuba, we’re just following that country’s system as a model. Who knows?

    To each his own.

  17. Russell June 18, 2008 at 3:07 pm #

    Like I said before, I’ll stick with Roberts and Scalia and even Kennedy in his decision did not make this an issue of the rights of man. As stated, your demagoguery is shameful.

    Sure, to each his own and reasonable men can disagree, but when you try to paint yourself and all those who agree with you as the champions of democracy and all those with dissenting opinions as fascist tyrants you’re losing the reasonable and disqualifying any view other than your own. Black and white statements like I’m right and you’re wrong and pronouncements on the rights of man make your argument very unreasonable. Misrepresenting Supreme Court Justices, Alexander Hamilton and court rulings furthers that. For someone so concerned with democratic virtues, your actions are so counter-productive and hypocritical.

  18. Buffalopundit June 18, 2008 at 3:12 pm #

    I don’t think people with dissenting opinions are fascist tyrants.

    I think people who believe the US should behave like a bunch of fascist tyrants are wrong.

    There’s a difference.

    As for your plea that “Black and white statements like I’m right and you’re wrong” are unreasonable, one wonders whether you think similarly of the current President and his administration; zealots who see no grey.

  19. Russell June 18, 2008 at 3:33 pm #

    How childish, but that’s fine. If you want to equate yourself with the worst views people have about this administration, that’s fine with me.

  20. alwaysright June 19, 2008 at 9:13 pm #

    The Constitution is not a suicide pact. We are not obligated to extend constitutional protections to alien unawful combatants. As I understand it, the current system does allow a mechanism for prisoners to challenge their captivity. And it is true, as Roberts suggested, that the current system did allow for the most generous protections ever afforded enemy prisoners.

    It does mean that enemy combatants captured could remain in captivity indefinitely. That’s their problem. Perhaps they shouldn’t have chosen to be terrorists. I personally have no problem warehousing these animals until the end of time. If their jihadi brethren want them back, let them formally denounce jihad.

    It seems to me, Buffalopundit, that you have a bigger hardon for Republicans, who, at the end of the day were simply trying to do their job defending the American public, than you do for the mass murderers who brought this on us in the first place. We’re all Americans, brother.

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