What’s Wrong with the World

The men signed of the cross of Christ go gaily in the dark.

About

What’s Wrong with the World is dedicated to the defense of what remains of Christendom, the civilization made by the men of the Cross of Christ. Athwart two hostile Powers we stand: the Jihad and Liberalism...read more

"From Gitmo to Miranda, With Love," or The Constitution is a Suicide Pact After All


Captive Miranda, Lord knows I have not given a thought to the paperwork you sent me.

Let me tell you, Captive, that our release is not in the hands of the lawyers or the hands of America. Our release is in the hands of He who created us.

The poem, "To My Captive Lawyer, Miranda," was written by Abdullah Saleh Al-Ajmi while he was a detainee at Guantanamo Bay, Cuba. No doubt, it would have given the former detainee, who was released in 2005, immense satisfaction to know that his last earthly deed was referenced in Justice Antonin Scalia's dissenting opinion in Boumediene v. Bush. That's the recent Supreme Court decision that gave Guantanamo detainees the constitutional right to challenge, in habeas corpus proceedings, whether they were properly classified by the military as enemy combatants. Abdullah Saleh Al-Ajmi, on the left [above], in a martyrdom video posted on an al Qaeda Web site. Al-Ajmi, a 29-year-old Kuwaiti, blew himself up in one of several coordinated suicide attacks on Iraqi security forces in Mosul this year.

That's how Debra Burlingame's op-ed piece in today's Wall Street Journal begins. Read the whole thing here.

(cross-posted)

Comments (18)

That's the recent Supreme Court decision that gave Guantanamo detainees the constitutional right to challenge, in habeas corpus proceedings, whether they were properly classified by the military as enemy combatants.

Justice Kennedy is a terrorist-sympathizing dolt!

I remember having read a previous WSJ article.

To think that he even left for vacation right after the whole affair without even benefit of instruction as to how the military was supposed to proceed with respect to this decision.

Habeas Corpus Rights for the 9/11 mass-murderers (not even U.S. citizens, mind you, but, ever more alarming, foreign enemies of the state!) as well as for all terrorists we've captured and are attempting to capture -- Bravo!

In one fell swoop, Justice Kennedy had practically given the upper hand to the very terrorists this whole war was waged against in the first place!

Having already said my piece on Boumediene, I'll not belabour the point: the Bush administration's overreaching on executive powers claims fairly invited an opposed form of overreaching. Bush had already begun erasing the legal distinctions between American citizens and foreign nations captured in the course of military action; in a sense, therefore, Kennedy's idiocy is simply a logical extension, in an opposed direction, of this effacement: if there are few or no legal distinctions, why not extend foreign combatants the luxury of the American legal system?

Maximos:

This decision has far more reaching repercussions beyond Gitmo.

This also would, as a consequence, declare military commissions unconstitutional.

I cannot and will not countenance the privilege of habeas corpus, rights exclusive to the American citizen, being extended to the likes of KSM and the 9/11 killers.

To avail to these mass-murderers the likelihood of exoneration as a result of such procedural trickery seems to me a more horrible injustice to the victims of 9/11, as this hideous act came not from the likes of foreign terrorists but, worse yet, fellow (supposedly) Americans!

Such persons, to my mind, are the Benedict Arnolds of our day!

I don't countenance it either; my only point is that Kennedy is not the sole source of these deformations and usurpations of our Constitutional order. Detainees of foreign extraction certainly deserve some form or method of adjudication, though there are powerful precedential and substantive reasons against moving them to civilian courts. All of this, I've argued previously. I simply cannot be moved to righteous indignation against the Court alone, when the Executive has perpetrated his own usurpations, and the Legislature has been rolled by both the Court and the Executive. There's too much obloquy to go around.

I agree with Maximos. There is no reason to take this as exoneration of any of the pathetic actors in this drama.

Zippy:

There is no reason to take this as exoneration of any of the pathetic actors in this drama.

My comments concerned not the "exoneration of the pathetic actors in this drama" but, more specifically, the reprehensible villains who committed unconscionable acts of mass murder against the American people as well as those who plan to do so / are doing so.

Well sure, Jeff, but certainly the distinction between explicitly willed vs. unintended consequences is relevant here. Or must everything be traced back to the Bush administration's failures before it can move you to indignation? To an admittedly casual observer of these threads, that sure seems to be the case.

Or must everything be traced back to the Bush administration's failures before it can move you to indignation?

Not at all. But too many on the right mistake a condemnation of the Court's usurpations as an endorsement of the Executive's usurpations; this, in fact, is a common argumentative mode in publications such as National Review. In fact, if I might say so, I have been judicious and discriminating in my indignation: they all deserve it, albeit for different, interrelated reasons.

To me the Executive's proper posture here is not obvious. What is clearly needed is almost a separate legal code, modeled on the Uniform Code of Military Justice, for unlawful combatants. Within months of 9/11 it was clear that we needed this. Congress did nothing until years later. In the interim the Administration muddled through, bungling and incompetent at times, with the courts quiescent until cases reached them.

Indeed the posture of the Executive at war has been a matter for some dispute in this country's history. Here is a good article on the matter:

http://claremont.org/publications/crb/id.1522/article_detail.asp

The whole problem, in a sense, derives from Congress failing to declare that a state of war existed after 9/11, thus initiating a machinery of legal precedence which might have saved us much trouble and many mistakes.

Still, something had to be done with all the suspects we were rolling up. And for the love of God let know one doubt that many, many, many of the men rolled up in those days deserved it in spades.

The Court's obloquy, to my mind, is of an order of magnitude beyond the Executive's. The Bush Administration made a mess because it didn't really know what to do (still doesn't, in fact); then became, naturally, hidebound and foolish in defense of the mess.

The Court blatantly usurped legislative authority, almost sneering at the Article III, Sec. 2 exemption added by Congress in 2005. The sheer impudence of Kennedy's assertions against our self-government --

Well, let's just say it provokes me to a considerably greater indignation than Bush's incompetence.

Go, Paul.

On the specific issue of military commissions, yes, the Court's obloquy is much greater. I am of the considered opinion, however, that Bush's arrogation of the power to place American citizens beyond the power of the law is equally portentious and disgraceful.

Alas, the Bush administration's clarity in understanding the vital difference between citizen and non-citizen leaves much to be desired. That's putting it mildly.

The Bush administration's unclarity as to the meaning of citizenship is a meta-level confusion, one affecting every area of policy touching the thing.

Indeed.

One even occasionally suspects that, for some of them, the "confusion" is not that at all -- that, in short, they are principled globalists, albeit of the right-wing variety.

Indeed, let's not compromise our sense of polity over the mere lives of thousands of innocent American citizens.

I gather from the tone implicit in the comments that the general well-being of terrorists and their 'rights' (not to mention, the seeming promotion of various political agendas) are more significant than the lives of these.

Heck, should even these terrorists (found to be so deserving of such inalienable rights by the various parties here -- rights I'm sure the founding fathers themselves would have granted to these) commit/would have committed/did in fact commit grave acts of mass murder against the American people that would result/will have resulted/did in fact result in the deaths of even our beloved ones; we should have availed ourselves the comforting thought that, at the very least, we stood up for the rights of these beloved terrorists!

I gather from the tone implicit in the comments that the general well-being of terrorists and their 'rights' (not to mention, the seeming promotion of various political agendas) are more significant than the lives of these.
Not at all. I don't think people captured in Afghanistan or Iraq should be treated like US citizens at all. They should be treated like POW's until their status has been - with reasonable promptness - determined by a competent tribunal, and if found guilty of a crime by a duly constituted military tribunal they should be punished appropriately. If POW's, they can indeed be detained legally and morally - as POWs and under the conditions prescribed for POWs - until hostilities cease. If criminal, they can be and should be punished up to and including execution.

It is in large part the tergiversations of the Bush administration over this really rather straightforward situation - in the interest of pursuing a policy of torturing detainees for information - which created the mess in the first place. The Supreme Court ruling is inexcusable, because non-citizens indeed are not citizens. The Bush administration policies which led to it are also inexcusable, since they quite deliberately attempted to create a category of non-person who could be set outside the law for the very purpose of torturing them for information. (Absent this motivation there is no reason whatsoever not to simply follow protocol).

As I said, there is plenty of legitimate opprobrium to go around.

Zippy said:
The Bush administration policies which led to it are also inexcusable, since they quite deliberately attempted to create a category of non-person who could be set outside the law for the very purpose of torturing them for information. (Absent this motivation there is no reason whatsoever not to simply follow protocol).

There are definitely more cogent reasons than the sadistic impulses of George Bush, for it was very clear from the beginning that:
1) The Americans did not want to boost AlQueda's street cred further by inflating them into a global player on the level of say Russia or China.
2) It is also the case that the Americans did not want to turn this into a straight fight against Islam, as would be the case
if AlQueda had been given any sort of recognition. For under what banner is AlQueda fighting if not Islam?
3) On the operational level belligerents must have the possibility of surrender, since otherwise the military will have to fight them to death. At the same time the Administration had to keep open the possibility that prisoners could be exchanged for captive Americans.
4) Again the Americans had no intention of creating an additional category of belligerent actors, thereby complicating all manner of international conventions and agreements.
5) Given these constraints they simply had to muddle through in a limbo, finding their way in a dark forest as it were.

It may be a pity that the old rules against piracy and privateering were not applied against AlQueda immediately in Afghanistan but that is what you get when you let humanitarian instincts get in the way. The US military though is up to speed now; they no longer take any bookings for Club Gitmo, preferring to dispatch Abu Musa and friends straight to the islamic heaven.

The Americans did not want to boost AlQueda's street cred further by inflating them into a global player on the level of say Russia or China.

Yeah, or Grenada.

Post a comment


Bold Italic Underline Quote

Note: In order to limit duplicate comments, please submit a comment only once. A comment may take a few minutes to appear beneath the article.

Although this site does not actively hold comments for moderation, some comments are automatically held by the blog system. For best results, limit the number of links (including links in your signature line to your own website) to under 3 per comment as all comments with a large number of links will be automatically held. If your comment is held for any reason, please be patient and an author or administrator will approve it. Do not resubmit the same comment as subsequent submissions of the same comment will be held as well.