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March 05, 2007


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Mr. BAC, you accuse me of playing semantic games with the term "war", but it is you who are abusing the term. By every definition, a war is a military conflict between nations. Terrorism is not a nation. Terrorism is a crime, not an act of war. You are extending the concept of war in the same way that politicians have been doing for years (e.g., "War on Poverty", "War on Crime", "War on Drugs", "the moral equivalent of war").

You cite the fact that people are being killed to justify your claim that this is war. But people are being killed all time, by murderers, drunk drivers, incompetent doctors, frenzied parents, clumsy hunters, and so forth. If your criterion is to be applied consistently, then we must declare war upon many among our population, deny them habeus corpus, ship them to foreign countries for torture, and so forth.

You will likely claim that this is organized killing by groups, but that criterion fails to differentiate street gang and organized crime from terrorists. And over the long run street gangs and organized crime have killed more Americans than terrorism, so they're an even greater threat, demanding by your criteria an even harsher response. Perhaps we should crucify gang members? And what about anti-abortion groups? They have harbored murderers, arsonists, and bombers -- shouldn't we bring in the Marines and make a full-scale attack on their offices, complete with tanks, artillery, and air strikes?

So next you'll argue that terrorists are mostly on foreign soil and that our police are unable to apprehend them, so we must use military force to deal with them. Right. So why aren't we bombing the hell out of Afghan poppy farmers? Why haven't we invaded Columbia? And then there are all those Chinese manufacturers violating our intellectual property laws -- perhaps we should drop a few nukes on China?

The distinction between crime and war is crucial to law, and there is absolutely no logical basis on which to claim that we are at war with terrorism. Terrorism is a crime, not an act of war. It's a big crime, but a really really big crime doesn't add up to an act of war for the same reason that injuring a lot of people doesn't add up to murder.

You will of course refer to the conflicts in Afghanistan and Iraq as counterexamples -- another example of sloppy reasoning. We did fight wars against nation-states in both cases, and those wars are both over. We defeated the governments of both nation-states, occupied their territories, and installed new governments. The prisoners of war taken in those wars should long ago have been released, just as we released the German and Japanese POWs shortly after the end of WWII. But you and the Administration are playing semantic games with their legal status.

It is true that we continue to fight insurgencies in both countries, and I have no reservations about applying the term "civil war" to those situations. However, the Guantanamo prisoners are not part of either insurgency -- most were captured at the close of the Afghan war, before the insurgency developed. Others were captured outside of either Iraq or Afghanistan. Besides, a civil war is not an international affair. Our legal position is that we are assisting the Afghan and Iraqi governments in civil wars, and so the legal disposition of insurgents in both cases belongs to those governments, not to us. Indeed, in several cases, the Afghan government has appealed to us to release certain prisoners, and we have ignored their requests.

You are profoundly wrong with your claims that we are at war. We are neither legally nor substantively at war with terrorism or terrorists. You are abusing the term "war" to cover up sloppy reasoning.


Mr. BAC, you continue to engage in the sloppiest of reasoning. I don't have the time to address your earlier posts, because your post at 10:28 AM is itself replete with examples. Let's start with your statement:

"The recent UK arrests of Islamic terrorist Jihadists planning an eminent attack on US aircarriers was foiled by the "street side plucking" and not on a field of battle. Although indeed the streets or London, Madrid, New York, Washington DC, Bali, are battlefields on the war on terror."

The terrorists were foiled by police work, not military work. Yet you engage in grandiloquent exaggeration when you refer to the streets of our cities as battlefields. It's this kind of hyperbolic language that leads to your hyperbolic logic. No, these streets are not battlefields. They are city streets, and the proper way to address crime in those streets has already been developed. It's called "law", and over the centuries we have developed a vast and complex system of police, laws, courts, and prisons to deal with these problems. The arrests in London are an ideal example of how well the system works -- and you are using them as justification for abandoning that system?!?!!? What kind of perverse logic is that?

Next you abuse the facts with your statement:

"I wish in America we had an unfettered internal security apparatus such as MI5. The Brits were deep into the terrorists cells without the perps being afforded court protections, or Fourth Amendment protections, etc. But that is another issue indeed."

You think MI5 is unfettered? You need to learn more about British law. Yes, in some areas they are not as constrained as we are. In others, they are even more constrained. They don't torture people, they don't deny them due process (although their application of the principle of due process differs somewhat from ours). The conspirators in those cases are being treated strictly by the rule of law, and I have no objection to their treatment. Would that the Bush Administration were so deferential to the rule of law.

Next you misunderstand the nature of our republic when you write:

"Let's see what the people want to do. I would think you all will approve of that. I'll live with the will of the people."

Who are "the people"? Those who vote today? If so, then we might as well throw away the Constitution, because nobody alive today ever voted for it. Our system is designed to reflect the will of ALL the people, including those long dead. Yes, we can change the membership of the House of Representatives every two years, but we can only change Presidents every four years, and Senators every six years. We can't throw away the First Amendment on a majority vote of Congress -- we have to amend the Constitution to do that, which takes a lot of supermajorities to pull off. And, while I'm at it, we can't simply revoke habeus corpus with a vote in Congress -- it's written into the Constitution and, if you want to change the Constitution you have to assemble all those supermajorities. I'm sure that the Supreme Court will have something to say about the MCA if the cases get to their level, and Congress doesn't render it moot first.

Your next excursion out of the realm of logic is this sentence and its following paragraph:

"Comparing the perps of the USS Cole, Kohbar Towers, Beirut, African Embassy's, WTC, Pentagon, London, Madrid to drunk drivers is a disservice to those who died at the hands of the terrorists."

A "disservice"? Isn't that a rather vague term? Are you suggesting that the lives of those killed by terrorists are more valuable than those killed by drunk drivers? Your argument seems to be that the intent of the killer makes a crucial distinction -- but our laws already address that issue by classifying murder according to the intent of the killer. What you describe is known in law as "first degree murder". And we deal with first degree murder in the same way that we deal with any other human-caused death: a trial to establish guilt or innocence. Why do you want to move first-degree murder outside our legal system? Do you hold our legal system in contempt?

Frederick Hamilton

Not only do we disagree on whether we are at war, we significantly disagree on the correct approach to Islamic terrorist Jihadists. You and many others consider it a law and justice problem. I and many others consider it a war problem. I think even you would agree that there is a difference in the approach to the solution of criminal vs war. It is rare indeed for a soldier to be charged with first degree murder. (Some in Iraq indeed are charged with committing murder and are being tried by military courts).

No person however killed is more valuable than another. That is not the point. The cause of death is factor in the response to the killers. Pearl Harbor...war. 9/11...war. That is a fact. Of course the intent of the killers makes a difference. No, we don't deal with war killers the same way we deal with criminal killers. We don't have a trial to establish guilt or innocence. We attack and kill the enemy. We don't establish habeus, go to trial, get a lawyer, find a federal court to plead with. So my questions to you would be a takeoff on your last questions to me....Why do you want to move war killing and war tribunals inside our federal legal system? Do you hold our military in contempt?

My answer to your last questions are I don't want to move war killings anywhere, I want to keep them within the purview of the military. I hold our legal system in the highest regard. I just don't want to give Khalid Sheikh Mohammed an opportunity to try to twist and evade justice by well trained American lawyers plying their trade within the framework of a U.S. federal court. I favor Khalid Sheikh Mohammed being tried by either a Nuremberg type International Military Tribunal (for the highest ranking 24 Nazi's) or a U.S. Nuremberg Military Tribunal for lesser Islamic terrorist Jihadists. Military justice for military crimes. We differ on the crime. 9/11 wasn't a drunk driver.

I would like you to address the six points of Eisentrager I posted above and how the present alien enemy is different than the Germans in World War II.

Sorry, but as the post of Prof Stone pleads, he and his group want the MCA law to be revisited. That is political. That is what we get to vote on. That is democracy.



The situation you describe is fine. Pluck away when it is a known terrorist. Habeus doesn't matter to a known terrorist when the gov has cause. The bigger issue with plucking off the street, without definitively knowing from the battlefield that person means our gov and people wrong, is when you pluck some guy based on his name, a guy who has the same name as a wanted terrorist. This has happened. People have been taken, whisked off to a black site, not been given a phone call let alone a habeus writ.

Pluck away, just not without habeus, becasue if you have cause, then there is not an issue, if you don't and have the wrong person you can mistakenly jail or ruin an innocent person.



Asking whether a terrorist "deserves" habeas or other constitutional rights confuses the issues. A jihadist that kills innocent American civilians deserves a bullet to the head. We are not debating just deserts, we are debating the procedural safeguards to put in place before matching bullets to heads.

I agree completely that comparing terrorism and drunk driving is silly. But comparing terrorism and WWII doesn't help either. Both our military and our legal system can participate in the war on terror, just as both participated in fighting communism during the Cold War.

Frederick Hamilton

You know, in the proper context, I am not against a lesser non-High Value Target terrorist being given habeus protection to indeed protect the innocent. I don't believe the combatant review tribunals are a joke and that does impugn the military and military lawyers unfairly. I don't favor keeping an innocent person jailed or punished. Period.

My concern is that some simply want to treat the Islamic terrorist Jihadists as criminals and a legal problem. As articulated above, simply a problem of crime. In a way true, but the crime was war. Just because the terrorists wear no uniforms and hide among innocent men, women and children doesn't make their war activities less war like. They attack with abandon and kill with glee. This is not your average war. It will take time and perserverance to win. Win we will, but I don't think we'll win by turning federal prosecutors on the jihadists and treating them like a drunk driver.

If there were a habeus like (lite) process that didn't turn the war on terror into a federal court issue I would be happy to consider it.

Frederick Hamilton

Not trying to "determine" whether terrorists deserve habeus. I believe the present US law (Eisentrager, MCA) doesn't allow habeus for terroristis (that is why Prof Stone wants the law changed).

As mentioned above to LAK, I don't favor a single innocent human being imprisoned, punished or prosecuted. I also believe there isn't a single military commander or military lawyer who believes that either.

I wouldn't mind a review by some sort of panel to sort our the captured terrorists (assuming the military can't). I don't favor giving them their "day in court". If innocent and not an alien enemy terrorist combatant, let 'em go. If not innocent. Try them in a military tribunal and dispense them justice per what the military tribunal says is just. Exactly as done in WWII (INMT International Nuremberg Militray Tribunal (Russians, English, American) and the USNMT (US Nuremberg Military Tribunal). Worked fine then and with the Germans (Eisentrager) in China (Nanking) and should work well now. I am not sure if innocents were tried and convicted in either Nuremberg or Nanking.

BAC, I also agree you can't compare WWII with the present war on terror. Non uniformed combatants representing a terrorist Jihadist movement and not a sovereign country. Hiding among civilian populations. Much different than WWII. al Qaeda, bin Laden, Islamic terrorist Jihadists want the same outcome as Nazi Germany would be the big similarity. World domination, destruction of the West and annhilation of Jews. If we approach it as a criminal drunk driver problem, I suspect the'll succeed. As a war they won't. Per their writings and media communications they are at war with us. We damn well better be at war against them. They fight the war with gloves off, we want to fight the war in a federal courthouse. I just don't think it will work.


Arg!! I have twice now referred to Mr. Hamilton as Mr. BAC. My apologies to both of you.

Mr.Hamilton, you appear to be beyond the reach of reason, for you have eschewed logic at every opportunity. I presented a detailed description of the distinction between war and crime. Your response:

"Pearl Harbor...war. 9/11...war. That is a fact."

I wouldn't call that much of a syllogism.

You declare, "I hold our legal system in the highest regard."

and you immediately follow that declaration with a statement that you don't trust our legal system to produce justice even in the most egregious of cases:

"I just don't want to give Khalid Sheikh Mohammed an opportunity to try to twist and evade justice by well trained American lawyers plying their trade within the framework of a U.S. federal court."

You continue with your claim that we are at war yet you refuse to address the specific arguments I offer to the contrary. It appears that you have abandoned the way of reason and are now engaging in simple repetition of your claims.

Political umpire

"Any human being can make the mistake of getting drunk and killing someone"

No, only idiots do that

Is the mother of the DD victim going to be any less upset than the mother of the terrorist victim? The point I was making is that you seem to think terrorism is such a threat to innocent US civilians that we can dispense with due process for those being held in US custody, even though by that very fact they can't pose a threat any longer. You have to concede that there may be innocents among them. I disagree that the US needs to ignore that fact.

"I wish in America we had an unfettered internal security apparatus such as MI5. The Brits were deep into the terrorists cells without the perps being afforded court protections, or Fourth Amendment protections, etc. But that is another issue indeed."

MI5 is very far from being unfettered. Britain still has due process for terrorist suspects, and nothing like G. Bay (save that some incacerated there have been Brit Cits)

Frederick Hamilton

Lets not keep beating the carcass of that dead horse. You and I will never agree on "war". So be it. Your undeclared war is my AUMF. Suffice it to say our military is in Afghanistan and Iraq and they engage in something that at least looks like war. It reminds me of the physics professor who told Dizzy Dean his curve ball was an optical illusion. Dizzy simply told him to go stand behind that tree and he would hit him with his optical illusion. My illusion is we are at war and I believe it possible to get hit by real bullets in that illusional/delusional war. So yes lets not quarrel with war/no war. And war and crime are seperate entities. Certainly you can have crimes in the context of war. Abu Grahib for instance. War crimes. Jewish genocide. My Lai. Yes, yes there are crimes during a war but I must insist that making war is not the same as committing a crime in the classical sense. My goodness, in a war, I can put my gun to my shoulder and intentionally kill another human being and no court will call that either a crime or murder. It is incident to war. Unless like My Lai I kill innocent women and children intentionally. That is a war crime. Making any sense yet?

Eras, I do hold our legal system in the highest regard. I just don't think an adversarial judicial system is the place to solve the war on terror. Again, we disagree.

Political umpire, MI5 does have a number of options for clandestine activities not available within the U.S. That is a big argument now. Some think NSA wiretapping is too close to MI5 for instance.

And of course I concede their may be innocents in US custody. Just as there are innocents in custody in America today being punished unfairly. Who in there right mind wants innocents to be incarcerated and punished? Is either US justice or US military justice perfect? No. Whatever can be done to ensure no innocents are captive of Americans within the context of the law should be done. Is habeus one of those options? Only if Congress reverses itself as Prof Stone wishes and puts habeas into the MCA. Right now in the real world alien enemy combatants not being kept inside the United States (last I looked GB Naval Base was wholly in Cuba) per Eisentrager is clear, "On this set of facts, the [Eisentrager] Court concluded, "no right to the writ of habeas corpus appears."

The right to the writ of habeas corpus was specifically excluded for alien enemy combatants in the MCA. In fact federal court jurisdiction over the alien enemy combatants was eliminated by the MCA. Ergo, will the MCA survive the certainly to come Supreme Court review. Garth on his post above states he says a 5-4 vote of the Supremes will call the MCA unconstitutional. Maybe he will be right. But Prof Stone and his group of supporters apparently aren't so sure of unconstitutionality and want Congress to amend the current MCA to put habeas back in.

Again, I would like to ask if I am missing something with Eisentrager and alien enemy combatants on foreign soil and not being within the United States and not having habeas? I am not talking Hamdan and am not talking Jose Padilla in the Charleston, SC Navy Brig.


Mr. Hamilton, you have ignored every rational argument I have brought to bear regarding the legal status of the situation with respect to terrorism. You have ignored the testimony of the Attorney General of the United States. You have ignored the distinctions I have drawn. You are reduced to simply declaring that you don't care about logic and you believe the way you're going to believe and no arguments, however logical, will ever convince you.

I therefore ask, is there any reason why a rational person who disagrees with you on any issue could hope to accomplish anything by discussing it with you?

Political Umpire

"Right now in the real world alien enemy combatants not being kept inside the United States (last I looked GB Naval Base was wholly in Cuba)"

Right, so some Cuban police rock up to the doors of the base and ask if they can interrogate some of the soldiers there for alleged ill-treatment of civilians on the base. What do you think the US Marines manning the sentry posts would say?

G. Bay is leased to the US, just as an embassy would be. There is no argument in the known universe against the proposition that the base is entirely under the control of the United States, and thus everything that happens on it is totally the responsibility of the US.

Frederick Hamilton

Yours is the illogical. I as you have read have said I don't oppose some sort of review of prisoner status to LAK. I called it habeas lite.

As to war, yes you and I are at irreconcilable differences. I have agreed that there was not a "declaration" of war by Congress. I also understand the Congressional AUMF as it fits within the statute of the War Powers Act. So as I have said, your non war is my AUMF. Once that is understood hopefully by you, then discussions can take place regarding the use of military force (my war, your non war), powers enjoyed by the Commander in Chief pursuant to the War Powers Act and the AUMF, et al. Thats all. If being unreasonable means I disagree with you then your problem is not believing in the proposition that reasonable people can disagree in a reasonble fashion. Sorry.

And yes rational people can hope to gain my open mind thoughts and as said I don't want any innocents kept in captivity or punished. I have modified my position on innocents regarding some sort of review of their status short of habeas. My opinion, I believe shared by Prof Stone, is that the alien enemy combatants don't now have habeas status. He would like that to change. I would not.

GB Naval Base is leased to the U.S. I suspect Subic Bay in the Phillipines is leased to the U.S. Likewise Ramstein Airbase in Germany. So what? My point is that a leasee doesn't own the property. And my bigger point is that GB Naval Base is not within the United States. Period. Political Umpire are you arguing the GB Naval Base and Subic Bay and Ramstein are within the United States. Of course the United States military has complete control over these bases. That is the point. The military outside the United States has control. Just as the United States had control over the alien enemy German combatants in Eisentrager and control over the alien enemy combatants at Nuremberg. My point is that Eisentrager laid out six parameters determining when an alien enemy combatants under the CONTROL of the U.S. military enjoyed habeas status. Again, Eisentrager strips them of habeas and the MCA strips them of habeas again. Ergo, they in the real world of present captivity as Eisentrager said...""On this set of facts, the [Eisentrager] Court concluded, "no right to the writ of habeas corpus appears."

Also, am I wrong to interpret Prof Stone and his groups pleading that the the MCA statute be changed to allow for habeas is indicative that they also think habeas for alien enemy combatants held outside the United States under the control of the U.S. military is the present state of affairs in the matter? To reprint his post "Restoring the Habeas Corpus Rights Eliminated by the Military Commissions Act". Ergo. The law is the law as presently constructed. It will require either a decision from the Supremes that the MCA is unconstitutional and a reversal of Eisentrager or it will require new legislation passed by congress and signed into law by whomever resides at the White House at the time of the new legislation. To me it seems simple. Per Eras and others my objection to giving enemy alien terrorist combatants access to federal courts is irrational. That's OK, it is an argument to be settled as Prof Stone posits by debate and democracy. I suspect many of the peoples representatives are just as irrataional as I and irrational as all the legislators that passed the MCA and the president who signed it into law. Fair enough.

Political Umpire

The bases are indeed leased, but the leases have nothing in common with an ordinary lease of real property. If McDonalds leases premises in, say, Paris, then of course legally speaking the property is still in France and anything that occurs on the premises is subject to French law and jurisdiction.

A lease of a property by a sovereign state for its military, on the other hand, is a different proposition. So too a lease for an embassy. The Cuban government has no control whatsoever over G Bay. America, as you agree, does have complete control.

I would suggest that for American forces to capture individuals in, say, Afghanistan then dump them in G Bay and say, in effect, 'too bad guys, you're not in America', is not a great advertisement for the US justice system. Especially when it further argues (i) that although these people were captured pursuant to the 'war on terror', it is not a real war and the detainees are not real soldiers, and so (ii) the detainees aren't subject to the Geneva Convention.

In those circumstances the detainees find themselves in a legal 'black hole' with no rights or recourse at all. That is just the sort of thing America would not tolerate anyone doing to its soldiers. Sadly it is what G. Bay has come to represent.

I think America can and should do better, without compromising its own security. America defeated Nazi Germany and Japan without sinking to their levels.

Frederick Hamilton

Political Umpire,
Well, of course the present American govt (and I) disagree on whether the war on terror as passed by congress on Sept 14, 2001 and signed into law by President Bush on Sept 18, 2001 titled the AUMF and passed per the language of the statute so as to conform to the War Powers Act indeed represents a real war. Now Eras argues it is not a "real war" because of the abscense of a congressional "declaration" of war. That to me is a disengenuous way to argue we are not at war. Our soldiers and their commanders believe we are at war and are conducting the war in Afghanistan and the war on terror accordingly (AUMF). Same with the Iraq War and a second war bill passed by congress. Congress people talk of their "war" votes. The Supremes in Hamdan speak of activities incident to war. Methinks the argument you put forth regarding a "real" war doesn't square with the law or the facts on the ground.

The detainees are indeed also real soldiers. Very different from the enemy soldiers of previous wars. All discussions of the war on terror acknowledge the wearing of civilian clothes and the hiding within civilian populations and the enemy alien combatants representing not a sovereign nation but a movement of Jihad, destruction, death, genocide, death to the West, a new Caliphate, Sharia law, death to Christian infidels and Jew pigs. You and clearly Eras are not comfortable with this type of war, but we are in it. The enemy says they are at war with us. We better return the favor.

The reason our govt argued that the alien enemy combatants didn't meet Geneva standards was their portrait as painted above and the fact they represented no signitory to the Geneva Convention.

With the Hamdan decision on the WAR by the Supremes they ruled Geneva applied. They requested congress pass a military commissions law to effect same. The executive agreed and worked with congress to pass such a law about our WAR. The MCA statutorily places the alien enemy combatants with Geneva status, signed by the president. Ergo, the law of the land is the alien enemy combatants do have Geneva rights. Their is no further arguing going on about those points as your post suggests.

The detainees are in no black hole. They are in Guantanamo Bay Naval Base in Cuba about to get a taste of militrary justice per the MCA.

America has tolerated in this AUMF for the war on terror and the Iraq War unspeakable acts done to our soldiers by these same terrorists. We are trying to prevent their atocities on civilians and our soldiers as best we can.

This is an unconventional war, but a war it is. We can win it or lose it. A number want us to lose. To surrender to the terrorists. I am not anywhere near that camp. Treating the war on terror as a criminal problem to be solved by the police with help from the federal courts is in my mind a prescription for losing.


Mr. Hamilton, methinks thou speakest with forked tongue. First you concede that we are not, legally speaking, at war. You write "your non war is my AUMF". That's fine with me. Indeed, if you wish to use the term "war" in a loosey-goosey fashion such as using the term "war on terror", I have no objection. It is, after all, no different from the term "war on drugs".

But then you turn to the other side of your mouth and go right on using the term "war" to justify legal claims. You claim that, because it's war, it's OK to dump habeus corpus.

I can respect our difference of opinion on this matter if you were consistent. But you keep talking out of both sides of your mouth, and I don't respect that.

Political Umpire

Yes, but in any war a person found not to be a combatant/soldier/spy would be released. And the problem with G Bay is that for the first few years of its existence there was no mechanism at all for determining the status of the detainees, save for vague promises of a future hearing.

Now, as you point out, they have been awarded Geneva Convention rights, as well as military tribunals. But going right back to the original post:

"First, the CSRT process lacks the basic hallmarks of due process. Among other problems, it relies on secret evidence, denies detainees the chance to present evidence in their favor, and prohibits the assistance of counsel. In addition, the process permits the tribunal to rely on evidence obtained by coercion. Second, the D.C. Circuit’s review is limited to what will inevitably be an inherently flawed record created by the CSRT. Unlike a U.S. district court judge hearing a habeas corpus petition, the D.C. Circuit cannot consider evidence or make its own findings of fact, and, therefore, it cannot rectify the CSRT’s inherent procedural flaws.

The result does not provide these prisoners the process which they are due."

Your argument is that this is a tough war, and America can't afford the luxury of giving the detainees due process.

Certainly America has bought itself an increasingly impossible position in Iraq, but few if any of the detainees in GB are from there. Most are from Afghanistan, and if America really thought that was still a fertile training ground for Al-Q, I suspect it would not have only a few thousand troops there as opposed to over 130,000 in Iraq.

And, as I said before, once detained in G-Bay, one can hardly say that an individual still poses a threat.

America's security can be maintained without compromising its standards as a civilised country under the rule of law.


Now, Mr. Hamilton, I'd like to point out another of your wild departures into Never-Never Land. You write,

"This is an unconventional war, but a war it is. We can win it or lose it. A number want us to lose. To surrender to the terrorists."

This is a wild lie. I challenge you to cite any participant in this blog, any politician, indeed, any American who has ever declared "I want the USA to lose the war on terror."

How can you expect us to take you seriously when you dump such bullshit upon us?

Frederick Hamilton

Yes, mea culpa, I was a little over the top on the lose and surrender talk I suppose. But I must admit if you equate the war on terror with the euphemistic war on drugs you make light of the war on terror.

And Eras, I don't just claim it is OK to "dump habeas corpus", I make the claim it is already "dumped". I didn't do the dumping. Congress with the MCA (by the way that stands for Military Commissions Act, which by definition of the statute addresses the detention and prosecution of alien enemy combatants captured by American soldiers in war, excuse me, military look like war) did the dumping. Now you may be right that the Supremes will dump the MCA as unconstitutional based on the fact that we are not really at war and the war on terror doesn't justify commander in chief powers, meet the standards of the War Powers Act and the AUMF is a crock of shit and the war on terror is a euphemism just like the war on drugs. Dont hold your breath.

Eras, we may disagree, but I feel I am consistent. I consistenty argue we are at war. That the war is one authorized by Congress. That I agree with Eisentrager and those that voted into law the MCA and the president who signed it that habeas for the alien enemy combatants doesn't exist. That I also don't agree with giving them habeas or access to our federal judiciary. That I don't wish to have any innocents at GB incarcerated or tried by a militrary tribunal unfairly. That the war on terror will require determination and strength of purpose and that it will not be a quick or easy war. That I favor NSA wiretaps of international calls from suspected terrorists. That I favor data mining to find the source of the terrorist funding network and to dismantle it. That the Islamic Muslim Jihadists are real and want to do us real harm and have been exhibiting that since Beirut in the 80's. That the Jihadists believe Christian infidels and Jew pigs deserve unmerciful harm and death. That the war on terror against the Jihadists extremists is exponentially larger and a hot war as opposed to the war on drugs. You certainly don't have to believe as I do. But consistent I think I am. I respect your views. Always want America to be fair to all combatants. Fairness for most of the Jihadists in my mind is capturing, disrupting or killing them before they kill us. Seems consistent to my muddled thinking.

Political Umpire, of course those incarcerated at GB poses no threat as long as we don't turn them loose. There are a handful of non-innocents released from GB that have come back to fight again. Well documented. So, if incarcerated with justifiable cause then what? As I said above, try them in a military tribunal and give them justice as determined at the tribunal. The punishments I suspect will run the gamut from death to life in prison to a shorter prison sentence. Same as Nuremberg. Clearly if Khalid Sheikh Mohammed, a prisoner at GB, is indeed the mastermind behind 9/11 and found guilty of that fact, a quick execution would be in order for him.

My argument is not that this is a tough war, and America can't afford the luxury of giving the detainees due process. My argument differs from yours on the exact nature of due process. At GB they are treated humanely by all international standards. The have their Koran's. They have a Middle Easter diet. They will be tried in a military tribunal with an American trained military lawyer. Judged by military jurists. If we hadn't given them this process, I guess we just could have rounded them up and shot 'em. They are getting due process. It is just you don't approve of the MCA or the due process they are getting. Neither does Prof Stone. I venture to predict a few of the detainee's will be found innocent by the military tribunal. As good as prosecutors are at weeding out the guilty from the innocent not all charged will be convicted. OJ comes to mind. If it doesn't fit you must acquit.

America is a civilized country formulated to function with standards under the rule of law. But war (for the sake of my argument respect my belief we are at war) must force even civilized nations to use other means of determining justice for combatants other than a federal courthouse a a full wall of federal law books.

You could make the case we violated our standards of the rule of law with Dresden or Nagasaki or Hiroshima. Or with Lincoln and habeas. Or with FDR and the executed German spies. War is a difficult and nasty business. The standards for war trials eminate from Congress as the Supremes directed the executive and Congress to get straight.


OK, Mr. Hamilton, perhaps there is a formula by which we can reason together. I suggest that you dispense with the controversial and ill-defined term "war" and instead use the term "conflict". We can all agree that we are in the midst of a conflict with terrorists. That term does not carry a lot of semantic baggage, and cannot be used to insinuate unjustified conclusions. The term certainly does not downplay the seriousness of the challenge of terrorism. Would you agree to this adjustment in terminology so that we can discuss this matter rationally and without lots of vague semantic baggage?


"They will be tried in a military tribunal with an American trained military lawyer."

Frederick Hamilton, when the government follows CSRT procedures the detainee does not receive the representation of a lawyer. Instead, he or she is given a "personal representative."

Here are some points about these personal representatives:
"At the end of the hearing, the personal representative failed to exercise his right to comment on the decision in 98% of the cases,

a. During the hearing; the personal representative said nothing 12% of the time.
b. During the hearing; the personal representative did not make any substantive statements in 36% of the cases; and
c. In the 52% of the cases where the personal representative did make substantive comments, those comments sometimes advocated for the Government."

Simply because you say that detainees are receiving due process does not make this so. You say that you "don't believe the combatant review tribunals are a joke and that does impugn the military and military lawyers unfairly," but you do not provide any documentation for why you believe this.

Most of us would like habeas protections for detainees because it affords someone who is not in the executive branch to make a decision about whether it is proper to detain someone. Do you not see the conflict of interest when the executive branch detains someone and then makes a decision about whether they should be detained? The system is set up to find guilt instead of finding the truth. America is better than this.

Frederick Hamilton

When I talk to exchange opinions with you I will try to use conflict. But I must say, even the Speaker of the House, a liberal San Francisco Democrat had this to say today as reported by CNN..."House Democrats proposed legislation that would have U.S. combat troops out of Iraq by August 2008, or sooner, if certain benchmarks of progress aren't met. The plan will "refocus our military efforts on Afghanistan and fighting the war on terrorism where it began," House Speaker Nancy Pelosi said at a news conference.

So the whole world is speaking in terms of the war on terrorism. Not just conservative thinkers such as I. Peace.

Joan A. Conway

In Remembrance of former President(s)

1. Jefferson
2. Jackson
3. Truman
4. Nixon
5. George Bush
6. George W. Bush

Can an argument be made why Executive Authority is successful, in light of such outrage by the bloggers?

Frederick Hamilton

I was speaking about the military tribunal when I said the accused would have American trained military lawyers. Which they will.

I have no idea about the CSRT process. That is why I agreed with LAK that some form of qualified independent advocate for the alien enemy combatant might make sense. I simply am not inclined to allow the enemy combatant access to the federal judiciary or a federal court. Another form of advocacy in the CSRT process if the process if seriously flawed certainly makes sense.

I don't have all the answers but suffice it to say brighter minds than mine determined serious problems with giving the alien enemy combatants habeas rights.

Frederick Hamilton

Unless someone shot him this afternoon, I don't think George W. is a former president

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