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gwlaw99
06-23-2008, 06:55 PM
How about Eugene Volokh and Jonathan Turley on to debate the decision.

TwinSwords
06-24-2008, 08:56 AM
Good suggestion. Jack Balkin or Martin Lederman (who was on only once before (http://bloggingheads.tv/diavlogs/335)) would also be good choices.

AemJeff
06-24-2008, 07:14 PM
I'd welcome a convincing argument con Boumediene. I haven't heard one - my impression is that most of the arguments against it seem to make the assumption that the people held at GTMO were all picked up on the battlefield. My understanding is that quite a few of them were actually taken under far more ambiguous circumstances. To me that seems like a critical distinction.

Thus Spoke Elvis
06-25-2008, 03:04 PM
I'd welcome a convincing argument con Boumediene. I haven't heard one - my impression is that most of the arguments against it seem to make the assumption that the people held at GTMO were all picked up on the battlefield. My understanding is that quite a few of them were actually taken under far more ambiguous circumstances. To me that seems like a critical distinction.

I don't understand why this distinction seems important to you. Khalid Sheikh Mohammed was captured far away from the zone of combat -- is he deserving of more protections than those innocent persons living in Afghanistan who were mistakenly detained?

There are, IMHO, very good arguments against the Boumediene decision. Most of them turn on questions of whether the detention of persons at GTMO is legal and constitutional, not whether it's a good policy. These are separate issues, and the Supreme Court should only be concerned with the first, with the political branches being accountable for the second.

And just to reiterate my long-standing position, I'd like a discussion of these issues to include someone who finds the government's position legally defensible. This would disqualify a "conservative" like Eric Posner, who basically argues that such policies are technically illegal, but that this shouldn't matter much to the policy debate.

AemJeff
06-25-2008, 04:50 PM
I don't understand why this distinction seems important to you. Khalid Sheikh Mohammed was captured far away from the zone of combat -- is he deserving of more protections than those innocent persons living in Afghanistan who were mistakenly detained?

There are, IMHO, very good arguments against the Boumediene decision. Most of them turn on questions of whether the detention of persons at GTMO is legal and constitutional, not whether it's a good policy. These are separate issues, and the Supreme Court should only be concerned with the first, with the political branches being accountable for the second.

And just to reiterate my long-standing position, I'd like a discussion of these issues to include someone who finds the government's position legally defensible. This would disqualify a "conservative" like Eric Posner, who basically argues that such policies are technically illegal, but that this shouldn't matter much to the policy debate.

In WWII, if you picked up someone in a German uniform and put him into a camp to sit out the war, it was pretty clear who you were dealing with and why you dealing, and how. In this conflict, there's a lot of ambiguity on those issues. When we pick up a Uyghur because "he's a member of an organization allied to al-Qaeda," for instance, in my opinion (and I don't think I'm alone), that goes way too far. I'm not comfortable with the idea that the U.S. (or China, or anyone else...), feels it has a right to just pick people up on foreign soil - and when the offense seems to be mere affiliation, that's contrary to every American ideal I know of. We need to apply a sieve by which we can distinguish between legitimate combatants and people we don't approve of.

If the process had some transparency, if I trusted the current administration to understand limits on its power beyond pragmatism, if I believed they weren't picking people up based on bounties (was he turned in because he was a threat, or because somebody wanted some American cash?) - if all these things were true, I'd still want a process by which poor sucker grabbed off the street would at least have a reasonable chance in a neutral forum to establish whether he should be there.

The only bright line I can think of is context - if someone is unambiguously picked up as a combatant, then by all means treat them as a prisoner of war. In more ambiguous circumstances I contend that there must be an objective process - otherwise we're no better than the Soviet Union ever was. If that means we treat KSM the same as we did Timothy McVeigh, then I'd say that's a minuscule price to pay for our dignity as a civilization.

Thus Spoke Elvis
06-25-2008, 05:18 PM
Funny that shortly after our posts were published, a new diavlog showed up with Rosa and Frum raising and debating the issues we've raised. They've saved us a lot of time!

Baltimoron
06-29-2008, 04:04 AM
I'm not comfortable with the idea that the U.S. (or China, or anyone else...), feels it has a right to just pick people up on foreign soil - and when the offense seems to be mere affiliation, that's contrary to every American ideal I know of. We need to apply a sieve by which we can distinguish between legitimate combatants and people we don't approve of.

There is also the implication that the US needs to pick up as many "combatants" as possible for intelligence purposes, because the US, as Tim Weiner in Legacy of Ashes argues, just can't do HUMINT. The Bush administration and its groupies always bleat that they need torture and illegal detention to gather intelligence. Why not improve HUMINT, or just get out of the way of the intel professionals? Or, are the professionals the enemy?

Besides, there's the Geneva Conventions. If the Bush administration doesn't like them, it's had two terms to convince the world to do something. Everyone else's an enemy I guess when you're a jackass, or a criminal yourself!