LESS THAN NOTHING

THE TERM ENEMY combatant is tossed around legal circles almost as easily as the putative combatants are tossed into prisons.  The term as adopted and used by George Bush for some held in Guantanamo is at the center of Lindsay Graham’s amendment currently before the United States Senate to strip these detainees of rights to habeas corpus.  Once the term is accepted as reality, certain illusions begin to apply.  In important ways the term enemy combatant means less than nothing.  The people the term applies to mean less even than that.[story]

"A foreign national who is captured and determined to be an enemy combatant in the world war on terrorism has no more right to a habeas corpus appeal to our courts than did a captured soldier of the Axis powers during World War II," Senator Joseph I. Lieberman, Democrat of Connecticut, said in a statement. . . .
Antonia Ferrier, a spokeswoman for Ms. Snowe, characterized her boss's concerns this way: "Do we need all those lawyers going down there to hear their complaints? It seems a little extreme to her. After all, we're talking about enemy combatants."

THE TERM ENEMY COMBATANT first found in Franklin Delano Roosevelt’s  Executive Order 2561 applies as follows:

all persons who are subjects, citizens, or residents of any Nation at war with the United States or who give obedience to or act under the direction of any such Nation and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law or war....

IN THE UNITED STATES enemy combatants here are recognized as foreign nationals entering the United States for war.  Nothing in United States legal history mentions foreign nationals captured outside our borders.

WHY SHOULD WE in the United States be worried about these foreign offenders?  Beyond a respect for the rule of law and judicial process, one good reason is that the Bush administration has not been satisfied with labeling only foreign nationals with the tag “enemy combatant.”  While no one had previously attempted to define a United States citizen as an enemy combatant and George Bush initially said the process applied only to foreigners, Alberto Gonzales explains how this could apply to you. [ABA speech]

A few people . probably some in this audience  are uncomfortable with the balance struck by this Administration between protecting our country and preserving our freedoms. They are uneasy with the idea of applying the law of war to the enemy combatants waging war against this country, including enemy combatants who are American citizens. . . . 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.

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 and states in prior wars have generally not done so.

SO WHAT APPLIES to foreigners may apply to United States citizen and soley at the President’s discretion.  Things begin to get dark. [FindLaw]

The government asserts that domestic courts have no authority to question the military's determination that a citizen is an enemy combatant. Yet the consequence of such a determination is that the citizen may not be entitled to all of the procedural protections of the Bill of Rights. These include the right to a lawyer, the right against self-incrimination, and the right not to be held indefinitely without being charged with a crime.
If the government's view prevails, and it alone decides who is an enemy combatant, then there is nothing to stop it from declaring anyone--you, me, or Tom Daschle--an enemy combatant who can be detained indefinitely without trial.
Our Constitution allows for such a draconian measure, but only on one condition. In wartime, Congress has the power to suspend the privilege of the writ of habeas corpus--which permits a court to examine the lawfulness of executive detention. Congress clearly has not taken that drastic step. Nor has President Bush attempted, as President Lincoln did during the Civil War, to suspend habeas corpus unilaterally.

GUANTANAMO COULD AWAIT for anyone. Roosevelt’s original order applied to foreigners at war with the United States. Bush’s applies to citizens.  In many way we are now at war endlessly with ourselves.

RECOMMENDED ADDITIONAL READING 
WHO THEY ARE [Slate] "It's not about who they are. It's about who we are."
So said Sen. John McCain, in defending his amendment to a defense appropriations bill that would bar U.S. officials from inflicting "cruel, inhuman, and degrading treatment" on detainees in the war on terror. But while Sen. McCain is surely right that how we treat those in our custody ultimately reflects back on us, this debate is also very much about who "they" are. That's because the Bush administration's justification for employing "cruel, inhuman, and degrading treatment" against certain individuals expressly turns on the fact that these individuals are foreign nationals held abroad. The coercive-interrogation policy is predicated on a double standard: According to the administration, we can do it to "them" because "they" are different from "us."
On this theory, what would indisputably be illegal if done on U.S. soil, or if done to a U.S. citizen anywhere in the world, becomes lawful when inflicted on foreign nationals held abroad. 

THE HERETIK CONSISTENTLY has said if the Bush administration is certain of the rectitude of its detention policies, it should house the detainees here on United States soil.  That we neither detain nor interrogate prisoners here casts a dark light on how we treat them and how proud we can be of what we do.

US AND THEM [Hilzoy/Obsidian Wings] "How we treat detainees in our charge once they are captured is about us, but their legal status is about them. Once they choose to become part of a terrorist organization in an irregular force that blows up people at a wedding, then their legal status is about them and their conduct."—Sen. Lindsey Graham
There are two problems with this statement. One is the crazily-wrong assumption that people’s legal status has no effect at all on whether they’re abused. More on that later.
But let’s say it’s not about us at all, and only about them. What do we actually know about them?
Some of chose to become members of a terrorist organization in an irregular force that blows people up at a wedding. Some of them—I would guess a majority, though.
I can’t really know--did not. Some of them are Taliban conscripts. Some of them are civilians who pissed off the local warlord.
Two of the latter were just released last week (see correction below), as reported by Newsday.

AS THE HERETIK HAS FEARED one problem with the whole concept of enemy combatant and its lack of judicial review is that mistakes are unlikely to be corrected and even less likely to be admitted. So it is when things are done in secret.

A FEW ADDITIONAL POINTS [Body and Soul] This is precisely why Graham's amendment is so disturbing. Of what value is a prohibition against torture, or the assertion of any right, if you take away people's ability to assert their rights? Is there really any fundamental difference between the Bush administration saying We don't torture but want the right to torture and Lindsey Graham saying We forbid torture -- now nobody look what we're doing? 

THE HERETIK IS GLAD humans have only two sides to a mouth.  If there were more, governments could speak out of more than both sides of the mouth.

SOME SNARK
OH HEAVENS (AND HELL) [Jane Hamsher/Firedog Lake] My favorite quote: Antonia Ferrier, a spokeswoman for Ms. Snowe, characterized her boss's concerns this way: "Do we need all those lawyers going down there to hear their complaints? It seems a little extreme to her. After all, we're talking about enemy combatants.
Oh heavens how inconvenient. Let's just chuck the Constitution in the shitter and all go shoe shopping, eh? I hear there's a two-for-one sale on jackboots at Ferragamo.
ALSO [Pudentilla/Skippy]


SOME GOOD BACKGROUND
TORTURE AS DUE PROCESS [Freedom Daily] The story of how Bush proclaimed and exploited the power with respect to enemy combatants vivifies the war on terrorism’s threat against the U.S. Constitution. On November 13, 2001, Bush issued an executive order establishing military tribunals for the trial and potential execution of any person he labeled an “enemy combatant.” He dictated that people classified as enemy combatants “shall not be privileged to seek any remedy … directly or indirectly … in any court of the United States.”
Bush defined enemy combatants as persons whom the president has “reason to believe” are current or former members of al-Qaeda, or someone who “has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury or adverse effects on the United States, its citizens, national security, foreign policy, or economy.” A person can also be labeled an enemy combatant if he is suspected of having “knowingly harbored” such malefactors. At the time that Bush issued his edict, he specified that it would apply only to “noncitizens.” His orders authorized the seizure of terrorist suspects within the United States and abroad and authorized the tribunal to “sit at any time and any place.”

GUANTANAMO DETAINEE PROCESSES [DOD/pdf] * Enemy combatant is defined as an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

MORE TO FOLLOW.

Comments

[jillian]

I think we should jail Her Falafel for being a terrorist sympathizer