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All content © 2002-2005 Anne Zook

April 29, 2004
Who knows the law?

Hold the mockery. We can't all be lawyers or even semi-expert about the legal system.

Listening to excerpts of the arguments before the Supreme Court, I find myself increasingly confused about this "enemy combatant" thing. There are two problems (well, three, but let's begin simply) that I can see. (Maybe four.)

First - a foreign national scooped up, locked up, but not lawyered up. Picked up in the USofA or elsewhere. Held incommunicado for months or years while his family wonders if he's dead or alive. Constitutional status: Uncertain.

I know what I think. If they're picked up on USofA soil, they're treated like any other criminal and tried under USofA law. If they're picked up on an enemy battlefield, they're prisoners of war and treated as such. How complicated is that?

Second - A USofA citizen scooped up, locked up, but not lawyered up. Picked up in the USofA or elsewhere. Held incommunicado for months or years, yadda, yadda, yadda. Constitutional status: Pretty darned clear.

We have a judicial system specifically designed to deal with criminals, no? And a Constitution that guarantees the right to a trial. Period. It doesn't say, "unless the government isn't in the mood" or something like that. Right to a trial. There's a bit in there about being speedy with the proceedings as well.

Certainly that has to cover USofA citizens arrested on USofA soil for actions that break USofA laws.

On a battlefield? There's a "treason" law, right? The law already has provisions to handle USofA citizens that pick up guns on an enemy battlefield and take aim as USofA soldiers. Even if they're just standing back and helping someone else aim, we have conspiracy laws that would apply. Conspiring to commit a crime much less heinous than treason can be prosecuted.

So where's the problem with these two "enemy combatants"? Lawyer them up and put them in a courtroom.

Bail can be denied and they can be kept locked up (consequently, not a danger to the country or anyone in it) until they come to trial. (Heck, the way the judicial system works in this country these days, those two guys would probably still be waiting for trial even if they'd lawyered up within five minutes of being arrested. We need to work on that "speedy" thing.)

Third, and more fundamentally, I really dislike the invention of that "enemy combatant" status.

The Geneva Conventions were put into place for a reason - to prevent mistreatment of soldiers taken prisoner during a war. What kind of people then start using a sort of euphemistic gray area status for people they can't charge and won't release? I'll tell you who. People who don't want to be limited to "humane" treatment or allow the Red Cross or any other neutral organization to see what they're doing.

If we're at war, then prisoners taken are prisoners of war. Sidestepping the law by declaring that there are people we can stuff into a different category and hide away somewhere is just wrong.

Secret arrests, secret detentions, these are the stuff of totalitarian regimes or fascists. They're not what I thought this country was all about.

(You know what really pissed me off? The bit of testimony where the government lawyer insisted that the men were free to make their defense, explain themselves, to their interrogators with the implication that that was as good as a trial. I mean can you see the military giving the Guantanamo interrogators the authority to declare someone "not a threat" and ordering their release? Because I don't see that happening and certainly the only releases that have come so far have been the result of massive public and diplomatic pressure.)

Let's be clear. I don't think our military just arrested people for the fun of it and I don't think any of them honestly want innocent men locked up. On the other hand, we paid head bounty on every "enemy" the Afghan warlords turned in to our soldiers in Afghanistan and I don't have quite that same faith in the Afghan warlords.

And beyond that, there's the plain and simple fact that it's just wrong. You don't lock someone up for years on end when their only contact is the man or men sent to interrogate them to gain "intelligence" information you have only the vaguest possible suspicion that they might possess.

Heck, you just don't lock someone up for years on end without benefit of some kind of trial. There are times when even the appearance of impropriety is as bad as impropriety. Is this the image of the USofA we want to export to the world?


I really don't understand why this has turned into a legal battle except that I understand the Bush Administration wants to waive the Constitution when it interferes with their plans and I completely disapprove of this or any other Administration being allowed to do that.

Posted by AnneZook at 08:16 AM


The first real incident of suspense of the "Great Writ" was during the Civil War, and Lincoln, who was an attorney, didn't think it was legal, and the action was, in fact, deemed unconstitutional.

My reading is that Congress must explicitly authorize suspension of habeas corpus, which hasn't been done.

I was a military interrogator, and if you can't get it in 30 days, you are not going to get anything. The techniques are not torture, because torture has been shown to be useless, they are psy-ops.

I was also in law enforcement and Miranda didn't stop people from talking. The people who will talk do talk; the people who won't, don't.

No purpose is served detaining these people for extended periods, and you need an impartial outsider to release those of no interest or value.

The is no national security interest served by locking people up for extended periods, i.e. beyond 60 days. Determine their status, POW or criminal, and deal with them accordingly. The military has enough problems without have to conduct hundreds of worthless trials.

Posted by: Bryan at April 29, 2004 09:20 AM

Thank you.

Posted by: Anne at April 29, 2004 12:41 PM