07 September 2006

Defining what can be done with the terrorists

The recent speech by the President on the need for War Crimes Trials by those terrorists captured who plotted 9/11, requires some examination. This speech was given due to the problems and problematical position of the Supreme Court in the Hamdan decision, which I wrote about here. To me that was perhaps one of the top 5 WORST thought out and written decisions made by ANY Supreme Court. It is part of my Trifecta of Failure for the Federal Government and clear indication that all THREE branches have major problems. Now it is time to see how the other two Branches are going to address this. The President is setting the grounds for understanding from the Executive viewpoint. Having complete day-to-day Foreign Policy control from his Head of State hat and Commander in Chief hat along with Head of the Government hat, he needs reconcile all three of those into a coherent understanding of the interplay between them. I will excerpt key paragraphs and highlight as necessary with commentary.

First the nature of the enemy:

The terrorists who declared war on America represent no nation, they defend no territory, and they wear no uniform. They do not mass armies on borders, or flotillas of warships on the high seas. They operate in the shadows of society; they send small teams of operatives to infiltrate free nations; they live quietly among their victims; they conspire in secret, and then they strike without warning. In this new war, the most important source of information on where the terrorists are hiding and what they are planning is the terrorists, themselves. Captured terrorists have unique knowledge about how terrorist networks operate. They have knowledge of where their operatives are deployed, and knowledge about what plots are underway. This intelligence -- this is intelligence that cannot be found any other place. And our security depends on getting this kind of information. To win the war on terror, we must be able to detain, question, and, when appropriate, prosecute terrorists captured here in America, and on the battlefields around the world.
From my Goals in the Global War on Terror:
Transnational Terrorist organizations do not respect national boundaries, have no defined way to come to power and use any and all means, most particularly targeting civilians, to gain their ends. They do not have an authority structure, do not set down and plant a flag and proclaim their new way and how they will protect those under them and will *not* wear a uniform to identify themselves. Transnational Terrorist do *not* fall within the Geneva Conventions, unlike their revolutionary state-based counterparts. By adhering to no laws, respecting no international order and proclaiming only death and terror as their tools, they gain a different title, much older than revolutionary: Barbarian.
To properly address *who* an enemy is you must define what it is they are doing and what their goals are as they have told us or as we can figure out by INTEL OPS. As I may or may not have put forth before, the ability of the Federal Government in actually defending the Nation is awesome in its scope, but the actual TOOLS available have limitations per each tool. I call this concept the 'National Toolkit' that is provided in the Constitution. Military and civilian INTEL are prime to the functioning of the entire military system, extradition of criminals via Treaties with States, and in figuring out the scope and connections between enemies and those that provide for them. The Hamdan decision recast the entire set of INTEL tools and muddied the waters on what actually *was* the scope of them, thus requiring Congress to actually tell us. That is their role: define the laws of the land and put them up for enactment by the Executive.

Congress, collectively, sat on its butts since Hamdan. Yes, these wise folks who can figure out all sorts of ways to get extra earmarks for their districts aren't really that savvy on making things like real LAWS. If you put them all together to point a way to go, they would all point in different directions. That is what you get when you elect Third Class Scoundrels to Congress: incompetence. And sniveling incompetents they are.

So the President has put forth the Executive view and packaged it up for Congress and has said: get off your butts and DO SOMETHING as the Nation is at RISK. The Executive needs good ground rules so that it can operate the Government within THEM. That is the job of Congress to make those rules. Yes, they waited for 'Leadership' as they don't have any on their own....

Because Congress has not been able to get its act together the Executive has had to put his Head of State hat on and ask foreign Nations to provide facilities so that the CIA could actually house and question some of the very worst and most vital terrorists. Guess what? That is HIS JOB. Let us look at what he has said on this:
In addition to the terrorists held at Guantanamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency. This group includes individuals believed to be the key architects of the September the 11th attacks, and attacks on the USS Cole, an operative involved in the bombings of our embassies in Kenya and Tanzania, and individuals involved in other attacks that have taken the lives of innocent civilians across the world. These are dangerous men with unparalleled knowledge about terrorist networks and their plans for new attacks. The security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know.
And I went over this division of areas of responsibility in my posting on the limits of rights:
Well, under the US Constitution your rights are vested in you, individually, as the People. Some rights are lent via the Constitution to the Federal Government, and some further to the State you live in. However, the Constitution is not a planet-wide affair. When looking at Casus Belli and invasion of territories previously, we came upon the accepted territorial concept of a Sovereign State, which includes all territory, waterways and airspace under its direct control, as well as Embassies as Extra-Territorial Sovereign enclaves. The bounds of that are traditionally the center of the Earth and the end of the atmosphere. So the Constitution of the United States is in force throughout that 3 dimensional spatial definition for its People. I refer to this as the Constitutional Zone of Control (ZoC).
That is something that individuals do not think about much and many, esepcially on the Left, run afoul of trying to declare their Constitutionally guaranteed rights where the Constitution has NO FORCE for those Rights. Within the US your rights are protected and the Congress may regulate activities based wholly within those confines. Under directivity by them the President has limitations on the use of Executive Power, but that must be limited to the ZoC, Treaties with Foreign Nations and respect for Citizens overseas. I continue in the above with:
Outside of the United States, we the People have designated certain powers to the branches of the Federal Government and restrict the States from having those powers. Thus, we speak as one nation, via the Constitutional channels of the Federal Government. I touched a bit on it in my post regarding the nature of when citizenship began and what rights and responsibilities the States have in that process. Congressional powers I have looked at previously in passing in the concept of how Amendment II fits into the rest of the Constitution and in the lack of Congress in using Letters of Marque and Reprisal; both looking at the Article I Section 8 enumeration of powers. Beyond those powers, only the regulation of foreign trade falls under Congress in Article I Section 9:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
That is also well understood, I hope. From there I go on to delineate the fact that communications and other things happening outside the ZoC and not covered by Treaty are given to the Executive as Head of State. When transferring prisoners to the military, however, from such Nations holdings, then they fall *within* the Uniform Code of Military Justice as set by Congress. The President not only has the *right* to ask Foreign Nations to host prisoners so that the CIA may interrogate them, but he has the *responsibility* to do so if he feels it is in service to protecting the Nation, does *not* break any Treaty obligations and is done in a manner that is lawful for the Nation of captivity. As taken later in that same look I further expand upon this:
In short, you do *not* have rights outside of the ZoC if there is no means to enforce or protect them via Treaty or regularization of Foreign State commerce. Of course you are recognized your rights by military means and Embassies, wherever the US has them, but only by those personnel involved. The only other way for Congress to address this is via the Uniform Code of Military Justice, which applies to *all* military personnel. The CinC, however, is exempted from those controls where they conflict with Constitutionally granted powers. Congress does not, however, to extend the power [sic] of the Constitution outside the duly recognized ZoC save for Declaring War, Letters of Marque and Reprisal and its commerce means.
So the answer to actually asking Nations to help by holding prisoners captured in the war on terror is that it is fully allowable to the Executive. Foreign terrorists, not being American Citizens, when held by other Nations for the United States at the behest of the Executive get *nothing*. The CIA, so long as it operates within the lawful bounds placed upon *it*, which is to say those Treaty obligations and the laws of the Nation of Captivity, are given a relatively free hand, not being under the UCMJ. Congress may set *guidelines* for such activities, but can make no enforceable law outside of Treaties and acts wholly occurring within the ZoC.

And the President addresses that later in his speech:
This program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers; they've determined it complied with our laws. This program has received strict oversight by the CIA's Inspector General. A small number of key leaders from both political parties on Capitol Hill were briefed about this program. All those involved in the questioning of the terrorists are carefully chosen and they're screened from a pool of experienced CIA officers. Those selected to conduct the most sensitive questioning had to complete more than 250 additional hours of specialized training before they are allowed to have contact with a captured terrorist.

I want to be absolutely clear with our people, and the world: The United States does not torture. It's against our laws, and it's against our values. I have not authorized it -- and I will not authorize it. Last year, my administration worked with Senator John McCain, and I signed into law the Detainee Treatment Act, which established the legal standard for treatment of detainees wherever they are held. I support this act. And as we implement this law, our government will continue to use every lawful method to obtain intelligence that can protect innocent people, and stop another attack like the one we experienced on September the 11th, 2001.

The CIA program has detained only a limited number of terrorists at any given time -- and once we've determined that the terrorists held by the CIA have little or no additional intelligence value, many of them have been returned to their home countries for prosecution or detention by their governments. Others have been accused of terrible crimes against the American people, and we have a duty to bring those responsible for these crimes to justice. So we intend to prosecute these men, as appropriate, for their crimes.
What this means, then, is that the President has determined that these individuals are no longer able to give actionable INTEL and need to be tried for their activities. The transfer to Guantanamo, which is a military run center on Foreign Soil, falls under the UCMJ and any Treaties effecting military operations that the US has agreed to *only*. Note, that if Congress or the Executive finds a Treaty in its way, it can be made non-enforceable and the Treaty partners informed of that. Until that point the President has acted within all laws given by Congress covering these individuals where the Congress can make such valid laws.

The President then goes on to the point of Hamdan and makes no bones about what needs be done:
Soon after the war on terror began, I authorized a system of military commissions to try foreign terrorists accused of war crimes. Military commissions have been used by Presidents from George Washington to Franklin Roosevelt to prosecute war criminals, because the rules for trying enemy combatants in a time of conflict must be different from those for trying common criminals or members of our own military. One of the first suspected terrorists to be put on trial by military commission was one of Osama bin Laden's bodyguards -- a man named Hamdan. His lawyers challenged the legality of the military commission system. It took more than two years for this case to make its way through the courts. The Court of Appeals for the District of Columbia Circuit upheld the military commissions we had designed, but this past June, the Supreme Court overturned that decision. The Supreme Court determined that military commissions are an appropriate venue for trying terrorists, but ruled that military commissions needed to be explicitly authorized by the United States Congress.

So today, I'm sending Congress legislation to specifically authorize the creation of military commissions to try terrorists for war crimes. My administration has been working with members of both parties in the House and Senate on this legislation. We put forward a bill that ensures these commissions are established in a way that protects our national security, and ensures a full and fair trial for those accused. The procedures in the bill I am sending to Congress today reflect the reality that we are a nation at war, and that it's essential for us to use all reliable evidence to bring these people to justice.
In other words: Congress get off your butts and DO SOMETHING and stop whining. Just a bit later he address the problematical attitude of the Supreme Court and the mixing of the Geneva Conventions:
Some may ask: Why are you acknowledging this program now? There are two reasons why I'm making these limited disclosures today. First, we have largely completed our questioning of the men -- and to start the process for bringing them to trial, we must bring them into the open. Second, the Supreme Court's recent decision has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as "Common Article Three" applies to our war with al Qaeda. This article includes provisions that prohibit "outrages upon personal dignity" and "humiliating and degrading treatment." The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act -- simply for doing their jobs in a thorough and professional way.
It is insane to try and fit terrorists under the GC as SIGNED by the US which is the pre-1977 GC. The 1977 work was done specifically to address terrorists and the US has NOT signed onto that. Let me give a bit more from the President and comment on the GC thereafter:
So today, I'm asking Congress to pass legislation that will clarify the rules for our personnel fighting the war on terror. First, I'm asking Congress to list the specific, recognizable offenses that would be considered crimes under the War Crimes Act -- so our personnel can know clearly what is prohibited in the handling of terrorist enemies. Second, I'm asking that Congress make explicit that by following the standards of the Detainee Treatment Act our personnel are fulfilling America's obligations under Common Article Three of the Geneva Conventions. Third, I'm asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts -- in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they're doing their jobs.
Yes, Congress actually *must* write the enacting of the Treaty AS IT STANDS pre-1977 wording. That is their JOB. Number three there is key as it requires Congress to recognize and enact laws based on *signed* and *authorized* treaties and NOT on later verbiage or understanding. The understanding of the US for its commitments to the GC stop just before the 1977 amendments to the treaty. In my review of the Hamdan decision I specifically LOOK at GC CA 3 and come to this conclusion:
Fascinating stuff! So here is how it goes... al Qaeda is a not a recognized independent State nor is it an 'armed force' of any State or non recognized State. In point of fact al Qaeda is no State at all, but a group of individuals using terror across multiple States to gain their ends. And they categorically REJECT the Geneva Conventions.

Although the Supreme Court finds the non-State recognition persuasive, it presumes that this non-recognized independent organization is a State. The Geneva Conventions, as later noted, are amongst States and non-recognized independent States. In other words, these folks have got to have land under their control and a system of rules of conduct to fall anywhere close to the State based categorization system. All of the Geneva Conventions were drafted with State-based conflicts in mind and with groups, such as guerrilla organizations declaring a State but having no international recognition of same, as covering these things. To include entities who are actively AVOIDING becoming a State so as to refuse any State based obligation is to give them much higher recognition than is allowed by the System of Nation States and Treaty obligations. The Taliban, by raising a flag and declaring a State DO fall under this, but al Qaeda and all other Transnational Terrorist organizations do not. Without a State al Qaeda can not even become a Contracting Party to the Conventions.
To re-iterate: to fall under the Treaty you must be able to demonstrate what part of the framework you fall into. Also, by taking up Arms outside of the GC framework they no longer fall UNDER the GC framework. They no longer ACT like Civilians or non-combatants, which would allow them to fall under the Framework. Further, they do not adhere to a State-based control or recognition system for accountability which is necessary under the pre-1977 GC to fall within that Framework. That is exactly *why* the 1977 Amendments were MADE.

And the US did not and has not signed off on putting terrorists under the GC. And I take more from my article on Hamdan:
So, even though this conflict took place in a non-signatory State, that being Afghanistan, the Conventions do apply to those who are and are not signatories. And the Supreme Court asserts that this holds into clashes between signatory and non-signatory Nations, which is correct. al Qaeda may not be a Contracting Party under the basis of the Conventions themselves, however, and so are combatants not only of a non-signatory group but cannot be considered to be able to be a part of any signatory organization. Article 3 clearly covers those individuals who are combatants of outlaw Nations, such as the Taliban, who have direct jurisdictional accountability to their Nation and also combatants that adhere to an unrecognized State. al Qaeda does not qualify for this by its outlay and composition, and so any individuals fighting for al Qaeda are doing so in a status not covered by these Conventions.

The problem is not one of falling on one side of a conflict or another. That is clearly demarcated by the Conventions.

The problem is that al Qaeda falls COMPLETELY outside of this framework. To be inside this framework al Qaeda must have the level of stature granted to non-recognized Nations. To be able to be part of this framework one must be part of an organization that can become a Contracting Party and that is what the Court has done.
The Supreme Court in trying to find *any* standing for terrorists under the GC have usurped the power of the Executive and Legislative in trying to do that thing. Those two MUST respond to redact that attempt with valid and legal LAWS to define and delineate what can be done with terrorists. Note that the GC does differentiate between the Taliban and al Qaeda on the battlefield. They are wholly and completely different beasts under the GC as signed by the US.

I will close with my previous words from the Goals posting:
The US Constitution is a blessing upon us because it gives us order and freedom and respects that each individual legally within the confines of the US has such. Those that honor agreements and respect this will get likewise treatment. Keeping the peace does not mean that we cannot be unruly, but the people must recognize that this is a fight of civilization against barbarism.

As the barbarians do not know how to give quarter, so shall they get as they give.

As the barbarians do not respect nations, nor laws, nor rules, nor civility, they do not get the honor or leniency of those things.

They have chosen their path to follow.

Let us make an end to them until either they are all dead or have settled to raise a flag and define themselves in a respectable manner.

The Soviet Union was civilized and could be dealt with honorably, even if we disliked their goals.

Transnational Terrorists are not civilized and hold no worthy goals.

As they see those outside of their organization as not human until converted to their ways, so we shall see them as not human until converted to ours.

Or until they are all killed.

There is no third way.
Kill them or submit to them, they accept nothing else.

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