Said The Red Queen

by Gary Farber

First, we don't kill all the lawyers.  

Let's continue the examination of the lawfulness of the killings of American citizens Anwar al-Awlaki and Samir Khan I began in my post, Off With Their Heads!

(That various other non-citizens, including Muhammad Salme al-Naaj and Abdul-Rahman bin Arfaj, and another several Yemenis, were killed is another debate, but they should not be forgotten, either.)

Consider the justifications presented for these killings:

#1: Did they commit "treason"?  Possibly so!  

Sticking point: the U.S. Constitution says very clearly:  

Section 3 - Treason 

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

It's almost as if the drafters of the Constitution considered this!  

Our Constitution specifically defines "treason" and the only way someone can be convicted of it.  As You Know, Bob (everyone), the U.S. Constitution is superior to U.S. laws, which can't violate the Constitution.  So al-Awlaki and Khan can't have been put to death because they committed "treason."  

The President has taken an oath to uphold the Constitution.

#2: It was justified to kill them because of their propaganda and speech.  

Unfortunately for this argument, the Constitution also rules it out with the little-known, obscure, First Amendment freedom of speech. 

Let's move on to more serious arguments.

But first let's jump to the White House presenting its official response as press secretary Jay Carney explains, and is questioned by Jake Tapper (!) of ABC News: 


video platformvideo managementvideo solutionsvideo player
 

Some quotes: 

TAPPER: You said that al-Awlaki was “demonstrably and provably involved” in operations. Do you plan on demonstrating or proving –

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Off With Their Heads!

by Gary Farber

I say we just kill all accused murderers from now on.

Think of the money saved, the deficit, and, of course, the children.

Now that we've established that the courts and Constitution don't matter, let's just jail all the accused criminals, too. Why lose sleep? They're murderers and criminals! The state says so. 

All Presidents need the power to assassinate people simply because they say so. What could go wrong? 

This matters not.

Amendment 5 – Trial and Punishment, Compensation for Takings.

Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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Executive Decision

GUEST POST by McKinneyTexas, NOT by Gary Farber

First, thanks to Gary Farber for the kind invitation to guest post.  Initially, I'd begun a sort of semi-reflective, Kumbaya piece but then it occurred to me that my role was to introduce of bit of diversity here at ObWi, to provoke thought from the other side of the spectrum.  So, here it is: your dose of provocation:

One glaring fault of the Left-in-Power is its lack of respect for the constitutional process on that most fundamental question of committing the country to war. 

First, under Clinton and then under Obama, US troops were committed to combat operations overseas when no US vital interest was at stake and certainly no attack on US citizens or interests anywhere was imminent.  Neither commitment was subject to public debate, or more importantly, authorized by congress.

Compare this to the much reviled Bush II administration and its wars in Iraq and Afghanistan. 

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Self-Evident

Guest post by Amezuki, not by Gary Farber

You all know me by a different pseudonym, and I'll reintroduce myself properly later.

But in the meantime, a word from our Founders:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

The Declaration of Independence stands, in my mind, as one of the greatest political documents in history.

Like our Constitution, it stands on the shoulders of many other exalted works, and my opinion is not in any way intended to denigrate those works–but what makes it stand out in my mind is not just the role it had in the birth of our nation, but in the simple, unequivocal and straightforward statements of first principles it contains.

Foremost among these is the well-known passage I quoted above. Its evocative power was such that Martin Luther King, one of the most eloquent speakers and users of language our nation has known, had no need to embellish it further when quoting it, save to correctly note that it was a promise our country had yet to fully honor. "All men are created equal."

Think about that for a moment. All men. You will notice a distinct lack of footnotes, equivocation, qualifications or exceptions to the word "all".

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Don’t Fear The Reaper

by Gary Farber

We must talk about the the War Logs of Wikileaks.

The amount of data is staggering.  Key stories abound. 

Let us start with death.

The Guardian's breakdowns include a breakdown of lethal casualties of the Iraq war.  (The New York Times approach is here; we'll get to that.)

America caused this.  It's a map of every Iraqi war-related death documented by the Coalition.

Hooray for freedom.

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Waste Not, Want Not

by guest poster Gary Farber.

How much is $50 billion? 

That's how much the president proposes we spend:

[…] It calls for a quick infusion of $50 billion in government spending that
White House officials said could spur job growth as early as next year —
if Congress approves. […]  Central to the plan is the president’s call for an “infrastructure
bank,” which would be run by the government but would pool tax dollars
with private investment, the White House says. […] Specifically, the president wants to rebuild 150,000 miles of road, lay
and maintain 4,000 miles of rail track, restore 150 miles of runways and
advance a next-generation air-traffic control system.

[…]

The White House did not offer a price tag for the full measure or say
how many jobs it would create. If Congress simply reauthorized the
expired transportation bill and accounted for inflation, the new measure
would cost about $350 billion over the next six years. But Mr. Obama
wants to “frontload” the new bill with an additional $50 billion in
initial investment to generate jobs, and vowed it would be “fully paid
for.” The White House is proposing to offset the $50 billion by
eliminating tax breaks and subsidies for the oil and gas industry.

After months of campaigning on the theme that the president’s $787 billion stimulus package was wasteful, Republicans sought Monday to tag the new plan with the stimulus label. The Republican National Committee called it “stimulus déjà vu,” and Representative Eric Cantor of Virginia, the House Republican whip, characterized it as “yet another government stimulus effort.”

Which sounds good to me, if not to you, but we can all agree that we don't want to "waste" money.

Even before the announcement Monday, Republicans were expressing caution.

“It’s important to keep in mind that increased spending — no matter the
method of delivery — is not free,” said Representative Pat Tiberi, an
Ohio Republican who is on a Ways and Means subcommittee that held
hearings on the bank this year. He warned that “federally guaranteed
borrowing and lending could place taxpayers on the hook should the
proposed bank fail.”

Such concern might have come earlier

Rebuild iraq money

  • The Department of Defense is unable to account for the use of $8.7
    billion of the $9.1 billion it spent on reconstruction in Iraq.
  • Source: Special Inspector General for Iraq Reconstruction (PDF).

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The Most Powerful Lobby in Washington

by von I have a policy:  avoid debating Israeli policy via blog.  I have some experience with deeply-contested histories (obliquely referenced in my St. Patrick's Day post, below).  Contested histories are nuancy.  But the blog format isn't long enough, or interactive enough, to allow for any nuance.  Reduced to spurts of 200 or 500 words, everyone becomes a caricature.  And I'm … Read more

How not to spy, by your friends in Al Qaeda

by Robert Mackey Mark Mazetti's newest article on the suicide bombing that killed CIA agents in Afghanistan, "U.S. Saw a Path to Qaeda Chiefs Before Bombing, " has this interesting tidbit worth considering: "Mr. Balawi proved to be one of the oddest double agents in the history of espionage, choosing to kill his American contacts at … Read more

Secrets, Iran and a Healthy Skepticism

by Robert Mackey First, a quick introduction and greeting. My name is Robert R. Mackey (not to be confused with the Lede author) and I'm an historian and retired US Army officer.  My specialty, oddly enough, is a strange mix of American Civil War history, history of intelligence, and counter-terrorism.  In the past, I've worked … Read more

La Chute

by von Since my flight got canceled this morning, I suppose that I have time to risk some questions to Publius' post:  "Afghanistan as Therapy".  Publius writes: [O]n the domestic front, the stimulus saved a lot of jobs — and helped stop the bleeding.  But the opposition was fueled by an ideological aversion to government.  … Read more

Post hoc ergo propter hoc: Torture edition

By Lindsay Beyerstein Washington Post reporters Peter Finn, Joby Warrick, and Julie Tate lend credence Dick Cheney's fallacious argument that because Khalid Sheik Mohammed began cooperating with U.S. authorities after he was tortured, torture made him cooperate. The story is based the reminiscences of unnamed intelligence officers who observed Mohammed in 2005 and 2006. They … Read more

The IG Report and Iraq

by publius Yesterday's IG Report isn't about Iraq — it covers surveillance programs that started soon after 9/11.  But I do think the report casts an ugly shadow on the Bush administration's marketing of the war. One theme that comes through in the IG Report is a total disregard for process and evidence.  The conclusion … Read more

Shooting

by hilzoy The victim: "Colleagues called Stephen T. Johns "Big John," for he was well over 6 feet tall. But mostly friends recalled the security guard's constant courtesy and friendliness. "A soft-spoken, gentle giant," said Milton Talley, a former employee of the U.S. Holocaust Memorial Museum, where Johns was killed yesterday in the line of … Read more

In Which I Disagree With Megan McArdle

by hilzoy Earlier, I argued that we ought to take steps to assure that late-term abortions are available to people who need them, and that one reason to do so was to make it clear that terrorism does not pay. In response, Megan McArdle writes: "Still, I am shocked to see so many liberals today … Read more

Terror Should Not Pay

by hilzoy Ezra Klein, about the murder of George Tiller: "As The American Prospect's Ann Friedman writes, this has to be understood in context. It is the final, decisive act in "an ongoing campaign of intimidation and harassment against someone who was providing completely legal health-care services." That campaign stretched over decades of protests, lawsuits, … Read more

Memorial Day

by hilzoy To all those who died in combat operations — the 4300 reported dead in Iraq, the 687 reported dead in Afghanistan, those who killed themselves during or because of their service, or whose deaths are in some other way attributable to their service in combat: we honor you, and we will not forget. … Read more

Why We Fight

by hilzoy I'm late getting to this, from McClatchy: "The Bush administration applied relentless pressure on interrogators to use harsh methods on detainees in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein's regime, according to a former senior U.S. intelligence official and a former Army psychiatrist. (…) … Read more

Suicide In The Army

by hilzoy I don't know what to say about this, other than that it's just awful: "Stressed by war and long overseas tours, U.S. soldiers killed themselves last year at the highest rate on record, the toll rising for a fourth straight year and even surpassing the suicide rate among comparable civilians. Army leaders said they … Read more

Purple Hearts And PTSD

by hilzoy Via Michael Cohen at Democracy Arsenal, the NYT: “The Pentagon has decided that it will not award the Purple Heart, the hallowed medal given to those wounded or killed by enemy action, to war veterans who suffer from post-traumatic stress disorder because it is not a physical wound. The decision, made public on … Read more

Supporting Our Troops: Once More, With Feeling

by hilzoy The NYT has an article on the Army’s efforts to deal with violence by soldiers returning from Iraq — apparently, there have been nine murders by soldiers back from Iraq in Fort Carson alone, and rape and domestic violence are also up. Three bits from the story are particularly awful. First: “The latest … Read more

Flying Shoe Thread

by hilzoy As you have probably heard, an Iraqi journalist threw his shoes at president Bush. Here’s the video (via TPM): McClatchy: “As Bush finished remarks that hailed the security progress that led to a U.S.-Iraq agreement that sets a three-year timetable for an American withdrawal, an Iraqi television journalist leapt from his seat, pulled … Read more

Details, Details

by hilzoy Last night I wrote about the Special Inspector General for Iraq Reconstruction’s draft report. The NYT has put the draft online here. I’m still reading through it, but here’s a bit from p. 65. The scene is an interagency conference on reconstruction about a month before we invaded: “Ambassador George Ward, head of … Read more

Reconstruction

by hilzoy From the NYT: “An unpublished 513-page federal history of the American-led reconstruction of Iraq depicts an effort crippled before the invasion by Pentagon planners who were hostile to the idea of rebuilding a foreign country, and then molded into a $100 billion failure by bureaucratic turf wars, spiraling violence and ignorance of the … Read more

A Few Bad Apples up on the Very Top

by publius I’m not sure it tells anything we don’t already know (read, e.g., The Dark Side). But the Levin-run Senate Armed Services Committee report on detainee abuse is now out (pdf exec summary). And it deserves some press attention. It confirms that senior administration officials authorized torture. Specifically, they authorized the “SERE” techniques — … Read more

Why Care About The Rule of Law?

by publius I’ve been reading Jane Mayer’s The Dark Side, and it’s very good. The book provides a comprehensive look at the administration’s novel and generally lawless response to 9/11 (detention, rendition, etc.). It’s a somewhat radicalizing read (and frankly, I don’t need the help these days). But it got me thinking about the larger … Read more

The Next Showdown – Cert for al-Marri

by publius

Big news on the national security front — the Court today (over the objections of the DOJ) granted cert in the al-Marri case. The case is arguably the most important yet because the Court seems ready to weigh in on one of the most sweeping powers claimed by the Bush administration — the power to indefinitely detain legal residents arrested in the United States (and thus citizens).

I’m sure we’ll return to it later, but below is a very high-level summary of the case and what’s at stake. For more thorough backgrounders, see Greenwald, Lederman, the Brennan Center, and SCOTUSblog.

Al-Marri was a legal resident — a graduate student — living in the United States. He was arrested for credit card fraud and was awaiting trial in 2003. Right before trial, the Bush administration declared him an enemy combatant and whisked him away to a naval brig, where’s he been held (and allegedly tortured) without charge ever since.

After a complicated legal proceeding, a splintered 4th Circuit (en banc) essentially affirmed Bush’s authority to detain him indefinitely under the post-9/11 Authorization for Use of Military Force (AUMF). Actually, the split court had two separate holdings: (1) the government could detain al-Marri indefinitely if it proved he was an “enemy combatant”; but (2) the government had yet to adequately prove that he was in fact an “enemy combatant.”

In short, the 4th Circuit said that if the government can prove he meets the enemy combatant definition, then the AUMF authorizes indefinite detention without charge. The court added, though, that the administration hadn’t yet proven the former. (This latter holding isn’t much of a protection, though, given that — under Hamdi — the “due process” required to establish combatant status is far below normal due process standards required for imprisonment).

Anyway, the upshot here is that if Bush can detain al-Marri indefinitely by calling him an enemy combatant, then Bush can detain anyone — citizens included. That’s because legal residents are generally deemed to have the same due process protections as citizens. So yeah, it’s an important case.

A few other scattered thoughts below:

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Still More Maliki

by hilzoy From the AP: “Iraq’s government welcomed Democratic presidential candidate Barack Obama on Monday with word that it apparently shares his hope that U.S. combat forces could leave by 2010. The statement by Iraq’s government spokesman, Ali al-Dabbagh, followed talks between Obama and Prime Minister Nouri Al-Maliki — who has struggled for days to … Read more

“More Realistic”

by hilzoy Reuters: “Iraqi Prime Minister Nuri al-Maliki told a German magazine he supported prospective U.S. Democratic presidential candidate Barack Obama’s proposal that U.S. troops should leave Iraq within 16 months. In an interview with Der Spiegel released on Saturday, Maliki said he wanted U.S. troops to withdraw from Iraq as soon as possible.” The … Read more

Electrocuted

by hilzoy

Note to self: if I am ever put in charge of contracting out services in the Pentagon, I will require that all work come with a warranty. Especially when its malfunction could cost people their lives. I will then insist that whoever fails to take steps to make sure that malfunctions that risk injuring or killing people are fixed is immediately fired. Then I won’t have to read stories like this:

“Shoddy electrical work by private contractors on United States military bases in Iraq is widespread and dangerous, causing more deaths and injuries from fires and shocks than the Pentagon has acknowledged, according to internal Army documents.

During just one six-month period — August 2006 through January 2007 — at least 283 electrical fires destroyed or damaged American military facilities in Iraq, including the military’s largest dining hall in the country, documents obtained by The New York Times show. Two soldiers died in an electrical fire at their base near Tikrit in 2006, the records note, while another was injured while jumping from a burning guard tower in May 2007.

And while the Pentagon has previously reported that 13 Americans have been electrocuted in Iraq, many more have been injured, some seriously, by shocks, according to the documents. A log compiled earlier this year at one building complex in Baghdad disclosed that soldiers complained of receiving electrical shocks in their living quarters on an almost daily basis. (…)

The Army report said KBR, the Houston-based company that is responsible for providing basic services for American troops in Iraq, including housing, did its own study and found a “systemic problem” with electrical work.

But the Pentagon did little to address the issue until a Green Beret, Staff Sgt. Ryan D. Maseth, was electrocuted in January while showering. His death, caused by poor electrical grounding, drew the attention of lawmakers and Pentagon leaders after his family pushed for answers. Congress and the Pentagon’s inspector general have begun investigations, and this month senior Army officials ordered electrical inspections of all buildings in Iraq maintained by KBR.

“We consider this to be a very serious issue,” Chris Isleib, a Pentagon spokesman, said Thursday in an e-mail message, while declining to comment on the findings in the Army documents.”

But not serious enough to actually do anything about until the family of a dead soldier, who should by rights have had their son with them, alive, and if not, then at least be able to mourn for him in peace, were instead forced to “push for answers.” The Army ought to do right by its people, and by their families, and that means both doing what it takes to keep them alive and not forcing them to “push for answers”. It also means not telling them that he might have brought his electrocution on himself when it wasn’t true, which is despicable.

Back to the NYT:

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Speeches And Strategy

by hilzoy

Both Obama and McCain made major foreign policy speeches today. It’s worth reading both in their entirety. They are very interesting, and very different. Obama got at one of the most important differences here:

“Our men and women in uniform have accomplished every mission we have given them. What’s missing in our debate about Iraq – what has been missing since before the war began – is a discussion of the strategic consequences of Iraq and its dominance of our foreign policy. This war distracts us from every threat that we face and so many opportunities we could seize. This war diminishes our security, our standing in the world, our military, our economy, and the resources that we need to confront the challenges of the 21st century. By any measure, our single-minded and open-ended focus on Iraq is not a sound strategy for keeping America safe. (…)

Senator McCain wants to talk of our tactics in Iraq; I want to focus on a new strategy for Iraq and the wider world.”

This is exactly right. If you read the two speeches together, it’s striking how much Obama focusses on understanding our foreign policy goals not just one by one, but in terms of their relation to one another, and to our broader interests: the costs of the war in Iraq to Afghanistan, to our military, and to our broader interests; the importance of having a good Pakistan policy to Afghanistan, terrorism, and nuclear nonproliferation; the relationship of our energy policy and our alliances to each of these things.

If you look at McCain’s speech, by contrast, it does not have much strategic vision at all. (It’s worth noting that his major new proposal is to create separate Czar-ships for Iraq and Afghanistan: to separate, not to combine.) Here, as best I can tell, is what he says about the relationship between Iraq and Afghanistan:

“Senator Obama will tell you we can’t win in Afghanistan without losing in Iraq. In fact, he has it exactly backwards. It is precisely the success of the surge in Iraq that shows us the way to succeed in Afghanistan.”

I take it that by the claim that Obama thinks “we can’t win in Afghanistan without losing in Iraq”, McCain is referring to the idea that we can’t send more troops to Afghanistan until we bring some of them home from Iraq. This is, of course, true, and it’s worth asking whether McCain’s Iraq policy makes enough troops available to allow him to do what he says he wants to do in Afghanistan. He does not consider that question, as far as I can tell. And that’s the only way in which he discusses the impact those two wars have on one another.

The relationship he’s really interested in is quite different: it’s not about the effects our policies in Iraq and Afghanistan have on one another, but the idea of using what we did in Anbar province as a model for Afghanistan:

“It is by applying the tried and true principles of counter-insurgency used in the surge — which Senator Obama opposed — that we will win in Afghanistan. With the right strategy and the right forces, we can succeed in both Iraq and Afghanistan. I know how to win wars. And if I’m elected President, I will turn around the war in Afghanistan, just as we have turned around the war in Iraq, with a comprehensive strategy for victory.”

McCain also notes that there are differences between Iraq and Afghanistan, and that these need to be taken into account. That’s good, since a lot of his speech consists in saying: we need to take the approach that has worked in Iraq, and use it in Afghanistan. And at times, he doesn’t take nearly enough account of those differences. For instance, he says — apparently about Pakistani tribes — that “We must strengthen local tribes in the border areas who are willing to fight the foreign terrorists there — the strategy used successfully in Anbar and elsewhere in Iraq.” But there are huge, huge disanalogies between these two cases. One is that we are, thank God, not occupying Pakistan, which means both that we have a lot less control over what’s going on and that thr tribes do not in any way have to deal with us. Another is that the Sunnis in Anbar province were facing the threat of an extremely hostile government composed of people they believed to be dedicated to their destruction, and needed our protection and support while they beefed up their militias. Nothing of the kind is true in Pakistan.

But to my mind, the most important difference between the two speeches, apart from the enormous differences in policy, is that Obama consistently relates one foreign policy goal to another, while McCain seems to view them in isolation. As for the policy differences, they’re pretty obvious. Obama:

“I strongly stand by my plan to end this war. Now, Prime Minister Maliki’s call for a timetable for the removal of U.S. forces presents a real opportunity. It comes at a time when the American general in charge of training Iraq’s Security Forces has testified that Iraq’s Army and Police will be ready to assume responsibility for Iraq’s security in 2009. Now is the time for a responsible redeployment of our combat troops that pushes Iraq’s leaders toward a political solution, rebuilds our military, and refocuses on Afghanistan and our broader security interests.

George Bush and John McCain don’t have a strategy for success in Iraq – they have a strategy for staying in Iraq. They said we couldn’t leave when violence was up, they say we can’t leave when violence is down. They refuse to press the Iraqis to make tough choices, and they label any timetable to redeploy our troops “surrender,” even though we would be turning Iraq over to a sovereign Iraqi government – not to a terrorist enemy. Theirs is an endless focus on tactics inside Iraq, with no consideration of our strategy to face threats beyond Iraq’s borders. (…)

So let’s be clear. Senator McCain would have our troops continue to fight tour after tour of duty, and our taxpayers keep spending $10 billion a month indefinitely; I want Iraqis to take responsibility for their own future, and to reach the political accommodation necessary for long-term stability. That’s victory. That’s success. That’s what’s best for Iraq, that’s what’s best for America, and that’s why I will end this war as President.”

Exactly.

One more bit from Obama’s speech is also worth thinking about. I’ve put it below the fold.

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Packer Says, “Iraq 4-Evah!”

by publius One can only hope that the Obama campaign will completely ignore George Packer’s political advice on Iraq: Obama has shown, with his speech on race, that he has a talent for candor. One can imagine him speaking more honestly on Iraq. If pressed on his timetable for withdrawal, he could say, “That was … Read more

Returning To The Battlefield: Abdullah Salih al Ajmi

by hilzoy

Bill Roggio has a story today called “Released Guantanamo detainee behind March suicide truck bombing at Combat Outpost Inman in Mosul”. The bombing itself is a few months old, and got some press at the time. From the Boston Globe:

“Pentagon officials yesterday said Ajmi, who was among more than 500 former Guantanamo inmates who have been released or transferred to other countries, was a dramatic reminder of the danger in releasing those who are avowed terrorists – even to US allies who promise to ensure they will not pose a future threat.”

Several months ago, I hadn’t just read the Seton Hall report on released detainees. But now that I have, I recognized the story. It’s a bit more complicated than those Pentagon officials make it sound.

“While Justice Scalia is clearly wrong about the number of detainee recidivists, his larger point seems to be that the Government, not the courts, should be trusted with separating the sheep from the goats. However, one of the greatest ironies of the whole recidivism debate is that not a single detainee has been released as a result of habeas corpus. All recidivists have been released by the Department of Defense, which has never explained why it released such individuals to “return to waging war” against us. Any assessment of the relative strengths of judicial and political processes should be made with full awareness of the story of ISN 220 [Ajmi], who “returned to the fight” not as the result of any judicial ruling but rather because of a decision made by the political appointees at the Department of Defense who released him despite the objections of the military. (…)

The Combat Status Review Tribunal (CSRT) declared ISN 220 to be an enemy combatant. See Appendix 2. The Tribunal held that he was a “fighter for” the Taliban who engaged in “hostilities” against either the United States or its coalition partners. The Tribunal based its first finding that ISN 220 was a Taliban fighter on two incidents. First, he went AWOL from the Kuwaiti military so that he could travel to Afghanistan to participate in the Jihad. Second, the Taliban issued ISN 220 an AK-47, ammunition, and hand grenades. With respect to the latter finding, the Tribunal considered allegations of five events to conclude that ISN 220 engaged in hostilities: he admitted that he fought with the Taliban in the Bagram area of Afghanistan; the Taliban placed him in a defensive position to block the Northern alliance; he spent eight months on the front line at the Aiubi Center in Afghanistan; he participated in two or three fire fights against the Northern Alliance; and he retreated to the Tora Bora region, and was later captured while attempting to escape to Pakistan.

Less than a year after ISN 220’s CSRT, on May 11, 2005, the Administrative Review Board of the Department of Defense affirmed the CSRT assessments and decided that ISN 220 should be further detained. See Appendix 3. Even with the extraordinary redaction of the Review Board’s report, ample evidence apparently existed for these assessments and the recommendation for continued detention. Specifically, a Government memorandum prepared for the ARB identified three factors that favored continued detention for ISN 220: (1) he is a Taliban Fighter; (2) he participated in military operations against the coalition; and (3) he is committed to Jihad. Moreover, the ARB primarily relied upon two factual bases for its conclusion that ISN 220 was committed to Jihad:

1. [ISN 220] went AWOL [from the Kuwaiti military] because he wanted to participate in the jihad in Afghanistan but could not get leave from the military.

2. In Aug 2004, [ISN 220] wanted to make sure that when the case goes before the Tribunal, they know that he is a Jihadist, an enemy combatant, and that he will kill as many Americans as he possibly can. (Emphasis added). (…)

While the documents which have been released strongly suggest that ISN 220 should still be detained, there are no available records indicating why he was released or who is responsible for the release. The only thing that can be said with assurance is that, Justice Scalia to the contrary notwithstanding, no federal judge is responsible. Perhaps if the process were more transparent, such a grave mistake would not have been made.”

So: Ajmi was captured on a battlefield. He said he was there because he wanted to join the jihad. He also said that if released, he would kill as many Americans as possible. That means that the government had plenty of evidence that he was an enemy combatant, as alleged. And this evidence wasn’t somehow suspect; it was his very own statements.

All that habeas motions give a detainee is the right to ask: is the government holding me for a good reason? If the answer is ‘yes’, then the detainee goes back to jail. (That’s why there’s no problem with allowing Osama bin Laden habeas rights: there’s more than enough evidence to hold him either as an enemy combatant or on any number of straightforward criminal charges, like murder.) In Ajmi’s case, the military seems to have had excellent reasons for thinking that Ajmi was an enemy combatant. Had he been allowed to file a habeas motion, he would probably have been sent back to jail.

The only reason why he might have been released is if all the evidence against him was produced under torture. That seems unlikely, given that some of the evidence that he was an enemy combatant was his having been captured at Tora Bora. But even if that were true, it would indicate not a problem with our legal system, but with this administration’s use of torture, which defied not only basic moral norms, but also the requirements the government should have followed if it wanted to convict actual terrorists in a court of law.

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