Saturday, May 09, 2009

Humble Response to the McCain-Graham WSJ Op-Ed on Gitmo - This is Not a Rant

What follows is the beginning of an extended response to an Op-Ed on page A15 of Wednesday, May 6th's Wall Street Journal, authored by Senators John McCain and Lindsey Graham. Online edition available here. And here it is for your reading pleasure . . . or not.

Senators John McCain and Lindsey Graham wrote an Op-Ed published in the May 6, 2009 Wall Street Journal titled, “How to Handle the Guantanamo Detainees.” While I fully realize that Senators Graham and McCain may never read a response from a young, former Navy judge advocate who writes part-time for a military justice blog, I pen this response because of my utmost respect for Senator McCain and his views on the prisoner of war debate. As an initial matter, I would say that I agree with the Senators’ desire to “move on” from the now decried opinions of various administration lawyers. Those legal opinions should not now become the focus of prosecutions, they should become a part of history.

Once we move on, there still remain issues in the debate started by President Obama’s announcement to close the detention facility at Guantanamo Bay, and I want to make three points in response to the Senators. First, the Senators create a straw man of “preventive detention” that ignores a core issue in the law of war—detention of enemy combatants is only for the duration of the conflict. Second, any war crimes tribunal must be used to punish exactly that, only war crimes. Unfortunately, that is not how they are currently being used. Finally, we must be careful to continue to distinguish between those detainees held at places like Bagram after seizure on the battlefield in Afghanistan and those taken to Bagram from non-battlefields, such as Iraq.

[To see the rest of my "response," click here]


John O'Connor said...

Where were the German saboteurs involved in Ex parte Quirin caught? Hint, a place far from the battlefield.

You also miss some important distinctions between 9/11conspirators and Timothy McVeigh. One has constitutional rights, the other does not. One is working at the behest of a foreign organization bent on destruction of the United States, while the other had no apparent ties to an international enemy of the United States.

I'll also dissent from your premise that the answer as to when those detained as dangers to national security cannot be "never."

Mike "No Man" Navarre said...


Seems you looked at all the points where I expected to see a lot of disagreement. That's what makes the countyr go round. though I do have to take issue with your point about the McVeigh vs. KSM distinction. I did not say that KSM et al. are the same as McVeigh. In fact, I even noted the piont you raised abut the itnernational character of this. I would never claim that KSM et al. had the same rights as McVeigh, but the case is closer to his than an international armed conflict---again, one man's opinoon in a dialogue.

John O'Connor said...

I can't fathom how KSM -- who has no constitutional rights -- is closer to McVeigh -- who had the full panoply of constitutional rights and was oprosecuted consistent with those rights, than to someone grabbed opff the battlefield in a conventional international armed conflict.

That rights thing seems an important distinction when discussing, say, rights.

Mike "No Man" Navarre said...


Last point and then we can agree to disagree. This debate is not about individual rights in my mind, it is about exercise of sovereign powers. In this portion of the debate the rights of the individual are largely irrelevant. The main question in my mind is what powers can the sovereign exercise and what precedent do we want to set for when "war powers" are triggered.

Even on this point, I think we would disagree. So I will stop here.

COSSIO (bitter and paranoid ex-con) said...

The term "enemy combatants" if I am not mistaken was coined by a democratic "liberal" president known as Roosevelt.

I believe, and going off memory here, the Germans were summarily executed.

Of course you wouldn't hear this from Keith Ubermann on MS-LGBT.

Wait, I just pulled it out: baffles me why I see the same argument, violations of Geneva Conventions, etc.

These people are not protected by the Geneva Conventions, except in the minds of certain subversive groups.

And many of these terrorist are not even citizens of Iraq, they come from Iran, Jordan, etc.

They should only be afforded a firing squad, electric chair, or the hangman's noose, not a "trial" in our federal court system at the tax payers expense.

Considering the large percentage of recidivism of terrorist released from Gitmo killing more US soldiers, I take any philosophical argument of UNLAWFUL combatant rights with a grain - make that a gallon of salt.

What a country we live in where terrorist from Iran/Jordan/KSA are fighting in Iraq, killing US soldiers, are caught and brought to the wonderful detention centers of Gitmo where they receive health care, food, clothing, and enjoy games and TV.

Meanwhile at the various Regional Confinement Facilities, military members are starting their day making big rocks into small ones, doing any menial chore possible, and subjected, at least at the LRCF to rules more stringent than basic training.

Of course the media would never cover the treatment of military detainees, nope, they'd rather cover THREE terrorist who had their heads dunked in water, so-called water boarding.

The same treatment most going through military survival school (S.E.R.E) was put through: course, Pararescue men are actually drowned in real life. I wonder if they suffer the same mental anguish as those THREE terrorist who had "simulated" drowning.

Maybe they can sue Dick Cheney or Bush? TC

Anonymous said...

There are no detainees in GTMO from the IRAQ WAR.

COSSIO said...


A simple Google search refutes your statement:

The Jawa Report: Video: Former Gitmo Detainee Blows Self Up in IraqJan 28, 2009 ... Video: Former Gitmo Detainee Blows Self Up in Iraq. Here's a good idea, let's send all those soon to be released Gitmo prisoners back to the ... - 38k - Cached - Similar pages

Six Guantanamo detainees released - CNN.comSix Guantanamo detainees released. Story Highlights; Four sent to Iraq, ... as over 60 ex-Gitmo detainees have reportedly returned to terrorism," Department ... -

In addition here is a list of Gitmo detainees, and their country of Orgin: you meant to say that there are no Iraqi's that are Gitmo detainees, which I stated earlier may be correct considering these terrorist don't even belong in Iraq/Pakistan/Afgahnistan.

No, most of them are from KSA, Yemen, and even Britain.

Thus they are not covered under the inane rules and constitutional protections that the left thinks they are.

egn said...

It's always nice to see a perfectly good legal discussion devolve into political snarking fueled by all the hard facts that Wikipedia and Google research can yield.

Anon 2302 was correct; OIF detainees were not sent to GTMO for detention. There were those held in GTMO who were Iraqi nationals but were captured in the course of OEF. And then there was the former GTMO detainee who later conducted a suicide bombing in Iraq after his release. He was Kuwaiti, but had been captured in Afghanistan. So again. There were no captured "terrorist [sic] . . . fighting in Iraq" who were brought to GTMO.

By the way, while we're on the subject of correcting inaccuracies, Quirin and his German buddies were not summarily executed, but rather, first tried by military commission. The sentences that were not commuted were carried out a mere month after the trial, but not prior to full oral argument before the Supreme Court, which upheld the tribunals in Ex parte Quirin.

COSSIO said...

There is nothing wrong with using Wikipedia/Google as long as the facts are correct.

Which in this case they are. What you are doing is arguing semantics between Operation Enduring Freedom and Iraqi Freedom.

Which is not the subject of the debate.

I said that there were terrorist from other countries captured in Iraq and sent to GITMO which is correct.

The argument than morphed into a red-herring:

"There are no detainees in GTMO from the IRAQ WAR."A straw man argument, but what can I expect from a low-grade lawyer. I guess by "IRAQ WAR" they meant OIF and not OEF, but how would I know that?

So you change the definition of "IRAQ WAR" to mean exclusively OIF, very clever.

I took "IRAQ WAR" to mean any terrorist, whether they were IRAQI NATIONALS or foreigners fighting since the invasion in 2003. Indeed that is its plain meaning:

"The Iraq War, also known as the Second Persian Gulf War, the Occupation of Iraq, or Operation Iraqi Freedom, is an ongoing military campaign which began on March 20, 2003 with the invasion of Iraq by a multinational force now led by and composed almost entirely of troops from the United States and United Kingdom."Therefore it is you that is mistaken. The technique of redefining terms in the middle of an argument, the blatant use of fallacious logical fallacies is something I would expect to see a sophist like yourself to use, so I am not at all surprised.

John O'Connor said...

There's almost nothing I hate more than fallacious logical fallacies.

Anonymous said...

The original post was a rant. Under labels, it says: "rants." The comments following the post were also rants, increasingly frantic and discordant, as the fringes argued past each other. Pointless, and I am sorry I took the time to read them. I am going back to the WSJ.

Anonymous said...

Cossio reread your post and then reread Egn's post very, very slowly and see if you can spot the problem.

COSSIO said...

I have. The Iraq war has been going on since 2003. Terrorist have been caught in Iraq and sent to gitmo. Many of these terrorists are not even Iraqi citizens, but are invaders themselves, therefore they are not protected by the geneva conventions as they are not part of the occupied country's army.

Does anyone wish to challenge me on these facts?

As far as ex parte quirin is concerned I was going off memory that they were summarily executed, however they were dealt with quickly when compared with the enemy combatants today.

Anonymous said...

Well, when you put in the label "rant" that's what you get. Me, I expect fallacious arguments, sophistry, and people arguing past each other on tangents. Bashing the left, bashing the right, and overall bashing- woo hoo. That's what ranting is all about aint it?

Anonymous said...

The term "enemy combatants" if I am not mistaken was coined by a democratic "liberal" president known as Roosevelt.

That's not true either. The phrase "enemy combatants" was used by SCOTUS in its Quirin decision simply as synonymous with "enemy soldiers." Nothing more.

What most people don't know about the Quirin case is that there were a number of civilians, some citizens, others lawful aliens, who were indicted and tried in federal court as co-conspirators.

The anomaly of Quirin, was not that a Military Commission was used, cf the Lincoln Assassination Military Commission, but that contrary to ALL of the precedent since General Winfield Scott, created the concept, the procedures used in the Quirin Military Commission was an ad hoc process - not the procedures used in GCM's. That was done at J.Edgar Hoover's insistence to protect his bungling "g-men."

Equally as important (and equally as generally overlooked), the Quirin case's precedent was quickly abandoned when the 2nd group of German Saboteurs were caught - thanks to objections by the Army TJAG [one of the original Quirin prosecutors] and the U.S. Attorney General [no doubt with some behind the scenes words from certain SCOTUS Justices.]

While I respect everyone's "right to rant" especially on a Blog, let's at least be civil and try to get the facts right.

Mike "No Man" Navarre said...

Humor always dies a slow death in the blogosphere. The title of the post and label on the post were supposed to be punny. I might even call it Nathan Thurm-esque. I leave the fact checking of comments to the commentariat when the facts weren't referenced in my post.

Anonymous said...

What you are doing is arguing semantics between Operation Enduring Freedom and Iraqi Freedom.

Admit it, THAT was funny.

Anonymous said...


Cassio, The post above got!

egn said...

Just to set things straight, I am not Anon 2302. I may have done many things, but disguising my identity as a blog commenter only to later come back and bolster my own argument is not one of them.

I do kind of like the sound of "low-grade lawyer" and "sophist," so in that sense I wish I were Anon 2302.

Getting back to the points made in commentary, but continuing to stray from No Man's original excellent response to the WSJ op-Ed* -- whether you call it OIF or the Iraq War, the fact remains that no one captured in Iraq was taken to Guantanamo. GTMO was initially intended for those individuals captured in Afghanistan (or the neighboring areas of Pakistan), and later, those captured in the larger "War on Terror." Thus we had some individuals who were detained in Bosnia and taken to GTMO. For a breakdown of the GTMO population, see Ben Wittes's excellent study released in Dec 2008.

However, the point remains that those captured in Iraq were not taken to GTMO but detained in Iraq's many detention facilities. If you are inclined to talk about Geneva Conventions, I can educate you on some of bases in international law for our operations in Iraq and Afghanistan, which in turn, factored into the detainees's dispositions, including where they were held. But hey, who needs semantics like that when you can launch ad hominem attacks rather than admit you're wrong?

*Sorry No Man - I did start out drafting a pertinent comment discussing constitutional rights, non-citizens and the framers' intent regarding government tyranny, but I think you can connect those dots better than a certain commenter here so I ditched the draft. And I did chuckle at the fact that you titled your post "not a rant" and categorized it a Rant. Who's Nathan Thurm? I was too lazy to Google it... :)

Anonymous said...

The Washington post which maintains a database for prior and current detainees has 9 listed as being from (born) in Iraq. As far as where they were captured such information is not usually available.

I had thought khalid mashanndi captured in Mosul was sent to gitmo along with his cohorts. Although there are several articles alluding to this, I cannot find anything *official*

As far as coining the term enemy combatants i believe i stated i was going off memory by saying it was roosevelt.

The term was defined in roosevelt's proclamation order 2561, whether roosevelt's definition in his orders Cain before the supreme court's ruling is irrelevant. Common sense dictates the president makes the distinction.

Anonymous said...

*came before the supreme court's ruling

Stupid iPhone, it's a nightmare blogging with this thing

Anonymous said...


The term "enemy combatants" if I am not mistaken was coined by a democratic "liberal" president known as Roosevelt.

Cossio, how/why exactly does that matter? Enlighten me.

Anonymous said...

I was replying to Anon 18:17 who said this:

"That's not true either. The phrase "enemy combatants" was used by SCOTUS in its Quirin decision simply as synonymous with "enemy soldiers." Nothing more."No, it was Roosevelt in 2 July 1942 which reads in part:

Proclamation 2561 Denying Certain Enemies Access to the Courts.

July 2, 1942

Whereas, the safety of the United States demands that all enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion, or who have entered in order to commit sabotage, espionage, or other hostile or warlike acts, should be promptly tried in accordance with the Law of War;
Ex Parte Quirin was a result of this order.

I was challenged as to whether it was the court or Roosevelt who came up with this term.

Certainly Roosevelt lended to it's current usage, blocking access to the courts, but apparently the actual term may have came from Lincoln’s Presidency, perhaps sooner.

Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, sections IV and V."In any case the Supreme Court does not invent terms "enemy combatant" or "unlawful/lawful combatant"

No, but it distinguishes the terms by relying on other sources.

In any case it is not relevant to the current points which was:

a) "Enemy Combatants" were tried promptly in previous conflicts, measured in weeks and months.

b) Allowing Detainees access to the courts and other actions like closing Gitmo increases delay and ultimately allows for situations that allow these detainees to be released.

c) The US is in a catch-22. Either they submit to the whims of the accused terrorist and give them access to the courts and constitutional rights equal to a US citizen and thereby potentially releasing classified information. Or they release the terrorist who go on and commit more crimes as that suicide bomber in Iraq and many others have.

If we had the same mental lawyers (who should be put in a straight jacket) during WWII crying about Nazi rights we would all be having this conversation in German, if at all.


P.S. I am willing to admit when I am wrong, as I did when I stated "I believe, and going off memory here, the Germans were summarily executed."

However these men were arrested in late June and executed 8 August....

Yes, they were found guilty and had there sentences carried out in about a MONTHNow compare that with the people in Gitmo sitting there for years.