# OK, they're not "enemy combatants." But we can still hold them, no charges, forever. **URL:** \ **Category:** Great Debates\ **Created:** [March 16, 2009, 4:03pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630 "2009-03-16T16:03:55Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 18, 2009, 2:17pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/81 "2009-03-18T14:17:13Z")
> [@Hamlet](#): > > But I am not one of those “certain voices of the left.” And neither is Obama. No, you’re not, and neither is he. > [@](#): > > Yet Bricker starts this thread pretending that that is some kind of outlandish thing that Obama supporters should take issue with, and, to my eyes, misrepresenting the issue while doing it. But the fact remains while it is a continuation of a policy, it’s a policy that has existed since the founding. I’m very sorry that the ending sentence of my OP sounded sarcastic or otherwise insincere, because it seems to have poisoned your view of my interest in this issue. I don’t say Obama’s approach is outlandish, I don’t say Obama has broken trust…I simply thought that this would have been an excellent opportunity for him to have decisively broken the trend of the previous administration. But I’m willing to admit that this was an unrealistic expectation, and I’m willing to sit quietly and see what happens over the next nine months. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 18, 2009, 2:18pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/82 "2009-03-18T14:18:38Z")
> [@elucidator](#): > > Its a deeply fundamental question, and thus unproveable, its almost a question of civic faith. For me, America stands for human rights, our mission statement clarifies those rights for ourselves and for others, citizen and alien alike. “We hold these truths to be self-evident” refers to all, not simply to our own. I agree. And it is a wonderful ideal. But it’s highly unrealistic in application. Granting full Constitutional protections to anyone detained by the military in foreign countries is not just unworkable, but it also makes soldiers into police officers, which puts them at further at risk. In addition, I’m pretty sure that the Constitution itself, nor 200 years of practice, doesn’t grant that kind of power to the courts. So, while it is a great ideal, it isn’t practical and puts too heavy a burden on the military. It is, as a great many things, a balancing test. I do think there should be some protections to detainees taken (once the smoke has cleared obviously. Battlefield detentions have always been excepted), but nowhere near the heavy requirements of the Constitution. Which is why the issue of Guantanamo was such an opportunity for our great country to show the world we are committed to justice. But instead it turned into a travesty. For me, it boils down to “due process.” I think detainees should have the most basic rights to have their detention justified before an impartial tribunal. But I don’t think that impartial tribunal needs to be a jury of twelve, with evidence excluded if seized in violation of the 4th Amendment, and on and on. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 18, 2009, 2:33pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/83 "2009-03-18T14:33:53Z")
> [@Bricker](#): > > I’m very sorry that the ending sentence of my OP sounded sarcastic or otherwise insincere, because it seems to have poisoned your view of my interest in this issue. It goes way beyond just that sentence. You didn’t put any effort into the OP, you offered no links to relevant items, and made no actual argument to agree with or disagree with. But what really got to me was that the only thing it appeared you did do was, as I said, try and misrepresent Obama’s and Bush’s (and SCOTUS’s and pretty much everyone’s) agreement on Presidential power to detain under the AUMF, as some kind of important policy point while ignoring the actual important stuff about Guantanamo. You make it sound like, since Obama and Bush agree on something that is uncontested, that Obama has somehow not lived up to his promise of change and that Obama supporters are hypocrites for not being upset. And if this were the first time you’ve done this kind of thing, I wouldn’t have even mentioned it. ---
**Author:** ![Sinaijon](https://avatars.discourse-cdn.com/v4/letter/s/dc4da7/32.png) [@Sinaijon](https://boards.straightdope.com/u/Sinaijon)\ **Post date:** [March 18, 2009, 3:21pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/84 "2009-03-18T15:21:16Z")
> [@Hamlet](#): > > The real issue so many of us had with Guantanamo wasn’t that the President has the power to detain, that’s pretty much a given. > It’s the allegations of mistreatment. It’s the fighting tooth and nail for any legal protection for the detainees. It’s the sham of CSRTs and lack of due process for years. It’s the making of outlandish arguments made, both in public and in court, to support the policy. It’s the turning his back on what made this country a leader in the world in freedom and justice. And much more. THOSE are the things that make the world of difference between Obama and Bush. And THOSE are the things that matter, not the fact that they agree on an uncontested fact. That is the whole purpose of this thread. THOSE are NOT the differences between Obama and Bush. Obama is currently pursuing the exact policy in Bagram that Bush pursued in Guantanamo. Obama has ceded habeas in Guantanamo. Big Deal. He didn’t have any choice in the matter, the SC had already ruled. If Obama was really against the suspension of habeas for detainees, he would take the SC ruling and apply it to Bagram. But he hasn’t. He’s fighting tooth and nail against any legal protection for the detainees. He’s turning his back on what made this country a leader in the world in freedom and justice. And yet you feel his policies are some how morally superior and different from Bush’s. It doesn’t follow. When Obama was actually given a choice on which policy to follow, he followed in Bush’s footsteps. ---
**Author:** ![JThunder](https://avatars.discourse-cdn.com/v4/letter/j/e95f7d/32.png) [@JThunder](https://boards.straightdope.com/u/JThunder)\ **Post date:** [March 18, 2009, 3:30pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/85 "2009-03-18T15:30:53Z")
> [@Little\_Nemo](#): > > It took Bush eight years to build the mess this country’s in right now. It’s going to take Obama more than a couple of months to fix it. Right. That’s why – as **Bricker** has repeatedly said – he doesn’t expect Obama to fix it right away. That’s not the issue under discussion. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 18, 2009, 3:32pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/86 "2009-03-18T15:32:57Z")
**Sinaijon** , you need to read this thread again. Obama is not pursuing the same policy toward detainees as Bush. To recap the differences: [ul] [li]Changed the law which allowed torture[/li][li]Started charging detainees with crimes[/li][li]Set date certain to close Gitmo[/li][li]Tightened definition of who can be detained[/li][li]No longer claims inherent executive power to detain[/li][/ul] Each of those is an important step. Your argument that since he hasn’t applied habeas to Bagram that he is therefore the same as Bush is silly. So let’s consider just the argument that he ought to apply habeas to Bagram. Let’s hear it. Make your argument. In the process, if you don’t mind, please respond to **Hamlet** ’s post on the matter and consider the reasoning in the cases cited for you on this point. Otherwise we’re not apt to take you very seriously. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 18, 2009, 3:36pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/87 "2009-03-18T15:36:28Z")
> [@Bricker](#): > > I don’t say Obama has broken trust Your OP, for easy reference: > [@Bricker](#): > > I do have a problem with Obama’s election tactic of appearing to promise he wouldn’t adopt these tactics and then doing so. Come on now.:dubious: Did you put that word “appearing” in there just so you could deny you were referring to actual substance, the “appearance” of your assertion notwithstanding? You really would help your cause here quite a bit by using English instead of Weaselese, ya know. > [@Hamlet](#): > > Granting full Constitutional protections to anyone detained by the military in foreign countries is not just unworkable How about Geneva Conventions protections, then? They’re US law too. > [@](#): > > also makes soldiers into police officers, which puts them at further at risk. That’s just silly. The military has taken POW’s and operated detention facilities for them in every single war it’s been in. > [@](#): > > In addition, I’m pretty sure that the Constitution itself, nor 200 years of practice, doesn’t grant that kind of power to the courts. Judicial review has been in place for about that long, hasn’t it? > [@](#): > > I do think there should be some protections to detainees taken (once the smoke has cleared obviously. Battlefield detentions have always been excepted), but nowhere near the heavy requirements of the Constitution. Your opinion about what should be the law is noted. But what _is_ the law? Do you really think there is nothing controlling the detainees’ situations, nothing at all? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 18, 2009, 4:06pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/88 "2009-03-18T16:06:51Z")
> [@ElvisL1ves](#): > > How about Geneva Conventions protections, then? They’re US law too. Works for me to a point. But they’re outdated, and don’t deal with the reality of terrorism very well. > [@ElvisL1ves](#): > > That’s just silly. The military has taken POW’s and operated detention facilities for them in every single war it’s been in. And they’ve rarely, if ever, had to conduct full fledged trials of the POWs. They make the required determination of status of the detainee and then just hold them. That’s part of the problem with a “war” on terror that for all purposes, will never end. There will be no end date, no sovereign authority to release the POWs to when they will no longer be a threat. So, under international law and the Geneva Conventions, the detainees can be locked up forever (especially if Congress grants the President that power). So, unless your good with that, we need to figure out a way to handle the detainees beyond just locking them up forever without charges or hearings. This grey area in the law would be a great opportunity to begin to build back our reputation and respect throughout the world. We can create an international tribunal for terrorists. Or try them in our criminal courts. Establish military commissions. Shoot them on sight. There are multitudes of things we can do. Bush chose to lock them up and wait until it wasn’t his problem anymore. We don’t know what Obama is going to do. Yet. But I hope it will be good. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 18, 2009, 4:15pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/89 "2009-03-18T16:15:08Z")
> [@Hamlet](#): > > Works for me to a point. But they’re outdated, and don’t deal with the reality of terrorism very well. “Quaint” and “obsolete” were Gonzales’ words, and neither of you has been willing so far to explain why. But no matter - \*are they the law or not? Do they need to be observed or not? \* From a lawyer, your attitude toward the law is quite, shall we say, remarkable. > [@](#): > > And they’ve rarely, if ever, had to conduct full fledged trials of the POWs. Evasion. Bush dispensed with the law by using a different term. Obama isn’t all the way back to following the law yet, but he’s taken a long step toward it. > [@](#): > > They make the required determination of status of the detainee and then just hold them. That’s part of the problem with a “war” on terror that for all purposes, will never end. And that is, as you know, because the enemy has been defined as “terror” instead of specific groups or individuals. Terror is not an enemy, it is a _tactic_. To refer to a war against it is silly, even if it’s effective. But it lets the government, and apologists for the tactics it has used in recent years, pretend away that there is any law that they need follow, while covering that pretense with handwringing. Such as this example: [quoteThere will be no end date, no sovereign authority to release the POWs to when they will no longer be a threat. So, under international law and the Geneva Conventions, the detainees can be locked up forever (especially if Congress grants the President that power). [/quote] > [@](#): > > So, unless your good with that, we need to figure out a way to handle the detainees beyond just locking them up forever without charges or hearings. No, we fucking do not. We just have to follow the law. We don’t have to create jack shit, as you suggest in your last paragraph. > [@](#): > > This grey area in the law Grey my ass. No weaseling. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [March 18, 2009, 4:25pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/90 "2009-03-18T16:25:32Z")
> [@Hamlet](#): > > But I am not one of those “certain voices of the left.” And neither is Obama. I never said you were, and I was surprised to see you unloading both barrels into **Bricker** and myself. I’d agree that a semi-snarky thread pointing out a perceived inconsistiency by Obama is not a “great debate;” but then neither are 90% of the threads in here. If you wanna start going after people who cheapen discourse around here, I can think of plenty of targets more worthy than **Bricker**. We’ve had 8 years of \*\*BrainGlutton \*\*and the like tearing Bush a new one every time he broke wind … are you seriously going to contend that this thread was out of line for GD as it has come to be? > [@](#): > > But in this thread, and many I’ve seen, the policies that Obama are continuing are, as I pointed out, pretty non-controversial. Except for the fact that they **are**. Would you like me to provide links to voices on the left who are angered at this move? [ > [@](#): > > Human rights activists and constitutional law experts were virtually unanimous in their condemnation of the positions taken on prisoner detention and treatment in federal court last week by President Barack Obama’s Department of Justice, which one group described as “a case of old wine in new bottles.” ]([http://www.ipsnews.net/news.asp?idnews=46129](http://www.ipsnews.net/news.asp?idnews=46129))[ [QUOTE=Amnesty International] The withdrawal of the “enemy combatant” label would appear to be largely cosmetic, however, as the new administration’s underlying claim to authority to hold these detainees seems to be substantially the same as its predecessor’s and does not jettison the overarching law of war framework or expressly recognize the applicability of international human rights law to these detentions. [/QUOTE] ](http://www.amnestyusa.org/document.php?id=ENGAMR510382009&lang=e) [Quote=Glen Greenwald] Yet the Obama administration, when called upon to state their position, makes only the most cosmetic and inconsequential changes – designed to generate headlines misleadingly depicting a significant reversal (“Obama drops ‘enemy combatant’ label”) – while, in fact, retaining the crux of Bush’s extremist detention theory. [/quote] You and I may think it obvious that the POTUS has the right to detain people on the battlefield, and that the constitution does not extend to non-US citizens … but there are plenty that DO, and they have been in the vanguard of the criticism of Bush; or at least that’s what their arguments have amounted to for the last 8 years. So when Obama essentially repudiates their position, I think it’s entirely fair to open a thread pointing that out and seeing if people have changed their minds, either on the issue or on Obama. ---
**Author:** ![Sinaijon](https://avatars.discourse-cdn.com/v4/letter/s/dc4da7/32.png) [@Sinaijon](https://boards.straightdope.com/u/Sinaijon)\ **Post date:** [March 18, 2009, 9:10pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/91 "2009-03-18T21:10:45Z")
> [@Richard\_Parker](#): > > Let’s hear it. Make your argument. I think a nice summary is here: [http://executivewatch.net/2009/02/23/obama-says-no-habeas-in-bagram/](http://executivewatch.net/2009/02/23/obama-says-no-habeas-in-bagram/) He states it far better than I ever could. The only thing I would add is that in Munaf v. Geren, the SC ruled that habeas rights can applied to those held by the military in Iraq, which would also be an active theater. It’s not cut and dry, but then neither was Guantanamo. They are both uniquely complicated. Which is why I stand by my main point: If you criticize Bush’s policy in Guantanamo based on moral grounds you don’t have the right to stand behind the ‘But it’s complicated!’ shield for Obama’s policy in regards to Bagram. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 19, 2009, 3:51am UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/92 "2009-03-19T03:51:31Z")
[So it goes . . .](http://www.salon.com/comics/tomo/2009/02/17/tomo/index.html) ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 19, 2009, 4:25am UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/93 "2009-03-19T04:25:47Z")
> [@Sinaijon](#): > > If you criticize Bush’s policy in Guantanamo based on moral grounds you don’t have the right to stand behind the ‘But it’s complicated!’ shield for Obama’s policy in regards to Bagram. You’re oversimplifying. The moral outrage about Gitmo was strongly tied to the torture that Bush ordered or allowed to happen there. It was also tied to the Bush policies that led to most of the people who were placed there: paying ransom to Afghani mercenaries to sell us people they claimed were tied to Al Qaeda. Obama has ended the first moral outrage, and cannot go back in time to end the latter. So now he is left with the more difficult question of what to do with the people Bush wantonly captured and allowed to be tortured. That question is indeed a complex one. And the Left is hardly united on it and wasn’t even while Bush was in office. Some, like **ElvisL1ves** , see it as a black and white moral question. Others, like **Hamlet** , see it is a complicated balancing of important interests. You would be right to call Elvis a hypocrite if he didn’t criticize Obama about Bagram. But as best I can tell, he _does_ criticize Obama in the same way he did Bush on this point. And similarly, you cannot criticize those in Hamlet’s camp because they never thought the exact calibration of the due process given to non-citizen detainees was a black and white issue of moral outrage. As to whether Bagram can be distinguished from Guantanamo, I don’t have a strong opinion on it, but I thought the court’s reasoning in _Boumediene_ was decent. I think we probably cannot provide habeas rights to every person captured during wartime. Such is the nature of war. The question is whether Gitmo and Bagram can be distinguished from other wartime detention. Here’s what they ultimately held: > [@](#): > > There is no indication, furthermore, that adjudicating a habeas corpus petition would cause friction with the host government. No Cuban court has jurisdiction over American military personnel at Guantanamo or the enemy combatants detained there. While obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be “impracticable or anomalous” would have more weight. See Reid, 354 U. S., at 74 (Harlan, J., concurring in result). Under the facts presented here, however, there are few practical barriers to the running of the writ. To the extent barriers arise, habeas corpus procedures likely can be modified to address them. See Part VI–B, infra. > > It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. Bagram is a “detention facility . . . located in an active theater of war” and is not in territory “under the complete and total control of our Government.” Like the court, I think those factors are relevant. I don’t know who exactly is being held at Bagram. But if they are similar to those who were held at Gitmo, I would like to see Obama extend habeas to them by statute. The people that were indiscriminately hoovered up by Bush deserve more process than the typical wartime POW. And if this were done by statute, we avoid the problem of extending the Constitution too far. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [March 19, 2009, 6:08am UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/94 "2009-03-19T06:08:27Z")
The entire issue is ridiculous. Of course I would like to see Obama (America) repudiate many of the things Bush and Cheney did and indict them for crimes against humanity. But the truth is that America is not ready for that and that Obama is doing what is realistically possible. It is not what I would like but it is what is possible taking into account 50% of Americans still support things like torture and other such crimes. For eight years Bush has steadily moved America away from the rule of law, Human Rights, etc. Now Obama is clearly and unequivocally moving in the opposite direction. And we are supposed to criticise him for not undoing in two months the damage done in eight years? Again, I would love it if the first day in office he HAD undone all that and had indicted the criminals who he succeeded but there is no realistic way he could do that without causing bigger problems. It seems to me those on the side of Bush would have loved that. They would have loved a president so radical he would fail. And since they didn’t get that they try to criticise Obama for being inconsistent. he’s not inconsistent, he’s a realist who knows 50% of the country still support the crimes committed in their name by the previous administration. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 19, 2009, 7:33am UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/95 "2009-03-19T07:33:21Z")
> [@](#): > > For eight years Bush has steadily moved America away from the rule of law, Human Rights, etc. Now Obama is clearly and unequivocally moving in the opposite direction. And we are supposed to criticise him for not undoing in two months the damage done in eight years? Again, I would love it if the first day in office he HAD undone all that and had indicted the criminals who he succeeded but there is no realistic way he could do that without causing bigger problems. It seems to me those on the side of Bush would have loved that. They would have loved a president so radical he would fail. And since they didn’t get that they try to criticise Obama for being inconsistent. he’s not inconsistent, he’s a realist who knows 50% of the country still support the crimes committed in their name by the previous administration. Exactly. The immense difference between Bush and Obama is that Bush didn’t inherit any of the unconstitutional policies that happened during his administration - he initiated them. It’s not like torture was a campaign issue back in 2000 - sure, we knew Bush was pro-death penalty but nobody guessed he was going to introduce torture into the American legal system. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 19, 2009, 3:40pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/96 "2009-03-19T15:40:47Z")
> [@Richard\_Parker](#): > > You’re oversimplifying. The moral outrage about Gitmo was strongly tied to the torture that Bush ordered or allowed to happen there. It was also tied to the Bush policies that led to most of the people who were placed there: paying ransom to Afghani mercenaries to sell us people they claimed were tied to Al Qaeda. Obama has ended the first moral outrage, and cannot go back in time to end the latter. But a third, broader moral outrage, the arbitrary denial of any recourse to the executive’s determination that they had no rights that needed to be respected. [quote[So now he is left with the more difficult question of what to do with the people Bush wantonly captured and allowed to be tortured. That question is indeed a complex one.[/quote] The decisions on courses of corrective action may be complex, but the question is pretty damn simple. > [@](#): > > Some, like **ElvisL1ves** , see it as a black and white moral question. Others, like **Hamlet** , see it is a complicated balancing of important interests. It isn’t just a moral question, but a legal one as well. If you aren’t as alarmed by the **Hamlet** types’ eagerness to denigrate and ignore the law as by Bush’s, then there’s something very seriously wrong. > [@](#): > > You would be right to call Elvis a hypocrite if he didn’t criticize Obama about Bagram. But as best I can tell, he _does_ criticize Obama in the same way he did Bush on this point. I do, but not to the same extent because of Obama’s clear determination to fix the problem that Bush created. I’m unhappy with his slowness, but I’m willing to be convinced it was necessary. > [@](#): > > And similarly, you cannot criticize those in Hamlet’s camp because they never thought the exact calibration of the due process given to non-citizen detainees was a black and white issue of moral outrage. You most certainly can criticize them for thinking it the law needn’t be ignored if you find it inconvenient, though. Does disdain for the rule of law itself not bother you at least slightly? > [@](#): > > I don’t know who exactly is being held at Bagram. But if they are similar to those who were held at Gitmo, I would like to see Obama extend habeas to them by statute. No statute is needed - just an executive order. Accompanied, preferably, by a statement that we respect both the principles and procedures of justice. But to claim that law needs to be created first is merely ducking responsibility (and the Constitution bans the ex post facto type anyway). ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 19, 2009, 4:12pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/97 "2009-03-19T16:12:54Z")
> [@ElvisL1ves](#): > > No statute is needed - just an executive order. Accompanied, preferably, by a statement that we respect both the principles and procedures of justice. But to claim that law needs to be created first is merely ducking responsibility (and the Constitution bans the ex post facto type anyway). Both claims are incorrect. He could not extend habeas by executive order because the jurisdiction of federal courts is controlled by Congress. He could provide various kinds of process by executive order and he could also direct government attorneys not to challenge habeas petitions on jurisdictional grounds, but courts can and would do so _sua sponte_ in the absence of a statute. And the ex post facto clause does not have anything to do with this. I’d rather not debate the wider point about Bagram in this thread, as I think it is largely a tangent to **Bricker** ’s point and I don’t want the central point here to get lost in the muck. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 19, 2009, 4:33pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/98 "2009-03-19T16:33:29Z")
I meant he could order that habeas rights be respected by the people under his command, without waiting for a court order to that effect. That was a pretty peremptory dismissal of the ex post facto problem - would you care to elaborate, not just contradict? **Bricker** didn’t actually \*have \*a broader point to discuss. What little point he did think he had has already been taken care of. So why do you wish duck the broader questions that he doesn’t even seem aware exist? :dubious: ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 19, 2009, 4:47pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/99 "2009-03-19T16:47:42Z")
> [@ElvisL1ves](#): > > I meant he could order that habeas rights be respected by the people under his command, without waiting for a court order to that effect. What exactly do you think the phrase “habeas rights” means? The right of habeas corpus is a right in relation to a court of law. Courts of law do not fall under Obama’s command. [QUOTE=ElvisL1ves] That was a pretty peremptory dismissal of the ex post facto problem - would you care to elaborate, not just contradict? [/quote] There would be nothing retrospective about extending habeas rights to those currently held in Bagram. And even if there were, the ex post facto clause is not a blanket ban on all retrospective laws; it is about particular kinds of government prohibitions. [QUOTE=ElvisL1ves] So why do you wish duck the broader questions that he doesn’t even seem aware exist? :dubious: [/QUOTE] Mainly for the reason I stated. People on this board have a very high esteem for Bricker, and his word carries a great deal of weight especially in matters of law. They might glance at this thread and come away with misconceptions unless his opponents make their points very clearly and without other clutter. Because this is an important issue, I want people who read this thread to see clearly where he was wrong so they don’t leave it with any misconceptions. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 19, 2009, 4:56pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/100 "2009-03-19T16:56:18Z")
> [@Richard\_Parker](#): > > What exactly do you think the phrase “habeas rights” means? The right of habeas corpus is a right in relation to a court of law. Courts of law do not fall under Obama’s command. _As I said_, he can order his people to _act as if_ that right existed. Okay, sport? > [@](#): > > And even if there were, the ex post facto clause is not a blanket ban on all retrospective laws; it is about particular kinds of government prohibitions. I was referring specifically to **Hamlet** ’s handwringing over the lack of laws these people can properly be charged with, in this War On A Tactic in a world where Everything’s Different, and his desire that they be created for the purpose. Ex post facto, that is. > [@](#): > > People on this board have a very high esteem for Bricker Not those who’ve seen him in action for the longest, but that’s by the by. > [@](#): > > his word carries a great deal of weight especially in matters of law. The letter, yes, usually, but not about the \*spirit \*of the law, a concept which he doesn’t think even exists. That is at least as dangerous as **Hamlet** ’s respect (to an extent) of the spirit but not the letter, isn’t it? Both need to be exposed and, normally, denounced. [Previous page](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630.md?page=4) [Next page](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630.md?page=6)