# 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:** 7
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 23, 2009, 4:25pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/121 "2009-03-23T16:25:34Z")
> [@Little\_Nemo](#): > > So Elvis’ position is that even if the detainees don’t actually have the right, the Obama administration could issue an executive order telling the detention centers to pretend they have that right Right so far. That would follow the principle of justice, wouldn’t you say? > [@](#): > > and to follow the writs. Huh? \*What \*writs? > [@](#): > > Richard’s position seems to be that habeus corpus jurisdiction is a matter set by Congressional legislation and that Congress has not given the detainees any habeus corpus rights. Which sidesteps the principle, and ISTM and others even the text, of the Constitutional guarantee of them regardless of the will of Congress and the President. **VarlosZ** , there are a helluva lot of us with those concerns, to degrees varying from mild to alarm. **Bricker** is the only one here trying to twist them into another Gotcha, though. ---
**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 23, 2009, 4:37pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/122 "2009-03-23T16:37:22Z")
**Elvis** , you’re deeply confused about what habeas corpus is. I would be happy to help you out, or at least try to explain to you why your position is confused, but there is no way to do so if you refuse to disclose what it is you think “habeas corpus rights” means. To be clear, my position is not that habeas rights are only statutory. Habeas is a core constitutional right that the Supreme Court has said extends to areas of our control regardless of statute. My argument was that the Supreme Court probably should not, by constitutional interpretation, extend habeas to battlefields. But Congress could do so, in certain limited cases like this one, by statute. That would be a better compromise. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [March 23, 2009, 7:02pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/123 "2009-03-23T19:02:14Z")
> [@ElvisL1ves](#): > > Right so far. That would follow the principle of justice, wouldn’t you say? So, suppose that President Obama does issue an Executive Order that detainees at Bagram or any other detention facility are to be treated as if they have the right to habeas corpus, what is the next step? De we allow each one of them their day in a US court to determine if their detention is lawful? Isn’t that what habeas corpus is? Or did you have some other remedy in mind? I’m really not trying to be dense but I’m sure that it appears that way. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 23, 2009, 7:48pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/124 "2009-03-23T19:48:20Z")
Yes, of course. Why not? To deny it, don’t you have to go along with Bush’s false reframing that this is a War, and it’s on Terror, and therefore will last A Very Long Time, instead of calling it what it really is: a police action to round up the perpetrators of a mass murder and conspirators planning other crimes. The wars to establish influence over the political events in Afghanistan and to police (such as we can) the civil war in Iraq are different subjects - but then, those wars will have ends and even **Hamlet** cannot deny that prisoners taken in them are POW’s. **Richard** , please be so kind as to make a point relevant to the discussion of the disposition by the Obama Administration of the cases of our detainees. Please also try to read and understand what is being said before deriding it. Thank you. ---
**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 23, 2009, 8:03pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/125 "2009-03-23T20:03:49Z")
> [@ElvisL1ves](#): > > even **Hamlet** cannot deny Since I got a warning from Tom, I can’t tell you what I really think of these constant braindead and false potshots, but I would request, with the upmost civility and respect, that you kindly stop them. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [March 24, 2009, 11:47pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/126 "2009-03-24T23:47:14Z")
> [@Sinaijon](#): > > And again, how is that different from Bagram? > > My point is that Obama views Bagram as being outside the US, and therefore habeas doesn’t apply. Bush held the same view of Guantanamo. They are both military bases under control of the US in foreign countries. > > Eventually, Bush was overruled via the Supreme Court. Obama supported that decision. Yet now he is fighting tooth and nail against it in Bagram, fighting the same battle that Bush fought. How are those policies different? Isn’t Bagram Obama’s opportunity to be proactive in applying habeas? > > If Bush had simply sent everybody to Bagram, rather splitting them up, would there be no Constitutional problem in your eyes? > > Why is Bush fighting against habeas in Guantanamo detestable, but Obama fighitng against it in Bagram commendable, or at the very least, OK? I just wanted to add my two cents about the differences between Guantanamo and Bagram (which may have been answered, but not all in one reply). Guantanamo - US leased this land from Cuba; lease terms hold that US can stay as long as they like. Also, US has complete control (guns) over the entire base. Finally, and most importantly, the base is far removed from any fighting. Bagram Air Force Base - location, location, location. It’s in Afghanistan. There is a very real war going on there. Thus, the prisoners there are more akin to prisoners of war (even though they are all likely “War on Terror” combatants or whatever). Also, while we are a super power, our sovereignty over that base is no were near as real as it is over Guantanamo. What this means is…the right to the writ of habeas corpus extends only to US sovereign territory. Guantanamo has been found to be a de facto sovereign US terroritory. ---
**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 25, 2009, 3:03am UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/127 "2009-03-25T03:03:14Z")
> [@](#): > > Huh? What writs? Habeas corpus is the abstract principle that a person has a right to appear before a court. A writ of habeas corpus is a specific order issued by a court telling the government to produce a detained individual before it at a designated time and place. So the writs are essentially the specific acts that derive from and enforce the general right. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [March 25, 2009, 5:03am UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/128 "2009-03-25T05:03:18Z")
> [@Little\_Nemo](#): > > Habeas corpus is the abstract principle that a person has a right to appear before a court. A writ of habeas corpus is a specific order issued by a court telling the government to produce a detained individual before it at a designated time and place. So the writs are essentially the specific acts that derive from and enforce the general right. This is essentially correct, but to expound a little further. The writ is a procedural mechanism the detained individual can use to force the person holding them (Executive in this case) to show cause for your detention. If the Gov’t cannot show cause (point to a law that enables them to detain you), you’re entitled to leave. Basically, it’s a right to know why you’re being detained… ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 3, 2009, 3:50pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/129 "2009-04-03T15:50:25Z")
> [@CoolHandCox](#): > > I just wanted to add my two cents about the differences between Guantanamo and Bagram (which may have been answered, but not all in one reply). > .. > What this means is…the right to the writ of habeas corpus extends only to US sovereign territory. Guantanamo has been found to be a de facto sovereign US terroritory. And now, [so has Bagram](http://www.nytimes.com/2009/04/03/washington/03bagram.html?ref=politics). There’s no more need for such hairsplitting, just as there was never really a need to decide who under the Constitution is a “person” and who is not. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [April 4, 2009, 11:43pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/130 "2009-04-04T23:43:01Z")
> [@Hamlet](#): > > > [@ElvisL1ves](#): > > > > even **Hamlet** cannot deny > > Since I got a warning from Tom, I can’t tell you what I really think of these constant braindead and false potshots, but I would request, with the upmost civility and respect, that you kindly stop them. Actually, you did not get a Warning. You were simply told to stop hurling personal insults in this forum (and making a point of saying that what you would prefer to say is \*\*Pit \*\*material does nothing to promote discussion). You’d be better off to just take it to the **Pit**. = = = That said, I would say, **ElvisL1ves** , that you are pretty much out of line in this instance. I see no point in claiming that a debatable point cannot be denied which pretty clearly implies that a poster is both ignorant (or stupid) and dishonest. Leave the personal observations out of this thread. [/Moderating] ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [April 5, 2009, 3:55am UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/131 "2009-04-05T03:55:23Z")
> [@ElvisL1ves](#): > > And now, [so has Bagram](http://www.nytimes.com/2009/04/03/washington/03bagram.html?ref=politics). There’s no more need for such hairsplitting, just as there was never really a need to decide who under the Constitution is a “person” and who is not. But it was a very narrow ruling. From the article: > [@](#): > > Judge Bates emphasized that his ruling was “quite narrow.” He said that it did not apply to prisoners captured on the battlefield in Afghanistan, and that a determination of whether prisoners might challenge their detention in court would depend on a case-by-case analysis of factors like their citizenship and location of capture. > > “It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war,” the judge wrote. “It is quite another thing to apprehend people in foreign countries — far from any Afghan battlefield — and then bring them to a theater of war, where the Constitution arguably may not reach.” The administration is undecided whether to appeal or not. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 5, 2009, 1:36pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/132 "2009-04-05T13:36:34Z")
> [@tomndebb](#): > > I see no point in claiming that a debatable point cannot be denied It’s \*debatable \*that a prisoner taken in a war is a prisoner of war? Really? > [@](#): > > which pretty clearly implies that a poster is both ignorant (or stupid) and dishonest. I asserted only that he is _wrong_. Those other words are your own. > [@](#): > > Leave the personal observations out of this thread. I have. You have not. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 5, 2009, 1:40pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/133 "2009-04-05T13:40:44Z")
> [@KRM](#): > > But it was a very narrow ruling. Yes, but as far as it went it did confirm the principle. The government cannot now make a blanket claim that prisoners held in a war zone do not have habeas corpus rights. The arguments to the contrary, even in this thread, do seem to have fallen apart. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 5, 2009, 1:55pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/134 "2009-04-05T13:55:45Z")
> [@tomndebb](#): > > Leave the personal observations out of this thread. Oh yeah, got a question - is the word “braindead” officially acceptable now? ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [April 5, 2009, 2:23pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/135 "2009-04-05T14:23:19Z")
Take any issues about rules and moderating to ATMB. ---
**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:** [April 5, 2009, 3:34pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/136 "2009-04-05T15:34:55Z")
> [@ElvisL1ves](#): > > Yes, but as far as it went it did confirm the principle. The government cannot now make a blanket claim that prisoners held in a war zone do not have habeas corpus rights. The arguments to the contrary, even in this thread, do seem to have fallen apart. The opinion is pretty good, I think. You should read it, if you haven’t already. I think you misunderstand the arguments being made in this thread. Judge Bates writes, “it is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries . . . and then bring them to a theater of war.” That’s exactly the line that needs to be drawn. Judge Bates agrees that we cannot practically extend habeas rights to all battlefield detainees. But we also don’t want Bagram to become to new Guantanamo. Thus, people transferred from other countries to Bagram get habeas rights. It’s a little rough and probably arbitrary in some cases, but in my estimation the opinion nicely splits the difference and just might be well-reasoned enough to stand up to the D.C. Circuit (though I doubt it). Of course, the real question is what substantive rights to provide these people. Habeas is nice, but if the executive has the constitutional power to detain you on his say-so, habeas doesn’t get you anything. I suppose what they win is the right to argue that they have not offered substantial support for the Taliban or Al Qaeda if that’s how Obama chooses to define enemy combatant (or that Obama’s assignment of enemy combatant status is unconstitutional). But no court has said what standard of law that claim needs to be evaluated under, have they? Can it be a preponderance of the evidence standard? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 6, 2009, 10:27am UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/137 "2009-04-06T10:27:50Z")
> [@Richard\_Parker](#): > > You should read it, if you haven’t already. I think you misunderstand the arguments being made in this thread. I do? I’ve been attempting to discuss the principles of justice we Americans allegedly stand for, while several other posters have ignored that small problem and focused solely on procedural detail instead, true, but it doesn’t follow that _I’m_ “misunderstanding”. > [@](#): > > Judge Bates agrees that we cannot practically extend habeas rights to all battlefield detainees. No, he does not. He’s specifically not addressing the problem of people taken (in at least some cases, let’s be honest, kidnapped) in Afghanistan at all. That’s where the decision is “narrow”. It does open the door and hold it open, though - that’s the point here. The decision also does not address the problem of how long a situation can exist before it is no longer an emergency or even a military exigency - the plaintiffs had been there for six years already. So, the “duration of the war” argument, threadbare as it always had been, is also not addressed. > [@](#): > > But we also don’t want Bagram to become to new Guantanamo. More detail on that thought, please. We don’t want anywhere to be Guantanamo, not even Guantanamo, do we? Why do you split that hair? > [@](#): > > Thus, people transferred from other countries to Bagram get habeas rights. Even if they’re suspected terr’ists or “Enemy Combatants”, and the War on Terra is, as we keep getting told, a long one with perhaps no definite end? As I said, the principle that Bagram is de facto in the US is established by this decision. > [@](#): > > Of course, the real question is what substantive rights to provide these people. Habeas is nice, but if the executive has the constitutional power to detain you on his say-so, habeas doesn’t get you anything. Yep. But first things first - you gotta establish that a right exists before that right can be acted upon, right? > [@](#): > > I suppose what they win is the right to argue that they have not offered substantial support for the Taliban or Al Qaeda More broadly, the next step, one which would seem to follow from their right to HC being confirmed, is their right to a fair trial under US law and the US Constitution. As you noted above, there is no meaning to HC without that. > [@](#): > > if that’s how Obama chooses to define enemy combatant He doesn’t. Read the OP. Or even the thread title. > [@](#): > > But no court has said what standard of law that claim needs to be evaluated under, have they? Can it be a preponderance of the evidence standard? We should see that ruled upon pretty soon. Do you offer any basis to say the required laws and standards do not already exist? ISTM they already do. Murder and conspiracy to commit murder, and multiple related possible charges, are on the books already. Standards of evidence are too. What’s insufficient about them? Or are you too still caught up in the Cheney argument that this is a “war”? ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [April 6, 2009, 11:09am UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/138 "2009-04-06T11:09:44Z")
> [@ElvisL1ves](#): > > Even if they’re suspected terr’ists or “Enemy Combatants”, and the War on Terra is, as we keep getting told, a long one with perhaps no definite end? As I said, the principle that Bagram is de facto in the US is established by this decision. War? What war? We were never at war with Eastasia. > [@](#): > > [http://www.foxnews.com/politics/elections/2009/03/25/report-obama-administration-backing-away-global-war-terror/](http://www.foxnews.com/politics/elections/2009/03/25/report-obama-administration-backing-away-global-war-terror/) > > The Obama administration has ordered an end to use of the phrase “Global War on Terror,” a label adopted by the Bush administration shortly after the September 11, 2001 attacks, the Washington Post reported on Tuesday. > > In a memo sent this week from the Defense Department’s office of security to Pentagon staffers, members were told, “this administration prefers to avoid using the term ‘Long War’ or ‘Global War on Terror’ [GWOT.] Please use ‘Overseas Contingency Operation.’” > > A Pentagon spokesman said there was no memo or specific directive instructing officials to stop using the ‘Global War on Terror’ phrase but acknowledged that the department has officially adopted ‘Overseas Contingency Operation’ as the new term for the war. ---
**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:** [April 6, 2009, 1:38pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/139 "2009-04-06T13:38:32Z")
Why do I keep trying? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 6, 2009, 7:29pm UTC](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630/140 "2009-04-06T19:29:53Z")
**Richard** , the reason you’re not making headway is that you’re not addressing the topic. [Previous page](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630.md?page=6) [Next page](https://boards.straightdope.com/t/ok-theyre-not-enemy-combatants-but-we-can-still-hold-them-no-charges-forever/489630.md?page=8)