July 1, 2008

The New "Fairness" Doctrine

Hatched by Dafydd
Why civilian judges have no business ruling on Gitmo cases...
and why Patterico, with the best of intentions, got it so wrong

Patterico has been scathing in his denunciation of the Bush administration and the Pentagon for how they conduct the military tribunals. Back in December, he dubbed the tribunals at Guantanamo Bay "Kafkaesque," saying "they just don’t seem fair." He concludes:

But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.

There has to be a better way.

Then today, he crows, or perhaps "views with alarm," that a D.C. circus panel threw out the first enemy-combatant classification by the Pentagon of a detainee:

Add this to the Kafkaseque nature of the tribunals process, which has forced detainees to respond to secret evidence, together with the criticism by a former chief prosecutor that the Administration was rigging trials there to ensure convictions, and the picture is not pretty.

So why do I disagree with Patterico, and why do I think he has gone terribly awry? Consider the last line of his earlier post. The real question here is the very one Patterico begs: "There has to be a better way"... to do -- what?

What's all this then?

"Well there's yer problem, right there!"

Those three judges, the "former chief prosecutor" (Air Force Col. Morris Davis), and Patterico all see these Commission hearings as fundamentally judicial. It's not unreasonable to draw that conclusion, since the result is that those found to be unlawful enemy combatants would be held for periods of time up to life -- and could even be executed.

But reasonable does not mean right... and this conclusion is fundamentally wrong: These hearings are not judicial, nor is their primary purpose justice or punishment; they are military hearings to determine if a detainee is dangerous to the United States.

That is why questions of "fairness" are inappropriate. Fairness is a valid, even vital concern in Patterico's line of work as a deputy district attorney. In civilian trials in civilian courts, the most important underlying issue is justice (of which fairness is an essential component). Practically, the most important question litigated is whether the State has proven, beyond a reasonable doubt, by admissible evidence, that the defendant is guilty of the crimes charged.

But military commissions' most important underlying issue is the same as that of every other branch of the military: victory over our enemies. That means safeguarding American citizens and lawful residents and protecting us from international bad guys. Fairness has nothing to do with it.

  • Is it "fair" to bomb a factory during wartime, knowing that at least some of those killed may oppose the war and only be working there under duress, or even as slave labor?
  • Is it "fair" to imprison a captured enemy soldier for years, even if he is a draftee?
  • Is it "fair" to fire upon enemy combatants, even knowing they are using innocent "human shields," who will necessarily be killed as well?

None of these is in any way fair to the innocents (or at least non-guiltys) involved. But in none of these cases is "fairness" the central concern. If any "crime" was committed, it's a war crime; and the prosecution of war crimes is primarily intended to deter our enemies from doing such things in the future, not to bring about abstract justice for acts in the past. For this reason, war-crimes tribunals traditionally grant many fewer "rights" to the accused than are found in civilian trials of ordinary criminals conducted by those same countries.

In the three cases directly above, Patterico would have no difficulty agreeing with me that we cannot invoke abstract "fairness" to refuse to fight in any situation where innocents might be harmed. On the battlefield, nobody except a pacifist absolutist would be so confused; and Patterico is not a lunatic pacifist by any stretch of rhetoric.

But when the military action shifts from the battlefield to a military commission or tribunal, it superficially resembles a courtroom; "counsels" present "evidence" while a (military) "judge" presides. And that is when those who have spent their lifetimes doing yeoman work within the civilian court system, trying to make America a safer and better place, seem to become befuddled. We see this from Patterico to the D.C. Circus to the Supreme Court's Boumediene decision.

It's said that to a carpenter, every problem looks like a nail, and every solution looks like a hammer. To a heart surgeon, every problem looks like a bad coronary artery and every solution looks like a scalpel. And to a lawyer, even many military lawyers, every problem looks like a crime, and every solution looks like a court trial.

Every objection seems to flow from this single, faulty conceptualization of what these commissions are and what they're supposed to do. For example, what about that charge that the commissions are "rigged" against the detainees?

This bloody fight's been rigged!

Col. Davis bases his accusation on three issues: a lack of "openness" at the commission hearings; the use of classified information that neither the detainee nor his counsel is allowed to see (which "could taint the trials in the eyes of international observers"); and that, as the Nation put it in an interview with Davis, "the process has been manipulated by Administration appointees to foreclose the possibility of acquittal."

The piece in that leftist magazine begins thus -- and here is the same misunderstanding, this time flashing in neon letters the size of the Hollywood sign:

Secret evidence. Denial of habeas corpus. Evidence obtained by waterboarding. Indefinite detention. The litany of complaints about the treatment of prisoners at Guantánamo Bay is long, disturbing and by now familiar. Nonetheless, a new wave of shock and criticism greeted the Pentagon's announcement on February 11 that it was charging six Guantánamo detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed, with war crimes--and seeking the death penalty for all of them.

In the piece, Col. Davis lobs the allegation that Pentagon general counsel William Haynes demanded the tribunals produce nothing but convictions:

When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

First, I am rather skeptical that Haynes said exactly this. Was Col. Davis literally transcribing the conversation while it was in progress? Or is this his reconstruction of the conversation days, weeks, or perhaps two and a half years later? Is this exactly what Haynes said, or is this Davis' tendentious confabulation, based upon his appalled reaction to what he thought Haynes meant?

But let's leave this question aside... despite the fact that it cuts to the fundamental "fairness" of the accusation. How can Davis be unaware of the fact that earlier commissions conducted by the same Pentagon, taking place at the same Guantanamo Bay, managed to release hundreds of detainees from custody... including some who went right out and committed terrorist acts?

Finally, I truly question Col. Davis' historical understanding of war-crimes tribunals if he unfavorably compares the "fairness" of the military commission hearings today with the Nuremberg trials after World War II... considering that far fewer accused Nazis were "acquitted" than terrorist suspects have already been freed from Guantanamo, and the accused Nazis in 1945 had far fewer "rights" than the Military Commissions Act of 2006 gave to the detainees in Guantanamo Bay... even before the Boumediene decision.

To me, it sounds as if Davis is repeating at least one absurdist Democratic Party talking point, regardless of how many others he rejects. The viral meme "MCAs are nothing like the fair and just Nuremberg trials" can be "caught" by anyone whose mind is rendered susceptible by overly legalistic thinking.

The allegation that the system is "rigged" against acquittals is silly, because it has already acquitted hundreds; it betrays Davis' conclusion that these hearings just aren't "fair" to the "accused."

“If the law supposes that,” said Mr. Bumble,… “the law is a ass -- a idiot."

In the New York Times article that sparked Patterico's post today, we discover that the D.C. Circuit panel threw out the Pentagon finding against Huzaifa Parhat, an Uighur Moslem from China, because the classified intelligence against him was not as specific and credible as one would demand in a civilian criminal trial:

Pentagon officials have claimed that the Uighurs at Guantánamo were "affiliated" with a Uighur resistance group, the East Turkestan Islamic Movement, and that it, in turn, was "associated" with Al Qaeda and the Taliban.

The ruling released Monday overturned the Pentagon’s finding after a 2004 hearing that Mr. Parhat was an enemy combatant based on that affiliation. He and the 16 other Uighurs were detained after the American invasion of Afghanistan in 2001.

The court said the classified evidence supporting the Pentagon’s claims included assertions that events had "reportedly" occurred and that the connections were "said to" exist, without providing information about the source of such information.

"Those bare facts," the decision said, "cannot sustain the determination that Parhat is an enemy combatant."

But "those bare facts" are all that we ever get from intelligence operations! That is precisely the reason why civilian courts have no business making the determination whether a person detained is truly an enemy combatant... because the standard demanded by a civilian court for a civilian criminal conviction is virtually impossible to meet in the context of terrorists picked up because of intelligence.

(For one major point, because terrorism is so incredibly destructive, we try to grab them before they carry out their schemes... which means, since the detainee didn't actually succeed, that little evidence is available other than supposition.)

Do these judges imagine that before the Marines open fire on a fleeing vehicle, they must have proof beyond a reasonable doubt that the vehicle contains terrorists? Intelligence is always vague, almost never confirmed, and frequently obtained from foreign sources who do not reveal where they, themselves got it; but if they've been reliable in the past, we must assume they're reliable now, until and unless they disappoint us more than one usually expects from any intelligence. You cannot demand trial-level specificity and sourcing from covert intelligence; it's just not going to be available.

What the court derided -- quoting from Lewis Carroll's the Hunting of the Snark and mocking the administration -- is as good as it gets... and that's the very reason why a civilian court is not competent to make any of these decisions, let alone all of them, as the Supreme Court has now declared. It's as absurd as expecting the D.C. Circuit to approve missile targets in Pakistan.

One law professor understands this point; I'm pleasantly surprised the Times bothered to quote anyone on the military's side at all:

Some lawyers said the ruling highlighted the difficulties they saw in civilian judges reviewing Guantánamo cases.

“This case displays the inadequacies of having civilian courts inject themselves into military decision-making,” said Glenn M. Sulmasy, a law professor at the Coast Guard Academy and a national security fellow at Harvard.

I wonder if Mr. Sulmasy has more or less experience with the needs of the military than do the three judges in the D.C. Circuit panel who decided the Parhat decision.

Old King Cole was a tortured soul

In today's post, Patterico also calls attention to the upcoming trial of Abd al-Rahim al-Nashiri, accused of masterminding the bombing of the USS Cole... and the third detainee, along with Khalid Sheikh Mohammed and Abu Zubaydah, who the CIA has said it waterboarded. Patterico notes that Nashiri claims his "confession" was induced by unspecified "torture".

Of course, Nashiri could be fibbing; to paraphrase Charles Bronson in Breakheart Pass, if a man is a thief and murderer, it follows he may be a liar as well. But let's suppose he is telling the truth for once. This point tells us nothing about whether he is or is not a danger: Even if the confession was true, he still might only have given it because of this supposed "torture."

Why do we customarily believe that in civilian trials, coerced confessions cannot be used? Two main reasons:

  1. We believe they are of dubious reliability, since the person being tortured might say anything he thinks his torturers want to hear.

Leaving aside the question of whether waterboarding really constitutes "torture" (it certainly forces people to say things they later wish they hadn't), this objection is easily dismissed: If detailed facts came out during the coerced interrogation that were checked and found to be accurate, and if those facts could only be known by the guilty (such as where the body is hidden, in a murder case), then we may conclude the confessor is guilty.

So that leaves only one reason why coerced confessions are never allowed in court:

  1. Forcing people to testify against themselves is, again, simply unfair; it violates the Fifth Amendment protection against enforced self-incrimination.

But this second point again depends upon thinking that the tribunal is an attempt to mete out justice to a mere criminal, rather than a way for the military to decide whether the country would be safer if we kept the detainee behind bars or even executed him.

Finally, one more purely legal point (bearing in mind I'm not a lawyer): It's plausible to argue that the USA PATRIOT Act allows these tribunals to used evidence obtained for intelligence purposes in military commission hearings, even if the intel itself was obtained by means that would ordinarily render it inadmissible in a civilian court hearing, absent the intelligence angle.

This is a point which I don't believe has ever been addressed by the Supreme Court (not even in Boumediene).

Thus, if we reject "fairness" as the core value we're trying to uphold in the MCA hearings at Guantanamo Bay, and accept instead that the core value is "victory in the war," then we cannot have a hard and fast prohibition on using coerced testimony or even confessions: Again, we're not trying to punish miscreants so much as (a) protect the country from them, and (b) pour l'encouragement des autres.

An army of lawyers

A maxim of the law is that it's better that a thousand guilty criminals go free than a single innocent man be wrongly convicted. But when we're discussing a thousand guilty terrorists, we have to think a second time. When we released Abdullah Salih al-Ajmi from Gitmo (which was clearly a mistake in hindsight), he went right out and killed thirteen innocent Iraqi civilians in a suicide bombing in Mosul.

So if Ajmi is typical, then a thousand guilty terrorists released could kill 13,000 innocent civilians and wound an additional 40,000. That's 53,000 innocent lives destroyed. Some may still believe that's better than keeping one innocent person in Guantanamo Bay... but that is not so obvious to me.

Many folks reading this will object that, even if it's true that judges and lawyers have an overly legalistic bias, it's likewise true that the Military Commissions Act of 2006 had an overly militaristic bias. But the captivity and treatment of enemy combatants, whether lawful or unlawful, is at the core of any military strategy -- thus it's fundamentally a military issue, where the most important issue is victory.

But with Boumediene, the Court has held that henceforth, all major decisions in the detention of combatants -- not just the strictly limited set of decisions that the MCA left up to the D.C. Circuit, but all decisions without exception -- will ultimately be decided by civilian courts, even lowly district courts, by civilian judges who cannot help seeing the "trials" as exercises in legal justice -- where the most important issue is fairness.

Perhaps this new "fairness" doctrine is all for the best; maybe I stubbornly refuse to see the obvious. But certainly nobody on that side of the aisle at any level, from Justice Anthony Kennedy to Patterico, has endeavored to make the case to me that in dealing with terrorists, fairness should trump victory.

I'm listening, but I hear no argument.

Hatched by Dafydd on this day, July 1, 2008, at the time of 7:55 PM

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The following hissed in response by: nk

We are not at war with the whole world and not every person in the world is an "enemy combatant" on the President's say so. Is that an argument? Congress has authorized use of military force and that is the President's threshold. If he cannot meet it, fairly and honestly with fair and honest evidence, he is not doing his duty. He is only wasting America's resources, at the very least, and ... ok, I'll stop.

The above hissed in response by: nk [TypeKey Profile Page] at July 1, 2008 8:34 PM

The following hissed in response by: cdquarles

And that, my friend, is that.


This essay is the epitome of the difference between civilian criminal trials and acts of war. Different games that have different rules. It should be clear to anyone with eyes to see and ears to hear that radicals, Islamic and Secular, have been at war with us for decades.

It is clear that far too many people no longer know the difference. Rush says that the most expensive commodity is ignorance. He's right. We will pay for Paterico's and Justice Kennedy's folly with blood. Can we sue them for damages (rhetorical, don't answer)?

The above hissed in response by: cdquarles [TypeKey Profile Page] at July 1, 2008 8:34 PM

The following hissed in response by: Bart Johnson

However, comma, according to the Geneva Convention,
an armed combatant who is not wearing a uniform,
is ipso facto a spy and/or a saboteur. As such,
the combatant is eligible for summary execution.

Such a combatant could be presented to a civilian
judge who could either decide that the person can either be detained and questioned, or executed.

That should satisfy the requirements of habeas
corpus, since we would only need to document
the capture, not the question of guilt.

Works for me.

The above hissed in response by: Bart Johnson [TypeKey Profile Page] at July 1, 2008 11:43 PM

The following hissed in response by: hunter

The lefties have rewritten the rules just when we needed the rules so badly.
We will pay a national price in blood and treasure that the people who caused it - Kennedy and co., will deny responsibility for completely.

The above hissed in response by: hunter [TypeKey Profile Page] at July 2, 2008 4:46 AM

The following hissed in response by: Davod

I just posed this question at the Patterico site:

"...doesn’t it strike anyone as strange that the DC Court is reviewing the status of this detainee. I thought the recent SCOTUS ruling was so that the detainees could have judcial review of their detentions."

The above hissed in response by: Davod [TypeKey Profile Page] at July 2, 2008 5:03 AM

The following hissed in response by: AMR

The Greatest Generation executed those who fought outside of the rules of war and the trials after the war were not based on criminal law. Justice Jackson in 1949 stated in a 1st Amendment case that, "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." I am of the opinion we are treading in dangerous waters if we continue on the path to treat our enemies as criminals with all the rights of our constitution and the rules of law we, I thought, reserved for those legally in the United States of America.

Our entire constitution is not a suicide pact although many in Washington D.C. seem to believe that it is and push policies to accomplish that end. The Democrats have been sounding like the Cold War “I’d rather be Red than dead” crowd. Unfortunately, we have forgotten what it took to defeat the Japanese Army during WWII. I can well imagine that the unofficial ROE in war zones may become as it was during WWII, as it should have been all along.

The above hissed in response by: AMR [TypeKey Profile Page] at July 2, 2008 5:05 AM

The following hissed in response by: Steelhand

Typically brilliant commentary. This is not a criminal matter, this is a war matter. War is the worst, most costly, and morally ambivalent activity that humans engage in as a group. It should only be engaged in when the cost of failure to do so is greater than war itself; or it should be engaged in when it is forced upon you by an enemy. This war passes on both points.

If you exercise unilateral equinimity, as our courts are demanding, you put yourself, at best, in a position of weakness and impede the successful conclusion and increase the costs, in lives and money, of the war. At worst, you lose the war and face the consequences of not going to war PLUS the cost of the war itself.

No one can argue that the vast majority of those captured were engaged in warlike activity against our military. There may be some who are merely victims of circumstance. Our tribunals seem to be bending over backwards attempting to weed them out. No other POW's have ever been treated in such a fashion by any other nation.

I do not mind our nation attempting to hold itself to a higher standard than other nations, but I cannot agree with holding ourselves to the standard of perfection of justice in war. It is oxymoronic, with the accent on moronic.

The above hissed in response by: Steelhand [TypeKey Profile Page] at July 2, 2008 5:10 AM

The following hissed in response by: BarbaraS

I swear I will never understand these people who want the very best for these prisoners in Guantamino. These people were caught fighting our troops on the battlefield. These are from the same group who flew airplanes into the World Trade Center and the Pentagon killing 3,000 of our citizens. Why would anyone in this country care if they are treated fairly? These people would kill us all if they got the chance. They are even a danger to our servicemen who guard them. And what kind of treatment do they think our troops would receive if they became prisioners? Well, we found out when two of their bodies were found tortured and beheaded not to mention the civil contractors bodies beheaded and burned and hung in chains. I'm sorry. These people are animals and should be treated as animals. There is no reasoning with them. They want us dead and will do everything to accomplish this. When anyone the legal field starts crying about a fair trial it makes me sick. They were caught red handed and are not the lovable arabs in the movies.

The above hissed in response by: BarbaraS [TypeKey Profile Page] at July 3, 2008 3:37 PM

The following hissed in response by: BarbaraS

Is it at all possible to overturn Bournidiene? Is it at all possible to impeach these justices? Can congress do anything? Evidently the Executive and Congressional brances can be checked by the Judicial. Is there any way the other two branches can check the judicial? I seriously want to know. This ruling was so dangerous. The Judicial has put their noses in war which is the executive responsibility. They have no jurisdiction outside the boundaries of this country. Why, then, can they issue habeas to foreigners outside this country? Stevens and Ginsburg are on their last legs (Stevens is ancient and Ginsburg sleeps through court sessions) and their rulings are guided by the democrat party but then so are Breyer's and Souter's. They are in lockstep with the democrat party's goals. Kennedy has got the big head. He knows anything he wants that comes before the court can be made into law. He has that power. Why can't we have justices to read the Constitution and rule with precedent and common sense? Hell, why can't we have newspapers that actually report the news?

The above hissed in response by: BarbaraS [TypeKey Profile Page] at July 3, 2008 3:54 PM

The following hissed in response by: bastiat

Here, Here!

Classic post for the textbook of right-thinking weblogging. It is a post that exemplifies the unfairness of the world, in that Dafydd isn't writing columns for national publications.

The conflation of the civilian court system with military courts is another step backwards in this fight against terrorism. In my more cynical moments, I can't help but toy with the idea that the US is drifting back into the 'holiday from history' trap again as much of the Left and the West already has. Unfortunately, such cynicism leads me to believe that we're headed for greater disasters, worse times that will instruct us again in the ugly face of all-out war despite our virtuous belief in Justice, Fairness, and the decency of Mankind.

"When does fairness trump victory," indeed. When does it trump the survival of the culture that defined such fairness?

Thank you, Dafydd, for your yeoman's effort of digging deep into many issues confronting us. Your absence would make them all the more bitter.

The above hissed in response by: bastiat [TypeKey Profile Page] at July 4, 2008 5:36 PM

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