Constitution to Remain Suspended — Official

Detainees Will Still Be Held, but Not Tried, Official Says. Fifty people to be held without trial.

Note the logic here — the people to be held without trial are those the administration is afraid might be found not guilty in a fair trial. That's why they have to be held without trial, see? We can't convict them!

Some of us still hold to the old-school notion that when the government imprisons people whose guilt it cannot prove, or will not attempt to prove, something as old as the Magna Carta and as fundamental as the rule of law has been violated.

What a shame that the Obama administration is no more willing to hew to this basic principle than its predecessor. Thus does evil become institutionalized.

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16 Responses to Constitution to Remain Suspended — Official

  1. Where can I find a side-by-side comparison of the major procedural, evidentiary, presumptive burdens, etc. of a US criminal versus military trial? And of those differences, which do you find most offensive to the due process rights of alleged enemy combatants?

    I hear a lot of griping over the failure to try each prisoner in civilian court, but I have not seen any thoughtful analysis of why the alternative(s) are unfair.

    As a law professor, would you go on record stating that those who have described Obama as a “constitutional scholar” are seriously misinformed?

  2. Ace262Ace says:

    The Manual for Courts-Martial ( contains the Rules for Courts-Martial, Military Rules of Evidence (which closely follow the Federal Rules of Evidence), and punitive articles of the Uniform Code of Military Justice. I’m not sure that’s what you want, given the context of the post. You probably want a comparison between military commissions and federal court. Check out

  3. elliottg says:

    I’m unclear how indefinite detention as a government policy in the US passes any kind of constitutional standard. Does the AUMF mean we are in a state of perpetual war?

  4. Anon says:

    The Constitution’s in full effect, if the Bill of Rights is taken to mean a corporate Bil of Rights ahead of the Right’s of individuals to have reasonably unfettered public discourse rather than a public money propaganda grab in the days leading up to Federal Elections.

    It’s just not the same Consitution our Founding Fathers arrived at,and what ostensibly “conservative” (which is not supposed to mean radical) Justices are supposed to protect.

  5. Ace262Ace says:


    I think we’re confronted with the confluence of two constitutional issues:

    The right to the full panoply of rights leading to, and in, a trial
    vs . . .
    The ability to detain persons engaged in conflict under the law of armed conflict, aka the law of war.

    I submit that we’re struggling with the issue of whether the subjects are criminals or combatants. The problem with the latter is that we don’t know when this “war” will be finished…or whether we’re in a war…or whether the detention of people under this framework is a pretext for other crimes.

  6. Vic says:

    I would submit that an additional issue clouding things up is that this has all become a political football. It was NEVER as simple as deciding who these people are and putting the pegs into the right shaped holes. There was a lots of political rhetoric (which was correct or otherwise) from both sides during the Bush administration that now presents a choice to the entirely new set of folks in charge:
    1). Do the opposite (which is what has been advocated by many Liberals over the previous 8 years).
    2). Accept at least SOME of the positions previously held and move forward with them (which will alienate a lot of support from the anti-Bush crowd).

    While I don’t agree, by any stretch, with everything that happened under Bush, I think it would be foolish to assume he was completely wrong in how he handled this situation. There were a lot of very smart people involved and not every decision was made for the wrong reasons. This is a new way to wage war with new strategies and new rules. This leaves the Obama administration with the position of backing off of do-the-opposite and embracing some of the previous/current policies. The question of how many, how publically, and how to spin it all, so as to NOT keep hemoraging support, is the political question of the hour. It’s not just a matter of applying the law.

  7. Ace262Ace says:

    Can’t argue with your points Vic. I just wanted to point out that it is acceptable under the laws of armed conflict to detain a combatant for the duration of the conflict. For whatever reason the Obama administration doesn’t want to (or can’t) try these fifty, I think that option is there. I also submit that the law of armed conflict didn’t contemplate this scenario. Its probably time for an international conference to update them to encompass the non-state actor.

  8. michael says:

    It is acceptable to hold a combatant ‘for the duration’ but then the Geneva Convention applies to them as POWs. The problem for the US is that the Bush administration decided that the Geneva Convention didn’t apply to these detainees, that they were not POWs, thus rendering them ineligible for indefinite detention. And thus making their continued detention without trial illegal and unconstitutional.

    Had they been treated as POWs from the first, this would be a much less complex issue.

  9. Your explanation does not explain how the Bush administration defined the detainees, nor how the Obama administration defined them. You seem to say that rejection of the Geneva Convention implies that they cannot be POWs, as defined by that convention. Do you mean to say that they cannot be POWs at all?

    Please state on what authority you base your implied conclusion that the GC is the only basis to hold a prisoner of war.

    “And thus making their continued detention without trial illegal and unconstitutional.”

    Without defining or determining their legal status, I am not sure how you can jump to this conclusion. How do you define them? Further, I would like to know on what authority you rely on to declare the continued detention illegal and unconstitutional.

  10. michael says:

    I do not explain those things because they are extremely well known and in the public domain.

    To oversimplify: The US held initial status hearings, as it was required to do, to decide whether individuals were POWs (foreign soldiers) covered by the Geneva regime. We’ve done this many times — thousands of times in Iraq I for example. It determined that the Guantanamo prisoners were not POWs. I don’t have any reason to challenge that decision, but don’t pretend to know all the details. (There is, incidentally, no debate of which I’m aware that if a person is held as a POW then we owe them the protections of the relevant Geneva convention.)

    Normally, the not-POW status determination would have meant that the detainees were civilians, subject to civilian justice (think war movie, soldier captured out of uniform, tried as a spy or saboteur). The Bush administration however took the view that there was a third category of persons, neither soldiers nor civilians, that it called “enemy combatants” who it decided get even fewer protections than either soldiers or civilians — not even common Article 3 of the Geneva regime — and could be held forever. (At first this was based on the idea they were held outside the US, but the Supreme Court decided that Guantanamo, being within the special jurisdiction of the US and wholly under our control although not sovereignty, counted as “in” the US for these purposes.) While I’m not an expert on the Geneva conventions, the US’s creation of the third category, and especially the idea that this group got basically no rights, seems like an odd reading of the Geneva regime to me, and to many others. And it’s inconsistent with our law and our values.

    AFAIK, the Obama administration has not repudiated the status determination for those still in Guantanamo, although it implicitly repudiated them for the persons being tried in the US, since they’ll be tried as civilians. I am happy to be corrected if I’m out of date on this point.

    The endless no-trial detention is illegal because it violates our Geneva obligation to treat the prisoners as either soldiers or civilians, and to give them basic rights in any case. It is unconstitutional because treaties are a constitutional obligation (at least in the absence of Congressional authorization to abrogate, which was not given). It is also unconstitutional because, if the prisoners are not POWs then they are civilians and the US government lacks the constitutional power to treat them in a manner violating our law — which includes the right to habeas corpus and to a fair trial — especially when within US jurisdiction, which the Supreme Court has clearly stated these detainees in Guantanamo are. (Persons held temporarily on the field of battle abroad may not be; that’s different.)

    This is, I admit, somewhat oversimplified, but I have a day job….

  11. Vic says:

    Correct me if I am wrong, but (from memory) civilians ARE under the geneva convention, and are spies, sabateurs, etc. In the sense that the way to deal with them is described in the documents.

    But in a way, this creates another problem – as the deffinitions in the GC go, these Al Quaeda guys don’t really fit. They aren’t in uniform fighting in the army of a country we war against. Nor are they civilians. That leaves spies and sabateurs. As such we could have just killed them already, legally w/in the GC paradigm, but I doubt folks would like that very much more than Gitmo.

    Not to mention, upgrading them to POW status creates the obvious problem that we are not in a conventional war which will end on X date with a treaty being signed or something like that. These guys COULD be detained for decades under a POW rubric. And as the GC acts as a sort of contract, binding the signatories, are these guys a part of it AT ALL? If they ARE, who is liable for the torture and beheadings THEY’VE committed? Certainly no signatory.

    I really think we cannot simply give up and jump the shark just because we don’t want to reconsider that the GC may not be even slightly applicable here and to these guys. Holding them as POWs is wrong. Executing them as spies and sabateurs is rather extreme for some cases, and not really the best choice anyway. Trying them as civilians is just foolhardy and politically stupid. especially since we’ve already decided we won’t just release them if aquitted.

    There just is no good choice here that will ensure both justice and national security. A military tribunal is about it.

  12. michael says:

    Yes, one of the treaties covers civilians. But we can’t shoot folks once we’ve captured them without a trial first. That’s part of our law, not Geneva. And Geneva IIR also requires regular process, rather than allowing murder.

    Al Quaeda guys don’t fit the Geneva regime so awfully. Partisans was a well-known idea long before the Geneva treaties were negotiated. The difference is that with modern weapons, partisans are more effective. But so are soldiers.

  13. “This is, I admit, somewhat oversimplified, but I have a day job….”

    Yes, me too. But I don’t think there are cases declaring “enemy combatant” status unconstitutional. Further, I don’t think there are cases stating that where the executive has picked up a non-US citizen on the battlefield, and has some belief the person is a terrorist or otherwise a danger to the US or its allies, that the fact it cannot prove that belief beyond a reasonable doubt notwithstanding, the person cannot be held indefinitely.

    The criminal guilt standard, beyond a reasonable doubt, is the highest any state anywhere in the world affords its citizens. I am not so sure the US constitution implies we have to give that benefit of the doubt to someone picked up on the battlefield in Afghanistan. Do we have to give them some due process? Sure, but how much is a difficult question.

    I’m not going to say its not a big deal when our criminal justice system occasionally lets a guilty, dangerous person go free. It is, but we believe its better to protect the innocent. And you know what, most of us are willing to accept the fact that we’re going to have to live among criminals because of it. The risk is worth the principle. Particularly given the increasing tendency for criminal charges leveled for so-called victimless crimes…I’m not losing sleep over the inability of the state to convict potheads on residue cases. Am I unsettled by the fact that sometimes murderers go free? Sure, but the odds they’re after me are pretty slim, and we don’t see too many serial killers slip through the cracks.

    But with a terrorist…now we have a much greater risk, a whole different ballgame. I am not OK with terrorists beating the system. For one, I think its much harder to “accidentally” be charged as a terrorist when you get picked up in Afghanistan on a battlefield. Its very easy to “accidentally” get picked up for, oh I don’t know, let’s say, solicitation. For another, if we let the wrong guy go, the consequences are much more dire than letting go even a repeat DUI offender. Terrorist beats the system—now I might get blown up on a flight…very uncool. I’m willing to accept the potheads, prostitutes, con men, politicians, and even the occasional murderer goes free because of our standard of guilt. Terrorists, nope. We need to be more careful. Where the due process line is, I don’t know. (It’s worth noting that the common law has no criminal charge of “terrorism”. Just murder, with multiple counts. I’m not sure our Anglo-American legal history ever contemplated crimes with WMDs…up until very recent times it was hard for one man acting alone to kill hundreds instantly)

    I don’t agree with your moral statements either. Maybe some of the people in Guantanamo where in the wrong place at the wrong time. Well, you know what, so were all the people in the towers on 9/11. So for anybody innocent sitting there in Guantanamo, to them I say they’re there because their own countries didn’t stop terrorist organizations developing there when they had a chance. Its unfortunate, but they’re victims of the 9/11 attackers and ongoing terrorism, not victims of the US. I think by housing them and feeding them, and all other kinds of coddling, we’re being more than fair.

    I think your comments muddle the distinction between what you propose as good policy versus how the Supreme Court would likely interpret the US constitution and war-time prisoner rights cases on the issue.

    As I say, I don’t know what level of due process should be afforded. But I don’t think insisting that guilt beyond a reasonable doubt is productive in helping us find the middle-ground where we could all agree that all our “guests” are being treated fairly.

  14. Vic says:

    Good post JM.

    I think this arguement (as to what to do with them) gets so muddy because it INVITES extreme answers that aren’t conclusive or practical. Lots of people say “we should just shoot these people on sight when we catch them.” While others, aghast at that, retreat to a comfortable “we should try them just like we try purse snatchers.” There is a grain of truth in both positions, but the reality is that neither really fits.

    This is a new paradigm. No “terrorists” in the past attempted (or were even necessarily able to [partisans]) to kill tens of thousands, with a goal of millions, in a single event. Even our modern military avoids like the plague the kind of depraved indifference to human life proudly proclaimed by the modern Islamic terrorist. These are not criminals in any real sense of the word – they are much much more than that. But they ARE due some process. The question is only what that process is.

    I think THAT is the question of our time. To just hand it all over to our existing system is just a cop out – or perhaps puts too much faith in it. As JM said, this is not some kid caught with a joint, this is a man captured making war against the U.S. and who proudly admists it and says he’ll do it again if released. That isn’t “intent” it’s mindset.

    (and I suspect if the FBI uncovered a school in Arkansas for serial killers, taught by serial killers, that provided lessons on killing with real people, captured off the streets, and had a final exam of performing a series of 10 murders, then starting your own school somewhere else – that there would be no compunction AT ALL of putting to death [or life imprisonment] anyone involved. And how is that different?)

  15. Vic,
    A significant hindrance to the social discussion is the complete and utter failure of the US government and mainstream media to inform the citizenry of the growing threat from Islamists. It is simply impossible to have an honest discussion of the problem, without facing the threat of censorship or lawsuits. Americans are clueless about the rampant spread of Islamist ideology right here in the US, distracted by a media and government that insists white Christian males are the real threat.

    Robert Spencer’s Jihad Watch Blog,, is an excellent source for the daily murders, rapes and torture that occur throughout the world due to, or at least influenced by, Islamist ideology. A very small fraction of the international news reports he collects ever make it to the US mainstream media.

    So I can understand why the typical American might think, “oh well 9/11 was a one time thing” because most Americans are oblivious to the daily events of mass murders (suicide bombings) that occur almost daily in the name of Islamist ideology. We’ve been blessed in that we have not had to endure the onslaught of such bombings that have occurred in placed like India, Pakistan, Iraq, Afghanistan, Israel, Egypt, and so on. But the flip side of the coin is that many Americans underestimate the threat. Which to a large degree, I think, explains the advocacy for policies that treat terrorism (including planning to commit terrorism) as if it were the same as a misdemeanor crime.

  16. My understanding is that the reason they were sent to Guantanamo Bay in the first place was that, if they never landed on U.S. Soil they would not (in theory) be subject to our justice system. Guantanamo Bay is in Cuba right? Cuba is a country without a good track record in civil rights. Therefore it would be easier to justify keeping these people behind bars without a jury trial since that is the wonderful example given us by the Castro brothers.

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