Maqaleh v. Gates Amicus Brief

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America in Danger: Important Courtroom Battles

Published: 24 September 2009

Dear Mr. Yon:

It is my pleasure to forward to you the attached copy of the amicus curiae brief which we filed with the United States Court of Appeals for the District of Columbia Circuit on behalf of the Special Operations community on Monday evening.

We believe that this unique brief has the potential to play an important role in the Court of Appeals’ consideration of Maqaleh v. Gates.  We are especially optimistic that the Court will value the insight that only veterans of Special Operations can offer as to the extremely adverse operational consequences that would flow from upholding the District Court’s decision.  Thank you for being an integral part of this effort.

 

It has been an honor to represent true American heroes in this matter.

Best regards,

David

Please click here to view the entire brief emailed by David Rivkin.

 

 

Reader support is crucial to this mission. Weekly or monthly recurring ‘subscription’ based support is the best, though all are greatly appreciated.  Recurring and one-time donations are available through PayPal or Authorize.net.

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To send a check or money order:

Michael Yon
P O Box 5553
Winter Haven, FL 33880-5553

I will continue to do my part in telling the stories that are not being told.  Readers must also do their part by keeping the cash flowing.  Cash is essential .

Thank you!
Michael

Comments  

 
0 # Juan 2009-09-23 13:59
Good luck and god speed with this Mike. I support you on this 110%.
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0 # doug 2009-09-23 16:17
you guys are making a mistake. we could always send the ACLU, et. al. along on missions to collect all the evidence they think the government should have, and provide them with bus fare back to the American camps since collecting all that evidence would probably take more time than our service members have.

i'm sure the Taliban wouldn't interfere in any way since they hate America too.
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0 # John Stacey 2009-09-23 17:27
Tried clicking on link - ending up with blank "Untitled" page
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0 # Rick Christian 2009-09-23 21:20
The link worked for me, but I am using IE 8 and a pdf viewer. i am in total agreement with Doug on the ACLU, but we should probably also have a represntataive from Amnesty International as long as they have bus fare back for themselves ( I would not give bus fare to either group though).

Keep the good Michael and stay safe. I wish I could provide more than morale ATT but will when I am able to.
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0 # JOe 2009-09-23 21:33
Recently the White House Adminstration changed it's wording in regards to terroism, The "Global War on Terror" is no longer politically correct. The terms Jihadist are no longer PC, because they have now focused thier wording to just Al Qadea. The claim is that it narrows the scope to a more specific enemy.
So I hope this decision is overturned, but I just recently returned from OEF and it was extremely hard to get a prisoner into Bagram. It was hard enuogh to go after him. We are not conducted the actions over there as if it were a war. We are being forced to act like detectives and police units in order to carry out missons against an enemy that is fluid and does not play by the rules. One last point about this, it is not only the courts that are creating road blocks for us, ever since 18th Airborne hit the ground and the war went conventional we have lost ground. We need to make some big changes in OEF and that means letting SOF take the rains back.
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0 # Anthony J Codispoti 2009-09-23 21:56
God bless and protect you, Michael. The strategic importance of our efforts in Afghanistan really need to be clarified for the American people and your work fills the vacuum. Keep going for the sake of America and Liberty.
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0 # Brian 2009-09-23 22:24
We have incredibly stupid people running our courts, and it starts with the AG and the President.
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0 # Determined3 2009-09-23 22:56
Yes we have a court and judges that use their interpratation of the law instead of the actual LAW set down by GOD.Thou shalt not kill has nothing to do with time of war.In the Strongs Concordance it means thou shalt not murder to lay in wait to spill innocent blood.And if people really read the Bible the way they should and understand if the person is found guilty they should be put to death the people will see and the violence will cease.He says send them to me and he didn't say one,two or twenty years from now that day.But we must give them their fair trial and let the jury hear the facts and make the decision and whatever it is we must respect it even if we don't agree GOD knows if they are gulty or not and he will judge them when the day of jugement comes and the person they murdered will be there.
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0 # Tommy Barrios 2009-09-23 23:16
That statement pretty much sums up the the intent of the amicus curiae brief. American citizens need to send a strong message to all these ACLU inculcated lawyers siting on the bench everywhere, that they too need to follow the law and the Constitution, NOT their whining liberal proclivities.
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0 # Leonard Henry 2009-09-23 23:50
I'm not a legal scholar, but I am under the impression that persons fighting out of uniform were considered sabateurs and fifth column, and subject to execution on the spot if caught. WWII German solidiers caught in US uniforms or ciivilian dress were executed in the field. Sabateurs that entered this country off of the German U-boats wsere executed soon after their apprehension as well. In Chenya Russian troops would check the shoulders of "civilian" men and if they had a rifle recoil bruise they were executed on the spot. I have absolutely no problem with executing prople who fight out of uniform. Do the Taliban and al-Queda fight in civilian guise or do they fight in a recognizable uniform? I don't see how Habeas Corpus applies to them , but I can see precedents for summarily executing them.
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0 # highdesert 2009-09-24 01:58
This is insane, the fact that our SOF personnel would even have to bring this up. What a nightmare we have allowed our country to enter into! Our leader apologizes to despotic countries, while our liberal courts interfere with the operations of those men and women who make our freedom possible. When are we, as a nation, going to wake up?
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0 # Austin 2009-09-24 03:14
JOe is right on target! Who won the battles against the Taliban in 01and 02? SOCOM did. This war is very unconventional in nature. Unconventional by definition meand the enemy will avoid a strong conventional army's strengths and attack their weak points.

Thus the "lawfare" we see being perpetrated not only by the Terrorists themselves, but by our own Liberal countrymen! Al-Queda knows they can win in that forum....and they are.

Thus we need to fight unconventionall y. Unconventional by simple responsibility falls to SOCOM. They need to have the lead, even though that would rankle the conventional Sergeants Major and Generals. Especially because it would rankle the Liberals who ARE our Nation's weak point.

A colorado Soldier's View.
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0 # Austin 2009-09-24 03:22
Leonard Henry, you are right on target there! If we are going to follow the Geneva Convention we should follow ALL of it! The WWII generation wasn't squeamish about that and they definitely succeeded.
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0 # Roger Buttner 2009-09-24 04:58
I think we should support B.O. the same way that the democrats say they support the troops we support the pres. but not his ideals or agenda
the way Cindy Shehan supports the objectives of the Iraq war
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0 # Glen 2009-09-24 06:50
Michael,

Love the site! Thanks for your reporting and stay safe!

This issue is much more complicated than conservatives vs. liberals and is worthy of serious discussion, not cheap political theater. The reversal sought by this amicus brief involves not only legal issues at home and abroad, but also has wider implications for the image of the United States as a law abiding nation. I applaud those involved in the brief for taking proactive action and for using the proper channels to address their concerns. The only way to perfect our legal system is through continuous challenge, review and reinterpretatio n. On the other hand, ad hominem attacks against so called "whiny liberals" accomplish nothing.

Our legal system emphasizes justice over vengeance and it is this trait which differentiates us from our enemies who know only cruelty, cunning and cowardice. We are better than that. I am confident that our legal system can provide a framework that allows our military service members to perform their duties while at the same time ensuring that detainees are treated humanely.
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0 # Alaska Paul 2009-09-24 09:47
The Left is using the courts to hamstring the government in its duty to protect the country from its mortal enemies. They are turning everything they can into court cases to tie the hands of the military. The object of which is to hamstring the military and to grind it down and to destroy morale. The military is the only department of the US government that is not corrupted by the present administration. If the lawfare advocates can get a fraction of what they want, they have a minor victory. Then more lawfare, again and again. They are doing via the courts and a stroke of the pen what Bin Laden and Co could only dream about.
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0 # Bart 2009-09-24 11:01
Glen's right, it's very sad when those seeking to uphold our country's constitution and laws are attacked as leftists, ACLU-types, traitors, etc. There are serious constitutional issues in this case, affecting all Americans. I respect the fact that the SOF community has chosen to enter the legal fray to make its point, and they make it well.
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0 # James, Colorado 2009-09-24 12:19
The brief is excellent, though that may not stop the judiciary from claiming additional power. I agree with highdesert, that such a brief is even necessary shows the degradation of this country. Nevertheless, despite my bleak outlook, I'm hopeful that this one battle could be won. Good show, David et al!
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0 # Abe 2009-09-25 00:15
"we could always send the ACLU, et. al. along on missions to collect all the evidence they think the government should have, and provide them with bus fare back to the American camps since collecting all that evidence would probably take more time than our service members have."

I'm sorry, but you are wrong. A significant number of the individuals who are being held indefinitely [and who are challenging their detention] were NOT taken in custody in Afghanistan or Pakistan, but in countries like Azerbaijan, the UAE, and Thailand and then they were flown to Bagram. To somehow say it is impossible to collect evidence that could be used in courts is ridiculous to say the least.
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0 # J. Gorm 2009-09-25 03:17
Where did you get those numbers about Bagram detainees?? The ACLU, Amnesty International or a left wing blog? Please just face it the left hates the military and all it stands for. They use the courts, media or any other means to bring them down. Their seemingly unquenchable drive to attack their own country on all fronts is perverse. While cloaking themselves in "reform" costumes they go on in a never ending witch hunts. I am sure there are many good and well intentioned people on the left but just as in the 20s and 30s when the communists were making use of those dubbed "useful idiots" todays radical leftists use "whatever means necessary" to achieve their ends; the complete transformation of America. Where have I heard that before? This latest Court case is just one more probe by the Armies of the Left.
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0 # Bart 2009-09-25 08:15
Excuse me, Mr. Gorm, but I am one of those pinko-lefty, ACLU-card holding, union supporting, "radical" lawyers, and also a proud American and a long-time student of our military and its great history. The idea that all leftists "hate the military" is stupid and incorrect, but it is a useful carnard propagated by right-wing propagandists who will never tell you there's another point of view that just might make you think a littler clearer, if you're capable of it. I take the opposite view of the able Mr. Ravitz and the amici in this brief, but that's how things are supposed to work out in this great land, and exactly why our soldiers, sailors, and Marines have fought and died for 200 years to defend it.
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0 # pleuris@theNetherands 2009-09-27 02:39
In my humble opinion; this is democrasy at work. be proud of it that someone can dissagree.. and file a complaint at your court. This can also work in your advantage. Think about that.
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0 # Ben96 2009-09-29 03:38
No, Pleuris, this cannot also work to our advantage. One obvious reason: The enemy will not abide by our court decisions! Therefore, court decisions can either:

1) Restrain us, and be implemented, or:
2) Restrain them, and be ignored.

Hitler must be rolling in his grave. What a mistake it was, to issue uniforms, and paint German insignia on all those aircraft and tanks! To think, all he had to do was send in un-uniformed men, and lawyers would have eagerly worked for their release each time one was captured. (IF any were captured: I doubt any operations could have been conducted by Allied forces in Europe based on the rules of engagement now in use in Afghanistan!) Surely he could have won his war!

And yes, Bart, you hate the military. You can claim you don't, but objectively, by supporting their deaths, you do, and there's no use denying it. You leftists use the same logic in deciding that something is "objectively" or "institutionall y" racist if it promotes unequal racial results, even if there is not one single racist policy or person in evidence. Since your intended policy promotes an increase in American and Allied deaths, and better chances for our enemies, objectively, you hate them, whether you admit it or not.
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