The thing that the rest of us CAN do is to support FDD financially, just as we support Mike (and if you're reading this and haven't given Mike the support you can give, shame on you!)
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- Published: Thursday, 06 August 2009 11:43
- Written by Paul Mundt
06 August 2009
Paul Mundt is a long-time friend from my Special Forces days. Paul emailed today regarding some disturbing developments on the home front. He emailed the following to the Special Forces Association. The reader should find it self-explanatory. I've known Paul for a long time. Considering the source, my instinct is that this topic is introduced with great merit.
The following email was written by Paul Mundt and transmitted to the Special Forces Association:
Thank you in advance, Paul
Reasons to have a representative sample of former special forces personnel participate as friends of the court in the United States Court of Appeals’ review of Judge Bates’ April 2, 2009 decision in the Maqaleh case
In 2008, the Supreme Court decided the Boumediene case, which ruled that Guantanamo Bay detainees are entitled to review by United States district courts of the government’s decision to detain them as enemy combatants. In justifying this decision, which overturns longstanding Supreme Court precedent and hundreds of years of prior practice, the Court’s majority relied on a multi-factor test, one of the factors being the extent of the "practical difficulties," caused by making habeas review available to captured enemy combatants.
In April of this year, Judge Bates (a federal district court judge in DC), applying Boumediene's framework, extended the habeas process beyond Guantanamo Bay, and to several Bagram-based detainees who were originally captured outside Afghanistan. Judge Bates also considered, but at least for now, rejected the option of extending habeas to all Bagram-based detainees, including those captured in Afghanistan, stating that to do so would be viewed as an affront to the Karzai government and harmful to U.S./Afghan relations. While the media praised Judge Bates’ “moderation”, the Maqaleh decision, in addition to being legally flawed, has negative implications for the U.S. ability to conduct successful combat operations in Afghanistan and elsewhere.
What Needs To Be Done Going Forward
The Maqaleh case could have been argued much more effectively by the Department of Justice (“DOJ”). Although DOJ made legally correct arguments, the government’s lawyers neglected to emphasize the disastrous policy consequences of the ruling sought by the detainees and also failed to win in the court of public opinion. As courts take an increasing role in micromanaging military operations, these considerations have only become more important.
When it came to "practical difficulties" prompted by the extension of habeas to even a subset of Bagram-held detainees, all the DOJ told Judge Bates was that conducting habeas hearings in a war zone would be burdensome to the government. This is true, but not enough. The Court of Appeals needs to understand that extending habeas to people captured through special forces operations (which is the most likely scenario for captures outside of Afghanistan) will cause severe "practical difficulties." The teams/personnel effecting these captures would have to collect forensic and other evidence sufficient to enable DOJ to prevail in the habeas process, often under fire. All things being equal, complying with these requirements would cause special forces personnel to spend more time in the target area and complicate operational planning, increasing the prospects of additional casualties and even mission failures.
Another consequence of the Maqaleh case will be a reduction in the tempo and effectiveness of special forces operations in the Afghan theater. In this regard, we understand that FBI agents are now being tasked to join special force teams when they go out on missions, both to help in evidence-gathering and to read Miranda warnings to captured enemy combatants. We also understand that steps have been taken to ensure that no enemy combatants captured outside of Afghanistan are brought into Afghanistan. These steps are being taken even while the government is appealing Judge Bates’ decision. This underscores just how much a decision by a single district court judge may impair military operations.
While challenging Judge Bates’ ruling, the Obama Administration is unwilling to raise the difficulties of having to treat special forces operations like police raids. For ideological reasons, it can never admit that applying the habeas framework to any aspect of wartime operations is other than a cost-free exercise. Hence, this point needs to be raised by “friends of the court” or amici.
Although we have written numerous amici briefs in post-September 11th national security cases, these have typically been on behalf of law professors, law practitioners and former government policy officials. In this case, however, the most compelling – and therefore the most difficult to ignore – amici would be former special forces personnel. The goal to explain to the United States Court of Appeals for the D.C. Circuit (which is reviewing Judge Bates’ decision) and, ultimately, to the Supreme Court, that additional American combat casualties and reduced effectiveness of special forces operations will result unless Judge Bates’ mistaken Maqaleh decision is reversed. While we cannot guarantee success at either the D.C. Circuit level (a lot depends on which judges are assigned the case) or at the Supreme Court level, we believe that a strong amicus brief would be taken very seriously by the Court.
Process and Timeline
Our amicus brief must be filed by September 7. The government’s brief is due on August 31; since we are supporting the government’s position that Judge Bates’ decision should be overturned, we have to file within 7 days of the government’s filing. We will draft the brief – it will be short and focused on the practical consequences of the Maqaleh decision – and circulate it to all participating amici for their review. The front part of the brief will have to include “amici qualifications”. This is a section that serves to tell the court who the amici are.
We would like to include as much detail as possible. Length of service, rank attained, medals/awards, participation in combat operations and so forth are among the information we would like to list for each amici. We would certainly not include any sensitive operational details or any past mission-specific descriptions. Indeed, to make sure that everybody is comfortable, we would ask each amicus to present us with the first draft of the language describing his qualifications.
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This commment is unpublished.· 11 years agoI served with Paul for some time myself and am proud to call him a friend. Unfortunately (in many respects) I don't have recent "ground experience" and thus am not a good candidate as a witness.
The thing that the rest of us CAN do is to support FDD financially, just as we support Mike (and if you're reading this and haven't given Mike the support you can give, shame on you!)
This commment is unpublished.· 11 years agoThe lawyer seeking amicus support, David B. Rivkin, is the gold standard in this area, having his recent writings on this subject published in prestigious outlets including the Wall Street Journal and the Washington Post. His on-line bio is somewhat understated, but read carefully, in conjunction with his publications, shows an extensive background in law and national security issues. This request forwarded by Michael addresses a fundamental security issue - how do we face the enemy on the 20th century battlefield. If you have the right background, please consider this request. The "ride" will be memorable, and the personal risk nil (especially compared to what you have already no doubt faced).
This commment is unpublished.· 11 years agoIt's obvious that the Judge has no combat experience therefore, the Judge is not qualified to make such a rulling. It would be most expedient to send the Judge on several combat missions, let him step on a mine or IDE and get a leg blown off then ask him to collect the required evidence that the enemy planted the mine plus collect the evidence on which person planted the mine. Judges that make such rullings without the proper qualifications should be removed from the bench by Judicial Review. At the very least they should be scactioned and all of their prior rulings vacated.
This commment is unpublished.· 11 years agoGregg, I would not make this personal to Judge Bates. Judge Bates probably never did serve in combat, but to a large extent his hands were tied by the precedent of the Boumediene case. I profoundly disagree with Boumediene, but Judge Bates was bound to follow the law, as screwed up as it is under Boumediene. The Appellate Court is also likely to follow Boumediene, unless they find that the two situations (those held in Gtmo vs. those held anywhere else) demand different results after applying the test in Boumediene. Long term what I hope happens, is that the Supremes revisit Boumediene and see the errors of their way. Having said this, every effort should be made to support Mr. Rivkin and his amicus brief.
This commment is unpublished.· 11 years agoany court in the u.s. does not have the power to make international law. zip, zero, nada. you would have to be a complete fool to abide by any one of this idiots rulings when it comes to war.
This commment is unpublished.· 11 years agoI fully support the idea of an SF-operator amicus. While active duty men may be limited in their ability to participate in this (IANAL let alone an SJA), I don't see a barrier to the participation of reserve component soldiers -- NG SF and IRR/IMA soldiers. That may give you players who are more current (and less likely to be dissed for lack of standing?) than active-duty soldiers.
I understand two-g Gregg's vexation with the judge's ruling, but under our system of government he had all the qualifications he needs to make this judgment, and he can only go on (well, he's only supposed to go on) what the contending lawyers and amici put before him. It looks like the DOJ dropped the ball (or took a dive, to mix sports metaphors). Still, what the judge's lack of knowledge of our little world suggests is, that lawyers in general (including the appellate judges who will hear this argument) are pretty isolated from our facts of life. (When you think about it, that is as it should be. You guys argue cases and we'll handle the armed enemies).
Thanks to one-g Greg for the background on Mr Rivkin. My layman's understanding suggests that appeals are always a bit uphill and to know our attorney is considered an authority helps (hopefully he is as authoritative to legal trogs who only read law reviews).
I am sure that the terrorist will have the very best lawyers from the best white-shoe firms, lavishly supported and funded by the terror networks' bottomless reservoir of oil money. And the DOJ lawyer will probably be a knob sent to make a pro forma effort. But hey, outnumbered and underfunded, with allies of doubtful merit? Situation normal in our world.
This commment is unpublished.· 11 years agoI took a look at his bio at:http://www.dcd.uscourts.gov/bates-bio.html. According to this, ' From 1968 to 1971, he served in the United States Army, including a tour in Vietnam.'
It doesn't mean that he saw combat, but he was military.
This commment is unpublished.· 11 years agoMike,Rob,
Thank you both. I'm grateful and honored to be called your friend.
I HEARD THE VOICE OF THE LORD SAYING; "WHOM SHALL I SEND, AND WHO WILL GO FOR US?"
THEN I SAID, "HERE I AM SEND ME."
All, thanks for engaging on this. As has been stated Judge Bates's ruling is IAW his authority. The real issue here was that this ruling wasn't appropriately challenged when it was put into effect. The Amicus brief is an attempt to remedy that....what is expiditiously needed are those statements from service members with current combat experience who feel that this ruling puts their lives and the mission at grave risk. PLEASE assist in socializing this request to that audience.
On a personal note. The work of FDD and David Rivkin (as well as others...) are critical to the national defense. They fight from the edges without the accolades. I can say from personal experience that they are having strategic effect in the security of our nation. Below is a more current bio of David Rivkin.
DAVID B. RIVKIN, JR.
David B. Rivkin, Jr., is a partner in the Washington office of Baker Hostetler LLP, Co-Chairmen of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, a Visiting Fellow at the Nixon Center, and a Contributing Editor of the National Review magazine. He specializes in regulatory – e.g., energy and environmental matters, export controls -- and appellate litigation work, with a particular emphasis on complex constitutional, international law and public policy issues. His particular area of litigation expertise covers defense against Alien Tort Statute-based claims.
Before returning to the private sector in 199 , Mr. Rivkin served in a variety of legal and policy positions in the Reagan and George H. W. Bush Administrations, including stints at the White House Counsel's office, Office of the Vice President and the Departments of Justice and Energy. While in the government, he handled a variety of national security and domestic issues, including intelligence oversight, export controls, environmental and energy policy, tax, trade and constitutional issues. Prior to embarking on a legal career, he served during the 1970s and 1980s as a defense and foreign policy analyst, focusing on Soviet affairs, arms control, naval strategy and NATO-related issues. Mr. Rivkin holds a JD degree from Columbia University Law School, a Masters degree in Soviet Affairs from Georgetown University, and a Bachelors of Science degree from the Georgetown University’s School of Foreign Service.
Mr. Rivkin is a member of the District of Columbia Bar and the Council on Foreign Relations. He is a prolific writer and commentator and, over the years, has published numerous papers, articles, op eds, book reviews, and book chapters on a variety of international, legal, constitutional, defense, arms control, foreign policy, environmental and energy issues for various newspapers and magazines, including the Wall Street Journal, Washington Post, New York Times, Washington Times, Los Angeles Times, Foreign Affairs, Foreign Policy, National Interest, National Review, Policy Review, Harvard Journal of Law & Policy, American University Law Review, Administrative Law Journal, University of Pennsylvania Law Review, and University of Chicago Journal of International Law.
In particular, Mr. Rivkin has written widely about various aspects of the international law of armed conflict, including jus in bello, treatment of unlawful combatants and jus ad bellum-related matters. He has filed amicus briefs in several leading post-September 11 national security cases and has been a frequent commentator and guest on TV and radio shows, including CNN, NBC and MSNBC, CBS, ABC/Nightline, FOX News, NPR, PBS, BBC, Canadian Broadcasting Corporation, and numerous Australian, French, German and Swiss TV stations.
This commment is unpublished.· 11 years agoCan someone tell me in lay-mens terms what's this about?
thank you very much
This commment is unpublished.· 11 years agoSurely it is a basic right & a foundation stone of democracy, that the writ of Habeus Corpus applies to everyone? If not, doesn't that make us no better than those who want to destroy our democracy?
This commment is unpublished.· 11 years agoReally mike, I'm just baffled why you are worried about this, you were the great terrorist defender a few months ago. Don't be mean to terrorists, you know, we're "better than that" even if it costs your brothers in arms their arms, legs and lives.
Suffice to say your buddy in the SF community is late, your friends in the current administration are heavily pushing the DIA and the Army to adopt the FBI interrogation methods which is to Mirandize and then lawyer them up. See, the FBI rep at a December 2008 meeting was happy to offer 40 years of statistics about confessions, even though you know that the military doesn't give a rats ass about confessions, they just want to kill the leader of the guys who plant the VBIEDs/builds the bombs/finances the bombs/moves the bombs into the country. Neither the Army nor the DIA kept stats - because they can't, a commander can use the information they recieve at their discretion or not, may wait for other evidence or might use the info to build a separate target package. Nobody tracks information A to result Q. So of course DoD will lose here.
But be happy. SF and regular troops dead (and not our allies, since they are abandoning us as fast as they can find an excuse - you know it) are ok as long as you Ivory Tower types feel good about yourselves.
This commment is unpublished.· 11 years agoThe writ of habeas applies to everyone in the jurisdiction of the courts. That is why we originally kept detainees in Guantanamo instead of bringing them on to US soil.
However, when assigning blame for this ridiculous decision, we need to look in the mirror. This is a prime example of the pendulum swinging. There is no doubt in my mind that military personnel have behaved dishonorably in our treatment of detainees. I’m not painting everyone with this broad brush, but we have ample evidence that some of us have violated AR 190-8 in our handling and interrogation of EPWs.
We use internment facilities to keep combatants off the battlefield, not as places of interrogation, not as places to gather evidence to prosecute crimes. When we start working outside the framework of the law, we should expect to be brought into check.
I was never SF, but am a combat veteran of Somalia and Iraq. I am a retired Soldier and practicing attorney. Take it for what you feel it’s worth.
This commment is unpublished.· 11 years agoAs Poco said, "We have seen the enemy and he is us."
This commment is unpublished.· 11 years agoPleuris,
The short version is this: captured Taliban prisoners are being given the rights of a U.S. citizen. The area where Terry Taliban is captured will be treated as a crime scene.
So imagine, if you will, a scene from "CSI". But instead of the crime scene being in a neighborhood or some random place in "Anywhere, USA" it is in the butt crack of Afghanistan, while being shot at with RPGs, mortars and bullets.
This commment is unpublished.· 11 years agoYour target selection protocols are off. You should head back to the barn for some recalibration.
This commment is unpublished.· 11 years agoThey are not being treated as US citizens, but as people within the jurisdiction of US courts. Everyone, not just citizens, are entitled to the protection of the Constitution, provided they are within the area where the Constitution applies. Previous decisions of our supreme court have held that enemy detainees and prisoners of war, held outside the geographical boundries of the United States are not entitled to such protections. The decision in Rasul v. Bush has turned that on its ear, and determined that Guantanamo, while outside the US, was not beyond the reach of US law.
Had we (the US and the Military) been content with just detaining these people and keeping them off the battle field, the outcomes would be different. Instead, we are setting up tribunals to try them for crimes. We only have the authority to try people (for crimes) that are within the jursidiction of the United States--in other words, by claiming they have committed crimes, and deciding to prosecute, we have brought them into the jurisdiction of the United States and its Constitution. Nowhere in the Constitution will you find that rights apply only to citizens. The phrase used is "persons" and "people." There is, in fact, a Costitutional basis for allowing people charged with crimes access to the Court through the writ of Habeas Corpus.
This commment is unpublished.· 11 years agoI'm sorry to say, but Judge Bates made the right decision. His decision to extend Habeus Corpus to the detainees captured outside Afghanistan (ie: outside of an active battle zone) is completely right. The people who brought this court case were captured in Thailand, the UAE, and Southern Pakistan from my understanding and THEN moved by the US military to Bagram in Afghanistan. So, they were NOT exactly captured on a "battle zone" and the idea that somehow evidence cannot be gathered in the UAE or Thailand is quite dubious.
This commment is unpublished.· 11 years agoNot surprising there has been pushback from the policies of the previous administration that resulted in the murders of prisoners in our custody. If we are doing a specops snatch and grab, likely the evidence is already there. A likely result will be fewer prisoners. I believe Lyle has it nailed.
Oh...you wanted a link. http://action.aclu.org/torturefoia/released/102405/
This commment is unpublished.· 11 years agoWhats the difference between a taliban caught in afghanistan planting or making an IED and a sabaoteur (sp?) caught during World War two out of military uniform and thus shot on site?
This commment is unpublished.· 11 years agoFolks,
You all need to read about the Supreme Court ruling after WW2 about General Yamashita. The six justices involved made about the same ruling that many posters believe that judge should have. Now any member of the US military is bound by the precedent set. Now most "military" legal experts wish those judges who had not seen combat had ruled other wise. We may condemn this judge today. But many who are condemning him today in the military may decades later understand. The power to hold anyone without charge or access to the courts along with the authority to declare anyone (ie yes in testimony some of GWB officials even extended that possibility to members of Congress) an enemy combatant without recourse to challenge that status is an extremely powerful and dangerous power for any government official to have. In fact this is the reason that the framers of the US Constitution addressed this issue directly. Stating that it could happen only during times of invasion or rebellion. So let us all take that last step, before we take the first step.
Jack E. Hammond
This commment is unpublished.· 11 years agoQuote> Whats the difference between a taliban caught in afghanistan planting or making an IED and a sabaoteur (sp?) caught during World War two out of military uniform and thus shot on site?
They were not caught out of uniform. They were caught wearing the uniform of a member of the US Army. Also, to his great credit during WW2, when the British tried to kill General Rommel in North Africa they sent commandos dressed in German uniforms. When they were captured, Rommel ordered his people to strip off the German uniforms and finds some British uniforms for them.
Finally, if you are so fast to shoot people who are at war with us, then I guess you would have supported the British shooting the Minute Men at Lexington and Concord of the French and Philippine resistance during WW2?
Jack E. Hammond
This commment is unpublished.· 11 years agoJudge Bates' decision may be moot.
This commment is unpublished.· 11 years agoI've always been a bit baffled at the coverage (overwhelmingy negative) our military gets concerning the treatment of detainees, and now Bates wants to extend Habeas? Do we forget that the detention centers we use have better conditions than that of our fighting men and women in the field? Have we forgotten how our enemies have treated OUR P O Ws? i.e Jessica White, raped--repeatedly in all orrfices--bones broken--beaten--absolutely tortured. Danny Pearl, a non-combatant, Nicolous (who's last name escapes me) and other non-combatants beheaded, and to what end? To suggest that these barbarians deserve Habeas is beyound me. THey don't even have the courage to wear uniforms, a cowardly act. We are becomming our own worst enemy through our judicail system
This commment is unpublished.· 11 years agoNext thing killing on the battlefield will be deemed "cruel and unusual punishment" because the individuals have not been "convicted" of anything except being misguided. Just disband the Army and let the Judges protect the country. What good are rights after your beheaded? Extending "rights" to people just because these people exist makes as much sense as giving them Social Security because they were born to two human parents and are part of the "world community." Someday the ivory tower may be knocked down and the fools who love wordplay may have to actually DO something to ensure the safety of their families; beside pushing their own ideas and talking on and on about classroom based ideas and theories. Exactly what does it take to keep the barbarians from the gates? Greece and Rome were debating the issues until they were consumed and digested by history.
This commment is unpublished.· 11 years agoObviously the Monday morning quarterbacks second guessing the Constitution have not been in a war zone either. You may call it gathering evidence, I call it gathering intelligence. And that effort goes on early and often, because that is how we are able to close with and destroy Americas enemies (In fact there are many units deployed across Iraq and Afghanistan right now whose sole mission is to collect that so called evidence). Just because we
got sloppy and arrogant the last 8 years does not make it right or good. What does every good squad or platoon leader do before a combat patrol? Review the basics. Light discipline, noise discipline (there is a reason it is called battle rattle) muzzle and fire dicisipline, etc, etc. Discipline and core values wins battles and more importantly wars, not short cuts and selective integrity.
Remember, it was a conservative Supreme Court which handed down Boumediene. While the court was split 5 to 4 there was never any question of not upholding the spirit of Habeus Corpus. Chief Justice Roberts in his dissent thought the detainees were receiving an adequate equivalent.
Now quit smoking and joking and get back to your posts.
This commment is unpublished.· 11 years agoHmm, I read a lot about Boumediene v. Bush and it's a real travesty that now allows the absurdity of Maqaleh to happen. While Bates decision does seem to fall within the possible guidelines of Boumediene, Boumediene should have never happened.
Since the majority opinion seemed to put so much emphasis on the 'plight' of the detainees rather than the actual application of the Constitution and legislation we can see where this all is headed.
Was Boumediene's arrest an overreaction? Prossibly; the government's evidence seemed pretty shaky. But in the court's efforts to be equitable and extend habeas to all persons detained by the US anywhere they opened a serious can of worms and now we are seeing more fruits of that.
While detainees of the US should have recourse to challenge their detentions (which we subsequently did in the Detainee Treatment Act and the Military Commissions Act), the SCOTUS basically sent us down the path of requiring the same levels of forensic evidence required for domestic criminals. We have trouble in this country convicting people who brutally kill their ex-wife and her friend in a peaceful suburban neighborhood with full forensics teams; how will this be remotely possible in hot areas?
While I haven't seen any references to it anywhere, I wonder how we treated the Barbary pirates we captured. Somehow, I think as they were just about to be hung from the yardarm, a vision flashed before them of the future with Johnny Cochran imploring: "If the dishdasha doesn't fit, you must acquit!"
This commment is unpublished.· 11 years agoI understand the anger some of you guys have for the judges decision. I also understand that it might create situations who will possibly be far more dangerous for American service personal. Any yes, judges with extensive combat experience are likely to decide differently.
However, you guys need to understand that the U.S. and her allies HAVE to fight a war within the set borders of their respective constitutions and laws. Because America is mostly that: A country, a people governed by the rule of law. Exactly this rule of law makes you soldiers and grants you rights and puts upon you the duty to protect the U.S. Once you abandon all that you are not a true soldier anymore, you become a mercenary. But worse, all the fallen comrades then have died for a lost cause, have died for nothing. You're sure you want that? You're sure you want to –one day – look into the eyes of your grandchildren and have to explain to them why you became a traitor to your own morals and standarts?
Without a legal basis the arrest and abduction of terrorists outside a combat zone in a country such as Thailand, the PI or any other state, is nothing but an illegal kidnapping. And in the eyes of justice, it doesn't matter whether this kidnapping had been performed by the U.S., North Korea, Iran or Syria.
This commment is unpublished.· 11 years ago"Greg: The lawyer seeking amicus support, David B. Rivkin, is the gold standard in this area..."
[My opinion is likely to be unpopular here. I'm a lawyer but I have served in both Desert storm and Iraqi Freedom, the later in 200 as a 1SG attached to 4th POG and as not some JAG schmuck.]
Rivkin is a lot of things but I've never heard him called 'the gold standard' of anything vis-a-vis the law. Good lawyer but he's a political operative with a political motivation.
In the end the SFA request is wrong. Dead wrong. I hate these creeps as much as anyone, but I love the Constitution more. In the end Constitutional jurisprudence should not be subject to the needs of military operations. That's not popular in these parts I know.
Remember it's easy to defend freedoms when you agree with them but the real test of whether Constitutional guarantees are important is when you find petitioner unlikeable but still place the Constitution above your own personal impulses.
Think for yourself; go to http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf to read the Supreme's decision and the audio argument at http://www.oyez.org/cases/2000-2009/2007/2007_06_1195/argument
Good post Henk. We're the good guys and our principals should lived at the high standards the Constitution sets for us.
And an above poster is correct; this was a conservative Supreme Court that determined the issue at hand.
This commment is unpublished.· 11 years agoI have been a big supporter of the war in Iraq and in the initial invasion of Afghanistan. I no longer wish our troops to be fighting for some imaginary victory in Afghanistan. This country is not worth one American life. Leave now and if we have to go back to deal with Al Quieda just send in drones and high explosives. This war is a waste of time, money and men. There is no conceivable victory.
This commment is unpublished.· 11 years agoPeople deserve wealthy life time and loans or just college loan will make it better. Just because freedom is based on money state.
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