"How did it come to pass that an opposition's measure of a president's foreign policy was all or nothing, success or "failure"? The answer is that the political absolutism now normal in Washington arrived at the moment--Nov. 7, 2000--that our politics subordinated even a war against terror to seizing the office of the presidency." - Daniel Henninger - WSJ 11/18/05
"the slovenliness of our language makes it easier for us to have foolish thoughts." - George Orwell

Wednesday, June 06, 2007

Times as National Disgrace, Not Gitmo

The Times Editorial Board calls it “Gitmo: A National Disgrace” and has, as usual a real humdinger of an opening:

“Ever since President Bush rammed the Military Commissions Act of 2006 through Congress to lend a pretense of legality to his detention camp at Guantánamo Bay, Cuba, we have urged Congress to amend the law to restore basic human rights and judicial process. Rulings by military judges this week suggest that the special detention system is so fundamentally corrupt that the only solution is to tear it down and start again.”

Ever since President Bush rammed the Military Commissions Act of 2006 through Congress The NY Times and other outlets of the msm have been ramming their opinions down our throats, whether this was through “news” articles or opinion pieces mattered not.

For some unknown reason the msm considers itself above it all as though it delivers the news with no bias; most, if not everyone would disagree (although there would be much disagreement as to what side it leans). Some of the news can be described as biased and/or sloppy; in spite of this the editorial board at The Toilet Paper pontificates without doubt that their opinion is the correct opinion.

On Monday, “two military judges dismissed charges Monday against a Guantanamo detainee accused of chauffeuring Osama bin Laden and another who allegedly killed a U.S. soldier in Afghanistan.;” Salim Ahmed Hamdan and Omar Khadr.

Toss it all out and rewrite it all is the basic idea that “would allow Americans to once again hold their heads high when it comes to justice and human rights,” according to The Times. Trapped in a mindset that is fit for an alternate universe, rather than an ever changing situation; everything is simply a George W. Hitler effort at curtailing rights. The entire argument held is in line with a 9/10/01, Hamas, Fatah (separate and very worthy links) and all the other fanatics mean Israel no harm, nukes in Iran is only fair mindset.

Andrew McCarthy at NRO displays if nothing else (and I think it’s a lot more) an analytical grip on the reality of the situation that none of news outlets will ever come close to. Read his article for the full treatment, but in summary (in my poor fashion):

“It is elementary that a court, including a military court, is not competent to entertain a case unless it has jurisdiction. This simply means that the conditions set by congress for the court’s intervention must be met. In this instance, jurisdiction for military commissions is now controlled by the Military Commissions Act (MCA), signed into law by President Bush at the end of 2006”

“Under the MCA, only “[a]lien unlawful enemy combatants, as defined in section 948a of this title, shall be subject to trial by military commissions[.]” So, the question arises, how does section 948a define alien unlawful enemy combatants (AUECs)?”

“the crucial inquiry with a combatant is whether he is properly categorized as unlawful, as the MCA requires.”

“The military’s CSRT procedures are set forth in a memorandum issued by the Deputy Secretary of Defense, which is available on the Defense Department’s website. (See here, last updated May 21, 2007.) The memo was issued on July 14, 2006. Note that that is five months before the MCA. It would be a fair criticism to argue that once the MCA was enacted, the Pentagon’s legal staff should have gone carefully over the memo to ensure symmetry between the MCA’s requirements for military commission jurisdiction and the CSRT findings that would be used to satisfy those requirements. Still, to give the Defense Department its due, it would have been reasonable — notwithstanding Monday’s ruling — to conclude that the CSRT procedures were adequate to the task.”

“The basic problem is some loose language. The CSRT procedures, in shorthand fashion, speak of determining whether a detainee is an enemy combatant, not an unlawful enemy combatant as the MCA requires.”

Where The Times and McCarthy may agree to a point is the need to create a system appropriate to determining the status of combatants; this is point where The Times Editors would be satisfied (not very deep of them is it?), but McCarthy takes it further, as it should be taken.

The Times and others with their proclivity to see things through only their reality, McCarthy says:

“We ought to design a new national-security court, an amalgam of the military and civilian systems, to deal comprehensively with the war’s novel challenges: investigations, detentions, and trials in a war whose end is not only indeterminate but — unlike prior wars — difficult to imagine; a war which involves alleged terrorist operatives whose status will often be ambiguous (because they don’t wear uniforms) but who cannot be given the presumptions that favor ordinary criminal defendants (since it would reward and thus perilously encourage their flouting of the laws of war). That new system should employ civilian judges, who have great expertise in moving terrorism cases and are independent of the executive branch — something important to our allies, whose cooperation is vital if we are to prevail against our enemies. But to combat the proclivity of civilian judges to push the due process envelope, the proceedings should be predominantly military and hew to rules exactingly prescribed by Congress.”

The editors’ opinion for the fix would be in following with bills “sponsored by two California Democrats” (surprise):

“close Gitmo in a year and the detainees would be screened by real courts. Those who are truly illegal combatants would be sent to military or civilian jails in the United States, to be tried under time-tested American rules of justice, or sent to an international tribunal. Some would be returned to their native lands for trial, if warranted. The rest would be set free, as they should have been long ago.”

The Times and msm in general cannot take the time to fully consider a subject prior to forming an opinion meant to sway opinions. Why they or we would consider their words or opinions in words the arguments end is beyond me.

Andrew McCarthy offers an appropriate word of caution to his argument (something The Times would never consider):

“Saying the prosecution’s position should be sustained here is a good distance from saying that, as a matter of policy, the military commission system is the best way to deal with detainees. The war on terror presents unusual issues — issues that can’t be neatly pigeonholed into either the military or civilian court model.”

The Times closes with its own colorful, conspiracy theory filled, the sky is falling take:

“The Guantánamo camp was created on a myth — that the American judicial system could not handle prisoners of “the war against terror.” It was built on a lie — that the hundreds of detainees at Gitmo are all dangerous terrorists. And it was organized around a fiction — that Mr. Bush had the power to create this rogue system in the first place.”

Bottom line is that it is not as simple as we would have it and especially as The Times would have it.

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