[Glenn, from the post]: As this recent superb McClatchy article documents, scores of individuals detained at Guantanamo for years weren't "Al Qaeda terrorists" -- or any other kind of terrorists -- at all.

What's even 'funnier' (or more risible, depending on how you look at it) is that the defenders of the maladministration, in arguing against the right to due process, have been citing the (alleged) fact that some of those released have subsequently been found back on battlefields again. Therefore, in their sterling 'logic', we shouldn't be releasing them.

Outside of the fact that, if such people are subsequently taking up arms against ... well, Afghanis, Iraqis, or whoever they're upset about ... that doesn't mean they were of that persuasion before we locked them up for years, we have this to consider:

Such releases were all before the Boumedienne decision, and none of said people were released through habeas.

If the maladministration is so bad in deciding who to let go, wouldn't it be time to let someone else do such determinations?

Cheers,

And happen to live in California, you could always make a citizen's arrest:

http://www.afterdowningstreet.org/citizenarrest

(Click name)

[Glenn]: But the two glaring falsehoods in today's Op-Ed -- that habeas protections protect "Al Qaeda terrorists" and that Guantanamo detainees were captured on the battlefield -- are precisely the ones that have been used for so long to obscure the real dangers of empowering our Government with the authority of lawless imprisonment.

[Sh**ter]: Do you have proof that there are NO AlQaeda or battlefield combatants affected by this ruling as Yoo indicates?

Glenn didn't say they weren't "affected". He denies that this ruling (in part or in whole) "protect[s] 'al Qaeda terrorists'".

Any alleged al Qaeda get their chance. If the gummint can't show cause as to why they're being held, they get recourse to legal relief. If the gummint shows that they are al Qaeda, no one is disputing the right of the gummint to hld them ... and even charge them for any crimes they might have committed.

The difference is the emphasis, though. The protection is for those that are wrongly imprisoned, just as the Fourth Amendment protects all of us from unreasonable search and seizure. Perhaps you're of the opinion that the Fourth Amendment is for the protection of crim'nuls too, and ought be disposed of.... If so, speak out, and be plain about it.

... If not, then your statement here is false and his is true. I would think it more likely that both of you are partially correct.

Why not try the true middle course rather than indulge in untrue absolutes? It's a more serious approach.

What's your "middle road", Sh**ter? Just bend the Constitution a little bit due to "exigent circumstances"? Be specific now....

Cheers,

I think it would be very illuminating to sample the opinions of Yoo's students to see what they think of his teachings. As we know, college student bodies tend to me overwhelmingly liberal leaning. Given their "pre-Yoo" teachings about civics, the Constitution, and the rule-of-law, it would make for a great post or radio/podcast interview to hear what some of them think.

I was there when he first came on board. But I had Choper and Post for ConLaw, not Yoo; I think Yoo got stuck with the more prosaic courses at first....

Cheers,

Fer cryin' out loud guys and/or gals!

The WMD declaration required by UN Security Council Resolution 1441 was submitted by Saddam in December, 2002 (all 12,000 pages of it, as I recall). It is, was and remains the most accurate compilation of date regarding Iraqi WMD.

In short, Saddam DID prove that Iraq had disarmed.

Nonetheless, throughout the fall of 2002, and until March, 2003, when the United States warned them to leave Iraq, UN weapons inspectors continued searching - not only with no result (obviously - there was nothing to be found, just as Iraq had declared), but despite the, um, certain knowledge of where those WMD were, as possessed by the United States, the inspectors were never directed by the US and told where to search. Funny that.

I'll say it again: Just as required by both the UN and Bush's ultimatum, and despite the difficulty of proving a negative, Iraq did prove, in comprehensive fashion, it had disarmed.

Sheesh.

Greenwald wants us to believe that John Yoo's claim that Guantanamo's detainees were captured "fighting against the US" is false because they were not carrying weapons or engaged in actual battle at the moment they were arrested.

Covered that in my own comment before I saw yours here.

Those sneaky little Islamo-Fascist devils -- nay, Infidels....

Cheers,

By Greenwald's definition, we would have no right to arrest enemy spies here in America during wartime, nor would we have any basis for capturing enemy soldiers who happened to be, say, traveling to an R&R facility behind their own lines -- we could only call them "enemy combatants" if we caught them firing weapons.

Not true. Glenn said nothing of the sort.

When you make an assertions, you should check beforehand to see if it is true. If not, you'd be better advised to STFU.

Cheers,

Excerpt from an op-ed from the future:

Giving Child-Molesters Rights?

Why are we giving child-molesters lawyers and rights and all this "due process"? Men who've molested our children shouldn't be given a trial, they should be given life without parole at least.

Etc.

I do understand that difference. Do you not understand the difference between addressing one portion of an argument, and addressing the entire argument?

The 'portion' Glenn addressed rather invalidates the 'portion' you focus upon.

I objected specifically to your first objection to Yoo's article, vis: "Yoo is lying, because he says 'They were fighting against the US,' and they weren't firing a weapon at US soldiers when we took them.'"

This argument, as I pointed out, relies entirely on an insanely narrow definition of "fighting against the US."

'Insanely narrow definition'? Do you appreciate how expanding the phrase "fighting against the US" to the extent you apparently wish effectively turns anyone with even the mildest, most factual criticism of US policy and practices into an "enemy combatant"?

At this point and using such a standard, I could likely make the argument it is you who are an enemy combatant and have you rendered into military custody.

If one applies such a narrow definition, there are all sorts of miscreants whom we cannot say are "fighting against the US;" spies, propagandists, etc.

Correct, but then we aren't talking about a uniformed military or an enemy with a central command structure, are we? We aren't even talking about a single unified movement with a stable membership that can be identified.

In which case, accusing anyone of being a 'spy' or 'propagandist' or the like is laughable in the extreme.

If we apply the normal meaning of the phrase, the mere fact -- on which your first argument relies -- that we captured these individuals while they were doing something other than shooting at US soldiers (for instance, debarking at O'Hare) does not falsify Yoo's claims.

Actually you're "normal meaning" is nothing of the sort. That's just a vague wish on your part to excuse what any sane person dismisses as government authoritarianism.

It's your second argument that pertains to these captures, if an argument pertains at all; but that's not what I was objecting to.

Good admission.

Since you brought it up, though, I will address that argument as well. Simply put, you seem unable to grasp that the argument is not over whether there should be a hearing, but over whether that hearing has to be in domestic, American, criminal courts.

Um, no. That's not the argument at all. Its whether existing practices of due process do or don't apply to the detainees in question; the forum involved is a separate issue entirely.

As Chief Justice Roberts' dissent pointed out,

Stop rigth there. Have you actually read this so-called dissent? I swear, I've never read something that tortures both the English language and legal reasoning with such sadistic glee.

the procedure defined by Congress in the Military Commissions Act of 2006 for evaluating the detainees met and exceeded all the requirements, not only of the Geneva Convention, but of the majority opinion's own definition of a proper procedure.

Except of course that the MCA did nothing of the sort. Creating an entirely separate judicial system which explicitly ignores the Conventions and any sense of 'proper procedure' is hardly "meeting" the same.

Boumediene struck down the most generous detainee hearing procedure in the history of American warfare, and possibly in the history of the world.

This is a joke, right? I mean, its not possible to combine those 23 words in that sequence as a serious sentence.

Yoo was correct; the Court striking down the Military Commissions Act, especially after specifically recommending such an act in Hamdan v Rumsfeld, was an act of pure, judicial fiat.

I thought it was "Judicial Review". Tomatos/bananas, I guess.

Yoo's only mistake was in agreeing that the Bush administration should go along with the decision;

Actually that was just admission to the proper role of the Executive versus the Judiciary, or so the last 200 years of history would suggest.

they should ignore it, and would be completely within their Constitutionally-granted rights if they did so.

Article II grants the Executive Branch no such "right", privilege, or the like.

But I get the sense you've never read the Constitution either.