A Ku Indeed!

George Will on Gitmo

Posted in Politics by Chris on June 20, 2008

I very rarely find myself in agreement with George Will on just about anything. What a surprise, then, when I read this column, where he defends the recent Supreme Court Boumediene decision on habeus corpus rights ad detainees, and found myself nodding in agreement all the way through. Frankly, I am stunned that there are people who seem to think it is acceptable to leave a person in a detention center indefinitely — perhaps for the rest of the person’s life — with no chance to protest their innocence whatsoever. I’m also not surprised that FOX news has not had Will on to talk about this (far as I know), as they typically do trot him out to do the rounds when he says something “they” agree with. I guess Will has been a bad boy.


10 Responses

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  1. Devil's Advocate said, on June 20, 2008 at 3:05 pm

    I concurr with Justice Robert’s dissent.

    George Will is a fine journalist and commentator, but I think Krauthammer is more of a tour de force. I thought Will was more of a regular on ABC than FOX?

  2. Chris said, on June 20, 2008 at 8:24 pm


    How is your summer going?

    It depends on the issue, and how much Will seems to be “in sync” with the Fox line, far as I can see. He’s not in sync on this one, for sure.

    I haven’t read the opinions/dissents, so my take here on the case is not “legally” informed (not that it would be even if I read them — I’m not a lawyer). But I’m reasonably up to date on the details.

    What about Roberts’ dissent did you find compelling?

  3. Million said, on June 21, 2008 at 2:18 pm


    I had the good fortune to hear one of Omar Khadr’s lawyers speak last year at WashU (Dick Gephardt, the Congressman whose papers I was working on, introduced him). Needless to say I was very impressed. He focused mostly on aspects of legal precedent, but made some really valid points regarding morality in respect to adolescent development and law. I’m not really the type of guy who cares about law for it’s own sake, but it was interesting to see someone bridge the disconnect between rules and ethics without equating the two.

  4. Jonah said, on June 22, 2008 at 7:58 pm

    I watch George Will on ABCs This Week regularly and I find myself agreeing with him more often than not. He is a principled conservative (I know, oxymoron) who finds most of what the current administration does utterly distasteful. I don’t agree with him all of the time but I do respect his thought process. I’m not at all surprised he took this postion.

  5. Devil's Advocate said, on June 23, 2008 at 3:23 pm

    I’m fine, a little stressed and tired, but que sera. How was Connecticut? How is your summer going?

    As far as George’s article goes I do disagree and here’s just scratching the surface…

    Roberts insinuated that the political machine was the litigating factor and not the rule of law itself. In this sense jurisprudence was supplanted by popularity and political trends. For instance, ordinarily where the law is vague or silent on a pressing issue one must abide by case law. In this respect Kennedy doesn’t offer a tangible case but Roberts points to one from WWII were German POW’s were petitioned to have same rights as legal us residents, ergo habeas corpus. The federal court at the time quashed the petition citing first the practical logistics pantomime that would ensue, but also that military justice had not been allowed to run its course. In this sense due process was circumvented because the military tribunals were not allowed to exercise their authority. As a side note military personnel and prisoners are always subject to a different code of law, one that acts supra to civil procedure. It’s similar in principle and effect, but it does serve different functions and therefore has to be separated from civilian law. If military law or their due process were to break down or become dysfunctional then the first course of action would be to petition federal court in DC. At the time of the ruling not one single petition was filed there, that avenue of approach had not been exhausted let alone tried. It would be like forgoing appellate or even district court and going straight into Supreme Court. In litigation there is an order, a certain harmony if you will that has to be respected. Prima facie then the court never should have heard the case, let alone rule on it because the petitioners failed to go through the motions. Mind you these aren’t personal representatives of the detained, they are pundits for those who wrote the 20-odd amicus briefs. Of which only 4 were affirming the minority’s stance.
    Beyond that glaring oversight, granting habeas corpus would be tantamount to extending aliens instant legal residency and/or citizenship. This is a cost that neither the courts nor the US constitution permits. To this effect Roberts asserts that under Kennedy’s majority opinion there is no reasonable limit as to what rights they maybe afforded. A cogent ruling would have laid some minimal guideline for determining what rights are or aren’t applicable, but as it is Kennedy in all his wisdom disregarded this slight of jurisprudence and precedent.
    In the final analysis the legal system was not used, but rather a court of public opinion. We’ve had discussions before about Kennedy’s position as a swing vote. He is nefarious for using outside legal sources for his interpretation of constitutional law and he is rightly chided by Roberts, Alito, Thomas, and Scalia for doing so. On several occasions his opinions cited international law, particularly the code set by the European Union. I don’t know why he does it, perhaps we wished to be exotic, but whatever his intention it ultimately undermines US sovereignty. This is simply unacceptable and I find it amazing that anyone who genuinely cares about the law or has someone with intimate knowledge of it would even consider legitimizing the majority’s opinion.

    Perhaps I’m too Machiavellian, but even forgoing Robert’s logic, you never let your enemy or even a suspected one get their foothold in your customs or judicial procedure. Because there is a direct link between the court’s ruling and public opinion/political trends it means directly that our sovereignty is in jeopardy because we have lost the faith and respect of the governed.

  6. Devil's Advocate said, on June 23, 2008 at 10:05 pm

    Here’s an op-ed countering George and a link to the Supreme’s Courts opinions.



  7. Chris said, on June 24, 2008 at 7:33 am

    I’m not sure why Roberts thinks the majority is appealing to political trends. Whether a person has access to habeus protection seems to me to be a very ground level question, not one that is or should depend on one’s politics.

    What military or other court recourse do detainees have? Do they have the right to petition regarding the veracity of their incarceration? Isn’t what this is all about? My impression — through I could be wrong — is that this is the beef; essentially, a detainee can be held for the rest of his life without ever having the possibility to question whether his incarceration is legitimate.

    I don’t know the specifics of the cases (I just don’t have the time to research this stuff, unfortunately, so my opinions must remain to some degree theoretical), but I’m unsure why the federal courts would have ruled that way in WWII. If the question was whether POWs had _all_ the same rights as us citizens, that seems extreme. But giving them habeus rights does seem to me to suggest that they have all the same rights as citizens. Besides, if they had habeus, it would have been a bit of a joke, don’t you think? No judge would have agreed to hear their case, given that they were, after all, captured with uniforms on, and I’m assuming here that habeus protection doesn’t even entitle you to a trial — just the right to petition, one that can be rejected by any judge.

    Given that I don’t see the connection between granting habeus and granting the detainees full citizen’s rights, I guess I don’t see the problem here. Granting them habeus doesn’t amount to a get out of jail free card. It’s merely the right to petition, one that can be very easily dismissed by any judge, for just about any reason.

    I fear that we are entering a stage where we just assume that people who are in Gitmo are “clearly guilty, or they wouldn’t be there.” It would be one thing if these people (the vast majority of whom, I have no doubt, are probably guilty) were all actually captured on the battlefield. But they were not. Some were captured on tips, in home raids. Some in sweeps. Some by bounty hunters. Thus for me, the process through which they have been picked up is rife with high probable error, if you get my meaning. If there are innocent people there, or at least people who shouldn’t be there, they should have some recourse to make that case. I mean look — the government should be able to give _some_ factual reason why a person is there. Given that this is all that is required of the state to maintain detention, I simply fail to see where habeus protection gives away the farm to the enemy, as Scalia seemed to suggest.

    There’s only one argument that I can think of that makes me pause on habeus. If non-uniformed combatants have the same court/other rights as POWs, then there is no reason to put on a uniform and identify yourself. This gives a good reason for the treatment of the non-uniformed to be worse than those of legitimate POWs. However, thinking again about it for a second more, I’m again not sure why habeus protection should make that big a difference here, given the rather thin evidence that can be produced to make the case for legitimate detention in such situations.

  8. Chris said, on June 24, 2008 at 7:35 am


    By the way — don’t let organic get under your skin (if that’s what’s stressing you out). 🙂

    Oh, and I’m leaving for CT next week, where it will no doubt be “yi” this and “yi” that and “yi” some other thing. I forgot to mention to you that it must have taken you some time to italicize that letter combination over and over again in your paper!

  9. Jonah said, on June 24, 2008 at 10:33 am

    Where in Ct? I’m in Guilford for another three weeks. Give me a call: 9893273500

  10. Chris said, on June 24, 2008 at 11:12 am

    J —

    Hey, that’s great! I’ll be staying at Wesleyan University for six weeks, which is in Middletown. I’m arriving on July 5th, so we definitely overlap. If I remember where Guilford is, it’s probably around 20 miles away. Let’s definitely get together.

    Here’s my cell too — (417) 459 – 3968.

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