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Posted on 06/22/2008 7:09:45 PM PDT by Uncle Ralph
In a Chicago Tribune op-ed published Friday, Army Maj. Kyndra Rotunda, a former legal advisor at Guantanamo and prosecutor with the Office of Military Commissions, argues that because of the latest Supreme Court ruling on the terrorist detainees, "military commanders must justify battlefield captures and prove to a U.S. judge that decisions they made on the ground -- in a faraway land during a battle -- were justified" and thus the decision "puts American troops at risk and will lead to more U.S. deaths on the battlefield because it makes it more difficult for soldiers to detain the enemy."
Rotunda, who is the author of the recently published Honor Bound: Inside the Guantanamo Trials (currently #2 on Amazon.com's international law list), notes that "the court has no reason to step in" since, under the system enacted by Congress and signed into law by President Bush, "detainees held in Guantanamo Bay receive more rights than POWs under the Geneva Conventions" -- a fact which Chief Justice John Roberts acknowledged in his dissent when he observed that the rules struck down by Justice Anthony Kennedy and the four justices who joined him were "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."
Drawing on her personal, legal, and military experience -- on the last, incidentally, she has served more years in uniform that the court's majority combined (the sum total of military service by the Boumedienne Five amounts to Justice Stevens's nearly four years of World War II naval service and a one-year stint that Justice Kennedy served in the California National Guard his first year out of law school) -- Rotunda writes:
As a JAG officer (a lawyer) in the Army Reserves, I have been deployed three times in the global war on terror. I was a legal adviser in Guantanamo Bay and a prosecutor at the Office of Military Commissions. I have seen the procedures that Roberts discusses -- and the conditions at Guantanamo Bay -- firsthand. The U.S. military gives all detainees in Guantanamo Bay elaborate proceedings where they can call and cross-examine witnesses and rebut the evidence against them. They are even assigned a personal representative to help them through the process. The military affords all detainees these procedural rights, even those captured in battle with AK-47s in their hands. Under the Geneva Conventions, POWs have fewer rights. They receive a brief hearing with no lawyer and no personal representative.
And what happens when the U.S. decides that a detainee is an enemy combatant? The detainee stays at Guantanamo Bay. But the digs aren't bad. Detainees enjoy up to 12 hours of recreation time a day where they can play sports like Ping-Pong, basketball and soccer. They can work out in the exercise room, take various classes, garden, watch videos and go to the library. They are guaranteed eight hours of sleep every night and 20 minutes of uninterrupted prayer time five times a day. Guards can't interrupt detainees during prayer times, even if they're not praying.
The existing procedures (the ones the Supreme Court thinks are deficient) are so generous that the military paroles hundreds of suspected terrorist detainees back to the battlefield, although no international law, including the Geneva Conventions, requires it. At least 5 to 10 percent of those released re-enter the fight and put soldiers' and civilians' lives at risk. One killed a judge who was leaving a mosque in Afghanistan; another went back to fighting the U.S. and assumed leadership of an Al Qaeda-aligned militant faction in Pakistan; and, most recently, a released detainee became a suicide bomber.
The problem isn't that the U.S. is releasing too few detainees -- it is releasing too many.
Rotunda concurs with the sentiment expressed by Justice Antonin Scalia in the concluding sentence of his dissenting opinion: "The nation will live to regret what the court has done today."
JAG does a pretty good job of putting them at risk too.
bttt
Other than gaining some Intel, this tells me that you don’t take any Prisoners.
She’s right. The Supremes ought to keep themselves cognizant that the JAG is a serious group of attorneys. Maybe the most professional and righteous in the country. Much better than the “big” firms.
The 9th circuit courts of America will now be interpreting law for battle field decisions?
United States of America; Constitutional rights for all!
This is one of the comments to the article. I think the writer makes some strong arguments:
I read Ms. Rotunda’s article (and the comments) as a deployed Servicemember in a far-off land. I have recent first-hand experience as to just how the Boumediene decision endangers our troops. As a military attorney, part of my job is to supervise detention operations. The Boumediene decision, under the guise of civil liberty, bascially means that the individuals that were detained by my fellow Servicemembers now have the right to challenge the grounds of their detention in federal court. If such is the case, then I can only assume that the rules of evidence and procedure used in our federal courts also apply. Under those circumstances, I cannot reach any other conclusion than that these detainees will inevitably be released. Why? Because the decision to detain someone is usually tactical (as opposed to legal) in nature.
The decisions to detain or release is almost always made under difficult, if not hostile, circumstances. The young men and women in uniform making those decisions have no formal legal training, and their primary concern is the safety of their comrades. I can imagine countless scenarios in which our troops will be exposed to increased and unnecessary risk in order to insure that a detainee will not be released due to lack of evidence or some other legal technicality. In fact, it is already happening. I have personally had to travel into harm’s way, the backyard of a waiting enemy who is all to happy to kill me and others, in order to exploit the scene of a roadside bomb or some other act of terrorism in an attempt gather more and better evidence. Fortunately, in that situation, the Federal Rules of Evidence hadn’t yet applied. The best I could do was to obtain a statement from a young troop who was directed to detain a certain individual. When asked why he detained that individual, he explained that some fellow troops had observed the individual attempting to plant a roadside bomb. Any first year law student can immediately spot the evidentiary issues presented under such all-too-common scenarios. Soldiers, Sailors, Marines and Airmen are warfighters, not police officers or forensic experts.
In my opinion, if the detainee is a U.S. citizen, then they should have access to our courts. But to extend such Constitutional protections to non-citizens, who are captured overseas attempting to commit acts of terror against American citizens is not only without ANY historic legal precedent, but it cheapens what myself and the thousands of other fine young Americans in uniform are trying to accomplish.
Finally, it is a sad commentary on the state of affairs when the anti-Bush brow-beating has risen (or perhaps sunk) to the level of resorting to ad hominem attacks on someone who has actually picked up a weapon in the name of something larger than herself.
Battlefield interrogations followed by battlefield summary executions...
“Our military will adapt - and will just kill terrorists instead of capturing them (or turn them over to the locals for some local justice)...”
You got it...and that goes against the spirit of the Geneva Convention too..If this rule had been applied duuring WW II there would have been no American, British, or German P.O.W.’s as they all would have been killed somehow on the battlefield.....We will probably never see another Gitmo on American territory so this decision will stand on it’s own as the way not to manage the legal ramifications of war...
I don't believe that is the affect of boumedienne. Commanders can still capture enemy combatants and send them to GITMO the same as they have done all along, the difference is that now a civilian judge can order their release.
[Maybe the most professional and righteous in the country. Much better than the “big” firms.]
And when the dems have driven this country almost into the proverbial ‘crapper’ it will be the military coup with the JAG that takes care of business.
I hope you are kidding. The military would never turn on the American people and that is where Obie and his ilk will have a problem. Obie thinks he needs to reign us in and what he needs to reaign in is the Islamists.
If the boumedienne case doesn’t get the job done, the four girlie boy justices and ms. ginsburg will strengthen it further in whatever way is necessary so that the military is thoroughly undermined. The courts are full of weasels, but who knew they were also traitors?
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That’s the point. Some judge will release for lack of evidence.
How are soldiers to gather evidence during battle. IF they come back after the battle evidence is destroyed or contaminated or some other crazy thing.
Then whey woule have to travel to the US and appear in court.
This whole thing is the rats doing everything possible to lose the war because a Republican is in office.
If a rat was in office none of this would be happening.
It may simply create a ‘take no prisoners’ attitude on the battlefield.
"The problem isn't that the U.S. is releasing too few detainees -- it is releasing too many."
That's what I would do.
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