Talk:Military Commissions Act of 2006/Archive 2

Archive 1

Archive 2

Archive 3

Get some discussion and consensus before deletion

I don't know the technical details of the section but knowledgeable editors should discuss what changes or whether the section is totally unrelated before deletion. thx. Chivista 15:31, 12 February 2007 (UTC)

I read the citations, and none mentioned the 2006 MCA, all the articles were commentary/criticism of the Combatant Status Review Tribunal, and since this article is not about the Combatant Status Review Tribunal, I removed the information, as it already has a home in a separate article. Torturous Devastating Cudgel 15:35, 12 February 2007 (UTC)

Since the MCA refers to the CSRT's as part of determining enemy combatant status, it is more than relevant to comment on their inaccuracy. As the MCA adopts whatever the CSRT says, the critique that those are severely unfair against suspects which is now incorporated in this law, to not mention that is utterly irresponsible, unwarranted and denies readers full access to the ramifications of this inherently flawed law.Nomen Nescio^{Gnothi seauton} 17:49, 12 February 2007 (UTC)

Linking a criticism of the CSRT with the MCA is relevant only if someone notable has done so, otherwise it constitutes WP:NOR. All of the links provided in the section do not comment on the MCA and deal only with the CSRT. Therefore, such a long section belongs on the CSRT article, and not here. Torturous Devastating Cudgel 18:04, 12 February 2007 (UTC)

I probably misunderstand the quotes taken from the Washington Post and Village Voice. IMHO they commented on the MCA while the CSRT's were used to illustrate the fact that although most prisoners have no ties to terrorism they are still held and the MCA strips them of any legal recourse to challenge that. Sounds relevant to me.Nomen Nescio^{Gnothi seauton} 18:37, 12 February 2007 (UTC)

The articles are primarily about the prisoner status under the CSRT, and mention the passing of the MCA as how it will impact the process. The articles are criticisms of the CSRT and not the MCA, as all the articles only mention it briefly. So while it may sound relevant to you, you have as of yet to demonstrate how these citations are relevant to the article. Torturous Devastating Cudgel 19:00, 12 February 2007 (UTC)

Some observations:

1. The MCA incorporates the CSRT's by adopting their findings when defining who is an enemy combatant.
2. The MCA prohibits any judicial review of the detention of enemy combatants.
3. If the CSRT's are inadequate (which already has been established) then logic dictates that the MCA has the same problems following the previous points.
4. When discussing flaws in the MCA it is highly relevant to mention that since the CSRT's are biased against detainees, and since the MCA adopts their results without further review, and since habeas has effectively been abolished by the MCA those who are incorrectly found to be enemy combatants are now no longer capable to address that injustice through judicial review. Which is a direct result of the MCA.

Please elaborate how this is not pertinent to this article!Nomen Nescio^{Gnothi seauton} 07:30, 13 February 2007 (UTC) Added HRF, they say exactly the same thing.[1]Nomen Nescio^{Gnothi seauton} 09:06, 13 February 2007 (UTC)

Criticsm Section

The Criticsm section is currently 1/2 the article's content and needs to be significantly trimmed. Torturous Devastating Cudgel 19:20, 30 May 2007 (UTC)

We do not try to achieve a spurious balance by removing valid, sourced information. If you believe that valid, sourced information supportive of the Act has been unfairly slighted, please feel free to add such information, with appropriate citations. JamesMLane t c 19:43, 30 May 2007 (UTC)

Well, I can see that a great deal of it is not related to the MCA and appears to be WP:SYNT, for example, I have not read anywhere that this is somehow related to command responsibility for example. And, for the record, we most certainly do remove valid, sourced information if the article borders on violating WP:Weight Torturous Devastating Cudgel 20:27, 30 May 2007 (UTC)

Rewriting the War Crimes Act in such a way that war crimes today are no longer war crimes tomorrow evidently results in people no longer being accountable for committing war crimes. As such it is an attempt to evade command responsibility.Nomen Nescio^{Gnothi seauton} 21:44, 30 May 2007 (UTC)

Ex post facto law

"An ex post facto law (from the Latin for "from something done afterward") or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law." Could someone explain why rewriting the war crimes act retroactively is not an ex post facto law? If not I will restore the link which has been removed.Nomen Nescio^{Gnothi seauton} 18:42, 25 May 2007 (UTC)

Its not up for you to decide the meaning of the law, find a cite saying its ex post facto, which is un-constitutional, and put it in. Torturous Devastating Cudgel 18:48, 25 May 2007 (UTC)

A source saying retroactively I have (more to the point just read the already available sources discussing the MCA in regards to the War Crimes Act and they say just that), but you probably argue that rewriting retroactively is not equal to ex post facto law. Or, is that allowed?Nomen Nescio^{Gnothi seauton} 15:17, 26 May 2007 (UTC)

[2][3][4][5]Nomen Nescio^{Gnothi seauton} 16:19, 26 May 2007 (UTC)

Sec. 950p of the MCA, states:

Purpose- The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.

They are not making new laws, simply clarifying old ones; that is the statutory implication of the MCA. And, as it is not creating new crimes, simply codifying and classifying existing ones, ex post facto does not apply. DC District Judge James Robertson rejected Hamdan’s most recent appeal, an appeal that relied, in part, on the application of ex post facto.

If you want to include it in the criticism section, that’s fine, but I believe its already there. Torturous Devastating Cudgel 19:22, 29 May 2007 (UTC)

It also rewrites the war crimes act making things that before were considered war crimes no longer war crimes and as such no longer punishable by US law. This is done retroactively. Please elaborate how such is not an ex post facto law. Second you will remember David Hicks was charged with a crime that at the time of his capture did not exist!Nomen Nescio^{Gnothi seauton} 10:00, 30 May 2007 (UTC)

Neither the wording of the law, now Robertson's decision in the DC Circuit support that statement. Secondly, nothing in the law that is defined as a crime was not defined as a crime before, it simply changes jurisdictional authority on the offense. Ex post facto, as decided in nearly ever case that has tackled the subject, bars increased penalties only not decreasing or even decriminalization of an offense.

And for the record, I don’t have to justify why something does not belong in the article, you have to justify why it does. Review the material more carefully including the appeal before you bring this up again. Torturous Devastating Cudgel 13:06, 30 May 2007 (UTC)

We keep running in circles. You come in erroneously claim something and I have to disprove that(??). You have to prove your claim!, just like anyone else.

1. The MCA rewrites the WCA retroactively. Your denial is not sufficient to change that fact. Or, do you possess better judgement than those legal experts used as source?
2. Ex post facto law refers to rewriting the law period. It is not limited to increasing liability but can also mean decrasing liability. In the most extreme form that would constitute an amnesty law.

If you object to mentioning that you have to show the MCA is not rewriting the WCA. Further I would like to point you to the following things the MCA did:

1. It defines unlawful combatant, a concept that does not exist in international law. If you think otherwise I am interested in the lawbook defining that term in the way the Bush administration does, i.e. unlawful combatants are not intitled protection by the Geneva Conventions.
2. It defines the previous non-existing "aiding the enemy" as crime for which David Hicks was indicted although at the time of his arrest this crime did not exist.

Here we have two other examples of the MCA introducing something that is retractively applied. Please do not rewrite history.Nomen Nescio^{Gnothi seauton} 16:04, 30 May 2007 (UTC)

Actually an unlawful combatant was defined by the Detainee Treatment Act of 2005, and was narrowed by the MCA. Secondly "aiding the enemy" (UCOMJ Section 904 Article 104) has always been a crime. Your in over your head here, please stop digging. Torturous Devastating Cudgel 17:13, 30 May 2007 (UTC)

In any war people are "aiding the enemy." To make that a crime effectively makes any war a crime. Example: a german soldier arrested by allied forces during WW II would by definition be guilty of "aiding the enemy."Nomen Nescio^{Gnothi seauton} 20:00, 30 May 2007 (UTC)

The term itself has been used long before the Bush administration. It was mentioned in a DoD report for on competent tribunals during the 1991 Gulf War where they said: "No civilian was found to have acted as an unlawful combatant."

-- Randy2063 17:51, 30 May 2007 (UTC)

Feel free to provide the exact location in US and international law where this definition is made and explain such to numerous European Union commissions oblivious to that fact. In the mean time you might want to read the following: [6][7][8][9][10][11][12][13][14][15][16][17][18][19][20][21][22][23]. Having read these articles nobody, outside the Bush administration, seriously maintains the concept is well known and accepted through history. Those being held as unlawful combatant are effectively being held under a concept that did not exist as they were kidnapped.Nomen Nescio^{Gnothi seauton} 19:56, 30 May 2007 (UTC)

Well that is your opinion and you are most certainly entitled to it, but please don’t place it in the article. Torturous Devastating Cudgel 20:02, 30 May 2007 (UTC)

This is getting tedious. Every time we meet you insist your POV is more important than my sources. Read the multitude of links I just gave you and then repeat that silly non-argument that it is my opinion.Nomen Nescio^{Gnothi seauton} 20:06, 30 May 2007 (UTC)

Guy, there isn’t one source on earth you could cite that would state that this is a violation of post ecto fact that would trump the decision of the circuit court and the SCOTUS’s refusal to review that decision. Game over man … game over. Lane has already added the information in a way that meets all of WP Guidelines. I suggest you familiarize yourself with them. Torturous Devastating Cudgel 20:25, 30 May 2007 (UTC)

Calm down. I am responding to the talking point that unlawful combatant is not invented by the Bush administration. The ex post facto thingy I think is more than reasonably solved.Nomen Nescio^{Gnothi seauton} 21:28, 30 May 2007 (UTC)

Reporting the views of prominent spokespersons on the "ex post facto" issue

That the MCA violates the Constitution by imposing ex post facto penalties is hardly an outlandish view, nor is it a difficult one to source. I've added a paragraph, with a couple citations. More are available. This is, however, a different issue from the retroactive exoneration of Bush Administration war criminals. Such exoneration, while an affront to human decency, is not a violation of the ex post facto clause. That clause has no application to the retroactive immunization of criminal acts, but it is violated by the criminalization of acts that were not illegal when committed -- something the MCA also does. The latter issue is properly addressed in the section about the Act's unconstitutionality, which is where I've put it. I don't think the retroactive exoneration provision should be wikilinked to Ex post facto. JamesMLane t c 19:16, 30 May 2007 (UTC)

If it were unconstitutional, wouldn’t the appeals court ruled that way? Torturous Devastating Cudgel 19:18, 30 May 2007 (UTC)

If segregated schools were unconstitutional, wouldn't the Supreme Court have ruled that way? Or, if segregated schools are constitutionally permissible, wouldn't the Supreme Court have ruled that way? The fact is that courts don't always apply the law -- they can be swayed by the prejudices of the day, be it racism as in Plessy or the anti-terrorism hysteria being whipped up by Bush for political purposes.

Now, obviously, our article can't use those terms to describe what Bush is doing, and can't assert that the Act is unconstitutional. That's why I haven't written any such thing. I've simply edited the article to report the views of notable spokespersons. I cited their credentials. (I passed over several bloggers who were much more colorful in their language.) If your position is that no criticism is worth reporting once it's been rejected by a court, then our articles on the anti-abortion movement are going to need some heavy rewriting.

Incidentally, I don't know off the top of my head whether any court has addressed the ex post facto issue. If there's an appellate court decision specifically upholding the Act against that challenge, then the decision should be referenced along with the discussion of the criticism. JamesMLane t c 19:41, 30 May 2007 (UTC)

Thank you. Nice work.Nomen Nescio^{Gnothi seauton} 19:56, 30 May 2007 (UTC)

At one time, segregated schools were constitutional, and at one time slavery was constitutional. If Wikipedia existed in 1840 or 1940, an article on segregated schools or slavery would, as a matter of fact, have to state that slavery and segregation are constitutional. Caveats could be added, but the factual matter of the issue is that at one time these things were constitutional. As a lawyer you should be well aware that the courts, not the administration, congress, newspaper editorial pages or even … dare I say … the Center for Constitutional Rights or the ACLU are the final arbiters of what is and what is not Constructional. One is a matter of fact, one is a matter of opinion.

As far as the Ex Post Facto argument, and if it has or has not been looked at by the courts, you will remember that the SCOTUS refused to hear Hamdan’s appeal of the District Court’s decision in 12-06 by a 6-3 vote. Part of Hamdan’s appeal was that his crimes were being applied post ecto facto. Torturous Devastating Cudgel 20:21, 30 May 2007 (UTC)

Your point would be that no court has ruled on whether it is an ex post facto law. Making the presented arguments still valid.Nomen Nescio^{Gnothi seauton} 21:29, 30 May 2007 (UTC)

Obviously, we should report relevant court decisions. I was answering only what seemed to be your (TDC's) implication that we shouldn't report a POV that the Act was unconstitutional, because a court had ruled otherwise. As some Justice once observed, "We are not final because we are infallible; we are infallible because we are final."

In the specific case of the MCA, Hamdan was arrested and charged before the passage of the MCA. It's not clear to me that he would have standing to raise the issue, at least not in the sense of someone who was accused solely of acts that were legal when committed. I haven't read the circuit court decision, though, so I can't say for sure whether there's anything in it that should be referenced in this article. JamesMLane t c 21:31, 30 May 2007 (UTC)

Its not about fallibility vs infallibility, its a question of law, a question of fact and a matter of opinion, all of which needs to be delineated as such in the article. Torturous Devastating Cudgel 14:24, 31 May 2007 (UTC)

Why WP:AGF does not apply to Torturous Devastating Cudgel

WP:AGF says: "This guideline does not require that editors continue to assume good faith in the presence of evidence to the contrary." Do the boasts on his user page of being a "prolific troll" and having been "banned from too many chat rooms to mention" count? If not, he has also acknowledged flouting a parole for repeated violations of the 3-revert rule. This, along with what I feel is beyond-reasonable-doubt evidence of his sockpuppetry, can be found here: http://en.wikipedia.org/wiki/Talk:Military_Commissions_Act_of_2006/Archive1#March_of_the_sockpuppets Ribonucleic 19:29, 4 June 2007 (UTC)

• Or, more recently: "This is a reminder about your revert parole--you are limited to one reversion per day and yesterday you reverted twice: here and here. Please be more careful in the future. Bucketsofg 14:52, 27 January 2007 (UTC)" http://en.wikipedia.org/wiki/User_talk:TDC#Caution Ribonucleic 23:56, 5 June 2007 (UTC)

• • Or, even more recently: "I have blocked you for 31 hours due to 2 reverts on User:Xenophrenic today Gnangarra 14:22, 16 February 2007 (UTC)" http://en.wikipedia.org/wiki/User_talk:TDC#Block_-_parole_vio Ribonucleic 23:59, 5 June 2007 (UTC)

Yes, it does apply. --Tbeatty 06:22, 9 June 2007 (UTC)

• Thank you for contributing that thoughtful and reasoned response. Ribonucleic 23:24, 13 June 2007 (UTC)

Oh please, please, pretty please bring this to the attention to the RfCu page. A good public humiliation there would learn you not to throw around warrantless allegations. Torturous Devastating Cudgel 18:10, 27 June 2007 (UTC)

Removal of sourced material

Now, before someone hits the revert button, please look at the edit summaries, and evaluate each edit on its own. Much of the material removed did not mention the MCA, and as such, has no palce in the article. Torturous Devastating Cudgel 21:16, 30 May 2007 (UTC)

Clearly we have discussed this earlier when I asked you specificly to elaborate on your view. You never responded and now suddenly you remove massive sections. Let's first continue that discussion you, for whatever reason, terminated at the time. Invoking OR/SYNTH every time you want criticism removed is hardly constructive.Nomen Nescio^{Gnothi seauton} 21:41, 30 May 2007 (UTC)

Torturous reasoning?

Mr or Ms Torturous Devastating Cudgel, you ask other wikipedians to look at your edit summaries, and evaluate each edit on its own. Well, surprise, surprise, the first one I looked at requires torturous reasoning.

• You removed a reference with the title: "Challenging the Military Commissions Act".
• You removed it with the edit summary: "(→Application to U.S. citizens - jurist citation does not mention previous passage, removed citation only)"
• So, what was this previous passage? "Some commentators have interpreted this to mean that 'if the President says you are an enemy combatant, then you effectively are."
• Hello! Did you even read the text you were editing before you applied your excision tool? I am going to quote an early paragraph, from the reference you excised. I believe it fully addresses the previous passage.

  "The first definition is so sweeping that it could be read to include anyone who has donated money to a charity for orphans in Afghanistan that turns out to have some connection to the Taliban or a person organizing an anti-war protest in Washington, D.C. The second definition could supersede the first entirely, granting the President shockingly wide latitude to declare anyone a UEC."

Mr or Ms Torturous Devasting Cudgel, I suggest you take a time out, and re-read the wikipedia policies you keep citing.

I am also going to suggest you reconsider the text you place prominently on User:TDC. Your main page looks like a political manifesto. You say you are devoted to "persuasion". I believe your stated goals on your main page do not comply with WP:NOT. In particular I do not believe the following passage on your main page complies with WP:NOT#SOAP:

"Described as one of the most prolific troll from my friends at Indymedia and banned from too many chat rooms to mention, I feel Wikipedia is both an opportunity to inform as well as persuade."

Mr or Ms Torturous Devastating Cudgel, I am trying to be as civil as possible here. But, if your first priority is to "persuade" people, or to defend a nation, a religion, or a political movement, there are lots of places where you can start a blog. You really shouldn't be trying to use the wikipedia as a tool for "persuasion".

Candidly, Geo Swan 23:35, 30 May 2007 (UTC)

Well, lets get a few things strait: you should WP:AGF when dealing with other editors. Questioning my motives will get you no where and titling a section in talk off of a pun with my name is not exactly kosher either and violates WP:NPA. If you want to discuss the merits and the substance of my edits, then do so, if you want to make jokes and personal attacks against me, go somewhere else.

1. By all means, let's get a few things straight. Have you heard the observation that those who advise others to WP:AGF ironically turn out to be some of the worst offenders? You left a comment on User talk:Geo Swan admonishing me for edit-warring. And what is up with this warning about edit-warring? Have I reverted a single one of your recent edits?
2. No one forced you to choose a highly provocative and inflammatory name, one appropriate in flamefest blog-sitee, not on a project where we are not supposed to try to persuade others to our point of view.

Have you considered changing the appearance of your wiki-id, so it expands to something less inflammatory than "Torturous Devasting Cudgel"? Your chosen name just doesn't leave your correspondents with the idea that you have any interest in reaching a compromise, or even listening to, or responding fairly, to their arguments. How about "Toasty Delicious Crumpet"? Or "True Devotee of Consensus"? -- Geo Swan 17:31, 31 May 2007 (UTC)

You know what they say about opinions, and you are certainly entitled to yours, but I really don’t think this is an appropriate place to discuss my username or any inferences you draw from it. Torturous Devastating Cudgel 17:51, 31 May 2007 (UTC)

Now, onto the meat.

This statement: “Some commentators have interpreted this to mean that 'if the President says you are an enemy combatant, then you effectively are.”, which is a direct quote, is simply not found in this reference: Challenging the Military Commissions Act, and the removal of the source was a no brainer, although since the other source did support the statement, both were left it. The inclusion of the phrase Some commentators is also a weasle word, considering that it is one commentator, we know who it is, and my edit identified him.

I note you are not disputing that the passage you keep quoting is a reasonable paraphrase of portions of the perfectly valid reference you excised. Among the things wikipedians have to worry about is committing plagiarism and copyright violations. There are limits to how much material we can cut and paste. So we paraphrase stuff. Your idiosyncratic interpretation of policy, which you seem to believe authorizes you to make radical excisions, without prior discussion, when you aren't happy, if carried out everywhere, would gut the wikipedia, and leave it a hollow shell of what it is now.

IMO your appropriate choices included:

• Leave the reference and the passage, and write about your concern here on the talk page.
• Leave the reference and constructively rewrite the paraphrase that triggered your concern.

What you did, instead, was strip out a perfectly valid, useful reference, without any prior discussion, for what is, charitably, a mere technicality. By doing so, I am very sorry to inform you, you risk giving the appearance of trying to push a POV. Geo Swan 17:31, 31 May 2007 (UTC)

If it is an accurate paraphrase, then perhaps we should make it one instead of a quote, as the two are not the same thing. Usefulness aside, the reference was not valid as it was attributed to a “quote”, and not a paraphrase. Torturous Devastating Cudgel 17:55, 31 May 2007 (UTC)

If you would not "shoot from the hip" but WP:AGF, it might have occurred to you it is not a quote but a paraphrase. You might even have commented here on the situation. Instead you chose to delete an entirely valid section that arguable only needs some tweaking which you yourself are now accepting as reasonable. This is difficult to interpret as constructive editing.Nomen Nescio^{Gnothi seauton} 18:25, 31 May 2007 (UTC)

This :Some commentators have interpreted this to mean that "if the President says you are an enemy combatant, then you effectively are." ' is a quote, not a paraphrase, and only one of the two given sources has this content in it. Torturous Devastating Cudgel 18:59, 31 May 2007 (UTC)

This edit is also good example of the WP:NOR and WP:SYNT that exists all throughout the article. You cannot string together the conclusions of several different sources to reach a conclusion that none the sources make on their own. Also if you look at the edit, all I did was remove the sources that did not reference the block quote. If you quote something, use only the citation that the quote came from, not ten citations from ten authors.

See, instead of giving a meaningful response, or acknowledging you made a lapse, in this edit, you are trying to change the topic. Calling an excision a "no-brainer", is not a meaningful argument. I respect people who can admit they made a mistake. We should all be prepared to admit we made a mistake. And, no offense, but it really seems to me that this is an instance when it would be in the long-term interest of your credibility for you to do so here. Geo Swan 17:31, 31 May 2007 (UTC)

Had I only called it a "no-brainer" and left it at that, you just might have a point. But seeing as how I went on to explain, with considerable detail, that to use a reference to support a "quote", its probably a good idea to have the quote in the source. Torturous Devastating Cudgel 17:58, 31 May 2007 (UTC)

Or you might suggest clarifying it is a paraphrqase. Again deletion is deemed superior to amending the alleged flaw.Nomen Nescio^{Gnothi seauton} 18:25, 31 May 2007 (UTC)

This edit clearly takes into account Grunewald’s notability, but as to what Jose Paddila or his allegations of “torture via pinkbelly” have to do with the MCA are suspect.

The violations of WP:SYNT were also addressed in my edits.

The following for example:

With the Military Commissions Act in mind the Washington Post stated:[32]

If the actual trials of the detainees are as empty and shallow and pre-ordained as were the Status Review Tribunals there is every reason to be mortified at the prospect -- made real by the legislation -- that the federal courts will be frozen out of vital oversight functions. If a regular trial court proceeding were this shoddy, this unwilling to perform a truth-seeking function, this unable to achieve a fair process, the judge presiding over it would be impeached.

With the MCA in mind? Where does it say that in the WAPO article … exactly. As far as I can tell it says that no where in the article, and this seems to be an exercise in clairvoyance. The article’s subject is the “No Hearings Hearing” report by AQ sympathizer Denbeaux.

Please read the exact quote which discusses the MCA and the subsequent effect on due process if trials would be held in the same fashion as the CSRT's. Nomen Nescio^{Gnothi seauton} 18:25, 31 May 2007 (UTC)

This edit] is also a SYNT correction. The concept of command responsibility is mentioned in none of the following sources by name, to include it, along with a link to it, is advancing an idea that no one else is making. The rest of the material that follows also faisl to mention the MCA, so their inclusion in the article is not warranted. Torturous Devastating Cudgel 14:17, 31 May 2007 (UTC)

Already discussed and settled because you withdrew from that discussion. Feel free to answer the questions still open.Nomen Nescio^{Gnothi seauton} 14:35, 31 May 2007 (UTC)

The discussion is open again, I have cited the relevant policy and you have yet to address any of it. Torturous Devastating Cudgel 14:38, 31 May 2007 (UTC)

Reopening means you have to achieve consensus before massively rewriting an article which you apparently accepted in February. Please do that first!Nomen Nescio^{Gnothi seauton}

Taking a break from editing an article does not mean I agreed with your “consensus version”. Aside from personal attacks, puns and questions on my motives/affiliation you have not answered any of the substantive question is have put forth. My re-write was not massive, BTW. Torturous Devastating Cudgel 14:44, 31 May 2007 (UTC)

Are you saying we can reinstate the Psyop article and restart the debate? That is what your statement here would result in if you are really consistent. As to answers, see above where every comment is rebutted. So feel free to answer that before engaging in an edit war.Nomen Nescio^{Gnothi seauton}

What Psyop article? Please stay on topic, we don’t need any more straw men here. And, as far as the rebuttal goes, nothing I have been posted today has been “rebutted”. Lane added material the other way on the post excto facto portion in a way that we both agreed upon, and met all editing criteria. Torturous Devastating Cudgel 15:00, 31 May 2007 (UTC)

Stop edit warring and consider your arguments were refuted here.[24] But one example I will give: read the WaPo article and then restate your assertion it not even mentions the MCA. Why are you so belligerent. Is it a crime to play nice and have a civil debate? Do you enjoy edit warring?Nomen Nescio^{Gnothi seauton} 15:12, 31 May 2007 (UTC)

Guy, my edits were not refuted, all you did is put together a case for the inclusion of original research (if A is true and B is true, then C is true and we can conclude D, even if no RS argues that D is true). I dont want an edit war, but your refusal to address the above mentioned concerns sure aint helping. Torturous Devastating Cudgel 15:15, 31 May 2007 (UTC)

I hate your uncooperative nature and willingness to keep edit warring rather than find compromise through discussion. Your edits are refuted. You keep asserting but you need to motivate! *Does the WaPo mention the MCA?Nomen Nescio^{Gnothi seauton} 15:20, 31 May 2007 (UTC)

UGH! The WAPO article is about the Seton Hall Report, not the MCA. Torturous Devastating Cudgel 15:23, 31 May 2007 (UTC)

I advise you to read the article this time. Please pay specific attention to the paragraph with the words Military Commissions Act.Nomen Nescio^{Gnothi seauton} 18:29, 31 May 2007 (UTC)

I advise you to read the article in its entirety, is about Denbeaux's report, not the MCA, and if you suggest we put the bar that low for inclusion, then prepare for a deluge. Torturous Devastating Cudgel 18:59, 31 May 2007 (UTC)

I suggest we take a break and wait for mediation to end. This is going no where. Torturous Devastating Cudgel 18:59, 31 May 2007 (UTC)

"Command responsiblity"

I'm trying to clarify whether the dispute is about the particular phrase "command responsibility" or the broader concept.

There is a significant point of view along these lines:

• Various military and civilian employees of the U.S. government have violated U.S. law and international law under the guise of the so-called "Global War on Terror". Their acts would support successful criminal prosecutions, resulting in their imprisonment for war crimes and other violations (would support such prosecutions if, of course, there were in place an honest and law-abiding government to bring such prosecutions, which there isn't).
• Furthermore, under established legal principles (whether it be called "command responsibility" or something else), criminal liability could also be imposed on some of these defendants' superiors, all the way up to Bush himself.
• Bush and his henchmen were worried about the possible restoration of Constitutional government in 2009. They were worried, in particular, that some of them might be indicted, convicted, and imprisoned for the crimes they had committed while in power. One purpose of the MCA was to immunize them from any accountability for their crimes.
• In addition to the criminal aspect, individuals who were kidnapped or tortured, or who otherwise had their civil rights violated, would have a good basis for civil actions for damages -- against the U.S. government, against the individuals who directly injured them, and against Bush and other higher-ups who ordered or connived at the violations. Another purpose of the MCA was to prevent such injured victims from obtaining redress for the wrongs done to them.
• In thus exonerating and immunizing war criminals, and depriving the victims of any effective remedy, the MCA was manifestly unjust. The deprivation of established causes of action might also violate the Due Process Clause.

Obviously, our article shouldn't assume the truth of the foregoing POV. It also shouldn't assume its falsity or unimportance, however. TDC's latest edit appears to me to remove from the article any reference to these retroactive provisions. If the only objection is whether a particular source uses the term "command responsibility", then that objection would not support such a complete whitewashing of the topic.

To try to narrow the area of disagreement: TDC, if we put aside for a moment the use of the specific phrase "command responsibility", do you agree with me that the article should (1) describe the Act's retroactive effects on officials' criminal liability for past conduct and on private citizens' civil actions; and (2) fairly report the opinions of those who have criticized the Act on these grounds? JamesMLane t c 19:04, 31 May 2007 (UTC)

You're misinterpreting the purpose of immunization. The Supreme Court ruled certain aspects of GTMO unlawful, but it was a divided ruling. It would be pretty bizarre to charge someone with crimes on such a murky matter, particularly when a lower court had previously ruled it lawful. If you'll note, those who'd been charged with real crimes, like the Abu Ghraib guards, didn't suddenly get immunity after MCA.

When the Supreme Court accepts MCA as constitutional, that settles it legally. It may be fair to say that they were wrong, but we should limit that to honest brokers -- not jihadi lawyers.

-- Randy2063 20:01, 31 May 2007 (UTC)

In saying that I'm misinterpreting the Act, you're misinterpreting my post. I didn't say that our article should follow this interpretation. I said only that the interpretation is out there and should be fairly reported. Your personal opinion that the view is wrong, and that you can prove it's wrong, isn't relevant to whether Wikipedia should report it. In fact, your opinion, like mine, doesn't even merit inclusion in the article.

A Supreme Court decision would merit inclusion but would not preclude report of the losing side's arguments and of the criticisms that were made of the decision. For example, although I don't generally edit articles about reproductive rights, I assume that our discussion of Roe v. Wade summarizes the dissenters' views and the 30+ years' worth of people arguing that state abortion laws are not unconstitutional.

Finally, the NPOV rule is to give a fair summary of notable opinions. There's no Wikipedia policy limiting that coverage to "honest brokers" as determined by the editors. You may consider human-rights organizations to be "jihadi lawyers". I personally consider Bush, Gonzales, and the like to be war criminals who belong in prison. Here again, however, our opinions are immaterial. Both these POVs are notable and deserve to be included. JamesMLane t c 00:10, 1 June 2007 (UTC)

By "jihadi lawyers" I was referring to the Guantanamo Bay attorneys and stunts like the Denbeaux study that play to the fringe. I should partially retract that. What I really mean is that we should limit this to serious arguments made before the court.

If there's also a notable opinion not necessarily in the legal arguments (e.g. the Denbeaux study) then that could also be included but I'd prefer some separation.

-- Randy2063 01:09, 1 June 2007 (UTC)

Your characterization rests on two propositions: (1) The U.S. government, which has repeatedly been caught lying about matters relating to the "War on Terror", is telling the truth when it alleges (on the basis of secret evidence) that all the detainees at Guantanamo are jihadists; and (2) even assuming arguendo that a particular detainee is in fact a jihadist, a lawyer who acts to secure that detainee's right to legal representation can therefore fairly be called a "jihadi lawyer". I regard both those propositions as manifestly absurd. I recognize, however, that there is a long history of a presumption of guilt (of the accused) and of guilt by association (to extend the guilt to the lawyer). If there had been blogs in the Colonial era, some people would have called John Adams a "murderer lawyer" for representing the Boston Massacre defendants.

Anyway, turning from my personal opinions to the issue of inclusion in the article, I believe that a report of a court decision would reasonably include a summary of the arguments advanced by each side (including arguments that were rejected by the court). Nevertheless, there can also be important arguments against a decision that, for one reason or another, weren't advanced in the actual litigation. Just as the NPOV policy doesn't require that a spokesperson be an "honest broker" to be prominent, so it doesn't require that an argument be made in court to be important.

The article on Guantanamo Bay attorneys states that CCR has coordinated representation of the detainees. CCR is certainly a prominent source for opinions relating to individual rights under the American legal system. If your comment means that CCR cannot be quoted with regard to the MCA, then I completely disagree. (For what it's worth, I'll bet that the noted jihadist and Islamic apologist John Adams would agree with me that CCR and the lawyers it recruits are acting in the highest tradition of our profession.) JamesMLane t c 02:14, 1 June 2007 (UTC)

John Adams didn't sail to France to argue the British soldiers' case in the streets of Caen.

Without conceding that the government has been lying, even if they had, it still remains the government's job to conduct the war, and there are members of congress who have oversight.

Recognizing that these attorneys (jihadi or otherwise) do have a duty to provide a vigorous defense within the bounds of U.S. law, I have to wonder why you say a part of that defense wouldn't be advanced in the litigation. I don't see anything like that in the Roe v. Wade article. That said, I have agreed that moral arguments have their place here. I just don't agree that they should be mixed within the legal ones.

-- Randy2063 17:44, 1 June 2007 (UTC)

I thought I was following this discussion fairly well until the Caen reference. John Adams, in pursuing his duty to represent his clients, showed up at the court where their cases were actually being heard. So do the CCR lawyers. That's pretty much the standard in the profession. What's your point?

As for your concluding question, there are many reasons why there might be a notable argument against a decision that wasn't advanced in the lawsuit. The lawyers didn't think of it. The lawyers made a tactical judgment that the argument was weak and that they wanted to concentrate the court's attention on arguments they thought would more likely prevail. Despite the client's interest in winning the suit, the client's broader interests meant that winning the suit on that particular basis would be bad. (For example, suppose hypothetically that Jeppesen sued the CIA for additional money owed on its contract, and suppose the CIA had a colorable defense that the contract was unenforceable because the whole "extraordinary rendition" program was illegal. The CIA certainly wouldn't let its lawyers make that argument, even if it might win.) Perhaps the single most common reason is that the criticism of the decision would depend on information that wasn't available to the lawyers at the time. JamesMLane t c 21:24, 1 June 2007 (UTC)

The Caen reference was to Melissa Hoffer. She's not the only one making appearances overseas to criticize U.S. policy, but she does begin by addressing her audience as "honorable members of the jury."

I do see what you're saying about other arguments, but I still don't see why they can't go into a separate section. It could confuse anyone who wonders why the court makes a ruling.

-- Randy2063 23:19, 1 June 2007 (UTC)

Well, send me to Gitmo for this, but I don't accept any implication that it's unpatriotic for Americans to criticize the U.S. government while overseas. As for the organizational question, I wasn't saying that all the arguments should always be in the same section, or that they should always be in a separate section. In general, I think that detailed explanation of why a court made a ruling would be essential in an article that's specifically about that decision, but otherwise it would depend on the circumstances. JamesMLane t c 05:02, 3 June 2007 (UTC)

You can think it's not unpatriotic if you'd like. I'm just saying John Adams didn't do it (or, not without rejecting his British citizenship). As you said, he defended his clients "at the court where their cases were actually being heard."

Going to the court of public opinion is one thing. Going to the court of foreign opinion is quite another. It's a rejection of the process.

I can agree on your general point, that it might depend on the circumstances. If something else offers more clarity then I'd be satisfied.

I do think your earlier example of Roe v. Wade is worth looking at. It's such a contentious case, and yet the article looks pretty good.

-- Randy2063 18:27, 3 June 2007 (UTC)

The only thing the MCA does with relationship to the “immunity” is the following:

• 1.The govt will provide legal council to those sued in civil, instead of may provide.
• 2.it will do this instead of may do this in the event of any investigation as well as criminal and civil charges
• 3.it will do this anywhere these charges are brought forth instead of may do this.

These subsections all refer to Section 1004(b) of the Detainee Treatment Act, which only describes the offer for legal council, not amnesty. It will provide free legal council to anyone that charges are brought against during the course of their duties between September 11, 2001, and December 30, 2005. How any legal commentator could construe that this places any kind of amnesty on anyone is beyond me. They would either have to have an incredibly low ability for reading comprehension or they didn’t read the entire law at all. They probably just read the title of the subsection: SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING TO PROTECTION OF CERTAIN UNITED STATES GOVERNMENT PERSONNEL and then they read the title of the subsection of the DTA: “SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.”, and said, oh shit, here we go, they want to let them all off the hook, and not actually read the content that states this only applies to offers of legal council … that’s it.

So, your above statement that the MCA protects government employees against civil actions is wrong, because after all, why would there be a clause guaranteeing free council to the defendant of a civil or legal proceedings if they were statutorily barred from being the defendant of a civil lawsuit? It makes no sense, and nothing in either the DTA or MCA bars it, in fact they both specifically address the possibility if civil and criminal proceedings but only to guarantee the offer of council.

Onto the “rewriting of Article 3”

Critics are charging that the rewriting of section 3 of the Geneva conventions is designed to let Bushco off the hook for war crimes and retroactively does so to 1997. Fair enough, but lets see how much validity that holds.

Its my understanding that Section 6, subsection B is what has got peoples panties in a bunch. It basically states that for the purpose of the law the US govt will redefine Article 3 of the Geneva Conventions. Fair enough, sounds awful, but lets look at subsection 3, and compare it to its replacement.

Article 3 of the Geneva Convention prohibitions:

• (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
• (b) Taking of hostages;
• (c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
• (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Ok, seems fair now lets see how the MCA redefines this:

Section 6 D 1 of the MCA:

• (1) PROHIBITED CONDUCT- In subsection (c)(3), the term `grave breach of common Article 3' means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
• (A) TORTURE- The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
• (B) CRUEL OR INHUMAN TREATMENT- The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
• (C) PERFORMING BIOLOGICAL EXPERIMENTS- The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.
• (D) MURDER- The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.
• (E) MUTILATION OR MAIMING- The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.
• (F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY- The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.
• (G) RAPE- The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.
• (H) SEXUAL ASSAULT OR ABUSE- The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.
• (I) TAKING HOSTAGES- The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.

So, the only thing protection that the MCA does not provide that Article 3 does is the right to be seen by the Red Cross, as far as “torture” and inhumane treatment, it would appear to be just as tough. The term “lawful sanctions” isn’t a loophole, BTW, it a correctional term with a “fairly” tight definition.

So, to recap, I think its quite a stretch to say that the MCA provides any kind of immunity or amnesty from either civil or criminal prosecution. I think that any legal scholar who actually argues this should go back and hit the books again. Torturous Devastating Cudgel 20:18, 31 May 2007 (UTC)

Thanks TDC. That is truly a stunning difference. I'm not even predisposed to trust the jihadis' lawyers, but I still fell for much of the spin.

-- Randy2063 21:00, 31 May 2007 (UTC)

There is indeed a "stunning difference" -- between TDC's characterization and what the law actually says. He discusses section 8(a). Apparently he couldn't be troubled to read on to section 8(b), the one that grants an amnesty to some of the war crimes committed during the Bush Administration.

Section 1004(a) of the Detainee Treatment Act provides a defense for U.S. Government agents who are sued because of "detention and interrogation of aliens" if the President made the necessary finding and authorization. The limitation, from the Bush Administration's point of view, is that this section contained no retroactive language. It was therefore, at a minimum, open to the interpretation that, like most statutes, it applied only on or after its effective date, which was December 30, 2005 (the day Bush signed it). Enter the retroactive amnesty provision of the MCA. Section 8(b) of the latter statute states that section 1004 of the DTA "shall apply with respect to any criminal prosecution that ... relates to actions occurring between September 11, 2001, and December 30, 2005."

In light of that language, I find it supremely ironic that TDC, a professional engineer, is so dismissive of the legal conclusions reached by numberous attorneys:

How any legal commentator could construe that this places any kind of amnesty on anyone is beyond me. They would either have to have an incredibly low ability for reading comprehension or they didn’t read the entire law at all.

What's Arabic for "people who live in glass houses"? JamesMLane t c 02:56, 1 June 2007 (UTC)

Aside from being a licensed PE, I also happen to be a Sherriff Deputy, so I know a little something about the law and how to apply it. And the application is not in the abstract, because if I misapply the criminal code in an arrest, I get my ass chewed out by the Sherriff and SA. Does the SA or the judge always agree with me? I wish! But every time I am on patrol (about twice a week) I have to apply a fairly complex and word criminal code to suspects. The defense”, but lets read section 8(b) as well.

Ahh yes, I did forget 8(b), more commonly referred to as the ChimpHitlerBushCo protection clause, that provides “amnesty” to ChimpHitlerBushCo Inc. Well, lets read 8(b) then.

8(b) Protection of Personnel- Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that--

• (1) relates to the detention and interrogation of aliens described in such section;
• (2) is grounded in section 2441(c)(3) of title 18, United States Code; and
• (3) relates to actions occurring between September 11, 2001, and December 30, 2005.

How freaking vile of them! Here they are “protecting personnel who have been involved in the detainment and interrogation of aliens between September 11, 2001, and December 30, 2005. Now we have them red handed!!! Because Section 1004 of the DTA (which 8(a) and 8(b) of the MCA is referring to) is the Amnesty portion … right?

To borrow a catchy marketing line from a rental car company “not exactly”.

Section 1004, as discussed above, is a guarantee of free council. Another potion of Section 1004(a), which I did not quote before, states, among other things:

Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

Now, I know my knowledge and expertise is not noteworthy when compared to the “numberous” attorneys at the CCR, NLG, ACLU and the jihadi’s legal council, and also knowing that content on Wikipedia main space articles is about WP:V and not WP:TRUTH, but how the hell could anyone turn

Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

, into the “MCA provides immunity by amending the DTA”. It would appear that the stunning difference between my characterization of the law and the above mention jihadi’s characterization of the law is that one of the two (that’s me) took the time to read the God damn thing. Torturous Devastating Cudgel 14:09, 1 June 2007 (UTC)

What’s Arabic for pwnd? Torturous Devastating Cudgel 14:09, 1 June 2007 (UTC)

TDC, I try to assume good faith, but you are constantly pushing the envelope on that policy.

What I wrote above was:

Section 1004(a) of the Detainee Treatment Act provides a defense for U.S. Government agents who are sued because of "detention and interrogation of aliens" if the President made the necessary finding and authorization.

You respond by quoting the last sentence of section 1004(a) of the DTA and observing, correctly, that it doesn't afford any new defense. Somehow, though, while trumpeting your willingness "to read the God damn thing", you seem to have skipped past the first sentence of the section. Here's a hint: It's the sentence that contains the words "it shall be a defense that...."

The structure of the section is as follows: The first sentence provides a new defense, as I stated. The second sentence addresses the role of a defendant's reliance on advice of counsel. The third sentence is probably the least important. The drafters evidently feared that some overreaching prosecutor might argue that the defense newly provided by the section was intended to replace, rather than supplement, some other defense previously made available under the law. That wasn't the intent, of course, so they added the third sentence to make clear that "any defense or protection otherwise available" was unaffected by the DTA.

Of course, whether any particular instance of "detention and interrogation of aliens" would qualify for the DTA defense would be a question to be determined at trial. (There might be a good-faith dispute on that point, which is why the provision for providing counsel to an accused wasn't redundant.) After the enactment of the DTA, the situation was this: Some detention-and-interrogation misconduct authorized by the President, if done before December 30, 2005, was illegal and the perpetrators could still be prosecuted, but similar acts done after December 30, 2005 would not be the basis for a successful prosecution, because the defendant would be able to invoke the DTA defense if he could show that Bush had authorized the torture or kidnapping or whatever.

No one is claiming (AFAIK) that the DTA was an "amnesty" statute. The obvious reason is that the legality or illegality of conduct committed before December 30, 2005 wasn't affected by the DTA. The "amnesty" comes in through the subject of the article being discussed here -- the Military Commissions Act of 2006. The MCA retroactively extended the DTA defense to conduct occurring during the 2001-2005 period. Consider someone who violated the law during that period. Until the MCA was signed into law in 2006, this person could have been tried, convicted, and imprisoned for the violation. With the signing of the MCA, however, this person was, as a result of the MCA, no longer subject to successful criminal prosecution. That obviously meets the common understanding of the term "amnesty".

One conclusion is that, in your work as a sheriff, you'd better be careful to follow your own advice above and "read the entire law". Another conclusion is that, as I stated at the beginning of this thread, the POV of those who criticize the MCA for retroactively exonerating war criminals is a significant POV, one that should be reported in our article. JamesMLane t c 17:36, 1 June 2007 (UTC)

Your interpretation is too nuanced. Someone who "violated the law" is not protected by the MCA. Your interpration that a new defense is somehow "amnesty" is a rather tortured definition. It would be like claiming the Miranda decision was amnesty or Gideon was amnesty or the 5th ammendment against self incrimination is amnesty. But the reality is that someone who violates the law is subject to prosecution. The prosecutors have a new burden of proof, but criminals are not excused for their crimes due to MCA. The term "amnesty" is a POV term used by one side in the debate in order to try and frame it a certain way. Wikipedia articles should not support that except to charaterize that particular viewpoint. It certainly is not the neutral descriptive term that should be applied here.--Tbeatty 18:57, 1 June 2007 (UTC)

James, does the conference of a new statutory affirmative defense (as defined in the DTA) even if done so retroactively (as is being done in the MCA) mean "amnesty"? That is a real twisting of the definition of “amnesty” because someone can still be charged civilly or criminally (as the DTA allows for). Because if that is the case, then anyone who claimed an affirmative defense for any crime what so ever would be barred from civil and criminal prosecution. Where was the ACLU and CCR when defendants would assert insanity, self defense, diminished capacity, all of which are affirmative defenses? Were these organizations siding with the prosecutors here?

Someone who violated the DTA defense, and used the statue in the MCA as their defense in a criminal or civil suit, and was found not guilt, would then only transfer guilt up the command chain. If he could show that the council provided to him by his superiors led him to reasonably believe what he was doing was legal, when it was found not to be, would implicate whoever gave him the council, and clarifications come from up the chain of command, not down ward?

Also, if this were amnesty, why was Lynndie England, Ivan Frederick and the whole merry bunch indicted, prosecuted and found guilty? Also, there is even legal precedent for providing affirmative defenses retroactively, case law, both state and federal is full of examples.

But just answer this, is the clause in question providing retroactive amnesty or a affirmative defense applied retroactively? Its not that anyone who violated the law is no longer subject to criminal or civil action, its just that they now have a new affirmative defense in case of prosecution. Come on, you are a lawyer, its not that difficult. Torturous Devastating Cudgel 19:42, 1 June 2007 (UTC)Torturous Devastating Cudgel 19:40, 1 June 2007 (UTC)

Response to Tbeatty: Please go back to what I wrote to start this thread -- "our article shouldn't assume the truth of the foregoing POV". My question to TDC, which I now extend to you and Randy as well, was: "do you agree with me that the article should (1) describe the Act's retroactive effects on officials' criminal liability for past conduct and on private citizens' civil actions; and (2) fairly report the opinions of those who have criticized the Act on these grounds?" Your personal opinion is "Someone who 'violated the law' is not protected by the MCA." I disagree with your interpretation, but I'm not asking that the article reflect my views in every particular. If some prominent spokesperson has said that calling the MCA an "amnesty" statute is a "rather tortured definition", fine, we can include the CCR's POV as well as that POV criticizing the CCR's POV. JamesMLane t c 21:36, 1 June 2007 (UTC)

Response to TDC: You're getting into an awful lot of hairsplitting about defense/affirmative defense/amnesty/immunity/exoneration. I disagree with much of what you say but, frankly, I've already spent a great deal of time pointing out to you passages in the statutes that were sitting right there to be read by anyone seeking in good faith to know the facts. I'm not going to try to persuade you that my interpretation is correct, because I'm not quotable anyway. See my response to Tbeatty above. If Alfredo "I can't recall" Gonzales has issued a statement backing your interpretation of the statute, let's include it. Otherwise, your personal disagreement with several well-known human-rights organizations is not a reason to exclude their views from Wikipedia.

I'll address your specific factual questions -- according to one reliable source, Ivan Frederick was convicted in October 2004, and the same reliable source tells us that Lynndie England was convicted in September 2005. They couldn't invoke the MCA because it hadn't yet been passed. Of course, even if it had been in effect, I'm sure the Administration would take the position that one element of the defense, namely the Presidential authorization for the criminal conduct, hadn't been met. The whole Bush Administration position has been that the war crimes resulting from its policies were nothing more than the aberrations of a few bad apples.

As for your concluding question, it actually is difficult, for a lawyer, because our tendency is to think in terms of legal consequences, not abstractions. (As an aside, I once read a passage using the phrase "pragmatic lawyer", in which the author commented parenthetically, "the phrase may be a tautology".) My position is to look at the legal consequences. I stand by what I've already written:

Until the MCA was signed into law in 2006, this person could have been tried, convicted, and imprisoned for the violation. With the signing of the MCA, however, this person was, as a result of the MCA, no longer subject to successful criminal prosecution.

From the Wikipedia perspective, the key point is that your edits to this article wholly eliminated any mention of this retroactive effect, let alone of the criticism of the Act on that score. My position is that we should give our readers the facts and a fair report of conflicting opinions as to disputed areas. Neither this talk page nor the article itself is the right place to determine whether the criticism by the human-rights organizations is well-founded. JamesMLane t c 21:55, 1 June 2007 (UTC)

Aww come on, just give me a yes or a no, your answer given to my question is so lawyerly. I wholly agree that the objections about the affirmative defense errr amnesty portion of the MCA are cited to several WP:RS's and should be included, but lets not kid ourselves, they are full of it, and a relevant clip from section 1004 8(a) would certainly bring context, and if not that the amnesty portion should get very little room here. The “fact” of the issue is the “protection clause” is an establishment of an affirmative defense, the “opinion” is that it is amnesty for ChimpHitlerCo Inc. I agree on England and co ... that was a bad example, but had they been tried after the MCA took effect and used the affirmative defense clause, it would have been up to their lawyers to provide documentation or direct evidence to support it, not the administration. As far as hair splitting with regards to defense/affirmative defense/amnesty/immunity/exoneration, these are not ambiguous terms, each has a defined legal meaning and the meanings are very different. The misapplication of these by “respected” legal authorities in the CCR, ACLU and HRW make me think that much less of them (if that were even possible). But I am out of here for the weekend as well, so have a good one. Torturous Devastating Cudgel 22:14, 1 June 2007 (UTC)

I wholly agree that the objections about the affirmative defense .... errr amnesty portion of the MCA are cited to several WP:RS's and should be included, but lets not kid ourselves, they are full of it. Fact is the “protection clause” is an establishment of an affirmative defense, the “opinion” is that it is amnesty for ChimpHitlerCo Inc. As far as hair splitting with regards to defense/affirmative defense/amnesty/immunity/exoneration, these are not ambiguous terms, each has a defined legal meaning and the meanings are very different. But I am out of here for the weekend as well, so toodles. Torturous Devastating Cudgel 22:14, 1 June 2007 (UTC)

I don't see how we can have a productive conversation on this subject if people like TDC and Ryan keep flouncing off to have a real life when they should be glued to their keyboards. Well, I hope both you slackers enjoy the weekend. JamesMLane t c 22:25, 1 June 2007 (UTC)

I'm heading out for the weekend so I may not be able to respond for a few days, but I thought I'd provide this link to the discussion. It is the opinion voiced by the notable organization 'Human Rights Watch' on this question. It's up to you whether you label them as 'jihadi lawyers' or anything else.

Does the MCA immunize U.S. personnel (including CIA personnel) from prosecution for past abuses?

To a large extent, yes. As amended in 1997, the War Crimes Act criminalized all violations of Common Article 3 of the Geneva Conventions, as well as grave breaches of the Geneva Conventions. Anyone responsible for the cruel, humiliating or degrading treatment of detainees captured during a non-international armed conflict could be prosecuted under the law. The MCA revises this portion of the War Crimes Act, replacing the blanket criminalization of Common Article 3 violations with a list of “grave breaches” of Common Article 3, which are specified and defined in the legislation. While torture and cruel and inhuman treatment qualify as “grave breaches,” degrading and humiliating treatment do not. The MCA also eliminates as a war crime the passing of sentences by a court that does not meet international fair trial standards.

The legislation also includes two separate definitions of cruel and inhuman treatment, one that applies to abuses that occurred prior to the passage of the MCA and another that applies to futureconduct. Whereas any non-fleeting mental pain or suffering is defined as cruel and inhuman treatment if committed after the passage of the MCA, the pain must be “prolonged” to qualify as cruel and inhuman treatment prior to the passage of the act. This may immunize from prosecution those officials and interrogators who have authorized or carried out abusive interrogation techniques – such as waterboarding and extended sleep deprivation – that cause time-limited but severe mental anguish. [25]

Thanks! -- User:RyanFreisling @ 22:37, 31 May 2007 (UTC)

Thanks for the link, Ryan. I was relying primarily on a similar summary from the Center for Constitutional Rights: "The MCA retroactively immunizes some U.S. officials who have engaged in illegal actions which have been authorized by the Executive." The full report (pp. 6-7) goes on to explain the basis for that conclusion. The next section of the CCR report addresses the provision that's apparently applicable to civil suits by victims of U.S. government torture and kidnapping: "the Act prohibits the invocation of the Geneva Conventions as a 'source of rights' in any habeas or other civil proceeding for citizens or non-citizens challenging the actions of United States or government officials." JamesMLane t c 00:19, 1 June 2007 (UTC)

How reliable a source can the CCR be considered in this case when they are defending the jihadis in court? I am not saying that they are not noteworthy, but how much space to we give to them considering that they have an over riding POV interest (zealous advocacy) in defending their clients? Especially considering on the Amnesty portion they are dead wrong. Torturous Devastating Cudgel 14:26, 1 June 2007 (UTC)

One obvious answer is that the CCR, unlike the Bush Administration, doesn't have any former high-ranking officers currently awaiting sentencing following a perjury conviction. I personally consider CCR more reliable than the U.S. Government, but that doesn't matter here, because we're not talking about citing a reliable source for an assertion as to a matter of fact; we're talking about reporting a significant opinion by quoting or paraphrasing a prominent spokesperson. Incidentally, you have the timing backwards. It's not like the situation where a private attorney takes a case and then makes whatever arguments seem likely to help the client. CCR doesn't consider the statute unconstitutional because the Guantanamo detainees are its clients; rather, the Guantanamo detainees are its clients because it considers the statute unconstitutional. That's why it took their cases. Finally, if we're considering how much space to give different views, it's pretty obvious that the Bush Administration also has an overriding POV interest in condemning the people it's detained without trial for several years. JamesMLane t c 22:03, 1 June 2007 (UTC)

In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

This is not immunity but rather it is a statutory affirmative defense. It is recognizing the possibility of a “civil action or criminal prosecution” and providing an avenue for an affirmative defense if the individual, after seeking clarification, was still unaware that their action was illegal. Is the CCR and the ACLU now going to argue, based off this precedent that all affirmative defenses are the same thing as immunity from prosecution? Torturous Devastating Cudgel 16:22, 1 June 2007 (UTC)

Considering that the ACLU is suing Jeppesen for money because they allegedly gave flight plan information to the CIA, you can understand why an affirmative defense would seem like immunity to them. --Tbeatty 16:47, 1 June 2007 (UTC)

Fresh start

Responding to TDC's suggestion I made a warm boot and taggged the sections he has trouble with. Per his offer we can evaluate the problematic parts. Although mediation is not accepted yet and is supposed to be between us I welcome all those who commented to help us in the discussion.

Let's identify the concerns voiced, feel free to add/amend should I have missed any.

1. TDC starts with a very rigid and non-debatable interpretation of WP:SYNTH.
2. The MCA retroactively immunise people for war crimes.
3. Command responsibility, although it evidently revolves around accountability for war crimes and the MCA influences this accountability, cannot be discussed. As I understand it TDC does not disagree with that observation but feels we need a source saying so.
4. The WaPo does not discuss the MCA.

If we can agree these are the issues involved I would suggest addressing them one by one. For the record, feel free to add things to this list. For this time I accept changing my comments, that is, to add, not to alter other statements. :)Nomen Nescio^{Gnothi seauton} 07:46, 1 June 2007 (UTC)

ad 1 Regarding SYNTH I would suggest adopting the notion that common sense should not be second to policy, see my elaborate thoughts on that for what I mean with that.

ad 2 We can safely conclude there are sufficient sources saying this. We may disagree (as TDC's has commented he thinks the sources are disallowed since they are wrong) but as I understand we should not redact information we' (as editors) deem incorrect, we only report. Clearly there is no argument in policy to object to mentioning the fact numerous people think the Act immunises war crimes.

ad 3 See references in article, so I guess it is moot.

ad 4 This is simple, TDC what exactly does the following quote say?

"There is more in the Seton Hall report that ought to leave flushed and breathless every single Senator (Republican and Democrat alike) who just voted for the White House's "Military Commissions Act of 2006." If the actual trials of the detainees are as empty and shallow and pre-ordained as were the Status Review Tribunals there is every reason to be mortified at the prospect -- made real by the legislation -- that the federal courts will be frozen out of vital oversight functions."

Nomen Nescio^{Gnothi seauton} 07:57, 1 June 2007 (UTC)

regarding 1, I don't think common sense is so common that it's interpretation trumps policy. Your interpretation of ex post facto is not common so I am not convinced that we should abandon policy for this approach.

regarding 2, I don't think it there are sufficient sources to conclude there is any immunity as it would imply that there was a prior breach of law. That has not been established. Also, the sources are not reliable as they have an interest in abolishing the law or at least muddying it up enough for civil action. Certainly wording it as "numerous people" when in fact they can be named outright would not be preferable. --Tbeatty 09:05, 1 June 2007 (UTC)

The ex post facto thingy still stands, but let's get beyond this straw man and tell us how CCR, HRW, FindLaw, et cetera are not acceptable as RS. This is getting silly you are rehashing the more than unwarranted arguments against totally valid sources. As to common sense, are we allowed to replace two and three with five? (see my longer statements on that)Nomen Nescio^{Gnothi seauton} 09:15, 1 June 2007 (UTC)

A general remark: I can't help but feel that invoking WP:SYNTH and WP:RS is more about looking for arguments to exclude uncomfortable and sourced information, no matter what, than looking for a rational way to improve this encyclopaedia. Which is why WP:IAR and WP:SENSE were invented.Nomen Nescio^{Gnothi seauton} 09:41, 1 June 2007 (UTC)

WP:SYNTH and WP:RS are included as policy to prevent undue weight and personal pet theories from becoming the defacto entry. IAR and SENSE are mostly about process, not content. The extreme minority view you outline above should not be given excessive weight in the article and it should be qualified as an extreme minority viewpoint. --Tbeatty 15:14, 1 June 2007 (UTC)

Agree, fringe POV has no place in an encylopedia--RCT 17:25, 1 June 2007 (UTC)

Criticism of the MCA has come from CCR, ACLU, Human Rights Watch, Amnesty International, and American Society of International Law, to name but a few. Judging from this talk page, the legal scholars arrayed on the other side seem to consist of Sheriff TDC, who makes no claim to being quotable. I have no doubt that the MCA has supporters who should be quoted, but I've also seen nothing to support a charge that the opponents are a "fringe" espousing "an extreme minority viewpoint". JamesMLane t c 22:12, 1 June 2007 (UTC)

Retroactivity, NPOV, and good faith

I think the former discussion of retroactivity (specifically the narrowing of the definition of "war crimes") had some NPOV problems. It's not good faith, however, to keep deleting the language without substituting anything or making any constructive suggestions on the talk page. It seems to be beyond dispute that the MCA had some sort of retroactive effect, and that information must be provided to the readers.

What I've done is to remove the previous paragraph and replace it with one that begins to address the subject. Some of the information in the old version remains to be re-incorporated here. Some (such as the proceeding begun in German) should be in the article but probably not here.

To make sure that nothing is lost track of, I'm copying here the paragraph I removed, for the convenience of Nomen Nescio or anyone else who wants to re-insert specific points. The point of my rewrite isn't to suppress information, but to provide a more coherent framework, explaining in more detail exactly what the MCA did.

Former paragraph:

Human Rights First and the Center for Constitutional Rights observe that the MCA effectively absolves the Bush administration and others for possible crimes committed in the War on Terror by negating the principle of command responsibility. Most notably, the US Supreme Court ruled in Hamdan v. Rumsfeld that the Geneva Convention applies to all prisoners. Since the War Crimes Act of 1996 defined any breach of Geneva as a war crime, this opened up the possiblility for legal challenges for anyone involved in the abuse of detainees. The MCA rewrote the War Crimes Act retroactively to November 26, 1997, making those offenses which were considered war crimes before the MCA was adopted no longer punishable under US law. Because of this, investigations into possible wrongdoing in the War on Terror seem unlikely within the United States; therefore the Center for Constitutional Rights and the International Federation for Human Rights have started legal proceedings in Germany, invoking universal jurisdiction.

JamesMLane t c 05:15, 3 June 2007 (UTC)

Just returned to see what has become of my dear driends and I must say it seems emotions have calmed down and the disputed sectins seem to be nicely rewritten. Thanks for the work :)Nomen Nescio^{Gnothi seauton} 13:54, 3 July 2007 (UTC)

References

Khadr and Hamdan decisions

I'm removing this sentence: "The Pentagon responded that they would appeal and that this was simply semantics and that all detainees in Guantanamo are in fact, unlawful."

The cited source (the Globe and Mail article) doesn't support the assertion that the Pentagon announced plans to appeal. It says that the prosecutors said they would appeal. That's a natural reaction from the on-the-scene lawyers, but they may be overruled by their superiors. Other reports -- an AP story in the New York Times and another story by a Times correspondent -- said that the Pentagon was considering whether to appeal. I think we need to give them a few days to figure out how they'll respond before we'll have anything solid enough to report.

As for the paraphrase of the Pentagon's substantive response, it's superfluous. When I wrote up the decisions, I included a verbatim quotation from the DoD press release. JamesMLane t c 22:39, 6 June 2007 (UTC)

Here's the paragraph from the globe and mail:

“ Prosecutors said they would appeal and the Pentagon said it was not a setback. Mr. Khadr was marched back to solitary detention, his black flip-fops slapping incongruously between the combat boots of his jailers.

"Its just semantics, that's exactly what this is," Pentagon spokesman Commander Jeffrey Gordon protested. "All the Guantanamo detainees who were designated as 'enemy combatants' … were in fact unlawful," he added.

”

.

Your interpretation of "on scene" lawyers is simply not relevant to the 3rd party reliable source that quotes prosecutors saying they will appeal.

Regardless of the appeal, the quote by Specter is misleading and out of context. The assertion that all detainees are unlawful and this is semantics is very pertinent to the article and the Pentagon's position. It is, in fact, the reason why it was dismissed without prejudice. The government is being given the opportunity to change detainees' status to comply with the statutory text. --Tbeatty 06:57, 9 June 2007 (UTC)

One source (Globe and Mail) says that "prosecutors" say they'll appeal. Another source (New York Times) says that "the Pentagon" was considering whether to appeal. It seems fairly straightforward to reconcile these statements by taking "prosecutors" to mean the lawyers who tried the case, and their immediate superiors, not the ultimate decisionmakers.

Then it should say both. Reconciling seems to be opinion. --Tbeatty 17:25, 9 June 2007 (UTC)

The text as I wrote it makes clear the DoD's position that the statute, properly interpreted, applies to all "enemy combatants", whether or not they were designated as "unlawful enemy combatants". Specter's quotation isn't at all out of context. He's specifically disagreeing with the Pentagon's interpretation of the Congressional intent.

I believe you are incorrect. The DoD does NOT believe that it applies to all "enemy combatants" if there is a potential that there are lawful enemy combatants. Rather, the DoD in the context of the [order] that authorizes tribunals, detained persons that are subject to tribunals. In other words, if they were subject to detainment under the order, they are necessarily unlawful. Spector in no way implied that persons in Guantanamo may be lawful combatants. Rather, he implied that since the law may be extended beyond the current war on terror, it was limited to combatants that are in fact unlawful. Constructing the paragraph as it is currently is misleading and incaccurate. --Tbeatty 17:25, 9 June 2007 (UTC)

Your final point about the government's "opportunity" presumably means that they may go back and re-hold the CSRT proceedings for each detainee, this time trying to get a specific designation of "unlawful enemy combatant". That's certainly a possibility. In fact, that course may seem better than an appeal, which is why I wouldn't take an appeal to be a certainty. I suspect that it won't be long before the Pentagon announces a decision to redo the CSRT proceedings, or to appeal, or to do both, or to just press on with commission hearings and hope that other judges disagree with Brownback and Allred. Obviously, any official decision about how to respond should be included here. JamesMLane t c 09:09, 9 June 2007 (UTC)

I think the appeal will be to the common sense notion that the designation of enemy combatant conformed to the order and therefore all detainees are unlawful. The order outlines who is subject to detainment and it is members of international terrorist organizations. That is essentially the definition of unlawful. The point is that trial judge realizes that this is a question of language and semantics and in no way made a finding that the persons at Guantanamo were not subject to the law or were not unlawful. The paragraph is constructed to imply that Guantanamo detainees may be "lawful" and I don't think that is the opinion of any notable legal scholar. Rather, the opponents of the tribunal postulate that being "unlawful" affords them access to habeus corpus since they are subject to being tried for crimes. --Tbeatty 17:25, 9 June 2007 (UTC)

Could you point me to the definition in international law of unlawful combatant, or unlawful enemy combatant?Nomen Nescio^{Gnothi seauton} 13:57, 3 July 2007 (UTC)