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Post by jerseyhoya34 on Feb 16, 2010 22:41:28 GMT -5
Is there anyone on the planet suggesting that we bring Baradar to the United States for a trial? I think the question with him is really the question of interrogation methods - whether you use what most rational people call torture or not. That's a separate question but one that maybe overlaps with Abdulmutallab.
In all events, I think the evidence offered on both sides is speculative. We don't know what we got from torture that we would not have gotten from legal intelligence methods, and we don't know what the latter has given that torture would not have given us.
My problem is one of degree. While terrorists are a disgusting bunch, I am not sure that there's any argument out there to suggest we're getting actionable intelligence on the 183rd waterboarding as opposed to the 27th waterboarding or the 9th waterboarding. If that's what it takes to get cooperation, it is time to try something else.
I don't necessarily oppose trials of these terrorists, just as I didn't oppose the Moussaoi (spelling) trial or the others. We're not going to win if we don't have the stones to stare these evil people down in a courtroom while they are in shackles and handcuffs with confidence in the system that our forbearers fought hard to establish. Are there better alternatives? I think so, but a public trial is not itself a bad outcome IMO.
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Post by redskins12820 on Feb 16, 2010 22:41:53 GMT -5
I think the main question is whether we capture somebody with the intent of prosecuting them or capture them with the intent of finding more information on future terrorist activities. In the case of Abdulmutallab, our primary goal seems to be to prosecute him, which makes sense in my book. He was pretty small potatoes in terms of terrorist hierarchy, and he very clearly attempted to commit a crime against the United States. In the case of Baradar, it's not so clear cut. He's clearly a Taliban bigwig, and he's probably our best chance right now to find info on the whereabouts of Mullah Omar and maybe even Bin Laden. At the same time, it might be difficult to directly link him to any crime against the United States. There's a chance we'll use the Saddam precedent here - have the US capture and interrogate him, but have the Afghans try him for crimes he committed as part of the Taliban government or during the various wars there. Whether the Afghans are capable of trying him is another argument altogether, but this whole debate we're having might be moot because Baradar may never see a US courtroom, civil or military. I don't really know why U.S. intent to pursue for intel or for prosecution plays a role. I thought the key distinction was just civilian or military courts, which are somewhat related to the intel/prosecution divide. That being said, the U.S. government is currently arguing for the "we had to interrogate for intel purposes" to get around speedy trial requirements, so they may say the same thing for the lack of immediate miranda warning. Seems plausible they could pursue a similar argument.
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Post by redskins12820 on Feb 16, 2010 22:43:10 GMT -5
Is there anyone on the planet suggesting that we bring Baradar to the United States for a trial? I think the question with him is really the question of interrogation methods - whether you use what most rational people call torture or not. That's a separate question but one that maybe overlaps with Abdulmutallab. In all events, I think the evidence offered on both sides is speculative. We don't know what we got from torture that we would not have gotten from legal intelligence methods, and we don't know what the latter has given that torture would not have given us. My problem is one of degree. While terrorists are a disgusting bunch, I am not sure that there's any argument out there to suggest we're getting actionable intelligence on the 183rd waterboarding as opposed to the 27th waterboarding or the 9th waterboarding. If that's what it takes to get cooperation, it is time to try something else. I'm not too familiar with Obama's executive order re: torture, but does it apply to CIA "observers" where the Pakistanis are the ones torturing?
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Post by redskins12820 on Feb 16, 2010 22:46:11 GMT -5
Yeah, that's about what I thought. I mean all miranidzing them does is alert them of rights. You can still interrogate them. They've just been warned they don't have to talk. Also you don't have to mirandize as policy, right? If you think a terrorist is a sufficient threat, you can interrogate prior to the Miranda warning. Or is that not true? This seems like such small potatoes in this case compared to not acting on a phone call from this guy's parents or being slightly suspicious of his travel plans. But the part of this story with two months of legs is this Miranda squabble. I don't get it. I might be wrong on this, but if I recall correctly, Miranda was created as a way to protect the right to counsel. So if you Mirandize, you're also committing to give the person counsel. And if you Mirandize and the suspect says "I don't want to talk without an attorney present," then interrogation must stop. So I do understand why Mirandizing could be a problem. I just don't think there's any basis for saying we have to do it abroad under any circumstances. There is a basis because we do it in criminal prosecutions where the interrogation and arrest occur abroad all the time. Can't cite a case off the top of my head, but I'm pretty sure statements have been thrown out for failure to mirandize abroad.
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RusskyHoya
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Post by RusskyHoya on Feb 16, 2010 22:48:23 GMT -5
It boils down to this: if you torture someone, you're tough on terrorism. If you don't, you're weak on terror. It's a philosophy of national security that views posturing as all that matters, rather than ends. Yeah, that's about what I thought. I mean all miranidzing them does is alert them of rights. You can still interrogate them. They've just been warned they don't have to talk. Also you don't have to mirandize as policy, right? If you think a terrorist is a sufficient threat, you can interrogate prior to the Miranda warning. Or is that not true? This seems like such small potatoes in this case compared to not acting on a phone call from this guy's parents or being slightly suspicious of his travel plans. But the part of this story with two months of legs is this Miranda squabble. I don't get it. You can interrogate a guy, but you're essentially committing yourself to treating him within the bounds of "the regular law," as opposed to "unlawful enemy combatant law" in which the guy has no rights. There is a public safety exemption (as well as a undercover agent exemption) to Miranda warnings, so in a true "ticking time-bomb" scenario of the sort that keeps being imagined by op-ed writers, it would not be necessary to read a suspect his rights. See le.alcoda.org/publications/point_of_view/files/miranda_exceptions.pdfAs redskins says, all of this becomes moot if the decision is made to not try an individual, which is where things like indefinite detention, overseas black sites, etc. come in. Baradar could probably be convicted of treason under Pakistani law (I'm guessing the bar isn't too high and it's been deployed before, e.g. www.thaindian.com/newsportal/south-asia/top-pro-taliban-cleric-faces-treason-charge-in-pakistan_100226650.html) so in this case there would not be a compelling need to insist on U.S. legal procedures.
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Post by jerseyhoya34 on Feb 16, 2010 22:48:29 GMT -5
I am not overly familiar with it either, but it looks like it would depend on who had custody of the prisoner, where the interrogation was taking place (Pakistani jail or a US facility), and other such considerations. It looks like the executive order set up a task force to make recommendations on transfer issues. Not sure what came of that. Maybe someone with more knowledge could expand on that, shoot it down, or something else.
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Post by redskins12820 on Feb 16, 2010 22:54:23 GMT -5
I am not overly familiar with it either, but it looks like it would depend on who had custody of the prisoner, where the interrogation was taking place (Pakistani jail or a US facility), and other such considerations. It looks like the executive order set up a task force to make recommendations on transfer issues. Not sure what came of that. Maybe someone with more knowledge could expand on that, shoot it down, or something else. Yeah so "are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States." certainly gives you a little wiggle room during a detention by the ISI in Pakistan.
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SirSaxa
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Post by SirSaxa on Feb 16, 2010 22:58:40 GMT -5
I'm not sure why Miranda is even being mentioned in this thread. The US did not capture Mullah Baradar, nor do we have him in custody. The Pakistanis captured him and hold him. The CIA was, apparently, involved.
One can assume the CIA was deeply involved -- behind the scenes -- but this was a Pakistani Operation. The CIA is said to have been present during the interrogations. But not conducting them. The good part of that is Miranda and all the other issues do not come into play, undoubtedly by design.
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RusskyHoya
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Post by RusskyHoya on Feb 16, 2010 23:04:21 GMT -5
I am not overly familiar with it either, but it looks like it would depend on who had custody of the prisoner, where the interrogation was taking place (Pakistani jail or a US facility), and other such considerations. It looks like the executive order set up a task force to make recommendations on transfer issues. Not sure what came of that. Maybe someone with more knowledge could expand on that, shoot it down, or something else. Yeah so "are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States." certainly gives you a little wiggle room during a detention by the ISI in Pakistan. Yes...although "aiding and abetting" torture by others would still be impermissable, so you could not, for instance, capture a guy and then shop him around to various Middle Eastern intelligence agencies to see who would be willing to "coercively interrogate" him, as was done in the past.
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Post by redskins12820 on Feb 16, 2010 23:04:42 GMT -5
As for CIA blacksites, those are supposed to be gone too per Obama's EO
"CIA Detention. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future."
Doesn't say anything about about an FBI (or another agency) detention facility anywhere in the EO. Also, the second clause is not entirely clear. Shall not operate "any detention facility" in the future, or shall not operate "any detention facility that it currently operates" in the future. Could it open a new detention facility? The "such" seems to imply the latter interpretation, though my statutory interpretation skills are not the greatest. Anti-surplusage canon/anti-redundancy canon?
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Post by redskins12820 on Feb 16, 2010 23:08:23 GMT -5
Yeah so "are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States." certainly gives you a little wiggle room during a detention by the ISI in Pakistan. Yes...although "aiding and abetting" torture by others would still be impermissable, so you could not, for instance, capture a guy and then shop him around to various Middle Eastern intelligence agencies to see who would be willing to "coercively interrogate" him, as was done in the past. Where does "aiding and abetting" come from? Is that in the Army Field Manual or law/treaty? Because those words aren't mentioned in the EO
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RusskyHoya
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Post by RusskyHoya on Feb 16, 2010 23:12:50 GMT -5
Yes...although "aiding and abetting" torture by others would still be impermissable, so you could not, for instance, capture a guy and then shop him around to various Middle Eastern intelligence agencies to see who would be willing to "coercively interrogate" him, as was done in the past. Where does "aiding and abetting" come from? Is that in the Army Field Manual or law/treaty? Because those words aren't mentioned in the EO A combination of existing federal law concerning aiding and abetting crimes (e.g. 18 U.S.C. § 2) and existing law on torture, specifically the Federal torture statute (18 U.S.C. 2340–2340A).
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Post by jerseyhoya34 on Feb 16, 2010 23:45:06 GMT -5
An interesting sideshow from self-described conservative Andrew Sullivan - Given the timing of the Baradar capture, Biden could have easily tried to score a few points on Cheney this weekend but chose not to do so. I agree with that result, but Sullivan may be on to something when he says that it may be part of a larger effort to depoliticize the war.
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Elvado
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Post by Elvado on Feb 17, 2010 6:37:31 GMT -5
An interesting sideshow from self-described conservative Andrew Sullivan - Given the timing of the Baradar capture, Biden could have easily tried to score a few points on Cheney this weekend but chose not to do so. I agree with that result, but Sullivan may be on to something when he says that it may be part of a larger effort to depoliticize the war. I'll go Sullivan one further. Things are so bad at home that Team Obama/Biden now want to claim this war as their own. With domestic failure as far as the eye can see, and new poll numbers suggesting 52% of Americans do not believe the President is worthy of a second term, war is about the only positive card they have. Biden tipped his hand in the Larry King interview when he tried to claim Iraq as an Obama administration "accomplishment".
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Boz
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Post by Boz on Feb 17, 2010 9:44:01 GMT -5
Andrew Sullivan (and you) can keep describing him as a conservative until you're blue in the face.
He is not one. He is a crazy person.
(yes, yes, by all means, feel free to insert "what's the difference?" joke here, and we'll all have a good laugh)
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rosslynhoya
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Post by rosslynhoya on Feb 17, 2010 9:54:12 GMT -5
An interesting sideshow from self-described conservative Andrew Sullivan - Given the timing of the Baradar capture, Biden could have easily tried to score a few points on Cheney this weekend but chose not to do so. I agree with that result, but Sullivan may be on to something when he says that it may be part of a larger effort to depoliticize the war. Last fall, when most of the country was urging Obama to do something/anything to fix the situation in Afghanistan, Biden was arguing that the Taliban weren't really our enemy and that we should recognize their sovereignty over the territory they currently controlled. If he had "tried to score a few points on Cheney" this weekend, he would have been thoroughly reamed by anyone with a memory that extends beyond a week or two ago.
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The Stig
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Post by The Stig on Feb 17, 2010 10:16:29 GMT -5
An interesting sideshow from self-described conservative Andrew Sullivan - Given the timing of the Baradar capture, Biden could have easily tried to score a few points on Cheney this weekend but chose not to do so. I agree with that result, but Sullivan may be on to something when he says that it may be part of a larger effort to depoliticize the war. Last fall, when most of the country was urging Obama to do something/anything to fix the situation in Afghanistan, Biden was arguing that the Taliban weren't really our enemy and that we should recognize their sovereignty over the territory they currently controlled. If he had "tried to score a few points on Cheney" this weekend, he would have been thoroughly reamed by anyone with a memory that extends beyond a week or two ago. He didn't say that we should recognize Taliban sovereignty. Biden's proposed strategy, which was basically hitting Al Qaeda with airstrikes and special ops while being apathetic about who controlled Afghanistan, required us to violate the Taliban's sovereignty, since they presumably wouldn't give us permission to strike Al Qaeda on their territory.
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Bando
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Post by Bando on Feb 17, 2010 11:09:51 GMT -5
Andrew Sullivan (and you) can keep describing him as a conservative until you're blue in the face. He is not one. He is a crazy person. (yes, yes, by all means, feel free to insert "what's the difference?" joke here, and we'll all have a good laugh) Gonna have to agree with Boz here. When I briefly wrote a blog, I had a running feature called "Andrew Sullivan is Always Wrong".
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Post by jerseyhoya34 on Feb 17, 2010 11:14:24 GMT -5
An interesting sideshow from self-described conservative Andrew Sullivan - Given the timing of the Baradar capture, Biden could have easily tried to score a few points on Cheney this weekend but chose not to do so. I agree with that result, but Sullivan may be on to something when he says that it may be part of a larger effort to depoliticize the war. Last fall, when most of the country was urging Obama to do something/anything to fix the situation in Afghanistan, Biden was arguing that the Taliban weren't really our enemy and that we should recognize their sovereignty over the territory they currently controlled. If he had "tried to score a few points on Cheney" this weekend, he would have been thoroughly reamed by anyone with a memory that extends beyond a week or two ago. I don't doubt that he would have been reamed on the basis of speculation as to what would have happened under such a strategy. In fact, the Taliban commander was captured in Pakistan. Lots of ideas on the elected/political right these days, but virtually none are timely. Our current Afghanistan strategy, for example, came roughly 6 years too late IMO and when it did come, there was nickel-diming on troop counts IIRC.
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EasyEd
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Post by EasyEd on Feb 17, 2010 11:48:04 GMT -5
This thread is an example of what happens when lawyers rule the country. Let's talk real life.
If we or our allies capture someone who wants to harm us and the possibility exists he/she may have intelligence of value to us, interrogate him/her immediately using whatever means are legally (politically) permissible. The interrogation should be by experts who know the value of the possible intelligence and are trained to do it. Don't ever tell the SOB (or DOB) he/she has the right to remain silent and the right to counsel. The aim is to gather real-time intelligence, not to convict the SOB.
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