Wednesday, July 30, 2008

Three More "Worst Of The Worst" Are Freed, With An Orwellian Explanation

The Department of Defense announced today that three more Guantanamo detainees have been released. We don't know their names but one was sent to Afghanistan, another to the UAE, and the third to Qatar. These are three more of the five hundred prisoners who Donald rumsfeld labelled as the "worst of the worst" who have been released from Guantanamo without charges. According to DoD there are 265 left to go.

This announcement is good news for these prisoners but what is really remarkable is the language used by DoD in making the announcement. First, there is this,

These detainees were determined to be eligible for transfer following a comprehensive series of review processes.

Comprehensive review process? It's been six years. We prosecuted and won victory in WWII in three and a half years but it takes six years to finally figure out these poor schmucks shouldn't be in custody. If it gets any more comprehensive they'll be sending these guys home with walkers.

But not to rest on its laurels, the release goes on,

The transfer is a demonstration of the United States’ desire not to hold detainees any longer than necessary. It also underscores the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing — an unprecedented step in the history of warfare.

"No longer than necessary?" Who are they kidding? Everything they knew about these guys was made known soon after their capture. If they are like the typical Guantanamo detainee they were not captured on a battlefield. They were guys who were turned over by bounty hunting Pakistanis and Afghanis looking for a quick buck. Most of them were foreigners going to schools or passing through, and some were locals against whom Afghanis had familial or clan grudges.

But especially rich is the crowing about this wonderful process, which is claimed to be unprecedented in the annals warfare. Damn right it is unprecedented. We pay bounty hunters to round up people and gin up some "evidence" about their supposed misdeeds. We hold and torture them for a while before shipping them to Guantanamo where they get more of the same. They are isolated for long periods, interrogated endlessly, and after six years we say "OOps," you are no longer a threat.

The press release goes on to say that another 65 of the remaining 265 prisoners are eligible for release. And so far people have been released to the following countries,

Albania, Algeria, Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Denmark, Egypt, France, Great Britain, Iran, Iraq, Jordan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Russia, Saudi Arabia, Qatar, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom, United Arab Emirates, and Yemen.

What about the ones not yet cleared for release. Well, one is a guy named Hamdan who is currently on trial. Unlike the other 500, he actually had a connection to Al Qaeda, but his "crime" seems a little tenuous. He was nabbed for having been Osama bin Laden's driver. Here at the ACLU's website is an update on what happened at the trial today. Actually, they watched a movies prepared by the DoD which depicts the evils of AQ, but doesn't say anything about the actual case that is being tried.

If these prosecutors had any sense of history they would understand the true pathos and tragedy of this case against OBL's driver. In 1945 the US took the lead in prosecuting the surviving members of the genocidal Nazi regime. Anything OBL has done pales in comparison with what Hitler and his minions did. There was one person, though, who was not prosecuted — he was Hitler's driver. That man's name was Erich Kempka who, in addition to being Hitler's driver, was also an SS officer who was with Hitler from 1934 all the way to the last day in the bunker. Not only was he not tried at Nuremberg, he was a witness for the defense of Martin Bormann

In the words of the DoD press release our actions in Guantanamo truly are "unprecedented."

Thursday, July 17, 2008

Ninth Circuit: Supreme Court Handgun Case Doesn't Cover All Weapons

The Ninth Circuit issued an unpublished decision in the case U.S. v Gilbert on July 15 holding that the recent Supreme Court Second Amendment case does not give people the right to own automatic weapons and sawed off rifles. The court stated

The Supreme Court’s recent decision in District of Columbia v. Heller, 554 U.S. ___ (2008), holding that the Second Amendment protects a limited individual right to possess a firearm–unconnected with service in a militia–does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., Slip. Op. at 27.

Since the Supreme Court decided the Heller case there has been much speculation regarding the scope of the ruling. Would this open the flood gates to unrestricted ownership of handguns and permit the ownership other types of weapons, like assault rifles. The Ninth Circuit opinion says that it does not.

The facts in Gilbert are straight forward. Gilbert was charged with ten counts involving owning a machine gun, owning unregistered firearms, and being a felon in possesion of a firearm. He said he knowingly bought some of the weapons from undercover agents because he wants to challenge the Constitutionality of the gun laws. At the end of the trial the jury was given the following instruction,

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

Gilbert appealed his conviction arguing that the jury instruction violated his Second Amendment rights.

The Ninth Circuit did not buy his argument and, as noted above, said that the Supreme Court's Heller decision articulates a limited individual right to possess a firearm that does not extend to machine guns, short barreled rifles, or to the ownership of weapons by felons.

Unfortunately, the Gilbert opinion is very short and does not include an explanation of why the court read the Heller decision in this limited way. But, beyond the limitations of the ruling itself, there is ample language in the Heller case to support this reading of the decision.

Like any case, the Supreme Court's Heller decision itself was limited to the facts of the case, which was the ownership of a handgun by a non-felon, who had not been judged mentally incompetent. However, there was much discussion in the dicta of the opinion where the majority not only says this is a limited right but also discusses areas where government regulation would not conflict with the Second Amendment.

Here is an excerpt from an article I wrote discussing the limitations in the Heller opinion.

Much will be written on the subject as we have a chance to digest the language of the opinion. But these statements from the majority opinion should allay fears that the doors have been opened to unrestricted gun ownership.

At the outset, the Court says that it's longstanding opinion in United States v Miller is still valid but clarifies the scope of that decision.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

The court is protecting weapons held by law abiding people for lawful purposes. Self-defense is the lawful purpose the court is upholding. The court also limits the protection to the types of weapons that a militia man would have in his home at the time of the founding.

We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time.”

That does not mean the Court is sanctioning the types of weapons a soldier would use today.

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have lim-
ited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the

The decision goes on to make clear that the Amendment does not prohibit the who, what, where and why of weapons regulation.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

For instance, it doesn't guarantee the right to carry concealed weapons.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Also the government can regulate who owns weapons and where they may be carried.

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

It remains to be seen how the Supreme Court ultimately refines the limits of the Heller decision. But the lower courts seem to be reading it narrowly and following the limitations that are suggested in the ruling. And lest anyone think this limited approach has only appeared in the so-called "liberal" Ninth Circuit, District Court decisions in Missouri, Johnson v U.S., and Louisiana, U.S. v Dorosan, have reached the same conclusion.

What does all of this mean for Obama and other Democrats in the upcoming election? The Supreme Court has taken off the table one of the most divisive issues that has bedeviled Democrats in many decades of elections. For decades, the NRA has used the "right to bear arms" as a major fund raising tool and rallying cry. They have been able to successfully attack sensible gun control legislation by using the absolutist argument that Democrats want to totally disarm all Americans. They will not be able to do so any longer.

The Supreme Court has decided there is an individual right to own handguns. That decision, right or wrong, will be with us for a long time. Moving forward, states and cities cannot enact laws that impose a complete ban on handgun ownership. Beyond that, however, a conservative majority of the Court, in an opinion written by Scalia, has signaled its willingness to accept most forms of gun regulation currently on the books, and the lower courts are already adopting that position.

Scalia, the darling of the NRA, has said that guns can be regulated. The Second Amendment right to own a gun does not extend any person, regardless of their background, it does not mean that any type of gun can be owned, and it does not mean a person can take a gun anywhere they wish.

The NRA won its Second Amendment battle but it will prove to be a pyrrhic victory. A powerful fundraising and campaign tool has been taken away from them. They can no longer threaten that guns will be taken away from law abiding citizens if Democrats are elected. That issue has been decided. The issue left on the table is whether we can have reasonable gun control legislation designed to protect the health, safety and welfare of our communities. As the NRA finds itself defending gun ownership by felons, possession of automatic weapons, tanks and grenade launchers, and the carrying of weapons near schools it will find itself increasingly associated with the most lunatic fringe of the movement with no Scalia or Second Amendment to fall back on.

From this point on the discussion will shift to the reasonableness of specific types of gun control. Those are arguments that progressives can win. But we still need to elect Obama and a strongly Democratic Senate to ensure that the courts continue to interpret Heller in a limited manner.

(I do recognize that Heller only applies to Federal jurisdictions and the Court has yet to rule on Second Amendment incorporation, which would make it applicable to the states. We have not had an incorporation case in a long time so that should prove interesting. While there are some peculiarities to the Second, in the end I'd be surprised if it is not made applicable to the states.)

Crossposted from docudharma