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Leahy Rubs Sessions' Nose In Civil War Defeat

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During today's Judiciary Committee hearing on the 9/11 trials, terrorism and the Fort Hood shootings, Sens. Patrick Leahy (D-VT) and Jeff Sessions (R-AL) finally settled an old score.

After Sessions cited Civil War Gen. Ulysses S. Grant in his opening remarks, Leahy said, "I must admit, Sen. Sessions, that I'm delighted to hear someone from Alabama quote, approvingly, Ulysses S. Grant and Abraham Lincoln. The world has come full circle."

"And they were winners, too," Sessions responded.

"Well, I appreciate that acknowledgment too," Leahy said. "We probably best leave this one alone."

Video after the jump.

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49 comments

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November 18, 2009 11:27 AM   

Insane. Now Sessions want these people to be treated as prisoners of war? The whole point of inventing the "unlawful combatant" category was to avoid this. Because of, well, you know, the Geneva Conventions and all that.

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November 18, 2009 11:48 AM    in reply to eric the red

I thought like you until I read this, from the Military Commissions Act:
"‘(e) Geneva Conventions Not Establishing Private Right of Action- No alien unprivileged enemy belligerent subject to trial by military commission under this chapter may invoke the Geneva Conventions as a basis for a private right of action."
See: http://emptywheel.firedoglake.com/2009/11/16/are-they-trying-the-911-conspirators-in-nyc-to-get-material-support-charges/#comment-199697

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November 18, 2009 11:54 AM    in reply to 206Bones

Sorry, I am not following you. Sessions seems to be saying that these guys are prisoners of war. The whole point of inventing the unlawful combatant label in 2001 and for later passing the Military Commissions Act in 2009 was to AVOID treating these guys as prisoners of war.

Now it seems that Holder want to try these guys in Court and not use the Military Commissions Act. In response, Sessions is NOW saying that they are prisoners of war. That is the problem.

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November 18, 2009 12:05 PM    in reply to eric the red

Ah!, I now see what you mean, and I agree.

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November 18, 2009 1:00 PM    in reply to eric the red

This is not entirely accurate. The label of "unlawful enemy combatant" was not invented in 2001. But it was corrupted in 2001. The term is a carryover at least from WWII. But its initial meaning was to include spies and saboteurs, not guerrilla groups and, certainly, not non-combatants. Geneva Conventions cover the treatment of civilians in war zones and of prisoners of war. Essentially, the former can only be prosecuted for ordinary crimes, although this may take place in occupying power military courts, but they may not be summarily detained. The latter can be detained until the end of hostilities, but are also subject to specific regulations covering the nature of crimes and their prosecution. More specifically, POWs cannot be prosecuted for conduct that is ordinary under normal military procedures--i.e., shooting at the enemy during a battle.

One thing that is clearly outdated is the uniform requirement. Although it might be nice to have an obvious distinction between the military and non-military combatants, clearly, modern warfare does not rely on this distinction. This is why, for example, Hamas and other militant Middle East groups want to have it both ways--they want to be recognized as legitimate military force, yet they want their casualties to be counted as civilians because they do not wear formal uniforms.

The point is that one has to make a choice--either these are military or they are civilians. And the Bush policy failed to make that distinction. They grabbed people who were involved in battles. They grabbed people who had no weapons but whose neighbors turned them in for a bounty. They kidnapped people they suspected of coordinating terrorist activity. It's rather obvious that one should not lump all these people into a single category, but the ULEC label conveniently skirts this issue.

The problem, of course, is in continuing to talk about the US being "at war". If we are at war, we have POWs, not ULECs. And if we have ULECs, they should be tried in civilian courts unless they are caught and remain in military zones.

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EH

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November 18, 2009 1:18 PM    in reply to buck

The GCs cover everybody.

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November 18, 2009 3:04 PM    in reply to buck

Thanks for the very helpful clarification.

I gather from the SJC testimony today, that this issue--e.g.,Miranda Rights for captives or not--is still far from resolution.

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November 18, 2009 3:10 PM    in reply to buck

Thanks for the very helpful clarification.

I gather from the SJC testimony today, that this issue--e.g.,Miranda Rights for captives or not--is still far from resolution.

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November 20, 2009 9:58 AM    in reply to 206Bones

Why are these assholes against "giving" the full range of Constitutional protections to detainees? Is it because they cannot accept equality with those who are insufficiently white and profess a "wrong" "religion"?

How is the US's universally superior system of rights, as described by the American exceptionalists, subject to the contrary exceptionalism of, "They apply to all -- EXCEPT for YOU"?

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November 18, 2009 4:30 PM    in reply to buck

The "uniform" requirement is minimal and extremely easy to meet under the plain terms of the Conventions. If a group wants to meet it. All it takes is an armband or a badge or some other recognizable token of membership in an organized military force of some kind.

If organized combatants don't take advantage of it to obtain lawful combatant status under the conventions, it is due to a deliberate choice, i.e. because they don't want to be recognizable as members of an organized military force. That's their choice, but the choice implies acceptence of, or disdain for, the consequences.

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November 20, 2009 9:54 AM    in reply to The Commenter Formerly Known as NCSteve

In either instance they are protected by the Conventions. The Conventions leave NO ONE out, regardless what called by themselves or anyone else.

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November 18, 2009 6:19 PM    in reply to buck

One of the key points in Geneva is also that detainees share the same common human rights of EVERYONE involved in a conflict, whether signatory or not, whether it happens in a battlefield or in an occupied zone.

As the TPM'ers above and below note, a POW gets MORE rights, not less, but everyone has the right to demand basic due process:

1. A determination of status, civilian or soldier or innocent bystander.

2. If charged with a crime, being told of the charges, the ability to confront the accusers, the ability to present a defense, access to counsel, and an impartial fair trial.

This is not rocket science.

Cheney and Bush's ENORMOUS problem is that they used Gitmo to "circumvent" Geneva and even (in their sick torturers' minds) these basic Human Rights.

Now, they will have to answer sticky, problematic, consequential questions that cannot be answered the way the Cheneyites usually answer: "Because I said so."

And they know it. THAT is the reason they are screaming right now.

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November 20, 2009 10:00 AM    in reply to wellstone

Bingo.

Apparently it isn't sufficiently complicated racist rationalization for them to understand it.

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November 20, 2009 9:50 AM    in reply to eric the red

Exactly: the entire reason for the "eneemy combqatant" fiction -- lie -- ws to deny Geneva Conventions protections. That was coupled with the implication -- also a lie -- that there are exceptions to the Conventions. In fact, the Conventions protects EVERY sort of category of individual, BEGINNING with civilian non-combatants.

So either Sessions forgot the party-line lie, or is dumb. He could be, of course, both.

But good on Leahy for kicking him in the balls on this one.

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November 18, 2009 12:08 PM    in reply to 206Bones

All that section means is that they can't sue

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November 18, 2009 3:24 PM    in reply to barth

Is that what the phrase "private rights of action" refers to in law--the right to bring person suit for damages?

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November 18, 2009 6:35 PM    in reply to 206Bones

I believe this is what's called "lawfare", which is the:

... "strategy of using or misusing law as a substitute for traditional military means to achieve military objectives." Partisans fire motions and discovery requests instead of artillery rounds.

Essentially, the Bush administration was afraid that an enemy tried within the US court system would be able to gather military intelligence or gain access to classified information, or both, through the constitutional protections that would be provided to them.

The 2005 National Defense Strategy of the US expressed it this way:

Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.

This reasoning entirely overlooks the Classified Information Procedures Act of 1981 and 1988, which provids safeguards against that type of misuse of law. Restrictions that guard against allowing "state secrets" to be handed over are also in place.

All of which can lead us to believe the administration apparently thought that court motions and discovery requests were far worse than a war involving guns, bombs and IEDs.

Sounds like a Cheney screw up to me.


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November 20, 2009 10:05 AM    in reply to seashell

"Essentially, the Bush administration was afraid that an enemy tried within the US court system would be able to gather military intelligence or gain access to classified information, or both, through the constitutional protections that would be provided to them."

They didn't believe that for as long as a second. They were in the conscious, deliberate, active effort to disempower everyone else. This says as much:

"The 2005 National Defense Strategy of the US expressed it this way:

"Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism."

In other words: an ordinary person's access to the courts for redress and remedy is a "challenge of the weak" to the powerful, and that can't be allowed, regardless how it must be expressed.

It's called "Tort Reform".

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November 18, 2009 4:19 PM    in reply to 206Bones

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November 18, 2009 11:30 AM   

And there for a moment they were dealing with the true underlying issue.

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November 18, 2009 11:42 AM    in reply to darosenthal

You got that right. Get it out and discuss it. Almost 150 years is a long time to let it simmer.

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November 18, 2009 1:21 PM    in reply to ottis

The North may have won the war, but the South is winning the peace. States' rights, anyone...?

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slb

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November 18, 2009 1:36 PM    in reply to Bar Kafka

The North may have won the war, but the South is winning the peace.

And much of the credit (blame?) for that goes to Jubal Early, who was one of the early promoters of the mythology of the Lost Cause and the romantic Old South. One thing you have to say for Southerners, they know how to spin a yarn.

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November 18, 2009 2:48 PM    in reply to slb

They were a hopelessly romantic lot, those 19th Century-types--but I believe it was Northern media-moguls, particularly those ensconced in Hollywood, who really turned the 'Lost Cause' myth into some sort of fetish. Southerners -- suspicious and still resentful -- appreciated the free propaganda and the rest is, as they say, 'history'

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November 18, 2009 11:48 AM   

HEY WAIT A MINUTE!

I thought the prisoner's at GITMO were "Enemy Combatants" and had no coverage under the Geneva Convention? So Session's is now saying the US has committed War Crimes?

That was the cornerstone of the Bush apologists' defense of W/Cheney's it's OK we can torture them argument, they're not POWs.

I swear, the GOP has turned into a bunch of monkeys, throwing anything they can get their hands on including their own droppings. Obama bows, dithers, is going too fast/slow, is a radical Commie, Nazi, Fascist, racists, Kenyan, rinse and repeat.

I guess when the Right/GOP can say, print (Palin's myth filled book), promote anything without any accountability by the Beltway Press, the GOP has no need for intellectually honest consistency in their claims.

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November 18, 2009 2:57 PM    in reply to Grumpy Demo

I guess when the Right/GOP can say, print (Palin's myth filled book), promote anything without any accountability by the Beltway Press, the GOP has no need for intellectually honest consistency in their claims.

Hey...that's profiling!!

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November 18, 2009 3:08 PM    in reply to WaitWut?

But it is an exceedingly accurate profile!

The Republicans have, since Nixon, pretended to represent a 'silent' majority of 'real' Americans, and thus to be absolved of all standards and laws regarding truth, facts et cetera. But with a popularity in the range of 20% you would think they might rethink this strategy.

Shall I hold my breath? (They are too stupid to change, I imagine.)

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November 18, 2009 11:54 AM   

Sessions seems to be a real smart feller but then again I confuse my 's's and 'f's.

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November 18, 2009 12:09 PM    in reply to fitley

You forgot your 'm's.

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November 18, 2009 12:38 PM    in reply to fitley


.....Sessions seems to be a real smart feller but then again I confuse my 's's and 'f's.......

Hahaha!!!! Bathroom humor! I love bathroom humor!!! Haha!!!!

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November 18, 2009 12:12 PM   

How stooopid were Bush, Cheney and Rummy in calling them enemy combatants? And using the word "WAR"?
This elevates CRIMINAL activity to some level of warfare (or jihad), and really played into the hands of al quaeda.
Criminals get prosecuted in civilian courts. They are CRIMINAL nor warriors?

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November 18, 2009 1:06 PM    in reply to Avvocato

That's just wrong.

War criminals can be prosecuted in tribunals. Spies in militarized zones can also be prosecuted by tribunals. Civil crimes generally are prosecuted in civil courts, but they can also be prosecuted in tribunals if they occur in occupied military zones with no proper civilian authority to handle the cases. The problem is that none of these apply here. So civil courts are more appropriate. But it has nothing to do with the word CRIMINAL.

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November 18, 2009 1:48 PM    in reply to buck

Great breakdown. That's really the point. Sure we're at 'war' now, but this is in response to a criminal act on American soil during a time of peace.

If a mass murderer shot a bunch of people and fled the country and we caught him, then he'd be extradited to the US to stand trial in a civilian court.

Avvo was right to point out the language that we've been using for the past 8 years confuses the issue greatly in the minds of the American public.

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November 20, 2009 10:10 AM    in reply to ohyeathatsright

It was INTENDED to confuse the issue.

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November 18, 2009 12:52 PM   

When did Sessions stop playing the banjo?

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November 18, 2009 2:59 PM    in reply to commie atheist

When he left it too close to the still and it caught fire.

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November 18, 2009 5:24 PM    in reply to WaitWut?

Maybe he lost the duel.

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November 18, 2009 5:43 PM    in reply to commie atheist

Yep. That's what I needed. The visual of him "squealing like a pig".

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November 18, 2009 1:29 PM   

Expect Sessions to walk this statement back shortly. After all, if the Gitmo detainees are POWs, then Shrub and co are going to be looking at some serious-ass Geneva violations.

Not only that, but several of the cases currently in Gitmo will face serious difficulties if the detainees turn into POWs - most notably, the kid who was detained for supposedly throwing a grenade at US soldiers. That's not a crime for a prisoner of war...

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November 18, 2009 3:31 PM    in reply to Matt Jones

Shooting and killing your opposite on the battlefield is not a war crime. And that's why John Lind's only apparent crime was "Being-in-the-wrong-place-at-the- wrong-time".

This point has been bugging me; thank you for making it.

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November 18, 2009 5:48 PM    in reply to Matt Jones

If you've been following the case against that kid, Omar Khadr, you probably know that they have other serious problems with the prosecution.
-he was only 15 when captured, and has the benefit of special provisions for children under international law
-witnesses to the incident were forced to change their original statements, which exonerate Khadr
-the grenade fragments taken from the corpsman's body were from a US grenade, suggesting a cover-up of a friendly fire death
-Khadr was interrogated by some of the same thugs who killed Diliwar - the Taxi to the Dark Side victim - and who were subsequently charged with various offenses.

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November 18, 2009 1:40 PM   

"Leahy Rubs Sessions' Nose In Civil War Defeat"

sounded more like a friendly reminder than a nose rub...

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November 20, 2009 10:13 AM    in reply to JEP07

Nose rub in the guise of collegial friendly reminder.

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November 18, 2009 1:46 PM   

Here's what I don't get. Why are all of these chickenhawks so hell bent on making America look weak?

"Waaa, we're too scared of the terrorists, so let's hold them in another country because we don't have enough faith in our own prisons!"

"Waaa, we're too scared to try them in federal courts because they might say bad things about us!! Let's try them in secret so that we look like cowards with something to hide!!"

I just don't get their position. The right-wing is supposed to be so full of machismo, but every stance they've taken makes them look like terrified little cowards.

I mean, why are they hell-bent on giving these terrorists so much credibility? What makes them (the terrorists) sound more insignificant, making them "prisoners of war" as if they have a whole country behind their movement and trying them in military tribunals as enemies of the state? Or does it make them sound more insignificant to try them in federal court as nothing more than common criminals who committed a heinous crime?

It's bad enough that the right-wingers hate our country, but now they want to make us look as cowardly and afraid as possible. It's a sad joke with no punchline.

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November 18, 2009 1:55 PM   

If the Senate were 'Star Trek' would Sessions be Marlena from the 'Mirror, Mirror' episode?

"I've been a captain's woman, and I like it. I'll be one again, if I have to go through every officer in the fleet."

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November 18, 2009 2:09 PM   

Unfortunately, I spend too much time watching the C-Span channels. Although the channels do carry some content of importance, they are usually spouting partisan BS or renaming post offices. I liken the fantasy of our government's function to a bear cub attempting to screw a football. The most vociferous-nonsensical moron that fills Senate air time is Sessions. You talk about a living Lil' Abner...He's our guy. But, there are so many Southern politicians who come close to his depth of nothingness. When Sessions opens his mouth, I am forced to turn to continuous commercials on the other channels.

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November 18, 2009 3:58 PM   

For ole Lost Causer Sessions to equate the American Civil War as a real war is a laughable stretch. As that conflict progressed, Radical Republican's (think: Thaddeus Stevens) thought the correct legal result of the conflict was to treat the rebel insurgents as outside the protection of the Constitution and subject to the then current conventions of a defeated enemy of war. To the RR's this meant for the South, universal suffrage, political disenfranchisement of rebel leaders, confiscation of property, corporal punishment for leaders- like, real radical stuff. And of course history does not record these events unfolding.
If Sessions were correct about the South being a war- by past or present law- the North surer extracted some sure wimpy ass victors justice out of it. Or did I miss the history lesson about the trial and hanging of Robert E. Lee and Jefferson Davis?

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November 18, 2009 4:42 PM    in reply to MarinCoUSA

And what about the pre-execution torture? Why don't they teach THAT in schools?!!!??!!!???

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November 18, 2009 5:25 PM    in reply to MarinCoUSA

That's what I call a major missed opportunity.

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