War Questions For Mike Huckabee: Update

Gov. Huckabee, I have a couple of questions for you. Today’s Washington Post says that after a meeting with some unnamed former generals, you’ve decided that waterboarding should be outlawed and that, more importantly, the terrorist detention facility at Guantanamo Bay should be closed.

After the Iowa poll showed that Republican voters like him but found him much less “presidential” and “electable” than Romney, Huckabee sought to build his foreign policy credentials, meeting with a group of retired generals who are in Des Moines to urge the 2008 candidates to commit to opposing torture. After the meeting, Huckabee joined Sen. John McCain (R-Ariz.) in declaring his opposition to the interrogation procedure known as “waterboarding,” and said he would support closing the U.S. military prison at Guantanamo Bay, Cuba, a contrast with the other leading Republicans.

That paragraph suggests that you’re easily swayed by a single meeting on important issues that have been before the American people for years. I won’t ask you a “when did you stop beating your wife” kind of question based on that observation, though. Instead, I’ll ask these questions:

Is the Post’s account accurate? Is it true that you now favor closing Gitmo? If so, what are the details of that position? President Bush has also said that he would like to close Gitmo, but recognizes that the detainees still have to be kept out of the war or they will once again pose a threat to US troops and civilians around the world, so he has kept the facility open in the face of worldwide condemnation. Was he right to do that? What would President Huckabee have done? Would you close it as soon as possible, would you close it only at the cessation of hostilities with al Qaeda, or do you have some other timing in mind? If your position is to close the facility as soon as possible, what would you do with the inmates held there? Would you put the likes of Khalid Sheik Mohammed in the US civilian criminal justice system, as many Democrats and the ACLU argue should be done? Would you attempt to repatriate the inmates to their countries of origin? Are you aware that the Bush administration has tried to repatriate many of the Gitmo inmates, and their countries of origin don’t want them? Are you aware that about a dozen former Gitmo inmates who have been released have turned up on battlefields, fighting once again against US and coalition forces?

MIKE HUCKABEE: I’ve been to Guantanamo, I was there, I guess it’s been about a year and a half ago. I think the problem with Guantanamo is not in that its facilities are inadequate. It’s the symbol that it represents. It’s clearly become a symbol to the rest of the world as a place that has become problematic for us as a nation. I was quite frankly impressed with the quality of the facilities and even the attention to care that was given to the detainees, but that aside, it doesn’t alter that Guantanamo to the rest of the world is a symbol that is not in our best interests to continue pursuing.

My take: He’s putting symbolism over substance and putting worldwide condemnation ahead of the security realities. Those are not good qualities in a commander in chief who’ll lead a country that was globally envied and reviled long before the war even started.

Update (AP): Is Huck too moralistic to be C-in-C? Paul Mirengoff thinks so: “Waterboarding and long-term detention aren’t very ‘Christian’; they merely keep terrorists out of action and, in special circumstances enable us to find out where we’re going to be attacked next and/or where we can find those who are planning the next attacks.”

Update: Reader Chris sends this story along. It’s from June 11, 2007. Huckabee’s opinion on Gitmo was the opposite of what it is now.

Detainees being held at the U.S. Navy base at Guantanamo Bay, Cuba, on suspicion of connections to terrorism enjoy conditions better than many prisons in the United States, Republican presidential contender Mike Huckabee said Sunday.

While the government’s handling of Guantanamo detainees has come to symbolize “what’s gone wrong” in the fight against terrorism, the former Arkansas governor said, it’s better to err on the side of protecting the American people.

The former Arkansas governor, who has visited Guantanamo, said Arkansas prisoners most likely would prefer Guantanamo to incarceration in Arkansas. “I can tell you most of our prisoners would love to be in a facility more like Guantanamo and less like the state prisons that people are in in the United States,” Huckabee said on a cable news network.

“It’s (Guantanamo) more symbolic than it is a substantive issue because people perceive of mistreatment when in fact there are extraordinary means being taken to make sure these detainees are being given really every consideration,” he said.

Former Secretary of State Colin Powell has said Guantanamo should be closed and others have criticized the federal government for holding suspects indefinitely and apparently without evidence. Huckabee said he understands these concerns.

“But I tell you if we let somebody out and it turns out that they come and fly an airliner into one of our skyscrapers, we’re going to be asking how come we didn’t stop them, we had them detained,” he said. “If we’re going to make a mistake right now, let’s make it on the side of protecting the American people.” Gov. Huckabee, was Gen. Colin Powell among the generals you met with in Des Moines?

Update: Here’s Huckabee’s video from earlier today on Fox. I’ve left in part of his answer regarding why he’s drawing support to give you a sense of how smooth a speaker Huckabee is. He’s good without coming across as slick or fake. But that doesn’t make him right, and on Gitmo he’s just wrong. As you’ll see in this clip, he makes a point of saying that closing Gitmo doesn’t mean releasing the terrorist, and that he’d like to move them elsewhere and close Gitmo since it has become a counterproductive symbol of the war.

You are absolutely right. Here’s a court ruling from yesterday which reiterates the fact that while on Guantanamo terrorists do not have the rights they would have on US Soil. This case involved suing the government, Rumsfeld and generals about alleged abuse in Guantanamo. Think of all the ACLU lawyers who would be so happy to bring hundreds of suits on behalf of the terrorists if moved to the US.

ScotusBlog ^ | January 11, 2008 | Lyle Denniston

Posted on 01/11/2008 2:32:34 PM PST by Parmenio

Ruling in a case of four Britons who formerly were detainees at Guantanamo Bay, Cuba, the D.C. Circuit Court decided Friday that the prisoners have no right to sue top Pentagon officials and military officers for allegedly torturing them and defiling their religious beliefs while they were held at the military prison. The Court applied several different legal theories in rejecting all of the claims of abuse and arbitrary imprisonment, but the end result was that there was nothing left of the detainees’ legal challenge.

In a second ruling Friday affecting individuals captured during the “war on terrorism,” the Circuit Court decided that the Pentagon has no legal duty to release to the public the opinions or advice that outsiders gave to the government on the creation of “military commissions” to try war crimes charges against detainees.

Both of the rulings — Rasul, et al., v. Myers, et al. (Circuit docket 06-5209) rejecting the torture and abuse claims, and National Institute of Military Justice v. Department of Defense (06-5242) — can be found on the opinions page of the D.C. Circuit under Friday’s date.

In what appears to be the first federal appeals court decision on the legality of harsh interrogation techniques used by U.S. agents on terrorism suspects, the Circuit Court ruled that torture and abuse that was used while individuals were in detention in a military prison as part of interrogations to gather intelligence or information were “the type of conduct the defendants were employed to engage in….The alleged tortious conduct was incidental to the defendants’ legitimate employment duties” — that is, running a military prison and conducting interrogations there.

“It was foreseeable that conduct that would ordinarily be indisputably ’seriously criminal’ would be implemented by military officials responsible for detaining and interrogating suspected enemy combatants,” Circuit Judge Karen LeCraft Henderson wrote in the Court’s main opinion, joined in by Circuit Judge A. Raymond Randolph and in most parts by Circuit Judge Janice Rogers Brown.

Because such conduct was within the range of duties of top officials who authorized interrogation techniques and officers who carried out those instructions, the Circuit Court said, the detainees could not pursue their challenges in court because they did not first pursue them in administrative proceedings at the Pentagon.

In the one part of the decision from which Judge Brown dissented, the Court ruled that the detainees were not covered by a federal law that protects all “persons” against government action that intrudes on their religious freedom. The four Britons held for two years at Guantanamo had argued that actions by guards at Guantanamo — forced shaving of beards, denying copies of the Koran and prayer mats, throwing a copy of the Koran into a toilet bucket, and harassing prisoners while they were practicing their religion — violated their rights under the Religious Freedom Restoration Act. The Circuit Court majority ruled that the Act did not apply to non-resident aliens at Guantanamo.

Judge Henderson wrote that the Act was to be interpreted by analyzing the constitutional meaning of its language, because it was designed to restore constitutional rights to the free exercise of religion. Since it had ruled last year, in other detainee cases, that those at Guantanamo have no constitutional rights, they are not covered by RFRA because they are not “persons” in the constitutional sense, she wrote. (The ruling that the detainees have no constitutional rights is now under review by the Supreme Court in two pending cases on detainees’ legal rights, Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196).

The four Britons are Shafiq Rasul, Asif Iqbal, Rhuhel Ahmedand Jamal Al-Harith. They sued former Defense Secretary Donald Rumsfeld, top generals, and several Army colonels or lieutenant colonels. They contended that Secretary Rumsfeld had approved harsh interrogation techniques for Guantanamo prisoners, leading “systematic and repeated” torture at the military prison on the island of Cuba throughout their two years in captivity as lower-ranking military personnel carried out Rumsfeld’s authorization. They were released from Guantanamo in March 2004, and returned to Britain. They then sued in U.S. courts under the Alien Tort Statute, the Geneva Conventions on treatment of military prisoners, the U.S. Constitution, and the Religious Freedom Restoration Act.

U.S. District Judge Ricardo M. Urbina threw out all of the claims except that under the religious freedom law, concluding that those allegations could go forward because the Act did apply to the detainees at Guantanamo because of the scope of U.S. control of the military base and prison there, and because the detainees there were “persons” under the Act.

In its ruling Friday, the Circuit Court unanimously upheld all parts of Judge Urbina’s rejection of detainee claims, but divided 2-1 in overturning his decision allowing the RFRA claim to proceed.

Here in summary are the specific reasons used by the Circuit Court as it dealt with each claim:

Claim of torture and abuse under Alien Torts Statute (prolonged arbitrary detention, torture, and cruel, inhuman and degrading treatment) — These claims are barred by the “Westfall Act” (the Federal Employees Liability Reform and Tort Compensation Act of 1988), which is the exclusive source of a remedy for torts by federal officials or employees when they act within the scope of their employment. The actions here were within the scope of employment or incidental to it, th e Circuit Court ruled. Before one may pursue a Westfall Act claim, he must first try administrative remedies. The Court found that the detainees had not done so, and thus their claims failed.

Claimed violations of the Geneva Conventions (seeking damages for arbitrary detention, torture and abuse) — The Circuit Court ruled against those, too, under the same Westfall Act rationale used in rejecting the tort law claims.

Claimed iolations of constitutional rights (cruel and unusual punishment under the Eighth Amendment, inhuman and degrading conditions at Guantanamo violated their Fifth Amendment due process rights) — The Circuit Court ruled that, since it had held the detainees have no constitutional rights, these claims fall. Aliens held outside sovereign U.S. territory are not covered by the Constitution, it concluded. Judge Brown, in separate remarks, said that constitutional claims cannot be brought by those who are being detained and interrogated as “alleged enemy combatants” because allowing them to sue for damages against U.S. officials “may allow our enemies to obstruct the foreign policy of our government.”

Claimed violations of rights to religious freedom (interfering with religious practices and beliefs and defiling religious objects) — The Circuit Court concluded that the detainees were not “persons” entitled to protection under the Religious Freedom Restoration Act. Judge Brown dissented on this point, concluding that the plain meaning of the word “persons” in the Act covers the detainees. “The majority does not point to a single statute defining ‘person’ so narrowly as to excluded nonresident aliens from its ambit, and nothing in RFRA’s history suggests Congress focused on the term’s scope here,” she wrote.

Judge Henderson also wrote the Court’s opinion rejecting the attempt by a military policy think tank and advocacy group, the National Institute of Military Justice, to gain access to letters, faxes and e-mails that outside advisers — academics and former government officials — sent it to help the government set up military commissions under presidential orders. The Court majority concluded that these were exempt from compelled disclosure under the Freedom of Information Act because they were “intra-agency memorandums or letters” under the Act’s Exemption 5. Senior Circuit Judge Stephen F. Williams joined the opinion, while Circuit Judge David S. Tatel dissenting, arguing that the ruling allows government officials to put beyond public reach “any document the goernment would find it valuable to keep confidential.”

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