One of the most frustrating things for Westerners since September 11th, 2001, has been the demands throughout the Islamic world for “proof” that Osama bin Laden was behind the attacks. At the same time, “friendly” Arab governments condone or even quietly support suggestions that “Zionists” directed the attacks, and that American Jews were warned before the strikes on the World Trade Center towers and that 4,000 of them did not show up for work on the fateful day. We cannot believe that anyone could believe such folly and we want to extend proof of the truth. But empirical reality is almost irrelevant within the Islamic world—comforting myths are much more powerful—and the mental processes at work are so fundamentally different from our own that we literally cannot comprehend them.

Were we to provide a video-taped confession by Osama bin Laden, Muslims would insist that Hollywood had staged it. Were we to provide multi-media records of Arabs committing the deeds of September 11th, the response would be the same. Statistics, facts, evidence, proof—none of this has much weight in the Muslim consciousness. I have personally never quite gotten used to the stunning ability of even educated people between the Nile and the Himalayas to believe with deep conviction and passion that which is patently, provably false.

Another aspect of the Islamic mind is its ability to disaggregate and compartmentalize. One moment, a Pakistani or an Egyptian might tell you that Israel staged the attacks on the World Trade Center towers and the Pentagon, then, a moment later, tell you what a great hero Osama bin Laden is and that the Muslims who piloted the planes were great heroes. We see an obvious lapse in logic, but our Muslim counterpart sees nothing of the kind. He can comfortably “believe” both “truths.”

Part of the problem is that empirical truth comforts us, since we’re a success story. The Joe-Friday facts support our satisfying view of ourselves. But few facts support a positive self-image within the Islamic world. The flight into fantasy has been going on for a very long time—at least since the expulsion of the Moors from Spain in 1492—but the impact of globalization, modernity and now post-modernity have driven hundreds of millions of Muslims into a fabulous refuge of their own collective construction. Powerful myths may be the only thing the Islamic world is good at building.

What it means for us is that we should not waste too much effort trying to prove that which will never be believed, no matter how much supporting data we offer. We can convince through our deeds alone—and even then only partially. When we kill Osama bin Laden, millions will refuse to believe in his death (even if we put the corpse on a Middle East tour, complete with on-the-spot DNA sampling). And the talent for overlaying conspiracies on even the most benign Western actions will always over-ride the reality of any good we seek to do or accomplish (of course, America has its own conspiracy fanatics, but in our society they exist on the margins, while the belief in complex, malevolent Western and “Zionist” conspiracies is integral to middle-of-the-road
discourse in the Muslim world).

We are dealing with a delusional civilization—and this is a new problem in history. Certainly, the degree of delusion varies from individual to individual, to some extent between social classes, and somewhat between peoples and states. But it means that the American and Western tradition of reasoning with opponents, of convincing doubters, and of marshalling evidence has far less potency—and often none—in dealing with the Islamic world.

We may believe with great satisfaction that we have the truth on our side—but myth is on their side, and myth can be more powerful than truth. Some noble or hapless souls may sacrifice their lives in service to the truth. But millions will rush to die for a cherished myth of themselves.

Only physical reality, brought home with stunning force, can make much of an
impression. Even that will be rationalized away in time. But where the truth cannot make headway, punitive or preventive violence must protect us.
We, too, have our comforting myths, among them that all the people of the world are really just "like us,” that all men are finally subject to reason, and, most perniciously, that violence is a desperate measure that solves nothing. In fact, billions of people are not “like us,” surprisingly few men are subject to reason when reason threatens their most precious beliefs, and violence is often the only meaningful solution.

Anyway, as I was getting myself slightly organised this morning, I reached for a book to read on the bus. Feeling in need of a cultural lift, I selected a collection of Dr Samuel Johnson’s writings. I hoped to find something good to sink my teeth into from the 18th century’s pre-eminent English man of letters.

And having read the posts I mentioned above, I was alert to religious allusions, and they abound in Johnson’s letters. It reminded me once again that in his day, it was quite normal for a leading intellectual to have a strong and vibrant religious faith.

And Johnson’s faith, of course, was what we would call ‘fundamentalist’. He took seriously the notion that at the end of his life, he would be held to account by God for his own personal actions. In Europe or Australia, it is very rare for a public figure to express such beliefs these days. In the United States, of course, it is different – the President is comfortable talking about his own faith, and this is not seen as an issue- indeed, I get the impression that a man who is not comfortable with faith is going to have trouble getting elected to high office.

Politics aside, though, few leading intellectuals would admit to holding a fundamentalist view of religion. The socially acceptable alternative is to hold what is known as a ‘modernist’ view (famously explained in the British TV series “Yes Prime Minister”).

What caused this gap between US views on religious beliefs and European ones? I can only guess. My guess is that there has been a combination of things.

The French Revolution, which, while it had a massive impact on the European intellectual classes, also occurred at a time when the nascent US republic seemed determined to emphasise how different it was from “Old Europe” and was not very receptive to external influences. While all of Europe was in ferment with the Reign of Terror and the Revolutionary Wars, the United States was in it’s early stages under the consensual government of President Washington.

Of course there were plenty of European intellectuals who chose exile in America but they came to learn from the new Republic, not to instruct. No doubt there were those that felt instruction was necessary, but Americans were in no mood to listen.

Another reason for the gap was pointed out by Friedrich von Blowhard- the way in which Religion in Europe was seen as part of the Established Order of things, in a way which it wasn’t in the US. So for European intellectuals, who generally pride themselves on being subversive, it would have been perverse for them to cling to a religious belief system that was part of the social order they wished to undermine.

The nature of Establishment religion in Europe also helped to discredit religious institutions with the general populace in a way that never happened in the US. So it became electorally feasible for European statesmen to be agnostic or atheist in a way that it possibly still has not in the US.

Why does this matter? I think it is helpful to be mindful of these things. I am an atheist myself, and it did not really occur to me until I had another look at Dr Johnson that having a belief in an afterlife, and being judged for one’s actions in this life, is going to have a larger impact in one’s intellectual thinking then I previously considered.

Of course, I was aware of this in the context of Islamic inspired suicide bombers, who do their evil deeds under the impression that 72 virgins await them in paradise. But there is a lot more to it then that, and that the Christian context of judgement is still a factor in the US.

I do not know what the precise implications are. At a wild guess, a person mindful of judgement and an afterlife who is given a policymaking role might be more mindful of the long term consequences of a policy, and less prone to falling into ‘the ends justify the means’ thinking.

Although given recent events in Iraq, I’m probably wrong there too.

The insurgents would naturally rise to the top of the list. Honduras faces the most immediate threat. Considering the imperialistic nature of Communism, the other four (especially El Salvador and Nicaragua, given their somewhat recent histories) know that if the movement succeeds any one of them could be next.

Other Central American countries (and Mexico) may perceive this as an albeit distant threat to their security. The US (at times) vigorously fights Communism through hot or cold war. Fidel Castro has always fanatically supported Marxist insurgents in Latin America. Belize is a member of the British Commonwealth; any threats to its sovereignty would naturally attract the attention of the UK.

But allies are not threatened by extinction as are the five principals. The damage they face is purely political. Their motivation rests on the ally's degree of fanaticism (which in Castro's case is quite extraordinary) or the degree to which the military outcome threatens the continued power of the ally's dominant party (which explains the fate of South Vietnam: neither of the American political parties had anything to lose if Saigon would fall - and Watergate had doomed the more hawkish Republicans, anyway).

Who has the least motivation to military success? The United Nations. None of the quagmires into which it inserts itself threatens its existence, and failure never has political repercussions. It has no interest in such situations whatsoever; it is purely a "benevolence" organization. Perhaps this explains why it never seeks victory in the true sense. Its modus operandi has always been to send in troops and maintain the status quo between rival factions, not to militarily defeat the antagonist. And it suffers the delusion that it can accomplish its mission while being outnumbered by more than 150 to one. Even Custer had better odds.

What Adam Smith said about commerce also applies to war - people are motivated primarily by their personal welfare, not by benevolence. Or as Robert A. Heinlein put it: "Never appeal to a mans better nature. He may not have one. Invoking his self interest gives you more leverage." Free markets succeed because success is wholly dependent on meeting demand. Regarding warfare, because political interest is far less tangible than survival interest, alliances with nations not facing the same immediate threats always involve a strong dose of the ally's "better nature." Placing too many eggs in the benevolence basket is never a good idea.

is sappy euro post-colonial guilt, of the type we are trying to inflict on the Milosevic set. A couple years in prison, maybe, but more importantly, a couple years of browbeating by a sanctimonious judge, who retires each day to suck down snails and wine, and grab a bunch of roses for his wife from the Fish and Flower market on the way home... after which he can lecture her about what a bunch of dumb beasts Americans are. Sure, international justice may be, well, less filling and tastes not-too-great, but if following the book and due process are somehow improper, then that's the sole alternative to the Gallipoli solution.

Indeed, expect Rumsfeld to be indicted in Brussels or Rome for his part in this. (Sure, it was essentially nil, but never mind. Facts (if such a thing actually existed for our postmodern robed masters) are irrelevant.

You know, on days like this I sorta quietly nurse a perverse hope that the U.S. efforts in the middle east fail. Then when Paris and New York get nuked, or Ebola'ed, at least we'd have some moral clarity underlying our over-the-top genocidal response.

As it is, the phony posturing and phony outrage of our politicians, the attemps at political correctness, the media feeding frenzy, the lefty editorialists talking about how we have riled the fearsome Arab street - all of it is just about too much of a fake dog and pony show for a man to take.

Bad things were done. It was really nasty prison guard abuse, in a land where U.S. troops caught in similar predicaments are treated much worse. Then a bunch of businesslike military men were fixing it, and well along the way to remedy the problems, and to punish those who caused the problems. That's out the window now, and it's been replaced by a bunch of camera-magnet pols who, on a good day, make about as much sense as my infant son. What an improvement, huh? So much for Congressional oversight serving as a tonic to executive branch abuse.

I have an idea. Let's run around screaming and rending our garments. That'll fix things up just fine, won't it?

Jeebus, I'm pissed. The one time in the last 50 years we really need some serious people, some adults running things, and we get a malicious and infantile peanut gallery on one side of the aisle, and a bunch of low-forehead, cynical opportunists longing for a role on Law and Order on the other side.

I'm feeling ill...

In the country report for Saudi Arabia, we find this:

The Government's human rights record remained poor; although there were positive improvements in a few areas, serious problems remained. Citizens did not have the right to change their government. There were credible reports that security forces continued to torture and abuse detainees and prisoners, arbitrarily arrest and detain persons, and hold them in incommunicado detention. There were cases in which Mutawwa'in continued to intimidate, abuse, and detain citizens and foreigners. There was no evidence that violators were held accountable for abuses. Most trials were closed, and defendants usually appeared before judges without legal counsel. There were reports that the Government infringed on individuals' privacy rights. The Government continued to restrict freedom of speech and press, although there has been an increase in press freedom over a series of years. The Government restricted freedom of assembly, association, religion, and movement. Violence and discrimination against women, violence against children, discrimination against ethnic and religious minorities, and strict limitations on worker rights continued.

Keep in mind, this is a report concerning 2003 - the year the Saudis turned the corner on human rights, we're told. There were cases of torture and abuse, and nobody was held accountable. Hmmmm...

Well, let's try Iran. Surely they did better. Why, that nice President Khatami, the great liberalizing reformer, was just lauded and toasted at Davos. So how'd they do?

The Government's poor human rights record worsened, and it continued to commit numerous, serious abuses. . . There were reports of political killings. The Government was responsible for numerous killings during the year, including executions following trials in which there was a lack of due process. Government affiliated vigilante groups also were responsible for extrajudicial killings.

The law criminalized dissent and applied the death penalty to offenses such as "attempts against the security of the State, outrage against high-ranking officials, and insults against the memory of Imam Khomeini and against the Supreme Leader of the Islamic Republic." Citizens continued to be tried and sentenced to death in the absence of sufficient procedural safeguards.

Exiles and human rights monitors alleged that many of those supposedly executed for criminal offenses, such as narcotics trafficking, actually were political dissidents. Supporters of outlawed political groups, or in the case of the Mujahedin-e Khalq, a terrorist organization, were believed to constitute a large number of those executed each year.

In July, an Iranian-Canadian photographer, Zahra Kazemi, died in custody after being arrested for taking photographs at Evin prison in Tehran. After initially claiming that she had died as a result of a stroke, the Government subsequently admitted that she died as a result of a blow to the head and charged individuals involved in her detention. The Government also denied Canada's request, based on her son's statement, that Kazemi's remains be sent to Canada for further autopsy and burial. The Government claimed to be following the wishes of her mother that she be buried in the country, but the mother later said that she was coerced into making the request.

Two political activists associated with the outlawed Komala party, Sassan al-Kanaan and Mohammad Golabi, were executed in February and March. The Democratic Party of Iranian Kurdistan (KDPI), an opposition party, alleged that the Government executed party member Jalil Zewal in December, after 9 years in prison during which he was reportedly subjected to torture. KDPI member Ramin Sharifi was also executed in December after his arrest in July. Mohammad Golabi was reportedly tortured while in detention. Sassan al-Kanaan's execution was reportedly carried out while his mother was in Tehran meeting on his behalf with the U.N. Working Group on Arbitrary Detention. KPI reports that hard-line vigilante groups killed at least seven other Kurdish civilians were killed during the year.

The 1998 murders of prominent political activists Darioush and Parvaneh Forouhar, writers Mohammad Mokhtari and Mohammad Pouyandeh, and the disappearance of political activist Pirouz Davani continued to cause controversy about what is perceived to be the Government's cover-up of involvement by high-level officials. Prominent investigative journalist Akbar Ganji, who was arrested in 2000 and sentenced to 6 years in prison for his reporting on the case, remained in prison (see Sections 1.d. and 1.e.). In 2001, the Special Representative for Iran of the Commission on Human Rights (UNSR) also reported claims that there were more than 80 killings or disappearances over a 10-year period as part of a wider campaign to silence dissent. Members of religious minority groups, including the Baha'is, evangelical Christians, and Sunni clerics were killed in recent years, allegedly by government agents or directly at the hands of authorities.

Well, I'd keep going, but you really ought to read the whole thing, if you want the flava of how things are going in Iran. I suppose that when Iran condemns the U.S. for rough treatment of prisoners, they are speaking from experience.

Shall I go on? Of course. There's our ally Egypt. We're told Egypt is really upset. I can see why. According to the State Department meanies, "there were no reports of political killings." Yayyyy! However, "at least 8 persons died in custody at police stations or prisons." Booooooo!

Then there's this gem that sort of puts our smelly hippy protestors' allegations of a U.S. police state into perspective:

In April, the Egyptian Organization for Human Rights (EOHR) released a report called "Torture Should be Stopped." It documented five cases of alleged death due to torture which occurred in police stations and detention centers in 2002. The report also included 31 cases of torture, 9 of which the report states "are expected to end in death." On September 12, Mohammad Abdel-Sattar Musri, an electronics engineer, reportedly died of torture while in custody at the headquarters of El Fayoum SSIS. He was detained 3 days after the detention of his younger brother, Ahmed, who was accused of disseminating anti-war propaganda.

Now there's your Bushitler police state and its quashing of dissent. Only it's not the Halliburton-Bushitler axis, or the AshGoebbelsCroft-Lockheed Corp doing the policing and quashing - it's our good friends, the Egyptians.

As for Egyptian torture - well, our reservist military police look like pikers in comparison, making people stand on a box in a hood, piling them atop each other in a little dogpile and taking pictures of them naked. Here's how the Egyptians do it, old school style.

Principal methods of torture reportedly employed by the police and the SSIS included victims being: stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, whips, metal rods, or other objects; subjected to electrical shocks; and doused with cold water. Victims frequently reported being subjected to threats and forced to sign blank papers for use against the victim or the victim's family in the future should the victim complain of abuse. Some victims, including male and female detainees and children reported that they were sexually assaulted or threatened with rape themselves or family members.

Beatings with rods and hung from the ceiling, eh? I'm wondering if the criticism is due to the U.S. pathetic lack of brutality or systematization of torture; or the U.S. apparently inexplicable willingness to make the allegations public, and to take actions to stop it and ensure it doesn't happen again.

So why then, would the Arab world jump on the U.S. over this and strongly condemn us? Gee. I can't imagine why. I want to say that it's an opportunity to undermine the U.S.'s steady opposition to torture, state-sponsored murder and rape and disappearances in the region. But nobody would be so low and so cynical, to stoop to that, right?

Losing the snark for just a moment, I stand by my earlier predictions. If the U.S. handles this the right way, visibly punishes the wrongdoers (and publicizes the results of the court martial) then it is a chance for us to prove we mean what we say about torture. Every system has its bad apples, and we will get rid of ours. In getting rid of them, it will show the health of our system. I repeat: for those who hate us, this is just one more excuse to hate us, the jew-pig-dog crusader dhimmi filth. For those who look to us for leadership, proper handling of this situation, and publicizing it, will again lead the way in addressing real human rights abuses, and hopefully lead the Arab Street to ask, "why can't our torturers be brought to justice?"

What will the Arab world will say then?

Oh, and one other question. Where were the Arab condemnations over the last year, hammering the people who turned 500 or so Israeli into pink mist over the last year? I mean, as long as we're going to root out all the torture and violence...

[No, I don't mean to say that prisoner abuse is a good thing in and of itself. Rather, the manner in which the U.S. handles this situation could turn it into a positive.]

First off, few Iraqis (other than the ones who hate us already) will be upset that some Baathists and extremists were getting mildly mistreated. (And yes, in a land where people were fed feet first into a plastic shredder, getting a German Shepard sicc'ed on you briefly, or getting punched in the back is mild mistreatment). It is still wrong, meriting charges of conspiracy, dereliction of duty, cruelty, maltreatment, assault and indecent acts with another, at least in the opinion of the convening officer, but it should be kept in perspective. This is akin to straightforward police abuse, and it should be treated that way. [So don't make more out of it than it is.]

Second, among the many Iraqis who don't dislike us, and who have built up some trust for us, this gives us a chance to reinforce the trust by making an example of those found guilty of the abuse. The Army should hold the courts martial in Baghdad, open them to the press and public, and post a summary of the results each day in every town in the country. Show them how a court system - even the somewhat cramped military justice system - works openly and fairly in a free country.

There are some obstacles to justice here, of course.

Due to political events at home, the Army has every incentive to minimize the damage, to try and hide this. It should not do so. When you have a boil, the best thing to do is to lance it, and expose it to fresh air. Let the poison and infectious offal drain out. Who cares what bystanders say? You should worry about your own health when you have have an infection. This approach makes sense politically too, if our generals can see beyond the Beltway. The U.S. military has a reputation for dealing with problems in a pretty straightforward manner, and hence has an extremely high reputation for integrity. Hence the generals and civilians preparing themselves for prison terms as a result of misbehavior in the contracting process. They should keep it up here under the most difficult of circumstances, and the military reputation for integrity will be further bolstered. This country (and this world) needs government institutions that strive to be beyond reproach.

The soldiers themselves are also claiming they were improperly trained. This may be true, to some extent. Many National Guard and Reserve units in the past received only cursory training. However, some of their claims ring very false. The Beeb cites a Sergeant Frederick, who is a full-time prison officer when home in Virginia, as saying "We had no training whatsoever." Um, no offense Sergeant, but you covered the Geneva Conventions in basic training, should have received a yearly refresher during drill, and almost certainly received one during the P.O.M. phase of deployment. (No, P.O.M. doesn't refer to Prisoners of Mother England. It means "Prepare for Overseas Movement," a period of intense administrative preparation when troops receive vaccinations, fill out wills, get Geneva Conventions briefings, and so forth. According to the Article, the military police at the prison had not been trained on the Geneva Conventions - but this surely refers to in-country training; nobody gets out of Basic without having a couple hours of instruction on POW handling, and what to do if you are a POW.

One other thing, Sergeant Frederick: I suppose the great state of Virginia permits you to sic dogs on prisoners, and to duct tape electrodes to the nuts of your prisoners down in Richmond? His claim of ignorance also rings false, because corrections officer is a military specialty within the ranks of the military police. The military prison at Leavenworth is manned by such corrections officers, and certain military police units are staffed almost entirely by corrections officers. Although corrections officers from various prisons have earned well deserved "bad cop" labels, they cannot pretend to be ignorant of basic standards of decency in how one should treat any type of prisoner.

The objections raised by these military police officers ring false to me professionally as well. As an attorney who has had the distinct honor of serving in a police review capacity, I know that most police of any type have a pretty good idea of what is right, and what is wrong. Most cops are good, albeit with a sense of rough justice that might seem a little rough to civilians. But unless they are absolutely corrupt, they always know what they can do, and understand what they should not do. This situation, with cops pleading that they had no idea of right and wrong under these circumstances, smells like garden-variety bad cops to me.

One other objection is kind of curious - that the prison guards were doing this at the behest of the interrogators.

Now it's possible that some duress was being employed to assist in interrogation. You see, the Geneva convention prohibits torture. But it doesn't really say anything about thinly veiled threats of torture, lying to people ("if you fall off the box you will be electrocuted") mild discomfort, and head games. Perhaps interrogators were using these techniques. If so, they should have kept much tighter control of these military police - and if the military police crossed the line at interrogator direction, then the interrogators should be on trial here as well. Some of the techniques obliquely mentioned - threats, hoods, mild physical duress (making somebody stand up and not move, for instance) are mean, but they aren't torture and they aren't forbidden. Other stuff - the dogs, wires on the crotch - are pretty marginal and probably illegal, depending on the exact facts of the situation.

Yet that excuse - "the interrogators told us to do it" - doesn't smell quite right either, because of all the photos and videos of the abuse. Army and Marine interrogators (most interrogators in the NATO militaries, actually) receive extensive instruction in the Geneva Convention because they are expected to walk the fine line when applying pressure to get answers. They know full well that they are subject to a war crimes trial if they cross the line, so they tend to take great care in how they handle prisoners - very tough, and close to the line, but never over it.

As a result, when you find allegations of serious prisoner abuse, it is usually related to people who have nothing to do with military interrogators - staff officers, supply clerks, and other REMFs. One of the prohibitions with which the military interrogators would be quite familiar, is the prohibition on exploiting prisoners. (I presume military interrogators were running this cage, as I seem to recall Chief Wiggles making reference to that a while back). That prohibition is commonly read to prohibit most photography of prisoners. You can take a snapshot of a group cage with a couple dozen prisoners out in the field, or take a photo for admin tracking purposes, or maybe a photo to prove a person is still alive (e.g. Saddam) - but individual photos of prisoners, especially prisoners undergoing the demeaning and dehumanizing process of interrogation, are streng verboten.

It sounds more like isolated abuse by the military police, especially when you consider that fewer than 20 prisoners were involved, and the incidents occurred last November and December. Moreover, the Army hasn't seen fit to bring charges against any interrogators.

One other thing that's sort of baffling here, is the relative dearth of press coverage in the U.S. All the sources Drudge cites, other than a two-day-old Sixty Minutes feature, are British.

So I'm really skeptical about all the excuse making. As they put it in Army-ese, this isn't a problem, it's an opportunity to excell. Let's see how Generals Kimmit and Abizaid handle it.

[One other thing. The leftosphere is naturally getting all crazy because intel contractors have been in theater. "Mercenaries!" "CACI = Halliburton!" "Bad example for the dark-skinned natives!" You name it, they're rolling out the anti-corporate crap. Here's the thing. Most intel contractors are retired military intel, with several years' experience minimum, maybe 20 or 25 years is more normal. If contractors were doing interrogation work at Abu Ghraib... first off, I'd be a little surprised. Second, the contractors are probably smarter than the average enlisted bear. You don't get to 20 or 25 years in the intel field without knowing at least most of the rules. And in fields where knowledge and experience matter - like most technical and human intelligence fields - those contractors are a most valuable resource. Especially the contractors who speak Arabic. If they screwed up, they should and will no doubt be punished. But it's a little too soon for the Leftosphere to be doing its Fallujah Happy Dance.

And, FWIW, it appears from this CBS story that the commanding general of Abu Ghraib may have something to answer for as well. She insisted nothing was wrong when a CBS news crew showed up to probe the facility last October - just a month before the suspected abuses occured. No offense meant, Ma'am, but if you aren't smart enough to keep your ducks in a row when the 60 minutes film crew is camped out in your front yard, you probably don't belong in a command position. ]

I thought Padilla was a slam dunk for the accused terrorist - I thought DOD would have to release him. He's an American citizen, captured on American soil, with only a vague outline of what he would do to cause damage to the U.S. Of course he should be in court and not military detention. I even thought the justices would be comfortable letting him go free - he's the kind of armed robbery-committing, drug dealing, gangbanging murderous scum they are comfortable letting off the hook. Yet after hearing the oral argument, which focused primarily on a relatively arcane question of choice of forum, I think the government may actually win in Padilla, at least for now, simply because Padilla's lawyers "forum shopped." They filed their case in federal court in New York hoping to pull a more liberal judge than they could have done in a District court of the conservative Fourth Circuit, in Virginia where the Pentagon is located.

So my earlier thoughts are now upended. I now think the Court will find some screwy reason to get the dangerous Gitmo loonies of Al Odah, a day in court; they will give the goverment a pretty much unadulterated win in Hamdi (which is really odd, because he's no different from the Gitmo loonies, except he's an American clearly held on American ground, so you'd expect he'd be treated better than them), and the government should win on technical grounds in Padilla. Oddly enough, I got the impression Scalia would like Padilla released - I guess that's an admission of textualism on my part, and an admission by the rest of the Court that they are prolly missing the real issue in the case.

This is all utterly bass ackwards.

That said, I'm probably bass ackwards too. You never can tell how a given justice will vote based on oral argument. In the Supreme Court, as in Yogi Berra's baseball, all you know, is you don't know nothin'.

Except in Justice Stevens' case. He referred to Hamdi as having been "arrested" on the Afghan battlefield.

To a layman, this is a pretty minor quibble; to a lawyer, that's a horrifying error at best, a dire symbol from the chicken guts at worst.

If Hamdi was "captured" it implies battle, laws of war, Geneva convention, and limited court roles. If he was in fact "arrested", it implies the full spectrum of constitutional rights, including Miranda, the 4th and 5th and 6th Amendments, a full out right to counsel and access to the courts, and a requirement under the Federal Rules of Criminal Procedure that he be charged speedily, or released. You see, "capture" and "arrest" are terms of art, especially when comparing military to civil law. It's the difference between fish and anchovies; you'd be bummed to get trout on your pizza, when instead you wanted the delectable anchovies.

The worry for me isn't Hamdi; it's those 650 other guys locked up at Gitmo, who would be freed to continue their warmaking. I'd love to chalk it up to a slip, but I don't believe Supreme Court justices make that kind of slip. It would be awfully imprecise for a novice attorney to make a slip like that; even moreso for a justice with 60 years as a lawyer to say that.

If it goes that way, it's a disaster for the Armed Forces in any future conflict. One positive result, is that it might eliminate having to deal with pesky prisoners of war. Of course depending on how the Al Odah court settles their jurisdictional questions, relatives of the war dead killed by U.S. troops could conceivably sue the U.S. government for wrongful death, in U.S. courts. So yes, it was a nightmare to sit through these cases and think about the parade of horribles each invites no matter which way they are decided, thanks for asking.

[UPDATE]

By the way, Dahlia Lithwick has her usual, interesting writeup of the Court action in Padilla and Hamdi available right here. This is a good one. If you read it carefully, she is basically saying that the arrest of Padilla and the capture of Hamdi signals the start of a new Holocaust in America. No, really. You have to read it. That's what she's saying. I'm simply amazed that a brave dissenter, a speaker of truth to power like herself, hasn't been disappeared by Bushitler, or perhaps by AshGoebbelsCroft. Oh well, I can rest assured knowing she's on the list.