“It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives – and the liberty – of the American people.”
(h/t Josh Marshall)
Progblogs heads start exploding in three, two, one…
Check “Memeorandum,” AL. The progbloggers’ heads have been detonating like a string of firecrackers for several hours now.
“link1”:http://tinyurl.com/6h423c
“link2”:http://preview.tinyurl.com/6h423c
[Please don’t post bare URLs. Fixed for you, this time –NM]
Change we can believe in:
Discredit the public campaign finance system.
Embrace NAFTA.
Expand FISA.
Bring Back Samantha Powers.
Ask Gates to Stay on for an Interim Period.
Announce that Your Policy in Iraq Will Depend on Facts on the Ground when you Reach Office.
Ask Congress to Temporarily Suspend Habeas at Gitmo Until He Has Time to Review the Records Personally.
Anything else?
Now to figure out which set of “rubes” obama is trying to bamboozle to get in. Those that want to stay on the offensive against al qaeda or those that think it’s “Bush’s war”?
Nice list, Mr. Shaw. But please remember that it won’t be enough to be right where Obama is wrong or where he has reneged on his word or misspoken or done anything else that would sink another candidate. Don’t operate on the belief that he is naive even though you know he is. None of this matters when it comes to defeating Obama. His supporters are not burdened by the facts and are not impressed with clear expositions of how wrong and unqualified Obama is. They are operating on a different, more primal, level. Look at all that money he’s got and is gonna get. It won’t be enough for McCain and his supporters to be right. It may be just enough to utterly discredit Obama beyond the point where Big Media can still help help him. No one cares if McCain is right; it only matters if he wins.
Giving a whole new meaning to the word “change.”
Not so much a flip-flop or a triangulation.
Think of it instead as retreat or surrender from Obama’s previous strongly-held positions.
I think we can all agree that retreat and surrender are totally consistent with his platform of hope and change.
[Ad for a T-shirt. Deleted. Care to try again, with some substantive content? –NM]
Yes, from Obama we can believe in change and change and change _ad infinitum, ad absurdum_.
A.L., Nice touch with “scalene” – had to look it up. But personally wrt Obama I don’t even trust the triangle to be part of Euclidean geometry at all.
Mutatis mutandis ad infinitum, ad absurdum!
That would look really cool on Obama’s new presidential hat. It’ll have to be a really wide hat, like Napoleon’s.
I believe Obama, just like I believe Slick Willie about doing everything he could to take out Bin Laden. Flip-flop.
[Ad for a T-shirt. Deleted. Care to try again, with some substantive content? –NM
I do not see the point of deleting the Tshirt from the Obama website: “change we can believe in.”
I thought it would be rather obvious I was making the following point: a candidate who flip-flops on such issues as campaign funding, NAFTA, church and minister, who has a campaign motto “Change We Can Believe In,” is not a credible candidate.
Gringo, thanks for explaining.
One of the problems with irony is that it doesn’t always work well in this medium.
I appreciate your thinking that you were being both obvious and substantive. Unfortunately, short posts with links to products are not limited to witty contributors. Spammers do exactly the same thing. I regret the implicit accusation, such as it was.
Repeal FISA is up and running. Anyone who wants to is welcome to sign up and become a Poster on it. The purpose of the blog is to organize a drive to repeal the FISA laws and all laws that pardon or give immunity from prosecution anyone who has violated the Constitution during the Bush Administration.
That is why we want everyone to be able to Post so they can start a conversation about an idea they have to make this happen.
Stop on by and check it out. By all means leave a comment and sign up to blog with us as we figure out what needs to be done to return our Fourth Amendment Rights and our rule of law.
“link”:http://repealfisa.wordpress.com/
[This is a drive-by ad, and I consider it borderline. In a spirit of comity, I am leaving it up. Any Marshal who differs and thinks it’s delete-worthy is welcome to. (Bare URL corrected.) –NM]
xolites – why limit yourself to the Bush Administration? Why not add the Clinton Administration? The Regan Administration? FDR?
A.L.
“xolites – why limit yourself to the Bush Administration? Why not add the Clinton Administration? The Regan Administration? FDR?”
Lol, three guesses as to why.
Why the hell doesn’t anyone in government care about FUNDAMENTAL RIGHTS anymore?
We’ve got the Democrats giving BushCo. pretty much everything we want with this bill. What does it mean when you’ve got a DEMOCRATIC HOUSE author (or bring to the floor, move through the process) a bill that ALL but one Republican votes for, while less than half of Democrats vote for?
You’ve got the BushCo. group, claiming that personal rights don’t really exist, when it gets in the way of what they want.
Just today, an appeal court “rules for Guantanamo detainee”:http://ap.google.com/article/ALeqM5iMGYLFEpaIYdDKnblerG5_TNg-_gD91FRE6O2.
The course rejects, the rather OBVIOUS fact, that “the president has the power to detain people who never took up arms against the U.S.”
THIS is what the BushCo government says they have a right to do. Literally, the right to detain ANYBODY. Anybody. And simply claim they are terrorists, or associated with terrorists in some warped version of Six Degrees of Kevin Bacon.
And the people on this board, give more of their sarcasm to Barack Obama, for not standing up more to this egregious Democratic bill, rather than the government that is ACTUALLY claiming that no rights exist for a person, if they simply declare that person an enemy combatant.
Hypocrisy rules indeed.
I might be one of the sarcastic people to which HR refers, but I have been thinking about my initial response.
I think FISA is a good law and Obama should be applauded for taking this position. It is hard to see how he gains any political points for doing it, so I don’t think it can be judged as simple demagoguery like ethanol policy. As “Jack Balkin”:http://balkin.blogspot.com/2008/06/why-obama-kinda-likes-fisa-bill-but-he.html explains, Obama “wants all the power he needs to protect the country.” That’s what the job is about.
_Repeal FISA is up and running._
The effect of repealing FISA is not to end foreign intelligence survelliance, but to remove any Congressional role in how its conducted.
Wikipedia on Extraordinary rendition:
I join hypocrisyrules in hypocritically condemning the evil BushCo government for what Bill Clinton and Al Gore established as standard operating procedure during the eight years before Bush even took office.
Shad,
Thanks for the pointer to how extraordinary rendition developed. Good information.
However, I never mentioned extraordinary rendition. I mentioned the designation of “enemy combatant” and holding a person for SIX YEARS, and as we have found in many cases, to be completely innocent.
Again – you or I could be snatched.
Now – if you want to make an argument that extraordinary rendition, as practiced by Clinton, is the same as what BushCo. has done for the last 6 years – please make the case. I’d be interested to hear it.
Clearly, I can see the case made where grabbing a terrorist quickly, is warranted.
But to argue that grabbing a few high profile terrorists, is the same as vacuuming up hundreds (if no not thousands) of people who have little or no relationships to terrorism, and holding them for half a decade (so far).
You haven’t made that case.
And it goes against the very nature of our Western concepts of liberty.
Yes, good information, although already well-known to most people paying attention to these matters. Your concern with FUNDAMENTAL RIGHTS seems to be of rather recent vintage.
Both administrations have captured and held suspected terrorists.
Perhaps you could explain how Clinton’s violations of international laws to capture, detain, and/or render anyone he unilaterally designated a suspected terrorist were superior to what Bush has done. What FUNDAMENTAL RIGHTS and Western concepts of liberty did Bush violate that Clinton did not?
Was Clinton more respectful of rights an liberty simply because he never uttered the phrase “enemy combatant” while kidnapping anyone he unilaterally designated a terrorist and rendering them to places like Egypt so they could be held and/or tortured indefinitely?
Could you please provide this list of all the “high profile terrorists” that Clinton captured using these tactics which violated international law? (You must have such a list in order to state unequivocably that there were only a “few” and that each one of them was a bona fide “high profile terrorist[]”.)
How long were each of these “high profile terrorists” that Clinton rendered held, and where? If SIX YEARS is too long — which it clearly is, in your view — were any of them held that long? Longer? Are any of them STILL being held somewhere? What were they charged with? Were they found guilty? Did habeas rights apply?
(I’d suggest that if you can’t answer these questions definitively, you might want to rethink the entire premise of your argument.)
“we have found in many cases, to be completely innocent.”
That’s a statement you can’t prove. Is Parhat innocent? Why won’t any country take him off our hands? Do you want him living in your community?
Shad,
Does Bill Clinton being guilty of the same crimes exonerate George Bush’s expansion of the program, into the several hundreds? Does pursuit and capture of high level terrorists, equate to the capture of low level people, or even people captured, held for years, just because someone got a reward for accusing somebody?
I get your point – Clinton did something SIMILAR.
But that’s the thing – SIMILAR – not the same. And yes, I can easily condemn Clinton as well. I’m not partisan on the issue.
But the differences here MAKE A DIFFERENCE. To say they don’t, is specious.
PD Shaw,
_Is Parhat innocent? Why won’t any country take him off our hands? Do you want him living in your community?_
He most likely is not, right? But that’s the thing – how do we know, if someone is kept for six years, without any determination that they ARE an enemy combatant, or they aren’t??
This is what the courts pushed back on – that the Bush administration couldn’t simply CLAIM that the people in custody ARE, without a doubt, enemy combatants. Especially when you have people like Hicks finally released, after years, without any trial, and with pressure on Hicks to say he was guilty.
The administration slinked away in the night on that one.
And notice, I said “many” – not all. Parhat most likely is an enemy combatant. But you have to SHOW he is, not just claim he is. Especially after YEARS and YEARS of being held.
Again, you guys KEEP ELIDING THE POINT.
The Bush administration claims, basically mean that you – YOU, PD SHAW – can be fingered as an enemy combatant – AND YOU HAVE NO RECOURSE.
NONE.
NOTHING.
NADA.
ZIP.
ZIPPO.
BUPKIS.
So again, legally – if you were WRONGLY fingered as an enemy combatant – WHAT would you want as a recourse? And were picked up while you were vacationing in Italy? Would you agree there SHOULD be a legal recourse for you? Or none, as the Bush administration claims?
In this sense, your only recourse would be the “mercy of the executive”. Meaning, your family and friends would inquire – what happened to our son/husband/father/friend?
Inquiries would be made. They would have to be persistent.
You would go on a missing persons report. You might just stay missing, lost in a system.
Or, at some point, you would be cross-referenced with the seizure list of detainees, when detainees are cross-referenced with missing persons.
Then this might/might not trigger the processes of the Justice department to engage further.
Actually – Parhat is probably NOT an enemy combatant.
“Link here to Post article”:http://www.washingtonpost.com/wp-dyn/content/article/2008/06/23/AR2008062300844_pf.html
Relevant sections:
_A key issue in the Parhat case was whether he had been involved in any activity that would justify designating him as an enemy combatant._
_The government argued that Parhat was trained by a group called the East Turkestan Islamic Movement and that it has links to al Qaeda. That was enough to hold him, it said._
_Parhat’s lawyers said he considered China, not the United States, the enemy, and that there was no evidence that he ever joined the group._
Six years this guy has been held. For what?
I think the point is that the executive branch is better suited to make that determination… with legislative guidance, than a court is.
Instead the courts are now in the business of adjudicating foriegn nationals in a time of war, with no experience or precident to draw on. I think it is an entirely valid question to ask what our military and security people can expect to be required to do in order to provide the sorts of evidence courts run on. Do enemy combatants have miranda rights? It seems like an argumentative question but in reality its valid to ask what the philosophical difference is.
And basically the government has a long history of dealing with foriegner nationals in a time of war with no guidance from the courts. 100,000 Japanese were incinerated in a tenth of a second without so much as a by your leave from the SCOTUS. If _thats_ not a problem, i find it shocking that prisoner status should suddenly be their purview.
First of all, the Bush Administration is not detaining anyone. The U.S. Army, one of the most trusted institutions in America, is detaining people. And like Presidents Lincoln and Roosevelt, the administration lends its legal and rhetorical support to the military when it can.
So to be clear, you don’t trust the men and women of the U.S. Army. And I suppose I can’t _prove_ that they won’t be coming to take me away . . ..
Second, the detentions at Guantanamo were reviewed by Combatant Status Review
Tribunals, whose rulings were appealable to the civilian courts. The detainees was allowed to submit evidence to the tribunal that he/she has been wrongfully detained, cross-examine witnesses, obtain the assistance of a personal representative, etc. More procedural protections than available under Geneva. They were not simply “fingered.”
_YOU, PD SHAW – can be fingered as an enemy combatant – AND YOU HAVE NO RECOURSE._
That’s fear-mongering. And, as indicated above, untrue.
Parhat is not “completely innocent.”
On 9/11, Parhat was in Tora Bora receiving military training from the East Turkestan Islamic Movement, a militant terrorist organization that the UN states belongs to or is associated with al-Qaeda. He fled the camp when the US bombed it. He is a violent jihadist whose defense is that his jihad is against China, though the State Department says that it has targeted Americans in the past.
Not completely innocent.
hypo, I’d be interested in some information here. If I’m reading you correctly, you’re suggesting that Americans should be concerned about being targeted as enemy combatants and having their legal protections removed. I can think of two cases where that even *might* have happened – Jose Padilla and that lawyer in Seattle. Are you aware of others?
Is this really what you’re concerned about here?
A.L.
_The detainees was allowed to submit evidence to the tribunal that he/she has been wrongfully detained, cross-examine witnesses, obtain the assistance of a personal representative, etc._
Exactly my point – exactly. And the Bush administrationclaimed that Parhat, and others, didn’t have these rights. It’s only because the courts pushed back that they received some say in whether they were enemy combatants.
_The U.S. Army, one of the most trusted institutions in America, is detaining people._
The same military that brought us Abu Ghraib, yes?
And the same military that lied about Lynch, about Tillman?
Look, it’s about EXTERNAL ACCOUNTABILITY. The Army is a great institution, and probably pay more attention to highlighting and teaching ethical guidance, than any similar institution. However, no institution is perfect. That’s why there are courts. Every institution, to a degree, is hidebound, protective of it’s own prerogatives. Look at what is happening with the Air Force right now, and what Gates has had to do.
That’s one of the points of limited government, and you know it. That the other branches serve as a check on one branch.
_Second, the detentions at Guantanamo were reviewed by Combatant Status Review
Tribunals, whose rulings were appealable to the civilian courts_
Oh yes, this has been all aboveboard. No manipulation of the process there.
“Just ask the judges”:http://www.nytimes.com/2008/05/31/washington/31gitmo.html
_The chief judge at Guantánamo replaced the military judge in one of the most closely watched war crimes cases on Thursday, creating a new controversy in the military commission system and the potential for new delays._
_The decision to replace the judge, Col. Peter E. Brownback III, came without explanation from the chief military judge, Col. Ralph H. Kohlmann. Judge Brownback has been presiding over pretrial proceedings in the prosecution of Omar Ahmed Khadr, a 21-year-old Canadian charged with the killing of an American serviceman in Afghanistan._
_Pentagon spokesmen said Judge Brownback, a retired Army judge who was recalled to hear Guantánamo cases in 2004, would return to retirement as a result of “a mutual decision†between the judge and the Army._
_But defense lawyers and critics of Guantánamo said there had been no warning of the change and suggested that he had been removed because of a recent ruling that was a rebuke to prosecutors._
At any rate, you seem to agree with me, AND with the courts, and not with the Bush administration – there needs to be an aboveboard process whereby a person seized has a way to challenge their seizure.
That’s progress.
How would you have preffered the 400,000 axis POWs held in the US to challange their detention?
Well, PD Shaw might be Canadian, or Australian. Substitute Joe Katzman, then.
The point, again, is the process. The course keep finding the process false.
Please read “The Global War on Habeas”:http://balkin.blogspot.com/2008/06/global-war-on-habeas.html by Jack Balkin.
“The US News and World Report link here”:http://www.usnews.com/articles/opinion/2008/06/19/two-takes-with-boumediene-the-court-reaffirmed-a-basic-principle_print.htm
hypo, dont you find it odd that the US government doesnt need court supervision to SHOOT foreign citizens, but it does to detain them?
Bush _could_ kill any number of Canadian citizens for no apparent reason and the legislature would surely intervene, but the courts would have no role at all.
BZZZT!!
Sorry, World War II reference. Godwin’s Law invoked. You lose.
And again, we are looking at six years. Also, I’m looking at process.
No, I don’t agree, Hyprocricyrules. The military has handled these matters, by and large, on historical standards and been forced to stop hearings by court order, wait for some new pronouncement (read invention) and then go back to the drawing board. Repeat and rinse. It would be nice if critics had some familiarity with detention practices in say the Civil War or World War II. People are detained in war for nothing more than being in the wrong place at the wrong time so as to avoid communication of troop movements. This whole “innocence” thing drives me batty. The average German soldier that took up arms against the United States was “innocent.”
One of my good freinds is a JAG, who I’ve known for a long time before he was pressed back to service after 9/11 to train a new generation of JAGs to perform at places like Gitmo. By my estimation he hates Republican politics more than you and Phil Carter combined. The notion that the military is a monolothic organization, run chess-piece style by “the Bush Administration” strike me personally as insane as the fear-mongering that the military is going to whisk me away at any minute.
_Sorry, World War II reference. Godwin’s Law invoked._
You can’t be serious. World War II is off limits now?
_hypo, dont you find it odd that the US government doesnt need court supervision to SHOOT foreign citizens, but it does to detain them?_
Only to detain them for years and years. For initially detaining someone – and I don’t know how long, 1 month, 3 month, 12 months – before they go into some system to see if they are being correctly incarcerated.
Just the other day, the former conservative PM, John Major, had a barn-burner of an editorial = “42-day detention the threat to our liberties”:http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article4075503.ece
_Although the intention was presumably to garner information, such action is hardly in the spirit of the nation that gave the world Magna Carta, or the Parliament that gave it habeas corpus._
_I don’t believe that sacrifice of due process can be justified. If we are seen to defend our own values in a manner that does violence to them, then we run the risk of losing those values. Even worse, if our own standards fall, it will serve to recruit terrorists more effectively than their own propaganda could ever hope to._
_That is no longer theoretical: we now have home-grown terrorists – born in Britain, not in Waziristan. Will they be encouraged or discouraged to rally to militancy if we bypass the sober rituals of law with which we are familiar?_
_The Government has introduced measures to protect against terrorism. These go beyond anything contemplated when Britain faced far more regular – and no less violent – assaults from the IRA. The justification of these has sometimes come close to scaremongering._
_”Sorry, World War II reference. Godwin’s Law invoked. You lose.”_
Sounds like a dodge to me. Ok, lets make it WWI if it makes you feel better. How do you process hundreds of thousands of POWs? How is the government supposed to verify legalities to the court’s satisfaction?
When World War II analogies are false for MANY REASONS HERE.
You discredit yourselves by using them.
1. We don’t have the country on a war footing.
2. We don’t have a foreign power occupying France,and threatening Britian.
3. We don’t have 70% tax rate to PAY for this
4. There aren’t millions and millions on the field.
5. There isn’t conscription.
So, in nearly every particular, this comparison falls down. We aren’t processing “hundreds of thousands of POW’s”.
PS: wars have been known to last 6 whole years.
Mark,
Eh, now you are just yanking my chain for the hell of it. OK, fine, you don’t believe in the Magna Carta, in habeas corpus. Got it.
I consider you discredited then.
_”So, in nearly every particular, this comparison falls down. We aren’t processing “hundreds of thousands of POW’s”.”_
Not the only particular that matters- the legal distinction. We are talking about points of law, yes? Somehow i dont see the courts taking any of your points into consideration. This is a question of legal precident and principle, is it not?
So why are you dodging the question?
_”Eh, now you are just yanking my chain for the hell of it. OK, fine, you don’t believe in the Magna Carta, in habeas corpus. Got it._”
I dont when it comes to foriegn nationals. Citizenship has its priviledges, which is the entire basis for English commonlaw and our Constitutional law and always has been. You are not on firm historical ground here. The Founders would be aghast at the idea of extending these rights to foriegners period- much less in a time of war. Can you imagine dragging the Barbary pirates to federal court? The idea would be beyond laughable, more like incomprehensible.
_”I consider you discredited then.”_
Seems more like i hit a nerve. Having trouble stringing together your argument in the face of the context im bringing up?
The idea that German WWII POWs would want to file habeas petitions is just the latest scary fearmongering from the Bush Remnant.
Why on Earth would they have wanted to do that? As lawful POWs, German prisoners were entitled to honorable detention. As civilians, they would have been murderers (of Allied troops) or at the least co-conspirators with murderers.
If the Bush Administration had treated Gitmo detainees like lawful POWs, I imagine the SCOTUS would have left well enough alone. But that wasn’t the Bush Plan, which features, among other anti-constitutional initiatives, the Omniscient Omnipotent Unitary Executive. So George Bush and Donald Rumsfeld devised a new category, “the worst of the worst”, and placed all the Gitmo detainees in it without any sort of proceeding, refusing to treat them as POWs, even as POWs who had committed war crimes. Every procedural change since then, as the various kangaroo courts in Gitmo evolved, was in response to a judicial order or a last-minute attempt to avoid judicial scrutiny of what Bush claimed was a zone where he alone was Decider.
In fairness to the American military, this obnoxious process stirred up plenty of controversy and opposition in the uniformed ranks, of which they should be proud.
[Aside to Mark B.—are you claiming the Founding Fathers would not have seen the Bill of Rights as extending to aliens in any way? This was a major point of contention in the first Adams Administration and AFAIK by the early 1800s was settled in favor of aliens’ rights.]
Turn this argument on its head, and think about the outright tyranny implicit in the assumption that US civil law has jurisdiction over foreign nationals.
What the supreme court just ruled was that the military can take random foreign nationals happily living on foreign territory, abduct them at gun point, and try them in US civilian courts under US criminal law for offenses not committed in US territory and not even (necessarily) against US citizens.
Today, trying AQ members for attempted and actual murder of Iraqi civilians. Tomorrow, we outlaw speaking French and invade France to go after all the criminals. Or more likely for hate speech, patent violations, or other fun PC of the week crimes.
C’mon, that’s no more ridiculous than the military kidnapping random people vacationing in Italy.
I guess social contract theory really is totally dead.
_The idea that German WWII POWs would want to file habeas petitions is just the latest scary fearmongering from the Bush Remnant._
Well, the Germans in _Ex parte Quirin_ did seek to file petitions for habeas corpus to stop their execution, which were denied.
One of the Bush administration’s problems was relying on WWII caselaw like _Quirin_ and _Eisentrager._ They apparantly didn’t know that Godwin’s Law had been invoked.
Treefrog,
And what they ruled, was BETTER than what the Bush administration was advocating for.
And Mark, really, you don’t have much of an argument – just OUT of context comparisons – distractions really – that don’t address my points.
Heck, you completely ignored the link to the John Major editorial.
You didn’t look – or at least mention – the Balkin articles. You want to completely ignore the context of a situation – WWII versus an invasion and occupation of another government.
So yeah, we pretty much are done here.
And you should speak to Andrew’s point, re: the Adams administration and the founding fathers.
Here is the Columbia Encyclopedia entry on the Alien and Sedition Acts:
“1798, four laws enacted by the Federalist-controlled U.S. Congress, allegedly in response to the hostile actions of the French Revolutionary government on the seas and in the councils of diplomacy (see XYZ Affair), but actually designed to destroy Thomas Jefferson’s Republican party, which had openly expressed its sympathies for the French Revolutionaries. Depending on recent arrivals from Europe for much of their voting strength, the Republicans were adversely affected by the Naturalization Act, which postponed citizenship, and thus voting privileges, until the completion of 14 (rather than 5) years of residence, and by the Alien Act and the Alien Enemies Act, which gave the President the power to imprison or deport aliens suspected of activities posing a threat to the national government. President John Adams made no use of the alien acts. Most controversial, however, was the Sedition Act, devised to silence Republican criticism of the Federalists. Its broad proscription of spoken or written criticism of the government, the Congress, or the President virtually nullified the First Amendment freedoms of speech and the press. Prominent Jeffersonians, most of them journalists, such as John Daly Burk, James T. Callender, Thomas Cooper, William Duane (1760–1835), and Matthew Lyon were tried, and some were convicted, in sedition proceedings. The Alien and Sedition Acts provoked the Kentucky and Virginia Resolutions and did much to unify the Republican party and to foster Republican victory in the election of 1800. The Republican-controlled Congress repealed the Naturalization Act in 1802; the others were allowed to expire (1800–1801).”
There again – is a REPUBLICAN PARTY, just like John Major, standing for essential libery and rights.
_”And Mark, really, you don’t have much of an argument – just OUT of context comparisons – distractions really – that don’t address my points.”_
Andrew- you just dont seem to be getting it. This is a matter of law. Context may be irrelevant. If it is the law of the land today, it will (unless overturned, which means it was decided wronly) be the law of the land during our next big war.
As far as WHY POWS would do this? Because unlike you it might be formost in their minds to help their nation _win the war._ Tieing up military resources in a lunatic excercise in keeping prisoners in prison is one small way to do this. Multiply that by hundreds of thousands and you have a very real problem. Making soldiers take time to take notes or modify their behavior to make sure the guys they are capturing stay captured is another drain on resources.
I find it telling that the status of the war never occurred to you at all.
_”Heck, you completely ignored the link to the John Major editorial.”_
Because to my mind it is irrelevant.
As far as the A&S acts, the courts have long ruled that aliens living on US soil have Constitutional protections in civil and criminal matters. That isnt at question here. We are talking about aliens captured abroad during a declared war. The fact that you insist on constantly blurring that distinction doesnt speak well for your argument.
Oops, not Andrew, hypcrisy. Sorry about that, reflex 😉
#47 from Treefrog:
bq. _”Turn this argument on its head, and think about the outright tyranny implicit in the assumption that US civil law has jurisdiction over foreign nationals.”_
I’ve thought about it in the context of Manuel Noriega. The United States of America invaded a foreign nation, and busted its head of government for drug offenses under American law, and he sits in an American prison today, a living monument to the fact that Americans ultimately don’t think anyone, anywhere has the right to disobey such laws as they are disposed to make.
I think this is one of the worst, most arrogant things America ever did. Yet Americans don’t see the problem with this.
The assumption that American law has jurisdiction over foreign nationals in their countries is bad. Each step in the same direction is also bad.
Getting American judges, so power-hungry, so activist and disrespectful of all authority but their own, involved in expanding the power of the American judiciary against the American executive, the American legislature _and by the way every other source of authority in the world_ is _bad_.
#52 David Blue:
You’re dead right about that. The USA has violated, again and again and again, the rule of international law that the internal affairs of a sovereign state are nobody else’s business – assuming, of course, that those internal affairs don’t include attempting to attack another sovereign state.
I’d forgotten about Noriega, I must admit. But there are a number of people in the UK today who might, at any time, be arrested and hauled off to the USA in chains because they are charged with offenses against the USA; offenses, I might add, that aren’t even offenses in the UK. This might occur, because the UK government was spineless enough to agree to the provision for it.
This is all part of the gradual change of America into an empire; the formation of dynasties (two instances of son following father into the highest office in the last hundred years), the imposition of American law on foreign nationals, the invasion or overthrow of the government of countries you don’t like, the hordes of security troops that precede an Imperial visit. And latest example; the chaos caused for the better part of two days by the USA’s insistence on the Emperor landing at Britain’s main airport (Heathrow) instead of at one of your own bases. And of course shutting down one of only two runways for the best part of an hour, _twice_; once for rehearsals.
And once again the British government was spineless enough to permit it.
Just remember, America; empires fall. And when they do, it isn’t pleasant for their citizens.
Was it the United States that indicted and tried Pinotchet?
And who is that is threatening to indict US officials as war criminals?
This problem isn’t only about America. It’s about judicial overreach everywhere.
And the Noriega case is more nuanced than described here. My personal position is that all drugs should be decriminalized. But, the sovereign of the state of Panama, in violation of international treaty obligations, was facilitating and profiting from the undermining of the sovereignty of the United States WITHIN the territory of the United States. This is not a case were there were criminal gangs involved. The sovereign of the country was personal directing the activity.
This is clearly an act of war. So, military action was justified. Now, as whether it makes sense to try Noriega under American criminal law, well, I am not a lawyer.
HR,
There was no Republican party in 1800.
from Wikipedia:
I think what you are referring to is the Democratic-Republican Party.
France gets Noriega next for money laundering. “Link”:http://www.cnn.com/2007/US/law/09/05/noriega.france/index.html It can’t be a violation of international law if the French do it.
Mr. Shaw, two wrongs don’t make a right.
Scalia’s claims of Gitmo thirty Gitmo recidivists are rubbish. It’s OK, black robes don’t show yellow stains.
So AJL, you want to *expand* the judicial role in military matters?
#54 from lurker:
bq. _”This problem isn’t only about America. It’s about judicial overreach everywhere.”_
Fair point.
Decaf, Andrew, decaf…
A.L.
bq. there are a number of people in the UK today who might, at any time, be arrested and hauled off to the USA in chains because they are charged with offenses against the USA; offenses, I might add, that aren’t even offenses in the UK. This might occur, because _the UK government was spineless enough to agree to the provision_ for it.
I do believe the problem you have is with legal, duly enacted policy, not judicial overreach. Elections are generally the remedy for that (although judging by the EU referendum silliness, maybe Europe has got past the whole “will of the people” frivolity that keeps handicaping the political elite).
bq. Just remember, America; empires fall. And when they do, it isn’t pleasant for their citizens.
Sure, but it’s fun while it lasts.
Empires crumble. Nations get conquered. Societies degrade and cultures get diluted. Pick your entropy, it’s all the same; just remember that the strongest player on the field does not automatically become an “empire” when they flex some muscle and everyone else gets envious.
PD, how do you feel about how Brown increased judicial interference in local education? I repeat, if the Bush Administration had limited itself to behavior clearly authorized by law, this wouldn’t have happened—just as Brown would never have occurred if Southern states had made separate facilities equal. In both cases, the Court is correcting another branch’s deliberate transgressions.
AJL, If I pointed out that the social science in _Brown_ was rubbish, would I be accused of wanting black robes to conceal white sheets? Seriously, I don’t think anyone can look candidly at the legacy of _Brown_ without considering the limitations of judicial action, particularly when compared with the more decisive results from the Civil Rights Act of 1964.
But to avoid any confusion, the Constitution prohibits the government from discriminating between citizens on the basis of race.
Also to avoid future confusion, the Alien Enemies Act is still good law. It was used in WWI and (several times) in WWII. During WWII, about 12,000 aliens from hostile countries were arrested and had their loyalty tested and those decisions reviewed by a tribunal, resulting in 3,000 to 4,000 enemy aliens being detained for the course of the war.
The betrayal of history and Magna Carta and all that stuff just really isn’t a good place to start these arguments. There are only useful if you want to attack Bush.
hypocrisyrules, you wrote an awful lot after my last comment, but never answered the primary question. I’ll repeat it here:
Perhaps you could explain how Clinton’s violations of international laws to capture, detain, and/or render anyone he unilaterally designated a suspected terrorist were superior to what Bush has done. What FUNDAMENTAL RIGHTS and Western concepts of liberty did Bush violate that Clinton did not?
Thanks in advance for not dodging the question again.
Maybe I can answer for hypocrisy.
The Clinton Administration, by your own anecdote, knew that extraordinary rendition was illegal. They appear to have resorted to it much, much less often.
One reason that I emphasize structure over put your faith in Princes is that the powers one Leader feels he uses wisely can then devolve on another Leader who screws it all up. Whether this illegal “power” is rendition or lettres-de-cachet (Padilla, etc.) doesn’t matter. Humanity has learned this innumerable times. I suspect Clinton and Gore are quite sorry about everything they did that encouraged rampant illegal behavior by their successors. When John Yoo is waterboarded at Gitmo, he may feel likewise.
AJL, So it’s responsible use if a Democrat does it and abuse if a Republican does it? Right.
I still can’t work up any outrage over Gitmo or rendition. These are animals who torture and kill innocent people as a matter of policy. And WE’RE AT WAR WITH THEM. As I’ve said before, if waterboarding prisoners helps defeat people who behead prisoners, I’m all for it. There is no pure good and evil in this world, and those who attempt to be purely good will die at the hands of those who are evil. And comparing waterboarding, sleep deprivation, and humiliation to putting people through wood chippers feet first, attaching electrodes to their testicles, and torturing children to get their parents to talk (all of which were official policy under Saddam) seems to me to give a pretty clear view of who’s relatively good and who’s relatively evil here. For the life of me, I can’t understand why you folks on the left either don’t believe the jihadis when they say they will use any means necessary to destroy us or why, if you do, you don’t take it terribly seriously, especially after 911.
Indefinite detention without charge or recourse (after the military determines their combat status) simply is not illegal in a time of war. Clinton’s actions were prior to a Congressional grant of war authority (the 2001 AUMF), so Clinton’s actions were illegal, but Bush’s were not.
If your argument is that waging war makes injustices likely, I fully agree with you. If your argument is that war should be waged consistent with civilian notions of due process, you’re defining war away.
We have due process rights because we recognize the large imbalance of power the state has over individuals and we wish to restrain the state but when we declare war, that’s a decision to unleash the full power of the state to destroy the enemy. Due process notions cease to apply. On a fundamental level, declaring war legitimates the state of be unjust.
That said, a perpetual state of war isn’t healthy for the nation, and while I don’t agree that Bush has abused his warmaking authority (while he has exploited ambiguity, his actions have largely been within the bounds of precedent), there’s no guarantee the next president won’t. And for the partisans, it’s worth noting that Sen. Obama has discussed using force against Pakistan and endorsed the most recent FISA reforms. There’s no guarantees of a “good leader” from either party.
Al Qaeda has been unable to launch an attack against US civilian targets since 9/11 (something I would never have predicted in 2002). I don’t discount the fact that waging war against them is in large part responsible for their degraded capabilities, but at some point they cease to be as large a threat to the nation as simply being at war is. It’s worth considering when it becomes appropriate to rescind the AUMF.
Andrew, since you rely on the supposition that the Clinton administration resorted to it much, much less often than the Bush administration as being his saving grace, I’ll direct to you the same followup questions that I asked hypocrisyrules (highlighting the key portions):
Thanks in advance for your direct answers to these questions. They should help the rest of us understand why you characterize Clinton’s kidnapping, imprisonment and rendering of terrorist suspects as wise[] while agreeing with hypocrisyrules that Bush doing the same thing violated FUNDAMENTAL RIGHTS and Western concepts of liberty.