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ACLU Files Suit over "Extraordinary Renditions":
The ACLU's press release is here, and the complaint is here in .pdf format. The ACLU's client is Khaled El-Masri, who you can read about here.
Some Guy (mail):
The ACLU-- Al Qaeda's outside counsel.

Keep up the good work exposing people to this, they deserve to know EXACTLY what the ACLU and its supporters are up to.
12.6.2005 4:30pm
Public_Defender:
The ACLU-- Al Qaeda's outside counsel.

Keep up the good work exposing people to this, they deserve to know EXACTLY what the ACLU and its supporters are up to.

How does the ACLU become "Al Qaida's outside counsel" by representing a guy who is not part of Al Qaida?
12.6.2005 4:39pm
Huck (mail):
The ACLU— Al Qaeda's outside counsel.

This guy was innocent. The CIA decided in this way.

(Incredible.)
12.6.2005 4:40pm
Bob Bobstein (mail):
Some Guy, did you read any of the links? Why is it in America's interests to do this? Why is it American, or conservative, to allow any branch of the government the ability to detain, beat up, and fly from country to country someone suspected of involvement in terrorism, without any determination of guilt, or even of likelihood of guilt? This guy appears to have been an unemployed car salesman. What good does it do to brutalize him and send him to Afghanistan? Where is our common sense, our sense of decency?

I believe that it is good for America to prevail in the War on Terror, among many reasons, because it has been the beacon of freedom for the world for generations. Kidnapping innocents and shipping them around the globe to be tortured is counterproductive in winning the War on Terror, and chips away at our reputation.
12.6.2005 4:43pm
Commenterlein (mail):
You have to understand, anyone who dares to defend those brown people against the awesome might of the wonderful US government is an America-hating peacenik and Al Qaeda supporter.
12.6.2005 4:44pm
plunge (mail):
"According to the ACLU lawsuit, El-Masri, a 42-year-old German citizen and father of five young children, was forcibly abducted while on holiday in Macedonia. He was detained incommunicado, beaten, drugged, and transported to a secret CIA prison in Afghanistan, where he was subjected to inhumane conditions and coercive interrogation. El-Masri was forbidden from contacting a lawyer or any member of his family. After several months of confinement in squalid conditions, he was abandoned on a hill in Albania with no explanation, never having been charged with a crime. "

Whoa. That's really, really screwed up. I look forward to Jonah Goldberg's explanation that it's really sick and unamerican that we wouldn't find this peachy-keen.

If they can do this to this guy, and we make and sustain a legal apologia for it, then they have reserved the legal right to do it to anyone, at anytime, for any reason. That's the fallout of this sort of power (if you are accountable to no one to prove guilt or just-cause, EVER, then the innocence of a person is irrelevant and no protection from this happening to anyone at all).
12.6.2005 4:55pm
Some Guy (mail):
Heh. I'm glad you folks are proud to stand up publicly for the enemy's rights. Someone has to stop that mean old bully George Bush from hurting the poor dears.

Not that anyone's questioning your patriotism! It's actually breathtakingly patriotic to wage a legal campaign on behalf of enemy combatants during a time of war...
12.6.2005 4:58pm
Bob Bobstein (mail):
And apparently, we admit that we were wrong, and this guy had nothing to do with terrorism. But, hey, may as well kick the crap out of him and drag him to Afghanistan for a few months, the precautionary principle and all.

Some Guy, is there any difference between the reasons why you like America and the reasons why some Afghans like the Taliban? Do you think there should be any legal or political consequences to anyone in the US government for this matter?
12.6.2005 4:59pm
Medis:
I'm guessing Some Guy is satire (and if not, he should be).

Anyway, anyone care to comment on the possible immunity issues? With the OLC memo(s) do the job?
12.6.2005 5:00pm
Medis:
That should be "will" not "with".
12.6.2005 5:03pm
Some Guy (mail):
Nope, not satire. But you guys are doing a darn good job satirizing yourselves. You cite reports from the Guardian and the Washington Post as indisputable proof that the U.S. government is engaged in a widespread pattern of detaining innocent people for absolutely no reason, then start calling for blood from the people who have committed their lives to making sure Muslim fascists don't blow you to bits on the Metro?

Well, here's a little tidbit for thought. You folks are why people hate lawyers.

Our profession has become captured by the most virulent, anti-American leftists in the country, we are willing to lend our wealth and talents to abhorrent causes like securing the release of the enemy in a time of war, our leading academics care only about the rights of those who want to murder our loved ones who are overseas right now, and yet, you never fail to take a condescending, aloof attitude towards those who would question just whose side you're really on.

Guess what, ignore this friendly heads-up and poo-poo the idea that your fellow Americans see you as traitors. They're still going to think it.
12.6.2005 5:11pm
Anderson (mail) (www):
I can't imagine any court's being persuaded by the OLC memos' level of legal reasoning. But then, a few years ago, I couldn't have imagined America practicing torture as a deliberate policy. So my imagination is limited.

But I suspect the courts will find some way to make "national security" depend upon the plaintiff's being denied any relief.
12.6.2005 5:12pm
JRL:
One thing that I don't understand and have not been taught in 5 semesters of law school is how foreigners get standing to sue in our courts. I see from the pleadings that there is an Alien Tort Statute, but they also say the case is being brought under the 5th amendment.

I've seen this in other instances, too, and hope someone can answer the following question for me:

Under what authority can non-citizens claim the protections of the U.S. Constitution?

Is it by treaty, statute, judicial fiat, custom???

Thanks,
JRL
12.6.2005 5:13pm
anonymous coward:
It's well-known that the CIA is full of traitors. Why should we believe the CIA when they say this man is innocent?

In a vicious slander typical of her left-wing ilk, German Chancellor Angela Merkel accuses Condi of being part of the vast terroristic conspiracy, as well: see here.
12.6.2005 5:18pm
Cornellian (mail):
Isn't this guy going to have a serious sovereign immunity problem, at least as far as any non-constitutional claim is concerned?
12.6.2005 5:19pm
Anderson (mail) (www):
The trolls are getting a bit out of hand at VC; Some Guy is utterly unconcerned by the lack of any correspondence between what he says &the facts, and now we have Angela Merkel, leader of a conservative German party, called "left-wing ilk" by the appropriately named Anonymous Coward.

If such comments aren't going to be stricken, we would do better to ignore them than to turn the thread into "2 + 2 = 5" ... "No it doesn't" ... "You stupid lefty!" ... etc.
12.6.2005 5:26pm
Medis:
JRL,

Well. I'd start with the observation that the 5th Amendment simply refers to "persons", not citizens.
12.6.2005 5:27pm
anonymous coward:
"Isn't this guy going to have a serious sovereign immunity problem...?"

Well, in addition to George Tenet and a bunch of as-yet-unnamed defendants, he's suing the private contractors that owned and operated the airplane that transported him to Afganistan. How does sovereign immunity apply to government contractors?
12.6.2005 5:28pm
David Matthews (mail):
From the BBC account:

"Mr Masri is now seeking damages of at least $75,000 (£43,000) and an apology."

$75,000 seems a bit low, if his allegations are true. I know I'd be looking for quite a bit more (and a good ghost writer, agent, publicist, screenwriter.) Five months of wrongful detention ought to get me that North Woods cabin I've always wanted, one way or another.
12.6.2005 5:28pm
plunge (mail):
Wow. Some Guy sort of missed the whole point of being an American, I guess.
12.6.2005 5:31pm
18 USC 1030 (mail):
Someguy

Our profession has become captured by the most virulent, anti-American leftists in the country, we are willing to lend our wealth and talents to abhorrent causes like securing the release of the enemy in a time of war, our leading academics care only about the rights of those who want to murder our loved ones who are overseas right now, and yet, you never fail to take a condescending, aloof attitude towards those who would question just whose side you're really on.


If you believe the "leftists" are trying to defend the enemy and that academics care only about letting murders go; I have 2 questions: Are we at war? How can the United States, in fighting the evil done by the Taliban employ the same tactics used by them?

It seems to me, as I've posted at length in another thread that in this "war" against terror we must follow every law possible and grant all rights entitled, otherwise we are no better than those we are fighting. Second, last I checked you are innocent until proven guilty; I assume part of your comment goes towards the Saddam trial with former AG Clark acting as counsel. Though we all "know" Saddam is guilty, if they want to pass the tribunal off as a "fair trial," then they must give it the character of a fair trial; this, I'm sorry includes counsel.
12.6.2005 5:34pm
Medis:
David,

$75K is just the statutory amount-in-controversy minimum for diversity jurisdiction. The complaint says that the actual amount will be set later, but alleges that it will be at least that amount.
12.6.2005 5:36pm
Anderson (mail) (www):
$75,000 seems a bit low, if his allegations are true.

$75K is the jurisdictional limit in diversity cases, and they are pleading the diversity statute as part of their jurisdictional basis. I see that 28 USC 1331 does indeed apply to foreigners suing citizens. So that's it I guess, though it would seem their causes of action are federal questions.
12.6.2005 5:37pm
David Matthews (mail):
Medis,

Thank you. It's nice to have some lawyers around to explain stuff.
12.6.2005 5:38pm
Some Guy (mail):
Yes. Please censor everyone who says something that displeases Anderson. Delete their statements and ban them permanently. That will show everyone how right he is.
12.6.2005 5:38pm
Skid:
I think it's strange that people have to appeal to the "american people" to make their point. Some Guy, do you have some pipeline to the mysterious American people to decide that they hate lawyers? Cause I have a feeling that people are probably ok with lawyers, considering that they tend to go to lawyers for all sorts of things---wills, property contests, and oh yeah, violations of their rights.

Listen, you can disagree with the ACLU's position, and no one can, or really wants, to stop you from using such inflammatory rhetoric, but you should know that it's not very effective. Telling people that the American people hate them b/c they are elistist is great---can you prove it?
In fact, i think it's kind of funny---go to confirmthem.com and look at the different reactions to harriet miers and samuel alito...seems to me that if people really hated "elitist" lawyers, they would probably be a little upset that the "conservative" Texans who went to SMU and has never been a judge was replaced by the conservative "Jersey boy" who went to Princeton, and then, oh yeah, Yale. Where is that outrage?

I agree with you, the people probably think a lot of what lawyers argue about is stupid. That really doesn't it make it less important or valuable--it's a specialization like anything else, that's not necessarily going to interest everyone, but will affect everyone. That's a lot like medicine, or other professions. I don't care about the debates between firemen about the latest flame retardent material, but I do want them to come put out the fire. To me, that vague description is a considerably better fit to the American people's attitudes than saying they hate anyone.

Of course, I also think it's pretty ridiculous for an anonymous poster on a blog to suggest that they speak for the American people, but I kind of like the First Amendment, and by the way, it seems, so does the ACLU (I recognize that this can be open to debate; it was an attempt at rhetorical flourish)....
12.6.2005 5:40pm
Duncan Frissell (mail):
The system worked. They determined the guy was innocent and released him. Just what they're supposed to do.

So what ever happened to the "publication of sailing times of troopships in time of war" exception to the First.

When are they going to lock up the New York Times, ABC, and Newsweek employees who published this stuff?

I know we don't have an Official Secrets Act but maybe the Espionage Act...

Since I don't advocate the existence of nation states, I don't have a dog in this race but it stikes me that everyone who complained about Valarie Plame's outing could hardly complain if the Feds decided to lock up a few more reporters. They'd get some books out of it in any case.
12.6.2005 5:41pm
anonymous coward:
"The system worked. They determined the guy was innocent and released him." Months later, after allegedly inhumane treatment. Read the complaint, or the media coverage (e.g. the WashPost front-pager from a couple days ago) for details. It's unpleasant stuff.
12.6.2005 5:46pm
Houston Lawyer:
So the facts being plead are that someone snatched this guy and he ended up in US custody for five months during which time he was poorly treated. Once we realized we had the wrong guy, we let him go after some delay. If his allegations are true, he has good reason to be cheesed off. I would even support paying him some substantial settlement for his trouble. However, I am not upset that the CIA is grabbing and interrogating suspected terrorists. I always thought that that was their job.
12.6.2005 5:46pm
David Matthews (mail):
"The system worked. They determined the guy was innocent and released him. Just what they're supposed to do."

Except for the drugged him, beat him, kept him more than two months after they knew he was innocent, dumped him unceremoniously back in Macedonia without so much as an "oops" part....
12.6.2005 5:46pm
Anderson (mail) (www):
So please, also avoid rants, invective, and substantial and repeated exaggeration. Sticking with substance will make the comments more helpful to other readers, and more pleasant.
Nothing about "disagreeing with Anderson," though I am still negotiating for effectively similar language.
12.6.2005 5:52pm
Honest Question:
This is off-topic, but I've been wondering whether there any caselaw on the circumstances under which government may/not make a deal with a citizen which involves the stripping of citizenship.
12.6.2005 5:55pm
anonymous coward:
"I am not upset that the CIA is grabbing and interrogating suspected terrorists."

Sure, but some of us prefer saving the full Afganistan treatment for those suspected for good reasons, not because some CIA officer has a hunch. This case showed abysmal judgment from the CIA (source):


Khaled Masri came to the attention of Macedonian authorities on New Year's Eve 2003. Masri, an unemployed father of five living in Ulm, Germany, said he had gone by bus to Macedonia to blow off steam after a spat with his wife. He was taken off a bus at the Tabanovce border crossing by police because his name was similar to that of an associate of a 9/11 hijacker. The police drove him to Skopje, the capital, and put him in a motel room with darkened windows, he said in a recent telephone interview from Germany.

The police treated Masri firmly but cordially, asking about his passport, which they insisted was forged, about al Qaeda and about his hometown mosque, he said. When he pressed them to let him go, they displayed their pistols.

Unbeknown to Masri, the Macedonians had contacted the CIA station in Skopje. The station chief was on holiday. But the deputy chief, a junior officer, was excited about the catch and about being able to contribute to the counterterrorism fight, current and former intelligence officials familiar with the case said.

"The Skopje station really wanted a scalp because everyone wanted a part of the game," a CIA officer said. Because the European Division chief at headquarters was also on vacation, the deputy dealt directly with the CTC and the head of its al Qaeda unit.

In the first weeks of 2004, an argument arose over whether the CIA should take Masri from local authorities and remove him from the country for interrogation, a classic rendition operation.

The director of the al Qaeda unit supported that approach. She insisted he was probably a terrorist, and should be imprisoned and interrogated immediately.

Others were doubtful. They wanted to wait to see whether the passport was proved fraudulent. Beyond that, there was no evidence Masri was not who he claimed to be -- a German citizen of Arab descent traveling after a disagreement with his wife.

The unit's director won the argument. She ordered Masri captured and flown to a CIA prison in Afghanistan.


According to the article, his passport checked out in March (meaning he wasn't the terrorist who the CIA thought he was), but he wasn't released until late May 2004.
12.6.2005 5:57pm
JRL:
"Well. I'd start with the observation that the 5th Amendment simply refers to "persons", not citizens."


I can't imagine that is a serious reading of the Constitution, is it? It seems rather obvious to me that the Constitution, as written, applies only to citizens:

" . . . and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
12.6.2005 6:00pm
Medis:
JRL,

Well, the 5th is, of course, an amendment, so it is not necessarily subject to the original preamble.

But for fun, suppose we took the preamble as guidance. The full preamble is:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

You note that we are "securing the blessings of liberty" to ourselves. Similarly, we are only insuring "domestic" tranquility. Interestingly, however, "establishing justice" is not so qualified. So, the preamble is consistent with the view that the Constitution is designed to establish the "justice" of our government's actions with respect to all people, not just with respect to citizens.
12.6.2005 6:31pm
Marc J.:
Anonymous C,

In a case in the late-80s--I believe it was Bell Helicopter, but I'm not 100% sure--the Court (per J. Scalia) granted a private military contractor immunity from a suit for product liability because, in a nutshell, allowing the suit to proceed would impair Congress's ability to contract; that is, the suit would have ultimately had effects on the gov.

It's a terribly weak opinion, but I believe it's still good law.
12.6.2005 6:59pm
The Original TS (mail):
To anyone who's upset about this court case, I'd observe that our system is a system of checks and balances. The court system is one of the big checks. This suit is entirely appropriate. Even if you think it is outrageous that any attorney would ever represent a terrorist, surley you can have no problem with an attorney representing someone who is entirely innocent.

As for the sovereign immunity issue, it's outside my area but a couple of thoughts. (In the interest of full disclosure, I haven't read the entire complaint yet.) I think the sovereign immunity issue is going to be quite complex.

First, I don't think the alien tort act claim is meant to stick against the USG. I think it's meant to stick against the individual defendants who can only claim qualified immunity. Second, the Fifth ammendment claim is basically a Bivens claim and, if it sticks, there's be a waiver so I don't believe the USG would be able to claim sovereign immunity on a U.S. Constitutional claim brought in a US court.

If the USG were smart at all, they'd apologize and pay the guy off. Everybody knows the USG screwed up and having a big legal battle about whether the USG should be required to make good the damage it has done is amazingly bad PR -- whatever happened to the "personal responsibility" thing we used to hear so much about?

It's really stupid to assert even a legally meritorious position when it's political suicide.
12.6.2005 7:53pm
anonymous coward:
"It's really stupid to assert even a legally meritorious position when it's political suicide."

The Bush administration wouldn't be the first stubborn client...
12.6.2005 8:12pm
Marc J.:
Sorry for the delay, here's the cite for contractor sovereign immunity: it's Boyle v. United Technologies Corp., 487 U.S. 500, and the doctrine Scalia invented there is called the "military contractor defense." I wish I were joking.
12.6.2005 8:15pm
Anomolous:
anonymous coward wrote:

Well, in addition to George Tenet and a bunch of as-yet-unnamed defendants, he's suing the private contractors that owned and operated the airplane that transported him to Afganistan. How does sovereign immunity apply to government contractors?


Does anyone think this is a legit contractor, as opposed to, let's say, a CIA front?
12.6.2005 8:16pm
Seamus (mail):

Sorry for the delay, here's the cite for contractor sovereign immunity: it's Boyle v. United Technologies Corp., 487 U.S. 500, and the doctrine Scalia invented there is called the "military contractor defense." I wish I were joking.



Well, if it's as Marc J. described it, it's only about products liability. I doubt if the same reasoning that justified immunity in that case would apply to intentional torts (such as battery, false imprisonment, and intentional infliction of emotional harm).
12.6.2005 8:54pm
PierreM (mail):
a) as some above pointed out, Masri wasn't kidnapped, he was arrested by Macedonian police becase his name (and religion, and ethnicity, and country of origin) all matched someone the CIA was looking for;
b) the policy of 'extraordinary rendition' has been in effect for over a decade-- are all those affected now able to sue Clinton administration officials also?
c) as someone else noted, he was eventually sent home and released: in the 'good old days' he would have thrown out of the door of an aircraft over the Med;
d) what are the negative consequences of giving up on rendition? If the Euros can't take the political heat for working with the US on this (and its clear almost all the governments affected were cooperating and informed), the US may have to resort to Israeli-style black ops simply to take out suspects.
e) every leftist wants a 'fair' trial for these guys. In my view such opinions are cases of invincible ignorance: these people are not criminals and not lawful combatants, so they are not entitled to a criminal trial. And look at what a farce the 1993 WTC bombers' trial was. How many _years_ did it take to obtain a conviction? How many lawyers were actively helping the terrorists' network while the trial went on? If the lawyers here wonder why the 'rule of law' is held in such low esteem, take a look in the mirror;
f) this is partly the fault of the Bush admin which has made all the nice cooing noises about torture and 'rule of law' that the morally and intellectually bankrupt elites in this country demand while simultaneously (and rightly) trying to shield its extra-legal prudential decisions from public scrutiny and the courts. In short, it hasn't had the cojones to honestly make the argument that it needs the power to do whatever it thinks is necessary with people suspected of working in terror cells.
g) if the 'penumbra' of the constitution can cover the 'right to sodomy' I'm assuming the 'penumbra' of the executive's prerogatives in terms of war making and security can cover these extra-legal cases.
12.6.2005 9:08pm
Seamus (mail):

As for the sovereign immunity issue, it's outside my area but a couple of thoughts. (In the interest of full disclosure, I haven't read the entire complaint yet.) I think the sovereign immunity issue is going to be quite complex.



I just finished reading the complaint, and it looks like the plaintiff is asserting a pretty standard Bivens claim. He isn't suing the government. He's suing individuals (and corporations). Interestingly, there's no claim for injunctive relief, which means that all relief would be specific to his individual case.

Oh, yeah, and it looks like he's not asserting such traditional torts as I listed above (battery, false imprisonment, intentional infliction of emotional harm), but more modern "human rights" torts: denial of due process; prolonged arbitrary detention; and torture and other cruel, inhuman or degrading treatment. But still, they are intentional torts, and contractors' immunity from products liability shouldn't apply here.
12.6.2005 9:14pm
plunge (mail):
"in the 'good old days' he would have thrown out of the door of an aircraft over the Med;"

Wow, that's really chuckilious! Glad that the way Latin American thugs murdered hundreds of people, many innocent, many guilty of nothing more than being idiots and supporting communism in speech, is such a source of amusement for you!

Yes, we should feel so THANKFUL that the United States, upon finding out that he was innocent, only held him for two extra months and then denying what had happened, instead of shooting him in the head. Of course, back in the day, they probably wouldn't have had folks like you around to apologize for it.

"these people are not criminals and not lawful combatants, so they are not entitled to a criminal trial."

Yeah, problem is: Masri wasn't one of "these guys" at all. If you argue that there is a special class of people who we can do whatever the heck we want to, with no justification or explanation for why, then you are basically saying that the government can do this to anyone, anywhere, anytime. There becomes no special class of people. Everyone joins that class.
12.6.2005 9:20pm
justanotherguy (mail):
If currently anyone of Middle Eastern descent can be termed a possible terrorist, enemy combatant or other named term and the denied basically all rights without any evidence or any protections of rights that strecth back to the Mangna Carta... what will stop our great and paternal government from protecting us from other threatening classes...Let's see the Branch Davidians were Christians weren't they so I guess anyone who attends any church not on an approved list can be scoopped up. Oh yes the Oklahoma bombing involved someone who used to be in the military... so lets lock up any ex-military types... and of course anyone from Michigan could be the "Michigan Milita... so we can lock up all the laid off GM workers so they don't cause trouble.

This is not a case about what to do with terrorists. It is about the rights citizens have against government ignoring the procedures that enforce those rights. If the executive does not to justify its holding of a person to an independent body... we are not free.
12.6.2005 9:49pm
Seamus (mail):

if the 'penumbra' of the constitution can cover the 'right to sodomy' I'm assuming the 'penumbra' of the executive's prerogatives in terms of war making and security can cover these extra-legal cases.



You're right. In both cases, it's an appalling stretch of the constitution and one that would have shocked Hamilton and Madison.
12.6.2005 10:09pm
The Original TS (mail):
every leftist wants a 'fair' trial for these guys. In my view such opinions are cases of invincible ignorance: these people are not criminals and not lawful combatants, so they are not entitled to a criminal trial.

Pierre, thanks for so brilliantly making the "leftist's" point. You're quite correct. In this case, the plaintiff was neither a criminal nor an unlawful combatant: He was, to use a technical legal term, "entirely innocent of anything whatsoever."

That's why we can't have assistant CIA station chiefs making decisions about locking people up and torturing them. Their vested interests in covering their butts disqualifys them.

Not everybody some bureaucrat at Langley suspects might be a terrorist actually is a terrorist. That's why you need some neutral fact-finder to make these ultimate determinations. It's a bedrock principle of criminal law that mere charges aren't evidence and that prosecutors make mistakes. Why would you assume that some CIA technician sitting in an office somewhere reviewing various bits of evidence provided by random sources and sifted out of a foreign language is more infallible than a criminal prosecutor?

Yes, they did eventually let this guy go, which is a good thing since they had no reason to hold him in the first place. If they're going to hold people like this, at the very least, they have a duty to make a very quick determination as to whether they've got the right guy or not. There's no excuse to take six months. There's no excuse to take six days. Obviously, the CIA's attitude was, "We've got this guy in custody already. What's the hurry?"

The U.S. may have to stretch some laws to fight terrorism. But that's an entirely different proposition than saying that the U.S. isn't bound by any laws at all when fighting terrorism. When the U.S. makes a mistake, it needs to step up and admit it -- and take steps to ensure it doesn't happen again.
12.6.2005 10:22pm
Per Son:
Call me silly, but some of the biggest defenders of the alleged detainees are JAG officers. There are JAG officers on all of the major briefs on behalf of detainees, including the SCOTUS briefs.

So is the JAG Corp just a bunch of liberal, American Haters that hate moms and apple pie?
12.6.2005 11:18pm
PierreM (mail):
In general:

If you were a CIA operative, and you received a notice about a terrorist who is a) Arab; b) Muslim; c) lives in Germany; d) named 'al Masri' and then a person matching all of these descriptions is deivered to you by the Macedonian police, what would you do? Call the ABA? Look for a JAG at a nearby US military installation for advice?

The fact that Masri was innocent does not imply anything about the general procedure of rendition. It is a non-sequiter to assert that 'if they did it to Masri, they can do it to anyone.'

You're all thinking like lawyers, where the goal is to enunciate a general rule and have it apply universally.

It is precisely this doctrine that I am criticizing, because the President's war powers are inherently prudential and based on his authority as CINC, not as an executor of the laws (there is a tension between those two constitutional powers).

These powers are not illegal, they are extra-legal, and are a remnant of the pre-modern or Machiavellian political sphere where personal and legal authority were not distinguished.

The fact that this sphere is miniscule for American citizens in general and especially in peacetime doesn't mean it does not exist (think 'prosecutorial discretion' also, where the 'equal' and 'universal' enforcement of laws is bent to political and practical realities). And to cite Hamilton (who promoted energy in the executive above all else) as a counterpoint strikes me as historically il-founded.

The limits to what the government can do to persons it considers unlawful combatants in time of war are largely political, not legal. Padilla's detention by the military is another case in point: I don't recall thousands being so detained (least of all some of the President's political opponents). When that happens, I'll start worrying.

I also note that the 'brave' defenders of our liberty in the judiciary basically waited until they felt safe from terrorist attack and the public mood had calmed before they started injecting themselves more forcefully into the process.

The Bush admin has actually behaved quite moderately. After all, who would have shed tears if Lindh, Padilla and Hamdi had actually been put before a military tribunal soon after capture, convicted, and then shot? The fact that Masri was returned at all (and in relatively undamaged condition) is quite striking given historical precedents.


Per Son:

No:

a) the JAG corps has a vested interest in seeking employment at left-leaning law firms after their (usually brief) military employment is over. They don't want to be too closely associated with the Chimpy McBushHitler regime;

b) the have drunk deeply from the waters of due process, which means the have a tendency to judge everything in terms of our current SCOTUS supplied judicial casuistry.
12.7.2005 12:50am
Orangutan (mail):
Better late and all that...

These comments, as always, are rational and thought provoking. I muted Conan to read them so you know they're good. Thanks for rising above the trolls.

I heard that Mr. El-Masri wanted to be here when the ACLU filed the complaint but that he was denied entry to the US because his name was similar to a terrorist's still on the 'watch' list. Can anyone confirm this? It smells a little like internet gossip to me.
12.7.2005 12:57am
llamasex (mail) (www):
"These powers are not illegal, they are extra-legal" - PierreM

Bawahahahahaa
12.7.2005 2:30am
The Original TS (mail):
I also note that the 'brave' defenders of our liberty in the judiciary basically waited until they felt safe from terrorist attack and the public mood had calmed before they started injecting themselves more forcefully into the process.

I don't know who you mean, exactly, but if you're talking about attorneys, you're so far off-base you must be playing soccer.

There are a lot of attorneys, maybe even a majority, who have been concerned about the executive's dubiously constitutional muscle-flexing every since 9/12.

I don't recall thousands being so detained (least of all some of the President's political opponents). When that happens, I'll start worrying.

I doubt they were Bush's political opponents (though I'm sure they are now) but many hundreds and, indeed, probably thousands have been dubiously detained over the last four years. Remember all the people held in solitary confinement as "material witnesses" immediately after 9/11? Exactly none of these people had anything to do with the attack. Remember the great middle-eastern roundup conducted in 2002? Start worrying.

Remember the Kozinski Dictum Liberty - the freedom from unwarranted intrusion by government - is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. The well-meaning government official who starts locking up seemingly suspicious people from "terrorist" countries on the off-chance they might be dangerious only starts there, he doesn't stop there. The time to be worried about defending the Constitution is while you still can. Be glad these things are happening to "them." You can still do something about it. By the time it's happening to you, it's too late.
12.7.2005 3:00am
Medis:
"After all, who would have shed tears if Lindh, Padilla and Hamdi had actually been put before a military tribunal soon after capture, convicted, and then shot?"

Of course, if they had actually been given a fair trial by a military court, they may not have been convicted and sentenced to death. Indeed, given what I know of the facts of all of those cases, that is the likely result.
12.7.2005 5:36am
PierreM (mail):
''brave' defenders of our liberty'— I meant the federal judiciary, whom (if I recall correctly) took (or accepted) every opportunity to delay the process or to punt decisions back to the lower courts in the aftermath of 9/11.

In fact, you've made my case for me: the detention of Arab aliens after 9/11 was a de facto internment policy concealed under the barest of legal fig leaves using the "material witness" statutes.

Nothing effective was done to stop it, Congress could pass a 1000 statutues to prevent it, and the same thing would happen again if there were another such attack.

And its not a matter of it happening to 'them'. It's simply a matter of both fact and law that the executive will claim extraordinary powers in extraordinary circumstances, and that the real limitation on such claims _under the Constitution_ is not legal but political.

Again, I'm not worrying too much until the executive starts incarcerating his or her political opponents, or starts setting up a party militia.

And, by the way, my father was detained by the German police in Munich after the 1972 terrorist incident. He happened to have been born in Algiers.

The real 'piranha' nibbling at our liberties is the 'rendition' of the original Commerce Clause to some god-forsaken legal dungeon where the Congress flogs it mercilessly on a daily basis.
12.7.2005 3:44pm