The Volokh Conspiracy

Thanks for explaining, Anderson. My only experience with habeas is as a law clerk, so you're right that I see that as separate from crim pro.

On the merits of the habeas question, though, I think it's a baseline problem. My best understanding of the law is that the idea of any habeas rights for non-U.S. citizens held outside the U.S. was mostly unheard of throughout our history. See Eisentrager. The Supreme Court changed course in Rasul in 2004, but what to make of that -- was that a radical expansion of habeas protection that the current bill tempers, or is the current bill a radical retreat from the rights recignized in Rasul?

Riptide,

I'm not sure what your question is. How do I view it? What does that mean?

This is what Andrew Sullivan is saying about this bill:

How do I put this in words as clearly as possible. If the U.S. government decides, for reasons of its own, that you are an "illegal enemy combatant," i.e. that you are someone who

"has engaged in hostilities or who has purposefully and materially supported hostilities against the United States,"

they can detain you without charges indefinitely, granting you no legal recourse except to a military tribunal, and, under the proposed bill, "disappear" and torture you. This is not just restricted to aliens or foreigners, but applies to U.S. citizens as well. It can happen anywhere in the U.S. at any time. We are all at potential risk.

Whatever else this is, it is not a constitutional democracy. It is a thinly-veiled military dictatorship, subject to only one control: the will of the Great Decider. And the war that justifies this astonishing attack on American liberty is permanent, without end.

I'm not saying he's necessarily right (although I think he is). But nevertheless, given that the stakes of this issue are potentially this high, isn't it important for those who see themselves as important social commentators to at least voice their opinion one way or the other? Coping out on what appears to be the most important legal issue of our day seems a little lame.

Andrew Sullivan is a first-order moral narcissist. He makes broad claims to show the world how good he is, and to make sure that all who disagree with him know that he thinks they're no better than the Nazi SS.

His act is getting old.

As a mostly off-topic but not entirely unrelated aside, I note that the House version of the FISA amendments (the Wilson bill) is on the verge of passing on the floor this evening. The bill is on the floor now, or likely will be as soon as the closed rule passes.

Meanwhile, Judge Taylor today refused to extend her stay of the injunction in ACLU v NSA beyond a seven-day grace period to allow DOJ to seek a stay in the Sixth Circuit.

Of course, whether my uncertainty reflects an appropriate awareness of my limitations, excessive caution, or moral depravity is a judgment left to the reader.

Oh come on, Orin. It's moral depravity. Duh.

Orin Kerr wrote:

Of course, whether my uncertainty reflects an appropriate awareness of my limitations, excessive caution, or moral depravity is a judgment left to the reader.

Well, since this is the intarweb, it's got to be moral depravity. Or maybe a conspiracy... Oh wait!

Seriously though, it's a big bill and an analysis is a big task. While I wasn't among those clamoring for one, it would be wonderful to see one when and if you have time and inclination. But the Conspiracy will remain one of my "must reads" even if you don't have one posted by tomorrow morning.

rothenberg - forgive me for thinking that legal professionals and commentators might be expected to take an active interest in whether or not their government sanctions torture or imprisoning people without charges and without review.

I understand that such matters are not as pressing or important as discussions of woodpecker habitat or musings about NYT photo caption conspiracies and the like, but one would hope that such things might make it onto the radar screen.

Mark Field,

If an analysis of the bill requires only basic reasoning skills and moral judgments, please present your analysis of the bill. I would appreciate citations to the bill text and relevant caselaw, as well, so we can best follow your basic reasoning and moral judgments. Also, while you're at it, could you throw in an analysis of the different NSA bills?

Thanks!

Does anybody think we're not going to torture terrorists, regardless, in efforts to elicit information that will prevent future attacks?

The thought that we will actually helps me sleep at night. I'm not saying that to be crude or ironic or funny. I really mean it.

Mark,

I was kind of hoping for analysis, not a conclusion. What is the effect of the different sections, how this compares to the law pre-Rasul, that sort of thing.

While a polite "I wonder what the VC bloggers think?" would be understandable (and even complimentary), some of these comments are really quite presumptuous. There's a pretty traditional method of getting legal advice from a lawyer: it's called the attorney/client relationship, and often involves a retainer. Are one of the commentors above offering?

Last I knew, I'm a reader here, but I don't pay Prof. Kerr's salary.

It's simply not true that the VC bloggers have not blogged about the bill — well, about the topic of legalizing torture, anyway. From the thousands of things written online about this topic, Eugene has singled out one that is "much worth reading": http://makeashorterlink.com/?D28F41DDD

If an analysis of the bill requires only basic reasoning skills and moral judgments, please present your analysis of the bill. I would appreciate citations to the bill text and relevant caselaw, as well, so we can best follow your basic reasoning and moral judgments. Also, while you're at it, could you throw in an analysis of the different NSA bills?

Thanks!

Hm. Sarcasm. It would have been more effective if you had pointed out where all that information was supplied in the other threads I referenced.

Mark Field,

No, I'm totally serious. I say this is hard, you say it is easy. If it is easy, then stop talking about it and just do it. Why wouldn't you?

Steve,

I agree that this would be a great topics for a guest blogger. Eugene?

You know, I don't think I have ever seen ANYONE suggest that they pay the salary of VC bloggers or ANYONE suggest that they are not "getting their money's worth"

Why so touchy about this? If the comments bother you so much why not just turn them off? That way you won't be bothered by all of the ungrateful readers.

Of course, everyone here understands that anyone is free to blog about whatever they want, that people have every right to blog about woodpecker habitat, what their cat had for breakfast, their 10 favorite Shaft episodes, whatever.

Perhaps the thing that troubles some readers is the lack of comment and concern about the "detainee bill" is that it means that either a) you don't care about it, or b) you agree with it, or c) you don't know anything about it. Each of those is troubling in different way.

It's a bit like reading a blog by, say, astronomers and rocket scientists in 1969 that didn't mention anything about the moon landing. Yes we all understand that those hard working scientists are not obligated to post a single word about the fact that man is walking on the moon.

Stated differently, as fascinating as it is to read another of Mr. Bernsteins posts about what is happening in the housing market in northern Virginia (I have counted 7 of those) I still like to think that one might encounter some attorneys here who have something interesting to say about the most significant legal issues of the day. Not that you are obligated to do so of course.

I dare say that this is the best post I have ever seen at the Volokh Conspiracy, which has had many great posts.

Blogger humility. Blogger restraint. Blogger open-mindedness.

Excellent, excellent, excellent.

It may be the best of bills. It may be the worst of bills. It may be both.

But let's not jumpt to conclusions.

Excellent.

If it is easy, then stop talking about it and just do it. Why wouldn't you?

I have been, of course. Here (see the Rauch thread) and elsewhere as well. Maybe it'll be enough for me to avoid relegation to one of Bobby Kennedy's "hottest places of hell".

Prof. Lederman, your links aren't working. I believe your last one is intended to direct readers here. The first one was to the Rauch thread further down the page at VC.

Thank you Marty for the clarification.

It's the definition of "unlawful enemy combatant" that extends to citizens as well -- and most people are construing it to authorize indefinite military detention of anyone DoD desginates as an UEC. More details here:


Of course, citizens could be determined to be unlawful enemy combatants since, well, forever. See Quirin.

So that is not a change to anything; it's always been the case.

The issue is, if the President declares you an unlawful enemy combatant, what can you do about it? If you are a US citizen, you can try for habeas relief. If you are not a US citizen, you are stuck going through the military commission and then can appeal to the DC Circuit.

That's my understanding. Of course, I could be completely wrong.

The make-a-shorter-link thing is cool, though.

Thanks to Prof. Lederman for clarifying the "indefinite detention" bit, though it remains very unclear just what it means, and what material differences (if any) there are between "indefinite detention at the Executive's pleasure" and "loss of habeas."

And on the post's topic, I think Luke 1152 puts it better than I ever did: the VC can blog what they like, &the rest of us can draw conclusions from that. Possibly the wrong conclusions, but not frivolous ones.

Also, tinyurl.com might work better, as it doesn't involve any redirecting.

Longtime lawyer/lurker who just registered to say the lack of commentary on this issue has been absolutely craven, akin to idly standing outside a bar and watching someone get beat up by thugs.

Ok, you're careful professiorat types; whatever. You're also presumably informed Americans. You're damn straight more informed than any Senator who actually voted today.

Speak up or slink off in shame. On this issue, silence is complicity.

BTW, since people are demanding that the Conspriators blog about this or that, I am demanding that Orin blog his analysis of the proposed IRS regulations under Section 409A of the Internal Revenue Code (enacted in the American Jobs Creation Act of 2004).

I eagerly await the response, and am horrified that this important topic has been less than fully blogged about on the VC!

Thanks, Andrew. I was going off memory and thought it was Bobby.

Thank you for the post Professor. I think this very post---which only discusses your hesitancy to address these issues---is a worthwhile contribution in its own right. And I would suggest that it would have been good to see it a week ago.

I would hope that you should rethink your view on expert commentary. As a practical matter, intelligent non-experts can often bring a fresh approach to issues that they don't know a lot about. Moreover, I think that limiting yourself to "expert commentary" is an intellectually and personally stultifying habit. I'm sure that you have interesting opinions about many things about which you cannot claim "expertise." Over-privileging expert opinion can undermine that. And I think it is an especially bad habit when it comes to moral reasoning. As a general matter, one should not be so wary of making an "incorrect" or "non-expert" moral judgment that one finds oneself tacitly condoning injustice. The recent debates about torture and indefinite detention---not to mention other longstanding preoccupations of the legal intelligentsia---concern our moral values and what, if anything, "American values" mean. And as a public intellectual, I think it is important for you to acknowledge that this moral dimension exists and to struggle with it---even if you never come to any definitive conclusions.

[I]t is possible that the Due Process Clause requires only "that our Government must proceed according to the 'law of the land'--that is, according to written constitutional and statutory provisions." In re Winship, 397 U. S. 358, 382 (1970) (Black, J., dissenting).

---Justice Thomas, dissenting in Hamdi v. Rumsfeld

Justices Thomas and Black understand the term "due process" as well as anyone in my lifetime.

Orin, you call for analysis in the face of a network of secret eastern european torture prisons and the kidnapping of innocent canadian citizens for the purposes of torturing them in syria. I would hope you could see why that looks dubious at best.

And as a public intellectual, I think it is important for you to acknowledge that this moral dimension exists and to struggle with it---even if you never come to any definitive conclusions.

Yes, I too request this acknowledgment and struggle. And your analysis of the Section 409A proposed regs! And a pony!

byomtov,

How do you square American values with waging wars?

Let me put it this way: you have a duty as a citizen, or more importantly, as a human being. Posters on this blog have a curious habit of going silent whenever this administration conducts its latest outrage on human dignity. Is the absence of any specific post definitive? Certainly not. But there is a pattern (one which I would actually ascribe much more to your cobloggers than you, so you are catching a degree of unfair guilt by association here) of this blog refusing to engage with evil when it is practiced by the administration.

I have no problem with people begging off because they simply don't have anything to say on an issue. But to consistently beg off in the face of a certain class of enormously important moral questions is, as I said above, dubious.

Mark Field,

I haven't seen your analysis. Could you post a link here?

A link? The Rauch thread is here on VC. Other posts I've made are mostly at Balkinization (a few at Greenwald). I recommend you read all the threads there. If you don't find my efforts adequate, maybe the others will suffice. Or maybe you'll see someone who might guest-blog the issue.

There are two separate questions here. One is if the removal of habeas corpus is constitutional and the other is if it is a good idea.

My inexpert opinion is that it is probably constitutional to strip non-citizens of their ability to seek habeas corpus relief in civilian courts. What counts as a rebellion or invasion is most likely one of those things that is left up to Congress's discretion and cannot be challenged in court.

Whether it is a good idea or not is a different issue. There are plenty of non-citizens living in the U.S. and it seems to me that this bill would pose a grave threat to their rights. This is not to say I think the U.S. will start arbitrarily "disappearing" foreigners. Rather, it gives the U.S. an enormous amount of leverage to force non-citizens to cooperate with the government and even perjure themselves to testify against suspected terrorists. Some people would probably do anything to avoid the prospect of being declared an enemy combatant and locked up forever. And if you are not an enemy combatant it is not clear that you would be able to convince a military court of that given the vague standards and lack of oversight involved.

I do sympathize with people who argue that prisoners of war apprehended abroad should not be able to clog our civilian court system with endless appeals. However, I think there should be a finer distinction between say, a guy who has run a halal butcher shop in Queens for the past 10 years and a suspected Taliban apprehended in the mountains of eastern Afghanistan who has no connection to the U.S. Additionally, given that the "war on terror" is supposed to never end in any of our lifetimes I think there should be some outside scrutiny over the detention of enemy combatants. How much is a question I don't know how to answer, though.

I appreciate your post, and your obvious disinclination to jump up and down without knowing what you are talking about. I found most interesting your comment: "I always get hung up in this area on deciding what baseline to use. Opponents of the bill tend to measure the rights afforded under it in comparison to the rights of U.S. citizens facing criminal charges, but it's not clear to me that's right..." I concur, and I start from the opposite baseline. Unlawful combatants have no protections under the Geneva Convention, and could/should be simply shot out-of-hand (or after a drumhead court-martial). (Yes, there is a requirement to hold a hearing in order to determine that this status applies, otherwise, there are no specifics as to what "rights" the detainee has at the hearing. Or we could do what the French did: Kill them all and let God sort it out.

Mark Field,

Can you round up your best analysis and post the parts here together, or at least provide links (you can get the link for VC comments on the top right of the comment)? That would be great. I'll make you a deal: you round up the comments, and I promise to read them.

One reason people might find so remarkable this blog's failure to comment on the legislation involves its political context. This was clearly, even admittedly, a political effort by the White House and its Congressional allies to jam Democrats before the '06 elections. Bush announced the relocation of the al Qaeda members previously held by the CIA to Gitmo, and then gave a speech calling for the immediate passage of his tribunal plan, with the implied threat that KSM et al. would have to be released if Congress did not enact its plan. Of course, up to this precise point, the Administration had rejected every effort by Congress (see, e.g., the Leahy-Specter bill in 2002) to authorize military tribunals. Its turnaround on this point was done for transparent political motives, much as its turnaround on the homeland security department was done for political motives in 2002. And from that point on, the Administration and its spokesman used every opportunity to frame the issue politically, in an effort to paint the opposing party as soft on terrorism.

Given this background, and given the highly problematic nature of the legislation being pushed by the Adminsitration, one might expect law professors with a certain degree of intellectual integrity to resist this concerted effort to advance politics over principle, at the expense of the U.S. legal system. One might expect law professors with a certain expertise in related issues (separation of powers, criminal procedure, the Bill of Rights, etc.) to do some background research about the legislation and to use this blog, as effective a public platform as most have, to discuss the objective merits of the proposed legislation. One might even expect that a law professor who had concerns about the bill -- say, its suspension of habeas corpus rights, or the effort to rewrite Common Article 3, or its endorsement of secret evidence, or its effort to degrade the longstanding bipartisan consensus against torture and cruel treatment -- might even express those concerns publicly, regardless of his political affiliation and interests.

Furthermore, even if the law professors who write on this site aren't concerned about the substance of the proposal, it's still clearly one of the most significant pieces of criminal and terrorism legislation being considered by Congress in the last 50 years. One might expect that a professor who supports the legislation would write a paragraph or two defending his support on the merits, explaining why it's such a good thing for America, or why the critics have it all wrong.

What did we get from the VC, on this topic? Nothing. Observations about the real estate bubble, Lexis search tips, posts about recent lower court rulings. Nothing about the bill, its merits, the relevant existing law, or the political context.

The professors who post on this site made a deliberate decision not to engage this issue. They made a decision not to use their expertise and stature to shed light on what's happening in Congress, whether they support or oppose it. In the face of an extraordinary challenge to the rule of law in this country, they chose to write about trivia, or about nothing at all. They sat this battle out.

Mark Field, I read the Rauch thread. A bunch of rants with little detail and saying little more than "slavery is like torture" doesn't qualify as "analysis."

Perhaps you could detail for me what would qualify as "analysis" in your mind. If I have to meet your test, I think it's only fair that I know what it is.

I'm especially interested in two things: the additional "analysis" you'd perform to show that torture is an American value; and the amount of "analysis" in my posts as compared to the "analysis" contained in the several other threads I mentioned in my first post in this thread. When those tests are met, I'll get back to you. I'm holding my breath; it's good practice for waterboarding.

Mark Field~
Analysis generally means intepretting- fairly- the language of the statute, discussing how it will probably be implemented, any constitutional infirmities it may have (with specific cites to appellate course cases that support your position and those that don't) and the implications of the law (again honestly and avoiding platitudes). I'd be curious to see you or anyone for that matter do that type of analysis on the bill. I know full well that I'm not qualified to do it.

The statute just seems to be directly designed to overule Hamdan and set up Hamd3.0 v. US: Kennedy waxing eloquently about the due process and suspension clauses as applied to aliens.

Of course, citizens could be determined to be unlawful enemy combatants since, well, forever. See Quirin.

An excellent argument. I wish more supporters of the present legislation would clearly state that they consider Ex Parte Quirin to be a shining star in our galaxy of jurisprudence.

Some background here, including an account of how the man responsible for revealing the plot to the FBI ended up getting sentenced to death as a result of the tribunal procedure the Court approved, all because the FBI wanted to claim credit for catching the bad guys. But that's only one side of the story; the conservatives all love this case, just as they love its sister decision.

Why is it that the people posting the most often about how this bill and/or this administration is pro-torture also have the broadest definitions of torture? There was a list of 8 activities posted to a thread here months ago, with the assumed most severe being waterboarding. I think if you asked the average American, that would be the only one from the list they considered torture - not making a detainee stand for days on end, not putting a detainee in a cold room and dousing him with water, not slapping him, not yelling at him, etc.

Considering that the Supreme Court has this year reaffirmed the historic proposition that a captured person the U.S. military says is an enemy combatant can be kept in a POW camp with no right to any heaaring until some future leader of Al Qaeda decides he's really not interested in getting 72 virgins and convinces his followers to join him in surrendering, this bill has little actual legal importance. It's mainly a political symbol.

Nick

Steve,

You said "the conservatives all love this case," referring to Ex parte Quirin.

Does Antonin Scalia count?

In his Hamdi dissent, Scalia wrote about Quirin: "The case was not this Court’s finest hour."

Bush announced the relocation of the al Qaeda members previously held by the CIA to Gitmo, and then gave a speech calling for the immediate passage of his tribunal plan . . . Of course, up to this precise point, the Administration had rejected every effort by Congress [t]o authorize military tribunals. Its turnaround on this point was done for transparent political motives.

Um, maybe it was done as a result of the Supreme Court's decision in Hamdan? Up until that point, the administration maintained that it did not need Congressional approval to implement the tribunals.

You might want to get your facts straight before you embark on a motive-hunting adventure.

Mark Field: I only commented that the "lack of expertise" argument didn't make much sense in light of numerous other posts here which didn't rely on "expertise" at all.


MPVA already addressed this:

MPVA: Nobody cares if law profs spout off about generational labels and end up sounding silly. But when legal analysis is your stock in trade, and you're not a raving partisan or a dilettante, you might not want to let rip without actually knowing what you're talking about.

I agree with him. This describes how I tend to behave (as a law student).

Good point, jgshapiro.

It would seem elemental that importing concepts like the "enemy combatant" of In re Quirin--where you had a declared war, with a definite starting and ending date, between nation states with fixed borders--into our present troubles is a great source of potetnial mischief. Lazy analogies to WW2 should be the stuff of the Bill O'Reillys and Michelle Malkins of the world.

In the present conflict (I refuse to use the term "war" unless it is Constituionally correct, which it sure as hell isn't here), we have no conceivable ending date, an enemy with no definable borders, and, consequently, no clear set of elements to help us understand where this "bright line" of who is an enemy combatant lies--and it MUST be a bright line if draconian measures like that embodied in the current legislation are in play. And the concerns many have are magnified by the genuinely sloppy arguments made by many "conservatives" about all the "treason" they perceive around them--at the New York Times or wherever. It's easy to shrug off such idiocies now--but wait until there is another substantial terrorist attack.

This country stinks of fear and panic, and those who wish us ill can sense it. Bush's "win" today is another pyrrhic victory. Acting obviously frightened is the greatest emboldening and recruiting tool we can give terrorists. And make no mistake about it--the legislation passed today absolutely reeks of fright.

Just for the record, Orin, that post by "Anon. Lib." was not by me. I've got to get a more unique handle. :)

After reading through this sludge, I've come to the conclusion that the Volokh Conspiracy has a lot of whiny commenters who should be dragged off to a secret prison and tortured. Unfortunately, I don't understand the bill well enough to know if that's allowed.

But one can hope.

The historical ignorance shown by many posters here is significant evidence of the wisdom of this board's bloggers in avoiding the subject.

The Algerian War of Independence was the major campaign in the past 100 years where torture materially affected the course and outcome of the conflict. AFAIK, I'm the only poster on blogs who has EVER mentioned that conflict in discussions of the war on terror.

Complaints and speculation about American use of torture in the war on terror are inane given the real thing as practiced by the French in Algeria.

Orin Kerr and Ilya Somin are entirely correct in avoiding a subject which is so obviously used by most posters here as a vehicle to express their personal issues.

Does Antonin Scalia count?

In his Hamdi dissent, Scalia wrote about Quirin: "The case was not this Court’s finest hour."

My comment, obviously, was overly glib and you were correct to call me on it. Mainstream legal conservatives like Scalia reject Quirin, of course, in practically the same breath as they repudiate Korematsu.

The problem is that, somehow, the prevailing theories of the day seem to have veered a long way from mainstream legal conservatism. It's depressing when people cite Quirin, not as an object lesson in what the exigencies of wartime can produce, but rather as a legal milestone, a case to be cited for an undying legal principle that has supposedly been accepted "since, like, forever."

What today's conservatives truly seem to love is not so much the legal principles of Quirin, but rather the underlying narrative of a President who declares he's going to fight the bad guys his way no matter what anyone else says. Imagine, FDR actually sent an emissary to the Supreme Court to warn them that he was going to have the saboteurs executed either way, so they better think twice about the resulting crisis before ruling against him! What supporter of the present administration wouldn't love President Bush to give the same sort of middle finger to Justice Kennedy? Taht's the real point of citing Quirin.

Steve,

I confess to a little glibness myself. And I agree that in general there is a disconnect between mainstream legal jurisprudence and much of what passes for legal theory justifying this administration's "war on terror."

Having said that, there are nuances. For example, I suspect Scalia also might disagree with Sen. Specter's assertion on the Senate floor that the constitututional right to habeas corpus extends to non-citizens.

Thanks, Mark. Most of your posts don't seem to relate to the actual bill, it seems, but to respond to two points in your posts that do: I agree with your point in #1 that the bill is difficult to follow, and I think you ask an interesting question in #12. Re #12, I'm not sure what it means for a legislature to say as a matter of statutory law that the executive's interpretation is "authoritative." Is that a legislative request for the courts to consider it a political question?

I'm with Frank J on this.

I know it will come as a total shock (and no, I'm not accepting liability for any infarcts caused by this comment), but I doubt that I'm the only reader of VC who is not only happy with the way VC has handled itself in addressing this question, but also think that the Administration has it about right here.

The "fear" that everyone declaims seems to be limited to a segment of society. Being underwhelmed by the comments is the reason there are so many apparently silent VC readers.

Mark:

Well, damn. That didn't work.

Yeah, but it made great irony.

I'll ask JunkDog the same question I did on the other thread: where is the battlefield? If it is the whole world, is it not the case that all of our Constitutional protections have become a dead letter?

The Administration, and its supporters on this thread, are playing mix-and-match with rules appropriate for combat and rules appropriate for everywhere else.

It must be exciting for JunkDog to feel he's in the front lines, although I have to say his political comments make me suspect he's just another dweeb with a mouth much bigger than his brain. And his balls.

Well, that didn't take too long.

Congrats, Orin. Within days of rejoing the VC, you've proven that you are a) mostly meaningless, b) a poor liar who is working hard to get out of a tight spot, c) disingenuos, and d) untrustworthy due to ideological corruption.

[OK Comments: Um, huh?]

Cheers!

TO: Mr. Kerr &Volokh C.
CLASSIC CASE:
Paralysis of a trained academic, through over analysis...
Is Orin's nuanced deferral an example of why our nation is at the apex of anti-intellectual "thought"?

Please Orin, thou doth protest....much.
With the highest respect Orin: What does your civic gut tell you?
Make the call.
1.)Break down the central issues/questions narrow the question, establish acceptable tenets/parameters, and Take a Stand.

Here is your mirror:

I always get hung up ...but it's not clear to me that's right — and ...not clear to me how to choose Then there are all the empirical questions.... predictive questions....what the Supremes might do... what the alternatives are, etc. ...Some people know the answers to all of these questions,....I feel... less confident... my uncertainty...limitations...excessive caution....judgment left to the reader.

I am so confused.
If not you Orin,...them who?

Anderson. Torture is used to get false confessions. True. But not complete. Surprised me, sure as shootin' you'd be incomplete on this.

You know that it has been used effectively to get useful information. That you cannot be forced to publicly admit it makes no difference to much at all.

It's not a great way to discover truth, but it is effective sometimes.

If it were demonstrably totally ineffective over history, nobody would bother with it, and so we would not be arguing about it.

<i>So the Justices knew at the time Quirin was decided when hostilities with Nazi Germany would be over? Remarkable.</i>

No, disingenuous Jake the Guest, they didn't--but they knew there would be a clear, definite end to hostilities in the near future. We know no such thing. Quirin, bad as it was, was at least a principle that would be limited in duration. We have no such assurances today--in fact, we are told quite the contrary by just about everyone.

And BAC--I have never cared what Joe Biden thought about anything. I pity you if you do.

JunkYardDog,

Is there a real path in this bill for detainees to prove their innocence?

Surely you, of all people, do not assume that 100% of the detainees are guilty without a shadow of a doubt.

Without a shred of hope to prove their innocence or challenge their detainment, why bother with this kangaroo court? Bush might just as well shoot 'em all dead. Sure we might lose valuable information that 2 years at Gitmo haven't extracted, but the only good accused terrorist is a dead accused terrorist, right?

I want to see justice done and this isn't justice, this is mockery.