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Response to a Comment About Al-Marri:
I've received a number of interesting comments in response to my Al-Marri posts. (Thanks for all the comments, by the way; I think this has been a very useful and rewarding discussion.) One of the more common arguments is one I find puzzling, however. An anoonymouscommenter put the argument this way:
The reason OK's position is so frustrating is that he is not a hack but someone who is usually very intelligent, sensitive and fair. And the point is not that criticism of Al-Marri is somehow inappropriate but rather that OK has criticized it in a maddening fashion and glossed over the fact that his approach, if adopted by the courts, would allow the administration to continue horrific practices. The reasonable and just inference from the fact that this administration has used its broad claims of "executive authority" to horrifically and pointlessly violate the basic human rights of detainees, including detainees who have nothing to do with Al Qaeda or the Taliban, is that there is something drastically wrong with that framework. Yet OK ignores this reality entirely, choosing instead to . . . . offer intellectual support to the legitimacy of that framework.
  Here are two responses (in addition to appreciation for the compliment in the 1st sentence — thanks for that).

  First, there are hundreds of different issues raised by the legal side of the war on terror. I think the Bush Administration is right on some of them; wrong on others; and I just don't know enough about many of them to have an informed opinion. Given that, my brain only works by taking these questions issue-by-issue. I can understand why this seems frustrating if you don't view them issue-by-issue, and instead have a more global reaction (whether for or against). But for whatever reason, that's how I approach it.

  Second, even if you agree with the comenter's view of the Bush Administration, it's not like the Bush Administration will be around forever. It's going to take anywhere from 6 months to 18 months before we have a final decision on the Al-Marri case, depending on whether the 4th Circuit goes en banc and whether the Supreme Court hears the case. Given that there are only 18 months left of the Bush presidency, the resolution of Al-Marri will come either at the tail end of the Bush Administration or the beginning of the Obama/Thompson/Clinton/McCain/Giuliani/Edwards (OTCMGE) Adminitration.

  I don't know what positions President OTCMGE is going to take on legal policies surrounding terrorism. But I suspect the new President will probably want to make a bunch of changes, and it seems to me that the question of what to do with cases like Al-Marri is really about the options for President OTCMGE more than the options for President Bush.
Anonymous Liberal (mail) (www):
Oren,

This is probably my own fault for not having a more original handle, but I just want to make sure you know that the "Anon. Lib." you quote above is not the same "Anonymous Liberal" you've emailing with and who wrote this post (that would be me). I haven't left any comments at VC lately.
6.13.2007 4:04pm
scote (mail):

it's not like the Bush Administration will be around forever.

Or so we hope. With the the unilateral extraconstitutional powers the Administration claims for itself, your statement is an optimistic one, which is part of the problem with your "issue-by-issue" approach. Perhaps you are missing the forest as you expertly and systematically analyze the needle structure and taxonomy of the trees.
6.13.2007 4:06pm
Freddy Hill:
Scote: You are really expecting a coup d'etat in the next 18 months, aren't you. Who's the irrational one here?
6.13.2007 4:11pm
OrinKerr:
Thanks for the clarification, Anonymous Liberal -- I wasn't clear on that, so I'll modfy the post.
6.13.2007 4:11pm
Buckland (mail):
Administration or the beginning of the Obama/Thompson/Clinton/McCain/Giuliani/Edwards (OTCMGE) Adminitration.


Mormons everywhere are shouting at their computer screens .... OTCMGER?
6.13.2007 4:12pm
Dave N (mail):
"Or so we hope"--a great example of BDS. People like Scote have been drinking too much Kos Kool-aid.
6.13.2007 4:12pm
Dave N (mail):
"Or so we hope"--a great example of BDS. People like Scote have been drinking too much Kos Kool-aid.
6.13.2007 4:12pm
A.S.:
OTCMGE

I guess Orin isn't gunning for a job in the Romney Administration, eh?
6.13.2007 4:13pm
Elliot123 (mail):
scote: "Or so we hope. With the the unilateral extraconstitutional powers the Administration claims for itself, your statement is an optimistic one, which is part of the problem with your "issue-by-issue" approach. Perhaps you are missing the forest as you expertly and systematically analyze the needle structure and taxonomy of the trees."

OK's issue by issue approach let's us know exactly what he is talking about. Your use of terms like "unilateral extraconstitutional powers" leaves us wondering exactly what you are talking about.
6.13.2007 4:28pm
JosephSlater (mail):
Hmm, if we add Romney (or Richardson, but not both), take out Thompson (is he officially official?), and add Kucinich, we could get the actronym MOCKREG.

We could do better if some Republicans whose last names began with vowels would step up (the Dems are doing their bit in this regard with Edwards and Obama).
6.13.2007 4:42pm
JosephSlater (mail):
Acronym, dang it.
6.13.2007 4:43pm
Mark Field (mail):
Your second point strikes me as rather, well, detached. If you believe a serious injustice is being committed, telling the victim to just wait another 18 months for the chance that a new President might take a different view might understandably be seen by him as fairly cold comfort.
6.13.2007 4:43pm
Mark Field (mail):
I should add, in light of my last post, that I completely endorse the compliments in the quoted passage.
6.13.2007 4:45pm
Steve H (mail):
Prof. Kerr, I think part of the frustration by some of the more liberal types is because your hypotheticals are presented in a way that seems to tilt the field in favor of the executive at the expense of the individual.

Most of your examples seem to assume that we can read people's minds and that the government is acting properly. For example, Number 6 in your list of hypotheticals was "Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11." I'm pretty liberal, but I think that someone who enters the US to launch another 9/11 should be tortured for information, and just for the hell of it, and then executed. But in most cases, we simply won't know why the person entered the US, and we won't know what the government truly "suspects."

I think that many liberal and/or civil libertarian types are nervous about the government's claim of the power to imprison at will because we recognize that government agents aren't always right and don't always act with pure motives. I personally am not concerned too much with detention of terrorists, but rather the detention of innocent people who are mistakenly believed to be terrorists, or who are not actually believed to be terrorists but are imprisoned for another reason.

Your examples do not seem to account for this possibility, however. And I believe that your discounting one of the strongest grounds for the liberal/libertarian approach to these issues is leading to the frustration.

(Regarding the Bush Administration, I think most liberal/arian types are nervous about unfettered power to imprison regardless of who the President is.)
6.13.2007 4:46pm
Former Law Review Editor:

Your second point strikes me as rather, well, detached. If you believe a serious injustice is being committed, telling the victim to just wait another 18 months for the chance that a new President might take a different view might understandably be seen by him as fairly cold comfort.


I'm pretty sure the "just wait" isn't directed at the victim, but at everyone else who likes to think of themselves as on the supposed victim's side.
6.13.2007 4:47pm
Oren (mail):
Orin (side note, I'm Oren, he's Orin, get it straight!):

In response to your first point, politics and law do not necessarily obey the law of composition. That is to say, it's possible for a series of positions, each reasonable on its own, to produce an outcome that is not reasonable. While I agree, to a large extent, with your analysis in the previous post about how we might distinguish between criminal/martial offenses, one also has to ask whether this analysis will yield reasonable results in the context in which it is likely to be used. It is in this sense that many civil libertarians like myself can get a little flustered with anlayses that seem to grant additional powers to an administration that (IMO) has grossly abused the powers already granted it. We appreciate your attempt to be right in the details but that doesn't matter much if the larger result is wrong.

Secondly (and more importantly), every time the fundamental precepts of limited government are violated they become, in a sense, somewhat less fundamental. Every violation makes the next violation easier and less shocking until ultimately some future administration will finally make it "stick".

This compounds with the first point because we have an
administration that has shown willingness to push every legal theory about executive power to (or past) the breaking point in order to justify its policies. Seemingly reasonable policies somehow end up supporting unreasonable practices and we are left with arguing the legal point against you (and losing, because the analysis is eminently reasonable) while unreasonable practices continue.
6.13.2007 4:50pm
Katherine (mail):
So: the Bush administration has detained people without charge so long that the prisoners' court cases won't end before the Bush administration is term limited out of office. Therefore, the Bush administration's 6 year record of abusing these powers is irrelevant!

Very reassuring.

Any executive can abuse these powers, and several Republican candidates are enthusiastically promising to do so. The ad hoc balancing approach you suggest simply doesn't work at preventing this.

You are not just dealing with these questions "issue by issue." You are completely ignoring the entire factual record in favor of strained hypotheticals that are specifically designed to favor the administration's positions.
6.13.2007 5:01pm
scote (mail):

Freddy Hill:
Scote: You are really expecting a coup d'etat in the next 18 months, aren't you. Who's the irrational one here?


I think if you read my actual words rather than the ones you'd like to attack, you'll note that I never stated any such thing.

It is far from irrational to be cautious when considering the lengths an undeniably authoritarian Administration might go to. If you had asked six years ago if we'd be debating wether or not the government should be allowed to arrest and detain aliens and US citizens forever without charges I'd have said you were crazy since clearly no such thing would ever happen in the US.

Other things I wouldn't have thought possible:

Arresting people without charges and holding them indefinately without access to council.

Extraordinary rendition becoming routine.

A secret chain of CIA prisons in Eastern Europe.

Warrantless spying on international calls in violation of FISA.

Secret arrests, secret detentions, secret evidence, secret legal rationale in trials, secret courts.

Secret "Enhanced Interrogation Methods" that either border on, or actually are, torture.

The VP calling the Geneva Conventions "quaint," who says that if you vote for the wrong political party we'll be "hit again" by terrorists, and who is the most secretive VP ever.

Changing the emergency Continuity Plan so that the White Hose is in charge of all governmental functions and making the possible reasons to invoke the plan so vague that even Katrina could qualify.

An administration that declares the alleged Unitary Power of the Executive to trump all other constitutional restrictions if the President decides so.

...and a congress that can't even find the testicular fortitude to put voluntary timetables in the Iraq funding bill because a President with a 28% approval rating said not to.



Things we would never have thought possible are no longer just possible, they are being done right now. Under all of those circumstances, and more, what part of my concerns are "irrational?????"
6.13.2007 5:04pm
Oren (mail):
Steve - OK has repeatedly asserted that there must be some sort of due process challenge before a person can be shuttled over to the "military" side of things.

Orin - as a quick addition to my previous post, consider someone that undoubtedly belongs outside the conventional legal system (as per the previous post) - per the MCA, he has no access to the courts. He is brought to Gitmo, judged an illegal enemy combatant and scheduled for a military trial. In the interim, he is subjected to severe psychological torture - shackling, heat/cold, 24/7 bright lights and loud music, sensory deprivation, frequent relocation meant to disorient and interrogators posing as counsel for no apparent reason. Whatever your opinion on "enhanced interrogation techniques", this has become patently unreasonable to the point of making this person insane/suicidal.

At some point, the analysis has to fail or else we have consigned (through completely reasonable policies) ourselves to accepting an unreasonable outcome. Is there any way out of this mess except to disclaim the notion that the military can hold him outside the traditional legal system? Even after Congress mandated interrogators follow the Army Field Manual, abuses continue . . .
6.13.2007 5:04pm
Katherine (mail):
Scratch "specifically designed to" from that last post...it might be read to imply bad faith, which I don't intend to do at all.
6.13.2007 5:05pm
Mark Field (mail):

I'm pretty sure the "just wait" isn't directed at the victim, but at everyone else who likes to think of themselves as on the supposed victim's side.


Fair enough, and maybe I misinterpreted it. But if I were to adopt your reading, then the advice would ignore the rest of the context that scote, Katherine, and Oren have mentioned.
6.13.2007 5:10pm
scote (mail):

I'm pretty sure the "just wait" isn't directed at the victim, but at everyone else who likes to think of themselves as on the supposed victim's side.

Kind of irrelevant if the fundamental issue in "just waiting" is that we are proposing the substitution of the constitutional rule of law with the whim of whomever is president at any given time.
6.13.2007 5:21pm
KeithK (mail):
Scote: there is no reason, other than irrational fear, to think that Bush will decide that it's necessary for him to remain in office past January 2009 in order to protect the country or that the American people, military and political establishment would support this claim if he made it.
6.13.2007 5:23pm
dk35 (mail):
I think Glenn Greenwald's post today provides a more detailed and expanded take on the argument succinctly reflected above in Steve H's comment. Orin, you might want to check it out. Perhaps it would help make that certain reaction to your post seem less puzzling.

http://www.salon.com/opinion/greenwald/index.html
6.13.2007 5:23pm
Anderson (mail) (www):
Thanks for the ref, dk35 -- I'll quote a representative passage from GG's post:

Although its ultimate resolution is complicated, the question raised by Al-Marri is a clear and simple one: Does the President have the power -- and/or should he have it -- to arrest individuals on U.S. soil and keep them imprisoned for years and years, indefinitely, without charging them with a crime, allowing them access to lawyers or the outside world, and/or providing a meaningful opportunity to contest the validity of the charges?

How can that question not answer itself? Who would possibly believe that an American President has such powers, and more to the point, what kind of a person would
want a President to have such powers? That is one of a handful of powers which this country was founded to prevent.

Well, when you put it *that* way ....
6.13.2007 5:40pm
pct:
It may be useful to concentrate on the difference between the Executive's actions and the Judiciary's reaction to them. In OK's continuum between soldier and criminal, the Administration clearly could have decided that Al-Marri should have been charged as a criminal. For the purposes of actually winning the "war on terror," it is at least arguable that taking the criminal route would have been the wiser choice, as the vast majority of people instinctively consider the criminal model to be the norm in the absence of a state-actor war, and the US loses sympathy when it treats captured terrorist suspects as enemy combatants.

However, that is a choice, however ill-advised, that the Executive gets to make. Once they make it, the Judiciary owes them considerable deference under our system. I tend to agree with Prof. Kerr's instincts about the ultimate outcome of the case.
6.13.2007 5:41pm
scote (mail):

Scote: there is no reason, other than irrational fear, to think that Bush will decide that it's necessary for him to remain in office past January 2009 in order to protect the country or that the American people, military and political establishment would support this claim if he made it.

Six years ago you would have claimed the same thing about secret indefinite detentions, and I would have believed you. Disagreeing with you != irrationality. It is presumptuous in the extreme for you to think otherwise.

What I do think is irrational is for a small government Libertarian to support secret arrests and indefinite secret detention without charges. What good is a smaller government if they can arbitrarily arrest you and hold you secretly and forever without charges?

All individual rights under the constitution are contingent on the right to challenge arrest and detention. Without the right to Habeus Corpus, there is no right to Free Speech, to be free from unreasonable searches, to bear arms, to live freely.

I realize that the study and practice of law involves nuanced interactions of statute and precedence but I can't help think that OK is merely rearranging deck chairs on the Constitution. As Libertarians, I would have expected that all the VC professors would be adamantly against the suspension of Habeus Corpus rather than just intellectually curious. I don't expect them to be card carrying ACLU members but come one, Habeus Corpus is fundamental to all of our rights.
6.13.2007 5:47pm
Anderson (mail) (www):
As Libertarians

But they're not libertarians, as they sometimes remind us expressly, when it seems that libertarian principles might require taking some sort of stand against the Bush administration.
6.13.2007 5:52pm
pct:
Glenn Greenwald's post deserves more thought. In 1862, Confederate soldiers, who were “individuals on US soil,” were detained without being charged with anything. In 1865 they were summarily released, still without ever having been charged with anything. Does Greenwald claim that this was an illegitimate act on the part of Lincoln?

Now imagine that Lincoln had denied the legitimacy of the Confederate Army, and instead charged those same “individuals on US soil” with treason, and hanged them all. Would Greenwald contend that was a preferable outcome?

It is not clear to me that the question answers itself.
6.13.2007 6:10pm
Anderson (mail) (www):
Pct, a similar issue came up on one of these threads; I believe the gist of it was that the alternative you contemplate, and its ilk, dissuaded Lincoln (and the Congress) from following through with its "insurrection" theory of the Confederacy. For one thing, the Confederacy too had prisoners to hang.
6.13.2007 6:15pm
Kazinski:
I think the problem lies with Orin not understanding that he doesn't have the rights to his own opinions. I think the solution to that is a commentors "Board of Doctrine"(self appointed of course) that reviews and edits all of the Conspiritors posts before they are allowed to become visable. That way Orin's wrong ideas won't do any damage because only people that know they are wrong will be exposed to them, Bernstein's real estate posts won't annoy any one, and the Saturday lyrics and jazz videos will be screened for any unfortunate choices.

Orin's views are particularly dangerous because he has the background and expertise to buttress his opinions. Then even after its been demonstrated to him clearly that he is wrong he persists in muttering "but yet it moves".

The Commentor's should control the means of production.
6.13.2007 6:17pm
Anderson (mail) (www):
Bernstein's real estate posts won't annoy any one

I thought those were the non-annoying Bernstein posts?

But of course, Kazinski is confusing (1) the right to have one's own opinion and (2) the right not to be criticized for the opinion one has. I have never felt entitled to (2), myself, and I doubt that Prof. Kerr does, either.
6.13.2007 6:22pm
LnGrrrR (mail):
Oren,

My question is, how do you assume to try an individual for 'war' crimes if he is a terrorist though?

Assuming he hasn't declared himself to be at war with the United States, and isn't wearing any insignia declaring himself to be part of a group that is against the United States, on what reasoning should we process him as a 'war' criminal as opposed to a 'normal' criminal?

Oh a somewhat hysterical hypothetical note, what's to stop the President from then saying Person X is a 'war' criminal and taking away the rights guaranteed to citizens? Of course, that's not TOO hypothetical... after all, Padilla was a citizen.
6.13.2007 6:31pm
LnGrrrR (mail):
Note: Sorry Oren, I meant Orin. :)
6.13.2007 6:34pm
scote (mail):

Oh a somewhat hysterical hypothetical note, what's to stop the President from then saying Person X is a 'war' criminal and taking away the rights guaranteed to citizens? Of course, that's not TOO hypothetical... after all, Padilla was a citizen.

Nothing hysterical about it. The Administration argues it does have that right in the Al-Marri case.

This can't be stated enough. The Administration is asserting that it has the right to hold people forever on just their say so. That is the kind of power the Constitution was explicitly designed to limit. The fact that more people aren't outraged at this incursion on basic human rights does not bode well for the future. The way rights are effectively taken away is through incremental steps. The fact that so many people are willing to surrender this fundamental right for vague promises of security from a "just trust us" administration is sad and frightening.
6.13.2007 6:42pm
Bob from Ohio (mail):
Scote: Why don't you look up "Unitary Executive" (in a real law book, not Glenn Greenwald's site) and see what it means. It has nothing to do with what you claim it does.

It is the idea that all the powers that the executive has belong to the President, not subordinate officials in the Exceutive Branch. It is based on the plain language of the Constiution that "The Executive Power of the United States" is vested in the President.

It does not increase the overall powers one bit. One of it's main applications, if ever fully accepted by the Courts, would be to invalidate the "independent agency" upheld in Humphrey's Executor since the President needs to be able to direct and remove at will all subordinate officials. While one may differ on its wisdom or even its constitutional basis, "Unitary Executive" really is not that scary. Anyone who thinks so is per se irrational.

Some "conservatives" thought Bill Clinton would stage a coup after Y2K. Silly then and equally silly now about President Bush.
6.13.2007 6:42pm
Anderson (mail) (www):
Bob, it is pretty well understood by now that Bush's lawyers have pushed the old "unitary executive" theory to new levels. Wiki explains it all for you.
6.13.2007 6:49pm
scote (mail):

It is the idea that all the powers that the executive has belong to the President, not subordinate officials in the Exceutive Branch. It is based on the plain language of the Constiution that "The Executive Power of the United States" is vested in the President.

Sigh...I used the term in the context of the current Administration who have expanded the concept, as you full well know or ought to know.

anyone who thinks so is per se irrational.

I see you are another of those posters who believes that anyone who disagrees with you must be irrational. I'm sure that argument works great in court, "Your honor, you disagree with me and are, therefore, per se irrational." Wouldn't work there and it doesn't work here. You don't have a monopoly on rationality, if indeed you even have a franchise.

Some "conservatives" thought Bill Clinton would stage a coup after Y2K. Silly then and equally silly now about President Bush.

Are you really trying to argue that the two circumstances are directly comparable? To do so would be to ignore the plain facts. I don't recall, for instance, the Clinton Administration suspending Habeus nor asserting in his signing statements that his "Commander in Chief" powers allowed him to secretly ignore any law of his choosing.
6.13.2007 7:00pm
chris c:
Scote, how did Bush let the 2006 elections slip past without forestalling or altering them? surely if he's poised to hold on past 09 he would have wanted a more biddable Congress as a cohort.
6.13.2007 7:02pm
NatSecLawGuy:
On a parody note: I strongly think all media outlets should adopt the acronym OTCMGE to describe the election slate for '08. Primarily because the acronym incorporates the commonly used text phrase of OMG (Oh my God) which I personally believe says a lot about the field. There is probably a more complete type of pneumonic device that could be created but that phrase came to mind on first blush.
6.13.2007 7:06pm
Anderson (mail) (www):
Scote, how did Bush let the 2006 elections slip past without forestalling or altering them?

See "U.S. attorney scandal."

But unlike Scote, I'm not worried about Bush declaring himself president-for-life; I don't think he actually enjoys the job that much.
6.13.2007 7:08pm
cryptoref:
IANAL and i have a real question. It appears that many want to add/convict someone for "hate" crimes. And we get to define what "hate" is by a class of person. But the same people seem to be saying that we should not convict someone for "terrorist" thoughts.

Logically isn't a "terrorist" someone who "hates" a specific group? If we redefine it that way how does that affect the legal aspects?

If we start putting people away for "thought" crimes aren't we heading down a very slippery slope.
6.13.2007 7:11pm
WA-mom (mail):
For the Presidential field, suggest (with Romney name) CORTGEM which sounds promising for legal bloggers.
6.13.2007 7:15pm
Garth:
The key issue in Al-Marri is the court's emphasis on "proper." Pursuant to Bush's CiC powers, the court accepts his ability to detain Al-Marri as an enemy combatant. However, due process is required in determing whether or not this detention is proper.

CSRT's and other substitute venues for determing the propriety of the detention are OK, but they must deliver a minimum of due process protection. Without due process in the initial determination; ie. proceeding with indefinite detention on President Bush's, or any President's, sole determination flies in the face of principles we claim to be fighting for.
6.13.2007 7:26pm
Steve H (mail):
Well, you could go with OMG! CERT!

But that would probably appeal only to appellate lawyers.
6.13.2007 7:28pm
chris c:
Anderson, help me with this. Bush was going to steal the 06 elections til those meddlesome US attys got involved. . .
6.13.2007 7:30pm
Kazinski:
Anderson,
for the most part Orin is not being critized on the merits of his opinion. He is being critisized for not recognizing that his opinion could be construed as supporting the Bush adminstration. When you say "it seems that libertarian principles might require taking some sort of stand against the Bush administration." What you mean is the important thing is opposing the Adminstration, it doesn't matter if Orin thinks they are right in this case.


When Scote says "Perhaps you are missing the forest as you expertly and systematically analyze the needle structure and taxonomy of the trees." What he means is the outcome is what matters, not the law.

When Katherine says "You are not just dealing with these questions "issue by issue." You are completely ignoring the entire factual record in favor of strained hypotheticals that are specifically designed to favor the administration's positions." What she means is that the Bush Administration is the issue, not whether Orin thinks they are following the law.
6.13.2007 7:32pm
Garth:
cryptoref,

i have thought about this too. it seems as if viewing terrorism as a hate crime is a useful lens for analysing our response to terrorism. the most obvious conclusion is that we should be treating terrorism more as a law enforcement problem than a military problem. After all, this is not a battle between pitched forces.
6.13.2007 7:32pm
EricH (mail):
Is it better (to re-phrase the question) that a thousand guilty terrorists go free rather than one innocent accused terrorist be jailed?

If so, if that is one's standard - and it is indeed a noble one - then one has to also accept the consequences just as those who reject that standard do.

Quite easy from the comfort of our homes to argue standards that when applied outside those homes can be quite dangerous.

Deadly dangerous.
6.13.2007 7:33pm
Anderson (mail) (www):
OMG! CERT!

That is what the losing side's attorneys will be saying, after their challenge to the vote count is rejected in court.

Kazinski: your skills at interpreting Scote and Katherine are less impressive than your skill at interpreting the AUMF.

Chris C: I could try to hijack this thread into an explanation of the U.S. attorneys affair, but hey, I was kidding. (I think.) Rove actually had himself convinced that the Senate was safe and the House a good bet. He was almost right about the Senate, very wrong about the House. Oops!
6.13.2007 7:43pm
scote (mail):

When Scote says "Perhaps you are missing the forest as you expertly and systematically analyze the needle structure and taxonomy of the trees." What he means is the outcome is what matters, not the law

Your deliberate obtusity certainly tries my sense of civil discourse. No, my mixed metaphor was meant that OK may be spending too much time on downstream minutiae rather than fundamental constitutional issues that go the heart of what America stands for.


Is it better (to re-phrase the question) that a thousand guilty terrorists go free rather than one innocent accused terrorist be jailed?

If so, if that is one's standard - and it is indeed a noble one - then one has to also accept the consequences just as those who reject that standard do.

Quite easy from the comfort of our homes to argue standards that when applied outside those homes can be quite dangerous.

Deadly dangerous.

Fear mongering. That's what you are doing. "Sure rights are "noble" but you'll all die if you insist on having them!" What good is the US if it stands for nothing--not even the Constitution--as you propose. Your call logically extended is nothing less than a call for Martial Law. I reject your false dichotomy and your implied call for a lawless authoritarian government.
6.13.2007 8:15pm
Anderson (mail) (www):
Quite easy from the comfort of our homes to argue standards that when applied outside those homes can be quite dangerous.

Deadly dangerous.


Yeah, pretty easy for those Founders to come up with their Fourth Amendment in the comfort of their own homes, wasn't it?
6.13.2007 8:26pm
BGates (www):
Scote, I think the election in 2008 will go forward - not because Bush doesn't want to stage a coup, but because when he tries he will be slain by the reanimated corpse of William Howard Taft.

Of course, it would be extremely presumptuous of you to dismiss that as irrational.
6.13.2007 8:26pm
OrinKerr:
Scote,

I wonder, though, aren't you fear-mongering, too? You want us to ignore quaint techninalities and instead make sure we fight 100% against the evil enemy that threatens us. It's just that your evil enemy isn't al Qaeda, it's the Bush Administration.
6.13.2007 8:27pm
Harry Eagar (mail):
scpte scolds 'The VP calling the Geneva Conventions "quaint." '

How about 'useless'?

The conventions have never protected a single US soldier in Asia.

An attractive idea, I suppose, that didn't work out in practice, like, say, compassionate conservatism.

To be prating about the Geneva Conventions at this late date suggests somebody hasn't been paying attention.
6.13.2007 8:27pm
Garth:
The President of the supreme court of Israel, Aharon Barak, in deciding that torture could not be justified even for purposes of securing information that might prevent terrorism, wrote the following lines: "[It] is the destiny of democracy that not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they [add to] its strength..."

Where stand ye... ?
6.13.2007 8:37pm
Mark Field (mail):

The Administration is asserting that it has the right to hold people forever on just their say so. That is the kind of power the Constitution was explicitly designed to limit.


Not just the Constitution. Some of us thought this issue was settled by the Petiton of Right (1628). The fact that we have to re-litigate the Five Knights Case is disgraceful.
6.13.2007 8:37pm
c.f.w. (mail):
OK thinks like an electrical engineer/lawyer, which is good and helpful and laudable. But he can do more, perhaps.

I suggest OK should think about developing an alter go, say KO, who thinks like a historian/economist/management consultant. See the Marginal Revolution blog - good use of alter ego.

Also, why not think about "overnight" costs as well as real time costs (as folks do when pricing nuclear power plants). Avoid procrastinating, asking for 3 more FU's (Atrios - 6 months is an FU - Friedman Unit).

Thinking like KO, and in an "overnight" time frame, KO might consider why not use the $40 billion/year and 110,000 folks in the DOJ as the point agency for squashing AQ, Taliban, etc? DOJ seems much more right-sized than having the DoD as the lead agency.

Picture a modern Alexander Hamilton as head of the DOJ tomorrow, focused on squashing terrorists, with A Gonzalez just a bad memory. (See Ron Chernow's bio of AH, which is quite good.)

If the KO arguments are easier and simpler and more compelling, maybe OK should make room and synthesize them into the OK view.
6.13.2007 8:43pm
scote (mail):

BGates (www):
Scote, I think the election in 2008 will go forward - not because Bush doesn't want to stage a coup, but because when he tries he will be slain by the reanimated corpse of William Howard Taft.

Of course, it would be extremely presumptuous of you to dismiss that as irrational.

Hmm...let me see...I suggested that we should be cautious about an Administration with an undeniable authoritarian tilt, a proven disregard for civil liberties and open government. You propose a scenario where a 94 year-old-corpse comes to life. You are brilliant! That is the perfect logical comparison!
6.13.2007 8:46pm
scote (mail):

OrinKerr:
Scote,

I wonder, though, aren't you fear-mongering, too? You want us to ignore quaint techninalities and instead make sure we fight 100% against the evil enemy that threatens us. It's just that your evil enemy isn't al Qaeda, it's the Bush Administration.

Well, that is a nice way for you to respond to me while completely ignoring the Constitution, the Bill of Rights and Habeus Corpus--all in the guise of a Socratic question.

I think the question of what constitutes fear mongering is a legitimate one, and yet I am disappointed that you invoked it as a substitution for a discussion of the other issues in this thread, chief among them the unilateral usurpation of the most fundamental individual right the Constitution offers, the right to to challenge your arrest and detention by the government.

I'd be happy to have a discussion of what is and isn't fear mongering if I didn't think that you are using it as a distraction from more fundamental issues in this thread. I'm disappointed that when you finally decided to address the bigger picture you punted.
6.13.2007 8:56pm
scote (mail):
Errata:
Sorry, BGates, that should have read, a "scenario where a 77 year-old-corpse comes to life."

That is a much better comparison. I regret mocking your analogy because of my incorrect date of demise for Taft, if I'd known he'd only been dead 77 years I'd have been forced to realize that your comparison really was brilliant. I regret the error.
6.13.2007 9:02pm
OrinKerr:
Scote,

I've devoted about 15 hours over the last three days to substantive discussions of these threads: I haven't tallied it up, but i would guess that I have responded to about 25 or 30 different critical comments on the merits. And that's not counting my posts that were themselves responses to criticism. Given that, it seems rather odd to accuse me of trying to change the topic in a clever scheme to avoid discussing the merits.
6.13.2007 9:02pm
scote (mail):

OrinKerr:
Scote,

I've devoted about 15 hours over the last three days to substantive discussions of these threads: I haven't tallied it up, but i would guess that I have responded to about 25 or 30 different critical comments on the merits. And that's not counting my posts that were themselves responses to criticism. Given that, it seems rather odd to accuse me of trying to change the topic in a clever scheme to avoid discussing the merits.

I wouldn't accuse you of avoiding the case, but as a law professor you seem, understandably, to be interested in these threads in how individual puzzle pieces fit rather than the the overall picture. My general comments are, I think, inherently less interesting to those who speak with a deep knowledge of the law, as you do. And yet, for all of your depth and acumen I find your socratic distance in these threads frustrating. Your actual opinions are very limited and very specific. I've yet to see you weigh in with any larger philosophical opinion on the subject in this thread or in any recent thread, though I do not propose my ignorance of evidence as evidence of ignorance.

So, while you may have dealt with the Al-Marri case at great length, it also feels like you've dealt with it at great distance. Thus, your query to me seemed like a distraction from the main thread since my reference to fear mongering--a legitimate one, I think--was mean to call attention back to the more fundamental issue of Habeus being a fundamental issue. Second, I do not feel that a discussion as to what constitutes fear mongering would answer any questions about whether Habeus is a fundamental right upon which all other individual rights are contingent upon. Thus, while interesting, such a discussion could be immaterial to a discussion of Habeus.

It is almost the rule in argument that people take one small issue, material or not, and pounce on it rather than answer more substantive arguments. That is what your question of "Fear Mongering" felt like to me. I don't suggest that such rhetorical devices are completely inappropriate, but neither do I feel that they should not be pointed out when used.
6.13.2007 9:25pm
Moneyrunner43 (www):
The Constitution is a “living document” that must be understood in view of the evolving understanding of the American people.

No, the Constitution is as fixed and immutable as the stars.

Strangely enough, in the current political climate, positions can and do change in a heartbeat depending on the issue under discussion.

In declaring the death penalty for tens of millions of babies, and making the maternal womb the most dangerous place for a child to be, the living, breathing document exuded emanations of penumbras (or was it the other way around)?

In deciding who is an enemy combatant, the 19th century definition of warfare must be strictly adhered to or we will live in a Fascist police state designed by BushHitlerCheney forever.

Decisions regarding military tactics are determined by the Washington legal staff of the Defense Department and the CIA. And decisions as to who is a soldier fighting on the side of Islam is determined by the 4th Circuit Court.

We are truly screwed.
6.13.2007 9:50pm
OrinKerr:
Scote,

I appreciate the response. But note that I was just responding to your comment, in which you wrote in response to Kazinski:
Fear mongering. That's what you are doing. 'Sure rights are "noble" but you'll all die if you insist on having them!"
I then asked you if you were doing the same thing as you accused Kazinski. Why did I ask that? I asked that because it seems to me that the emotional sides of this argument are governed by fear. At the outer extremes, one side is governed by fear of Al Qaeda and the other is governed by fear of the Bush Administration. My concern is that neither of the two sides are actually thinking, at least nearly as much as they should be. If all you do is based on fear, you're not looking at the facts and using your common sense. But it seems to me that these issues could benefit a lot more from detachment and common sense than fear.
6.13.2007 9:55pm
Garth:
the left is not governed by fear on this issue. it's governed by a sense of righteous outrageous that American Justice has been so perverted. And perverted in ways that are blatantly obvious to anyone not looking at them through a microscope.

Yes, Al Queda is dangerous and needs to be dealt with, but are we willing to allow any President the power to improperly detain innocent world bystanders.

Bush is simply pissing in the wind if he truly believes he is taking actions to make America safe.

The failure of people to see that is exasperating.

It's not fear mongering.

It's your neighbor saying your house is on fire while you calmly assure him Herr Busch is on the way.
6.13.2007 10:05pm
Mark Field (mail):
scote, I'm on your side on the substantive issue, but I think you're wrong in your challenge to Prof. Kerr. You're proceeding on the (implicit) assumption that there is only one right way to approach this issue. While my own approach happens to be yours, that doesn't mean that everyone gets to the conclusion the same way.

Prof. Kerr has repeatedly demonstrated that he is very fair-minded and thoughtful in his approach to issues. If he wants to take a different route, I think we can all accept that it's just his way of analyzing an issue.
6.13.2007 10:07pm
Garth:
OTOH, the right is clearly deathly afraid and ready to trade liberty for security.
6.13.2007 10:07pm
scote (mail):

I appreciate the response. But note that I was just responding to your comment, in which you wrote in response to Kazinski:
Fear mongering. That's what you are doing. 'Sure rights are "noble" but you'll all die if you insist on having them!


I've never disputed that a discussion of what constitutes fear mongering is a legitimate one. Unfortunately it is difficult constrain argument entirely to dispassionate logic in these forums, though I imagine such is more a matter of self discipline that impossibility.

Now, what should I have said to Kazinski? He was, I think, invoking the "we need to sacrifice freedom for security argument." I attempted to clarify his argument by logical extension to make it easier to attack. Done wrong, this can be considered a straw argument. Done right, it is proof by contradiction.

While I do think it is legitimate to question my method of argumentation I don't think that my extension of Kazinski's argument was fear mongering. I think you would have had a stronger case if you had suggested that my questioning the surety of presidential succession was fear mongering. And yet I don't know if that was fear mongering either. But you certainly could argue the case.



http://volokh.com/posts/1180291204.shtml#222603
6.13.2007 10:13pm
scote (mail):

scote, I'm on your side on the substantive issue, but I think you're wrong in your challenge to Prof. Kerr.

Well, I think I'd have to agree with you that arguing with OK is a loosing proposition.

It isn't that I don't think he's fair minded, though, but I do think he deliberately avoids taking the larger philosophical stances when he posts these threads.


At the outer extremes, one side is governed by fear of Al Qaeda and the other is governed by fear of the Bush Administration. My concern is that neither of the two sides are actually thinking, at least nearly as much as they should be. If all you do is based on fear, you're not looking at the facts and using your common sense. But it seems to me that these issues could benefit a lot more from detachment and common sense than fear.

And yet that is what frustrated me by your query. I had posited that Habeus was fundamental to all other individual rights and that we surrender it at our peril. You chose to ask me about fear mongering alone, not "Are you fear mongering? I think that would be bad if you were. And I think Habeus is good/bad/complicated/irrelevant..."

What I suggested would happen has happened. The issue of Habeus, has fallen from your discussion with me. I've consistently agreed that the issue of fear mongering is a legitimate topic discussion. And I've yet to hear you respond with any kind of general opinion on the matter of the suspension of Habeus. The little orphan URL at the end of my last post refers to a similar situation, where there was a general question outstanding, you asked me to clarify my question and you never responded. Now, I don't think you are obligated to respond to all questions, mine or anyone else's, but I'd still like to know your general opinion on whether the incremental erosion of Habeus Corpus is a good idea for the US.
6.13.2007 10:25pm
Mark Field (mail):

I think I'd have to agree with you that arguing with OK is a loosing proposition.


I don't agree. This isn't a discussion with John Yoo. There are times when it's right to challenge someone directly, but there are also times when patience is a virtue. I just think this is one of the latter.
6.13.2007 10:41pm
scote (mail):

I think I'd have to agree with you that arguing with OK is a loosing proposition.


I don't agree. This isn't a discussion with John Yoo. There are times when it's right to challenge someone directly, but there are also times when patience is a virtue. I just think this is one of the latter.

I may have given the wrong impression. I was attempting to suggest that OK was very clever and knowledgeable rather than meaning he was unswayable.
6.13.2007 10:48pm
OrinKerr:
Scote,

Well, obviously, habeas is very important. It's an extremely important right. But the precise scope of the writ and its meaning as a matter of history has always been extremely unclear; very few of the boundaries were ever tested. Given that, I'm not sure I know what it means to say that habeas is being incrementally eroded. Which erosion do you have in mind? Take habeas jurisdiction at Gitmo. Gitmo was opened because based on pre9/11 precedents, it looked like there was no writ at Gitmo. But the Supreme Court in Rasul ignored that precedent and decided to expand the writ to cover Gitmo. Congress then tried to narrow the writ so it excluded Gitmo; and which side will win out remains unclear. So was the writ eroded? It's kind of hard to say, as it depends on pretty unclear baselines. More broadly, what's the significance of claims of executive power if the judicial branch keeps checking them? What's the baseline: what the executive claims? What the judicial branch says? How Congress responds? I guess if you could be more precise in your questions I could be more sure of how to answer. But as it is, I find it hard to even understand what question you're asking.
6.13.2007 10:51pm
Bob from Ohio (mail):
Wikipedia as an authority! For liberals sure. They write it.

What is that old saying, garbage in, garbage out.

Scote, when you say:


Are you really trying to argue that the two circumstances are directly comparable? To do so would be to ignore the plain facts. I don't recall, for instance, the Clinton Administration suspending Habeus nor asserting in his signing statements that his "Commander in Chief" powers allowed him to secretly ignore any law of his choosing.



You are just showing your irrationality.

President Bush has done neither thing. Congress has chosen to restrict habeas rights for alleged terrorists, not the President. Point to any signing statement where President Bush has said any such thing. You can't do it.

As for President Clinton: Ruby Ridge, Waco, Elian Gonzalez. Many people thought these things were bad too. That is why they foolishly thought he would stage a coup. It is equally foolish to think that President Bush would seek to annul the election. You are in Truther territory.

In the end, I don't have to convince anyone of anything. Your own words do quite the job.
6.13.2007 10:53pm
scote (mail):

But as it is, I find it hard to even understand what question you're asking.

...part of the burden of knowing too much about the subject, I should think. I do thank you for outlining some of the dependencies of the question, though.

Were I a law student, I should think I'd like to do a Habeus timeline which tracks the various ebb and flow of Habeus through time to give the idea a greater context--it has probably been done already, so I guess I have some research to do.
6.13.2007 11:00pm
scote (mail):

Bob from Ohio :
You are just showing your irrationality.

You keep using that word. I do not think it means what you think it means...


As for President Clinton: Ruby Ridge, Waco, Elian Gonzalez


Boy, you really have to reach. Those really don't compare to a string of secret CIA prisons, officially sanctioned torture, secret indefinite arrests without charges or access to council, datamining all Americans call records, warantless illegal wiretaps, etc, ad nauseam.
6.13.2007 11:05pm
Garth:
when comparing OK to John Yoo it helps to define context.

many of the positions advocated by OK are also advocated by John Yoo. John Yoo may not be swayable. i am new here but i see two different distinctions to be drawn.
6.13.2007 11:27pm
Garth:
when people say they don't like wikipedia, i invite them to point out the parts that they disagree with. it helps focus the discussion.
6.13.2007 11:28pm
Garth:
Gitmo was opened because based on pre9/11 precedents, it looked like there was no writ at Gitmo. - OK


i would disagree. i would say that it was only arguable, and not persuasively, and was an attempt to provide the president with the power to indefinitely detain at his pleasure.

based on the founding father's notions of habeus corpus and the unquestioned US domination over Gitmo. it was only arguable that these prisoner's would have no rights.

it was clearly contrary to America's cherished self-image.
6.13.2007 11:32pm
Garth:
if not an attempt, certainly has resulted in, a situation odious to our founding father's sense of justice.

will America put it's money where it's mouth is?
6.13.2007 11:34pm
Mark Field (mail):

I may have given the wrong impression. I was attempting to suggest that OK was very clever and knowledgeable rather than meaning he was unswayable.


As usual, my humor sensor failed to function. Gotcha.


Take habeas jurisdiction at Gitmo. Gitmo was opened because based on pre9/11 precedents, it looked like there was no writ at Gitmo.


That seems to me a fairly narrow reading of the precedents (I assume you refer to Eisentrager, et al.). Leaving that aside, the history and purpose of the Habeas Corpus Act should have signaled the liklihood of a different result. After all, the reason Parliament passed the HCA (1679) in the first place was that Charles II tried to subvert existing precedents by transferring prisoners out of England. The Bush Administration's penchant for adopting Stuart theories of goverment richly deserves a refusal to permit that sort of gamesmanship.
6.13.2007 11:50pm
Justin (mail):
"Wikipedia as an authority! For liberals sure. They write it."

Sure. I always get my Kangaroo info from...

http://www.conservapedia.com/Kangaroo
6.14.2007 12:23am
Anderson (mail) (www):
It's just that your evil enemy isn't al Qaeda, it's the Bush Administration.

Just a tad catty, no?

Wikipedia as an authority! For liberals sure. They write it.

Right. Before you can edit a Wikipedia article, there's a loyalty oath to the Democratic Party.

Re: the "uncertain boundaries" of habeas, there may be a good reason the boundaries are so uncertain; they expand with every effort of the executive to evade the Writ.
6.14.2007 12:33am
scote (mail):

President Bush has done neither thing. Congress has chosen to restrict habeas rights for alleged terrorists, not the President. Point to any signing statement where President Bush has said any such thing. You can't do it.

Fine.


"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

In a Bush/Cheny/Yooian world "unitary executive"+"terrorist fear"=no Habeus. Don't let your head explode or anything.
6.14.2007 12:43am
Kazinski:
Scote:
I am not making the argument that we should sacrifice our liberties for security. I completely reject gun control for instance. What I am arguing is the Bush adminstrations policies for the most part follow settled law. As Orin said they specifically picked Gitmo for the primary terrorist detention center because of previous Supreme Court rulings. Now I do admit that Bush has skirted the law in some troubling ways such as the CIA secret prisons. But their excesses have been in good faith, they are not targeting domestic or foreign critics they are targeting what they believe are terrorists.

While their opponents dream up new rights for terrorists, choose to believe proven liers like the Tipton Three that claim to be innocent victims of torture, loudly and erroneously asserting that Bush is violating settled law, Bush is doing his best to follow the law while keeping us safe.
6.14.2007 12:54am
scote (mail):

While their opponents dream up new rights for terrorists, choose to believe proven liers like the Tipton Three that claim to be innocent victims of torture, loudly and erroneously asserting that Bush is violating settled law, Bush is doing his best to follow the law while keeping us safe.

It would be a lot easier to dismiss claims of torture if we didn't torture. That's one of the many things Bush has done to damage our anti-terrorist efforts. Now when people claim to have been secretly arrested, tortured, flown to Syria and tortured, etc. we can no longer dismiss their claims out of hand.

We need to get back to the time when the US doesn't secretly arrest and detain people indefinitely without charges, illegally spy or torture people, etc. We need the indisputable moral upper-hand so that arse-wipe terrorists can't make believable claims of mistreatment by the US.

I am not making the argument that we should sacrifice our liberties for security. I completely reject gun control for instance.

That is one of the curious conundrums of present-day conservative, anti-gun control and anti-Habeas. I won't claim that that is specifically your position, but it is one that seems common and contradictory.
6.14.2007 1:29am
Andrew J. Lazarus (mail):
It's pretty ironic that Kaczynski rejects gun control. If Pres. Hillary Clinton writes out an order that X is dangerous and his guns are confiscated, he will protest to the hills. But if Pres. Bush writes out an order that X is dangerous and is to be incarcerated and then throw away the key, that's OK.

Which is a lead-in to my remark to OK. I am more afraid of what Bush is doing than what Al Qaeda is doing, and I think that's sensible. Al Qaeda is a vicious terrorist gang, but they aren't as fearsome as the Axis Powers. They kill people, but they don't really change the structure of the world, which has seen the IRA and Hizbollah already. George Bush is making permanent structural changes to the American system of government, and not a single Bush-apologist has dared distinguish a system of imprisonment at presidential whim from standard definitions of a police state. James Madison knew that a state that authorizes the apparatus of tyranny and torture will soon devolve into just that sort of government. Nothing has changed.
6.14.2007 1:35am
Anderson (mail) (www):
Now I do admit that Bush has skirted the law in some troubling ways such as the CIA secret prisons. But their excesses have been in good faith

Why do you believe this? Seriously, no snark intended.

What is a secret prison for, if not to do things that you fear being known?

Damn near everything the Executive has done along these lines -- secret prisons, Gitmo, rigged-up military commissions -- has been to facilitate torture, or to avoid its legal consequences. Even the MCA had to be rushed through the Congress before the 2006 election so that Bush could immunize himself &others from prosecution.
6.14.2007 1:40am
rfg:
Boy, what a thread!

Hard to keep track and remember what started the whole thing but...

In an earlier thread Prof. Kerr described several different situations and invited the reader to place them on a sliding scale from crime to war. I believe he was subtly pointing out the root cause of much of the furor on this subject- are we at war or not?

First- let's not get into the "I can't believe that anyone would not agree it's a war- THEY ARE TRYING TO KILL US ALL!" rhetoric. It's not the point I'm trying to make.

In the past, our wars (formally declared or not, against states or not) were normally fought against a clearly defined enemy and had clear (or at least slightly murky) conditions for victory that all could agree on (the physical destruction of the Third Reich, or the suppression of Phillipine insurgents, to name two examples).

The Geneva Conventions arose over a period of time to codify the behavior expected from both combatants and non-combatants in war.

Criminal law has evolved in the same manner, controlling a society's behavior in the normal course of business.

We have confused the issue by using the term "war" to describe actions that do not fit the criteria I gave above- we are now fighting nouns. From the war on drugs to the war on terror, we use war metaphors and imagery to whip up support, but at the price of adding to confusion. How do you defeat a noun? Who will represent terror at the peace accords? Most importantly, what will victory look like and when will we know we have achieved it?

As a matter of principle, I do not belive you can do battle with nouns. Wars are fought against people. In this case, we are fightimg Al-Queada and similar groups who seek to do us harm. So, which model to we use- the war model, in which almost anything is justified if it will bring victory, or the criminal justice model, where different rules prevail?

Since this is likely to be a long struggle, how we conduct it is extremely important. It will shape who we become as a society, just like the Cold War did. We must find a way to be effective against our enemies without losing who we are.

Prof. Kerr is correct- the war on "terror" raises a huge number of individual legal issues. But, I have to say that narrowly focusing on one issue at a time may not be the best way to look at it. We must look ahead and see where the path we are on is taking us.
6.14.2007 1:40am
Anderson (mail) (www):
It's pretty ironic that Kaczynski rejects gun control

But not bomb control? ;) This is our sparring-mate Kazinski, not the Unabomber.
6.14.2007 1:42am
Anderson (mail) (www):
Since this is likely to be a long struggle, how we conduct it is extremely important. It will shape who we become as a society, just like the Cold War did.

And that was far from being to the good, largely due to our amazing success in matching Soviet paranoia with our own. Good comment, rfg.

And good night all -- but Kazinski, question's still there on the "good faith" issue; I am at a sincere loss on that.
6.14.2007 1:45am
Kazinski:
Anderson:
I'm on the fence about bomb control, I think hand grenades and automatic weapons are clearly arms, but I'm willing to be pragmatic enough about the issue to sacrifice a little principle. You need to be similarly flexible. As Al Gore said:
<blockquote>
"That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass."
- Richard Clarke (Against All Enemies pp. 143-144)
</blockquote>


As for the good faith issue. Bush is clearly targeting those he sincerly believes are terrorists. He is not targeting dissidents nor political opponents. And if you disagree then examples please.
6.14.2007 2:04am
Oren (mail):
Heaven only can protect us from his good faith then.
6.14.2007 2:21am
scote (mail):

As for the good faith issue. Bush is clearly targeting those he sincerly believes are terrorists. He is not targeting dissidents nor political opponents. And if you disagree then examples please.

And if he didn't have secret prisons, secret arrests, indefinite detention without charges or access to council, well then we might be in a position to know if that was true. And that is a circumstance of his own making, and no, he doesn't get the benefit of the doubt.

You don't get points for saying prove the secret prisoners are dissidents.
6.14.2007 2:24am
scote (mail):

Bush is clearly targeting those he sincerly believes are terrorists.

BTW, I should point out that without mind reading ability you are not in a position to know what GWB "sincerely" believes. You can surmise, speculate, posit or whatnot, but I don't have to disprove your contention since you have no actual knowledge that needs to be challenged.
6.14.2007 2:33am
David M. Nieporent (www):
It isn't that I don't think he's fair minded, though, but I do think he deliberately avoids taking the larger philosophical stances when he posts these threads.
Perhaps that's because "larger philosophical stances" are decidedly unhelpful at analyzing specific situations?

Hey, I'll agree with the "Those that would give up essential liberty in pursuit of a little temporary security deserve neither liberty nor security" maxim as fast as, or faster than, the next guy. But it doesn't really provide guidance as to what's "essential liberty," or what's "temporary security," does it? One still needs to apply it, which still requires a specific analysis, not handwaving about how much one loves liberty.




I hope this statement doesn't come off as strawmanish, because it's a serious observation: I wonder what the people who scream about Bush would have been saying about Lincoln. Lincoln did a lot worse than Bush, including suspending habeas corpus for significant numbers of people, declaring martial law, arresting legislators who didn't support him, etc. And yet, I suspect most people who denounce Bush think Lincoln is one of our greatest presidents.

(Of course, one can try distinguishing them in lots of ways; I suspect one response will be that Lincoln was more justified because the Confederacy was a bigger threat than Al Qaeda. A strong case can be made for that position. But once one makes that claim, one has already conceded the "larger philosophical stance"; as the saying goes, we're just haggling about the price.)
6.14.2007 2:36am
jony (mail) (www):
6.14.2007 2:36am
David M. Nieporent (www):
That seems to me a fairly narrow reading of the precedents (I assume you refer to Eisentrager, et al.).
It seems to me to be a fairly direct reading of Eisentrager. I don't see how any person reading Eisentrager could have thought that habeas applied at Gitmo. (Certainly the Court didn't find otherwise; it just claimed that Congress had, without noticing, statutorily extended habeas protection to the detainees at Gitmo.)
Leaving that aside, the history and purpose of the Habeas Corpus Act should have signaled the liklihood of a different result. After all, the reason Parliament passed the HCA (1679) in the first place was that Charles II tried to subvert existing precedents by transferring prisoners out of England. The Bush Administration's penchant for adopting Stuart theories of goverment richly deserves a refusal to permit that sort of gamesmanship.
Again, these people were not "transferred out of England." (Er, the U.S.) They were never here. I think the idea that Parliament in 1679 ever contemplated granting habeas protection to non-British citizens with no connection to the U.K. who were detained by British troops in foreign countries is pretty silly, don't you?

They were trying to prevent Charles from "subverting existing precedents," not trying to extend habeas to a group of people who had never enjoyed it.
6.14.2007 2:39am
Kazinski:
Scote:
I can't read minds, but even the worst (in their minds) examples that Bush's critics bring up, seem pretty cut and dried to me. So rather than imagining the worst, I look at real world cases like Khalid Sheikh Mohommad, David Hicks, Hamdan, Padilla, Al Marri, the Tipton Three, the twelve Uigers, and I shrug my shoulders and wonder what the fuss is about. All of these people are would be jihadists, I feel sorry for the Uigers, all they wanted to do was kill commies, but they picked the wrong friends to help them. Bush is doing the right thing by not handing then over to the Chinese. But giving them asylum here would be going too far, and nobody else is offering to take them.

When I listen to all the teeth gnashing and wailing about these poster child cases, and see plenty of cause for the detentions, and better treatment than they deserve, then I can't take your arguments seriously without concrete examples of real injustices.

Then when you add on top of that hyperventalations about facism, diappearances, and fevered imaginings about canceled elections and coups, and not only can I not keep a straight face, I'm rolling on the floor cackling about how seriously you take yourself.
6.14.2007 3:20am
scote (mail):

I'm rolling on the floor cackling

"Nuff said.
6.14.2007 3:59am
ATRGeek:
This is what I think Orin either doesn't understand or doesn't appreciate the gravity of:

The Administration has a pretty standard approach to avoiding the rule of law. What they do first is break the law in secret. If their lawbreaking is discovered, they claim that they didn't really break the law, and that anyone who says otherwise is just trying to "criminalize" politics (or words to that effect, like that whether or not they broke the law is a "political question", or simply daring anyone who wants to stop their lawbreaking to impeach the relevant parties).

As part of this quasi-defense of their lawbreaking, they throw out legal chaff, arguments designed to confuse the legal issues. Frequently these arguments misstate the facts of the case in question or rest on contrived hypotheticals, and of course they usually misstate or simply ignore any legal authorities (statutes, treaties, cases, etc.) that would be inconvenient for the argument in question.

This legal chaff is propagated by the Administration proper and also through the talking points distributed to loyal members of Congress, the mainstream press, the blogosphere, and so on. Again, the purpose of this legal chaff is not to present a meritorious legal argument, but rather to confuse the public discussion about the Administration's lawbreaking to the point that the public loses all hope that they can understand the legal issues involved. At that point the Administration and its watercarriers will start claiming it has been "proven" that no laws were broken, and that everyone who is still talking about it is just a sore loser and they should move on to more important business.

So what is Orin's role in all this? Basically, he has a habit of taking the legal chaff seriously. Of course, in the end he may end up having some criticisms, but as he is a law professor, it takes him a while to get there, with a lot of Socratic back-and-forth along the way. And for similar reasons, he is perfectly willing to consider the contrived hypotheticals (or contrive some of his own), rather than the actual facts. And perhaps most importantly, Orin tends to prefer cautious, limited, and dispassionate criticisms, which fit with the academic preference for being objective and nonpolitical. Note that this is precisely the goal of this stage of the Administration's lawbreaking strategy: they want to create the impression that anyone who criticizes their lawbreaking in unqualified and stark terms is being unreasonable and political.

Now, I am sure that in Orin's mind the end goal of his analytic process is to arrive at a reasonable resolution of the legal issues raised by the Administration. But that is not the Administration's goal: again, they just want to create confusion for long enough until they can declare victory and demand that everyone move on. And Orin is inadvertently helping them do that by taking their legal chaff seriously.

I'll end with an analogy. I once read that scientists were particularly susceptible to con jobs and scam artists, in large part because they were overly confident in their ability to draw conclusions from their observations, relatively receptive to rejecting conventional wisdom in light of new data, and accustomed to approaching problems in isolation from their practical context. I think of Orin as the scientist in this analogy: as a law professor he is like a scientist of the law, and when it comes to legal issues he shares the attributes that I listed above. And I believe that in these cases, he is inadvertently furthering a legal scam being run by unscrupulous people (people who are perfectly willing to consciously manipulate people like Orin in order to avoid the rule of law).
6.14.2007 7:43am
markm (mail):
Second, even if you agree with the comenter's view of the Bush Administration, it's not like the Bush Administration will be around forever.

Orin, that's what worries me most. I don't see Bush using lettres de cachet against political enemies, from lack of imagination if not from scruples, but how about future Presidents?
6.14.2007 8:58am
Anon. Lib.:
I want to thank OK for taking my (quickly tossed off) comment so seriously. To my mind, it demonstrates why I read him every day even though I disagree with most of his views. In this thread, I think other commenters --- especially Scote, Katherine, Anderson and ATRGeek --- have detailed the sources of my frustration with OK's views much better than I am able.
6.14.2007 9:50am
ATRGeek:
By the way, I agree with markm and the other posters who have suggested that setting precedents for the next President (and future Presidents after that) is a big part of the problem (indeed, I have people in mind in both parties whose Administrations I would expect to abuse these powers as much or more than the current Administration).

And again, I think Orin is subject to overlooking this problem because he has a tendency to think of precedents as something courts make. But in this context, a precedent can also be set simply by the Administration breaking the law and then nobody doing anything to actually hold them responsible for their lawbreaking.
6.14.2007 9:58am
Andrew J. Lazarus (mail):
As for the good faith issue. Bush is clearly targeting those he sincerly believes are terrorists. He is not targeting dissidents nor political opponents.
Amazingly enough, all sorts of dictators, big and little, said, and maybe even sincerely thought that they were just targeting the terrorists. I don't think you'll find even Hitler and Stalin saying they were going after political opponents for their own sakes, but instead were protecting their nations from someone dangerous to its security.

Luckily, for our first 200-plus years, the USA had a system of checks and balances which were intended to minimize the need for good faith in the officials. I'll quote Federalist 51 (Madison) yet again.
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Bush has a history of replacing formal structural protections given by law with "trust me" arguments to his own good, Christian faith. Not the American way. Not at all the American way.
6.14.2007 11:26am
Anderson (mail) (www):
Prof. Kerr's comment at The Real Anonymous Liberal's blog is interesting:

As I explained in my e-mail to you, I agree that the Patriot Act argument is a possibility (as we should say, in fairness, the jurisdictional argument is a possibility for the government, although I haven't looked at it closely). But it's not an obvious winner, because it doesn't state that it is an exclusive claim of authority. It gives the AG a specific set of powers to do something if the AG wants to, but (unless I a missing something -- always a possibility) it doesn't say if other branches of government should be deemed by default to lack powers that otherwise may exist but cover similar ground. Perhaps it should be read that way; that's certainly plausible. But I think it's also plausible to say that it's a limit on when the DOJ can detain someone, and doesn't interfere with the authority of other branches to detain individuals based on other authorities such as the AUMF. Given that, I tend to think the Supreme Court will treat the Patriot Act much like it has treated jurisdictional limitations Congress has tried to impose.

I think the underlying assumption here is that the Court will *want* the Executive to have this power of unilateral, indefinite detention, or at least be indifferent to it.

What the 4th Circuit opinion looks like to me, is the work of two judges who share Greenwald's view -- this kind of power simply cannot exist in America, being contrary to the fundamental values of the country from 1776 onwards. They then try fairly hard to find some non-constitutional arguments in their favor -- while clearly signalling where they think the constitutional answers lie.

If five justices on the Supreme Court feel the same way, then affirmance is quite possible. It would be particularly amusing if Scalia joined Kennedy &the "Fab Four" in refusing to grant cert. (Assuming that the en banc court either refuses the appeal or affirms the panel decision ... a big assumption.)

When you're dealing with the big questions, starting from the trees rather than the forest is not always the only valid approach. Presidential authority to detain anyone, anywhere, indefinitely, is a pretty big question.
6.14.2007 12:02pm
Crust (mail):
Orin, any thoughts on Anonymous Liberal's argument about Section 412 of the Patriot Act?

Though apparently never before used, Section 412 effectively allows indefinite detention without charge, subject only to a certification every six months by the Attorney General that national security is at stake. Given this statutory route authorized by Congress, I don't see any even arguable excuse for continuing to detain Al-Marri without charge outside of it. Do you?
6.14.2007 12:14pm
Anderson (mail) (www):
Crust, I failed to link the comment from Kerr in my last comment above, but q.v.

Here's a fun quote from Hannah Arendt, btw, via Scott Horton:

And though tyranny, because it needs no consent, may successfully rule over foreign peoples, it can stay in power only if it destroys first of all the national institutions of its own people.

That would be The Origins of Totalitarianism, which it appears someone in Cheney's office is using as a how-to manual.
6.14.2007 12:21pm
srg:
When as knowledgeable a person as Orin Kerr says he doesn't know enough about many of the legal cases to have an opinion on them, it puts into an interesting context the knee-jerk reactions of many politicians, journalist blowhards (and many of my friends and acquanintances) who think they have a sensible (and righteous) opinion on just about every one of these issues. I don't mean to be cavalier about some of the worst excesses of the Bush administration, but everyone should try - like Oren - to calm down a bit.
6.14.2007 12:27pm
Crust (mail):
Thanks, Anderson. I posted my comment before seeing your earlier comment. It looks like Orin and (the original) Anonymous Liberal already went back and forth a bit on this in that older comment thread at A.L.'s place you linked to.
6.14.2007 12:30pm
Anderson (mail) (www):
srg, your point is well taken -- to a point.

But let's mark the boundary. If the president says that his Article II powers entitle him to conduct the human sacrifice of Nancy Pelosi, at the World War II memorial, then we don't have to look at the cases; we don't have to debate with John Yoo; etc. We know he can't do that.

Now, perhaps you disagree, in which case, I think we're at an impasse. But perhaps you do agree.

In which case, the question before us is: when the President claims to have the unreviewable power to grab a citizen or resident alien, in the U.S., declare him an "enemy combatant," and hold him indefinitely without charge or trial ... is that a remotely plausible claim, or is it obviously a tyrannical power that can't possibly belong to the President under our system?

Plainly, from our various comment threads, people disagree about this -- I don't know how that's possible, but evidently it is.

But to those of us who find that blindingly obvious, we're not terribly interested in the possibility that John Yoo or Orin Kerr might be able to produce an argument that why, yes, the President *can* do that after all ... any more than we would pay attention to their arguments that human sacrifice is part of the executive's Article II powers (with citations to Roman consular powers, etc.).
6.14.2007 12:47pm
Mark Field (mail):

Lincoln did a lot worse than Bush, including suspending habeas corpus for significant numbers of people, declaring martial law, arresting legislators who didn't support him, etc. And yet, I suspect most people who denounce Bush think Lincoln is one of our greatest presidents.


Except that Lincoln didn't actually do "worse than Bush" at all. For one thing, he didn't torture anyone. On a scale of 1-10, I'd say that gives Lincoln roughly a 1000 point lead over Bush.

Then there's the small detail you left out: there was a suspension of the writ of habeas corpus, and one that took place under exactly the circumstances prescribed by the Constitution. When the Writ is suspended, we lose our rights; that's the whole point of suspending it. From a strictly legal and Constitutional standpoint, then, Lincoln had justification for his actions, Bush does not.

Finally, even with the writ suspended, Lincoln didn't claim the right to detain people indefinitely without charges. He was fighting a traditional war which would have an end one way or the other. Bush claims he is fighting a war against a tactic. Indefinite detention during the Forever War counts as much worse than any power Lincoln ever claimed.


Again, these people were not "transferred out of England." (Er, the U.S.) They were never here.


That's a tad disingenuous on at least two counts: Gitmo is "here" for all reasonable purposes; and the transfer, as in was the case in 1679, was for the express purpose of dodging habeas.


I think the idea that Parliament in 1679 ever contemplated granting habeas protection to non-British citizens with no connection to the U.K. who were detained by British troops in foreign countries is pretty silly, don't you?


I think any Parliament, then or now, would have been outraged if it thought the British Army detained people (good, Christian, white people in those days, of course) without cause.
6.14.2007 12:48pm
Just an Observer:
I don't happen to agree with Orin's opinion that the Hamdi precedent reaches to include Al-Marri. And that's okay. I also do not join the chorus of those who excoriate the professor for being insufficiently mobilized against many of President Bush's extreme actions in the "war on terror," even though I have come to be so mobilized myself. There is a place for dispassionate analysis, and I am glad someone like Orin occupies that place.

The frustrating thing to me about Orin's last big post on the merits was that, while he expanded his original hypothetical into an interesting range of Socratic hypotheticals, he never responded substantively to questions such as those posed to him previously by Marty Lederman in the prior thread.
6.14.2007 12:51pm
srg:
Anderson, can you justify your conflation of John Yoo's and Orin Kerr's positions? I don't think they are the same at all. I would be interested in seeing your answer to this. If you cannot justify your statement, then perhaps you owe Orin an apology.
6.14.2007 12:55pm
srg:
Anderson, just to make my position clear, I agree with you that "when the President claims to have the unreviewable power to grab a citizen or resident alien, in the U.S., declare him an "enemy combatant," and hold him indefinitely without charge or trial ... is that a remotely plausible claim, or is it obviously a tyrannical power that can't possibly belong to the President under our system?"

But the Hamdi case has already gone against Bush on this, and Orin has clearly opposed the Bush position.
6.14.2007 12:57pm
Anderson (mail) (www):
There is a place for dispassionate analysis, and I am glad someone like Orin occupies that place.

I think I've been clear enough that I agree w/ JaO on that, but it never hurts to repeat oneself. It's more provocative, and generative of long comment threads, when someone you respect disagrees with you; because that raises the possibility that, hey, you may be wrong ....
6.14.2007 12:59pm
Anderson (mail) (www):
Anderson, can you justify your conflation of John Yoo's and Orin Kerr's positions?

I'm not conflating them; I said that the *possibility* of an argument by Yoo (who is not to be taken seriously) or Kerr (who is), is not persuasive, where the argued-for result is absurd. (Let's just say that if John Yoo had a blog, I wouldn't be posting comments on it; I am not usually one of those who amuses himself on the comment threads at PowerLine or Althouse.)

Prof. Kerr himself has yet to *argue* for anything other than the likelihood that the Supreme Court would reverse the panel decision, tho on somewhat sketchy grounds I think. He has not said that he would agree or disagree with the Court if it did so. Or did I miss that?
6.14.2007 1:14pm
Kazinski:
Anderson:

In which case, the question before us is: when the President claims to have the unreviewable power to grab a citizen or resident alien, in the U.S., declare him an "enemy combatant," and hold him indefinitely without charge or trial ... is that a remotely plausible claim, or is it obviously a tyrannical power that can't possibly belong to the President under our system?


Roosevelt was the first president that successfully claimed the right to declare civilians enemy combatants and subject them to military justice, he was upheld by the Supreme Court. Roosevelt had the worst human and civil rights record of any president in our history. Yet he is on the dime, and the most venerated president of the 20th century. Different rules apply in wartime, and Bush has been scrupulous about directing those powers against exactly the targets Congress intended when they authorized the use of force.
6.14.2007 1:18pm
srg:
Kazinski,
Roosevelt did not hold citizens indefinitely, and as far as I know he did not claim that right. However, his detention of Japanese citizens does seem to me far worse than anything Bush has done (though not worse than what Bush claims the right to do), and it is amusing to see the reactions of some liberals when this is pointed out ("times have changed," etc.).

As for Bush's being scrupulous, we don't really know this; that is why alleged terrorists have the right to hearings to determine whether they are in fact what the Bush administration claims them to be.
6.14.2007 1:26pm
Mark Field (mail):

However, his detention of Japanese citizens does seem to me far worse than anything Bush has done (though not worse than what Bush claims the right to do)


Clearly true, with the caveat that FDR didn't (to the best of my knowledge) authorize or support torture. It's hard to weigh abuses; how many people need to be locked up in order to equal one torture victim?
6.14.2007 1:38pm
Kazinski:
Mark Field:
Don't be naive, what is now called torture was so commonplace during WWII that it wasn't worthy of comment. Do you think the CIA/OSS developed all these techniques and expertise out of thin air? Haven't you heard stories from Vietnam about CIA interogation tactics there? None of that was happening in a vaccum. The Clinton adminstration pioneered extrordinary rendition and torture by proxy.

Simple fact is conditions in Guantanamo are better than they are in most US prisons, and when you have State Attorney Generals highligting the fact that rape is part of routine incarceration, then its hard to get too concerned about belly slaps and waterboarding.
6.14.2007 1:57pm
Andrew J. Lazarus (mail):

Don't be naive, what is now called torture was so commonplace during WWII that it wasn't worthy of comment.
I don't know if we commented on Japanese waterboarding of POWs, but it was one of the counts for which we hanged a war criminal.

Oooooops.

Next: Although the internment of the Japanese was a heinous error, their conditions of confinement were much better than Gulagtánamo, much less the secret prisons. Also, within three years SCOTUS had wised up to the extent they did not permit further internment of anyone who had been determined to be loyal (Endo).

Kazinski, whom I do suspect is a troll, has never found any structural difference between Bush's notions of justice and the garden-variety police state. His omission is not inadvertant.
6.14.2007 2:22pm
srg:
Lazarus, I find it useful to refuse discussions with people who compare Bush or Sharon to Hitler or, in your case, use words like "Gulagtanamo." This policy has served me well. Incidentally, have you ever read Solzhenitsyn?
6.14.2007 2:25pm
Mark Field (mail):

Don't be naive, what is now called torture was so commonplace during WWII that it wasn't worthy of comment. Do you think the CIA/OSS developed all these techniques and expertise out of thin air?


No, I think they learned those techniques from the people we hung as war criminals for using them.

Torture did happen in WWII, just as it has happened many times in many places. But it wasn't official US policy, ordered by FDR.
6.14.2007 2:38pm
Steve H (mail):

I find it useful to refuse discussions with people who compare Bush or Sharon to Hitler or, in your case, use words like "Gulagtanamo." This policy has served me well.


I don't doubt that you find it useful -- it's easier than trying to explain how the powers Bush claims (to lock anyone up for any reason for as long as he wants) are different from the power claimed by dictators.

(I shouldn't have to do this, but I know from experience that the following disclaimer is necessary: I am not saying, and I don't believe, that Bush is comparable to Hitler/Stalin/Pol Pot/Mao/etc. I am not saying, and I don't believe that Bush's actions are comparable to the actions of those dictators. But given the legal justifications given by the Bush Administration for the actions it has taken, there are basically no limits to the powers Bush claims.)
6.14.2007 2:52pm
Anderson (mail) (www):
No, I think they learned those techniques from the people we hung as war criminals for using them.

Heh, but in fact, they seem to be based on Soviet techniques (as I suspect Mr. Field in fact knows). Starting in the 1950s, the CIA became very interested in how the Soviets were "brainwashing" their victims, and set about finding out how to do so. This learning went into two endeavors: the SERE courses for resisting interrogation, which we've now reverse-engineered into torture manuals, and the KUBARK line of torture techniques.
6.14.2007 2:58pm
srg:
Steve H,
You are setting up a straw man. I have already written that I strongly oppose the powers Bush is claiming, and I agree that those powers could be, depending on how they were implemented, dictatorial. My statement was that I refuse to talk to people who use words like "Gulagtanamo," and similarly I refuse to talk with people who see no difference between the Gulag and Guantanamo. I would like to assume that you are not one of them.
6.14.2007 3:08pm
Andrew J. Lazarus (mail):
srg, there are of course differences between the Gulag and Guantanamo. It is much warmer in Guantanamo, except when detainees are put near-naked in refrigerated rooms. As far as the conditions in the CIA's secret prisons, we don't know.

There are, unfortunately, no differences between the police state model of arbitrary detention championed by Bush and the police state model of arbitrary detention championed by Saddam, Stalin, Hitler, and dozens of less notorious dictatorships. I am simply calling a spade a spade: The philosophy of the Bush Administration is fundamentally anti-American, and the fact we are having a serious discussion about turning our backs on the Bill of Rights is nothing short of alarming.
6.14.2007 3:37pm
scote (mail):

Lazarus, I find it useful to refuse discussions with people who compare Bush or Sharon to Hitler or, in your case, use words like "Gulagtanamo." This policy has served me well. Incidentally, have you ever read Solzhenitsyn?

Generally a good policy if applied equally both ways. Invoking controversial comparisons cans stifle constructive dialogue.

Unfortunately, sometimes the comparison needs to be made. Civil Rights are lost incrementally, so pre-war germany is a legitimate area of history to learn from so that we may avoid their example. It was telling an disturbing to find that the germans also invoked the mantle of "enhanced interrogation" methods, a way of torturing people that wouldn't leave visible marks on the victims. I could go on with other equally valid examples, but I don't wish to invoke your automatic filter.

To ignore valid and relevant comparisons is to give up the ability to learn from the mistakes of history. I would not be so quick to surrender one of humanities most powerful tools, our virtual collective conscience.
6.14.2007 3:42pm
Crust (mail):
AJL:
There are, unfortunately, no differences between the police state model of arbitrary detention championed by Bush and the police state model of arbitrary detention championed by Saddam, Stalin, Hitler, and dozens of less notorious dictatorships.
That's absurd hyperbole. The Bush administration has done and is doing a lot of bad things. But I don't understand the need to say their actions are as bad as the worst of humanity.
6.14.2007 3:49pm
scote (mail):
I'd like to second ATRGeek's summary of the Bush Administration's methodical lawbreaking. Hide, Obfuscate, Bluster, pull the patriot/fear card.

I think OK makes the mistake of thinking that there is a level playing field. The Administration has been busy trying to turn the DOJ and the GSA into political arms, even going so far as to propose that all governmental departs should have a new political officer attached to them.
6.14.2007 3:52pm
Anderson (mail) (www):
There are, unfortunately, no differences between the police state model of arbitrary detention championed by Bush and the police state model of arbitrary detention championed by Saddam, Stalin, Hitler, and dozens of less notorious dictatorships.

Crust et al., please read Mr. Lazarus closely. Bush claims the power to imprison *anyone*, on his unreviewable say-so, indefinitely, where that person can be interrogated by methods that before 9/11 we considered hallmarks of tyranny. All because that person is said to be an enemy of the state.

Really, he does. If you disagree, please explain your basis for doing so.

The difference, and it's a large one, is the range of application of this power. Bush has done this to only a few people, even fewer of whom were U.S. citizens.

But Mr. Lazarus spoke of the *model*, which I take to mean the rationale and apparatus. On that understanding, he's correct.

(I do think that comparisons to Hitler, the Gulag, etc., are rhetorically questionable, since we usually end up arguing extraneous points. However, when the President of the United States argues that he has powers like those normally associated with dictators, then it's worth remembering what kinds of regime that Bush is confusing America with.)
6.14.2007 4:00pm
scote (mail):

Crust (mail):
That's absurd hyperbole. The Bush administration has done and is doing a lot of bad things. But I don't understand the need to say their actions are as bad as the worst of humanity.

I'm not sure you understand the point. It isn't that the Bush Administration is as bad as the worst dictatorships of past and present but that its working to change the structure of our government so that it no longer has the safeguards against tyranny that the Constitution was specifically created for.

I think you should read, or at least read about, the Lucifer Effect by Prof. Philip Zimbardo. When you create a structure that diffuses responsibility, allows conduct to occur secretly and without oversight, you create a structure that encourages abuse. What happened in Abu Ghraib wasn't a personnel problem, it was a structural problem. Virtually anyone can do evil given the right structure. The psychological experiments to this effect are stunning.

The Bush Administration is creating a larger version of that structural problem by removing the restrictions, oversight and transparency of our government. That is the most important aspect of what he is doing, not the examples of the evil that has already happened under the beginnings of this structural change.
6.14.2007 4:03pm
srg:
Anderson et al.,

I don't think that, after the Hamdi decision, it is accurate to say that the Bush administration is still claiming the right to detain anyone, even citizens, indefinitely with no oversight whatsoever. I have not heard the Bush administration claim that it will disobey the Supreme Court, nor is there any evidence that it will do so.
6.14.2007 4:06pm
Anderson (mail) (www):
I don't think that, after the Hamdi decision, it is accurate to say that the Bush administration is still claiming the right to detain anyone, even citizens, indefinitely with no oversight whatsoever.

Is that not what it claimed in the Padilla case, right up to the verge of briefing the argument before the Supreme Court?

See Al-Marri, slip op at 63-64:

The Government maintains that the President’s “war-making powers” granted him by Article II “include the authority to capture and detain individuals involved in hostilities against the United States.” In other words, according to the Government, the President has “inherent” authority to subject persons legally residing in this country and protected by our Constitution to military arrest and detention, without the benefit of any criminal process, if the President believes these individuals have “engaged in conduct in preparation for acts of international terrorism.” See Rapp Declaration. This is a breathtaking claim, for the Government nowhere represents that this “inherent” power to order indefinite military detention extends only to aliens or only to those who “qualify” within the “legal category” of enemy combatants.

Does anyone suggest that the court misrepresents what the government argued in its briefs?
6.14.2007 4:19pm
srg:
Anderson,
I assume you are a lawyer, and I am not, but does the phrase "without the benefit of any criminal process" rule out the recognition that hearings must be held to determine the person's status? Also, would a military tribunal count as "criminal process," or is it something different?
6.14.2007 4:27pm
Anderson (mail) (www):
"Indefinite military detention" does not seem to me to include a hearing.

The feds' argument, as I understand it, is that Article II vests the President alone with the power as Commander-in-Chief to make such determinations (see "Unitary Executive").

This is a separate argument from anything based on the MCA, which professes to offer a CSRT but does not actually specify any time frame within which a prisoner must be provided one, IIRC. (That being the catch whereby a citizen, to whom the MCA ostensibly does not apply, could be detained -- in a brig, with no CSRT, how ya gonna tell The Man that you're a citizen?)

(Yes, I'm a lawyer, but this area of the law is purely amateur recreation on my part, so any deference to my supposed learning would be gravely misplaced.)
6.14.2007 4:37pm
srg:
The fact that we have an administration - which can be in power no more than 8 years - claiming extraordinary powers under Arfticle II, subject to reversal by the Supreme Court, which I am sure would not accept this claim if it ruled on it, rules out comparisons with dictatorships. If there were any reason to think the administration would not consider itself limited by what the Supreme Court ruled, then I might argue differently.
6.14.2007 4:43pm
Just an Observer:
Anderson, srg.

I think perhaps srg would rely on the qualifier in Anderson's quote -- "without the benefit of any criminal process."

There is process prescribed by the Hamdi plurality, at least for citizens. It is a very truncated process, to be sure, compared to criminal process. But it is something more than no review at all.

That process was what the Hamdi plurality outlined under its application of the AUMF. And it was that process, modeled on what the Hamdi opinion seemed to recommend -- that the lower courts said they applied in al-Marri's habeas review.

The administration also claimed an inherent authority beyond the AUMF, but the Hamdi plurality never reached consideration of that claim. The administration renewed its claim of inherent authority in the al-Marri case, and its Respondent brief (at 35-39) seemed to assert a very broad claim. The Fourth Circuit majority, calling this claim "breathtaking," rejected it.
6.14.2007 4:50pm
Anderson (mail) (www):
I appreciate the distinction, srg, but I just don't find it very consoling that the president can lock somebody up &then say "well, you won't be locked up forever, you can apply to my successor." Taking 4 or 8 years of someone's life in that manner is a terrible thing.

As for Supreme Court review, consider the lengths to which the administration has gone to avoid its happening, as in Padilla's case.

The advantage of avoiding Supreme Court review is that, if the Court never rules on this Article II mumbo-jumbo, they can keep doing it indefinitely -- there are a lot of federal circuits they can move prisoners around to. Thus far, they're uncertain enough of prevailing that they have kept the issue away from the Court. With another Bush appointment, they might feel brave enough to try.
6.14.2007 4:51pm
Anderson (mail) (www):
Thanks for the linked brief, JaO -- it's particularly interesting to compare the feds' claims w/ the court's evisceration thereof.

Re: Hamdi, n.b. that 3 months after the decision was handed down, we suddenly decided he wasn't such a big threat after all, and deported him to Saudi Arabia (where I'm sure it's very, very difficult to aid any terrorist activities). This, rather than have him go before a tribunal.
6.14.2007 5:01pm
srg:
Anderson,
I don't find it consoling either. But I do find it disappointing, since I agree with nearly everything you have said in your recent posts, that the worst you can say against the Hitler and Gulag comparisons is that they "are rhetorically questionable."
6.14.2007 5:08pm
Anderson (mail) (www):
Well, srg, I'm glad we can agree on so much, but Hitler was not a spook or a monster. He was a real guy who did certain things.

If Bush does similar things, then a comparison is factually warranted, whether or not it's rhetorically effective. Ditto Stalin. It's not to say that Bush resembles Hitler in general, though the danger of such a misinterpretation is one of the rhetorical disadvantages.

So I guess I would need it explained to me either why we can never compare an American president to Hitler or Stalin, or else when such a comparison is allowable.
6.14.2007 5:13pm
srg:
Anderson,
Your question is easy to answer. What would it achieve to compare FDR to all kinds of nefarious rulers because of his incarcerating the Japanese or trying to pack the Supreme Court? What would be the point of comparing Clinton to, say, a mobster, because he lied under oath?

Any comparison can be "factually warranted" if you choose your facts carefully enough and eliminate everything counter to your comparison.

In general, comparisons tend to muddy the waters and are usually used for tendentious, unhelpful purposes. Better to avoid them unless overall the people being compared are similar in general.
6.14.2007 5:19pm
Anderson (mail) (www):
In general, comparisons tend to muddy the waters and are usually used for tendentious, unhelpful purposes.

In other words, the comparisons are rhetorically questionable?

100% agreement! My work here is done!
6.14.2007 5:23pm
scote (mail):

In general, comparisons tend to muddy the waters

Or comparisons are how we learn not to repeat the mistakes of the past.

Willfully ignoring the obvious isn't helpful either.
6.14.2007 5:25pm
Andrew J. Lazarus (mail):
srg, once upon a time there was a fanatical Jew named Meir Kahane who went to Israel out of Zionist conviction (or was it to escape USA criminal charges?). Once there, he stood for the Knesset (Israeli Parliament), once again finding legislative immunity most handy. While in the Knesset he introduced a bill outlawing sexual relations between Jews and non-Jews, expelling non-Jews other than diplomats from Jerusalem, and so forth. Everyone, and I mean everyone, outside his KKK-like faction was appalled, and one of the Likud members gave a speech illustrating that Kahane's bill had such strong similarities to the Nuremberg Laws that it was probably plagiarism.

Nobody gasped and complained that it was more than rhetorically questionable to compare Kahane with Hitler. The facts were the facts.

And the facts are: the Bush Administration advocates for the imposition of police state detention in the United States, which we must trust them to use wisely. They have moved the frame so much that, for example, Mayor Giuliani is asked on the campaign trail just how often he will use his power to detain people without trial if elected. He has not this power, no more than he could take private property without just compensation or any other obvious affront to the Bill of Rights.

GOV. GEORGE W. BUSH (R-TX), PRESIDENT-ELECT: I told all four [congressional leaders] that there were going to be some times where we don't agree with each other. But that's OK. If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator.
Are we still sure he was joking?
6.14.2007 5:30pm
Anderson (mail) (www):
one of the Likud members gave a speech illustrating that Kahane's bill had such strong similarities to the Nuremberg Laws that it was probably plagiarism.

Ha! Now *that's* a legislature!
6.14.2007 5:32pm
Kazinski:
Anderson:
The point is that the comparison to Bush and Hitler is so ludicrous that every other point you try to make is prone to dismissed as moonbattery, except by other moonbats. Your assertions that Bush is violating the rule of law are just wild charges, as Orin said above:

Take habeas jurisdiction at Gitmo. Gitmo was opened because based on pre9/11 precedents, it looked like there was no writ at Gitmo. But the Supreme Court in Rasul ignored that precedent and decided to expand the writ to cover Gitmo. Congress then tried to narrow the writ so it excluded Gitmo; and which side will win out remains unclear. So was the writ eroded? It's kind of hard to say, as it depends on pretty unclear baselines.


Now note that Orin disagreed with Congress narrowing the writ, and argued that the SC may well decide that their is a constituional right to the writ at Gitmo, BUT the SC has not ruled so yet, AND that would reverse earlier rulings. Bush has been following the law, but the law is in some flux. When Bush flouts a court decision and makes a Jacksonian declaration like

"the decision of the supreme court has fell still born, and they find that they cannot coerce [me] to yield to its mandate."

Then I'll be right out there on the barricades with you. But the fact is Bush has followed every Court decision.
6.14.2007 9:03pm
Anderson (mail) (www):
Your assertions that Bush is violating the rule of law are just wild charges, as Orin said above:

Sigh. One example does not prove your point; I quoted the outrageous arguments the feds have made; there is no question the U.S. has been grabbing people on U.S. soil and locking them up w/out due process for months or years. It is ridiculous to assert that Bush et al. have been following the rule of law. I don't think Prof. Kerr has asserted that.

As for the comparison's rhetorical disadvantages, I think I've pointed those out half a dozen times now? And it's not even my freakin' comparison -- see Lazarus &Field, above.
6.14.2007 10:03pm
Bob from Ohio (mail):
I like it when people compare President Bush to Hitler, It shows, there's that word again, their irrationality.

At the start of Hitler's political career, he wrote a huge book that laid out in detail all of his evil plans and his warped views on Jews and many others.

Within months of taking office, he burns the capital building of his country and engineers a special law to give him unchecked dictorial powers. Even then, his majority is only obtained by illegally excluding the Communist deputies.

Meanwhile, he seizes control of the press, labor unions, the judiciary and every other area of political area.

Any and all criticism of the Party and the State is met with arrests and bullets, not unkind words.

First political opponents and then Jews, homosexuals and others by the millions, not 1 or 2 citizens, are imprisoned. They are starved and worked to death and then just plain murdered. By the millions.

I could go on but Bill Shirer, amomg others, did it in far more depth and with better writing.

Now all you brave defenders of the constitution, show how George Bush or Dick Cheney is anything like this.
6.14.2007 10:14pm
David M. Nieporent (www):
Except that Lincoln didn't actually do "worse than Bush" at all. For one thing, he didn't torture anyone. On a scale of 1-10, I'd say that gives Lincoln roughly a 1000 point lead over Bush.
That's right; I'm sure the Union armies fully observed the Geneva Conventions. And I think arresting legislators because they won't support you is far worse than anything Bush did.
Then there's the small detail you left out: there was a suspension of the writ of habeas corpus, and one that took place under exactly the circumstances prescribed by the Constitution. When the Writ is suspended, we lose our rights; that's the whole point of suspending it. From a strictly legal and Constitutional standpoint, then, Lincoln had justification for his actions, Bush does not.
As you know, Congress later ratified the suspension of habeas corpus, but Lincoln unilaterally did it, without any Constitutional authority. Sort of like how Congress created the MCA and DTA after the fact.
Finally, even with the writ suspended, Lincoln didn't claim the right to detain people indefinitely without charges.
Sure he did. Every war, "traditional" or otherwise, is "indefinite." The fact that something is a "traditional war" does not mean it "would have an end" in any definite or reasonable length of time.

That's a tad disingenuous on at least two counts: Gitmo is "here" for all reasonable purposes; and the transfer, as in was the case in 1679, was for the express purpose of dodging habeas.
Gitmo is not "here," and it makes zero sense to say that the transfer was for the "purpose" of "dodging habeas," since (unlike with Charles II) we're "transferring" the people from places where it's absolutely clear habeas doesn't apply, like Afghanistan. They're being transferred to Gitmo for convenience, not to dodge habeas. You act like the alternative to Gitmo would have been, say, Kansas; in fact, it was somewhere like Afghanistan.

I think any Parliament, then or now, would have been outraged if it thought the British Army detained people (good, Christian, white people in those days, of course) without cause.
I don't think Parliament was big on the rights of (say) Frenchmen captured in Europe to access the British courts. And of course "without cause" begs the question.
6.14.2007 11:56pm
Anderson (mail) (www):
Bob reaffirms my "rhetorically questionable" remark, like a prophecy fulfilled.

Also, Bob, historians are pretty much agreed now that the Nazis didn't torch the Reichstag, tho they sure jumped on the chances it gave them.
6.15.2007 12:15am
Mark Field (mail):

That's right; I'm sure the Union armies fully observed the Geneva Conventions.


Funny you should mention that. In fact, they wrote them. General Orders 100 eventually got used as the template for the various Hague and Geneva Conventions.


And I think arresting legislators because they won't support you is far worse than anything Bush did.


You have a strange sense of values if you consider torturing people less significant than arresting Clement Vallandigham.


As you know, Congress later ratified the suspension of habeas corpus, but Lincoln unilaterally did it, without any Constitutional authority. Sort of like how Congress created the MCA and DTA after the fact.


The relevance of this escapes me. In Lincoln's case, the writ was suspended by him and Congress retroactively approved. In Bush's case, he tried to avoid the writ through subterfuge until he finally got a prospective suspension of dubious constitutionality. Mr. Bush is no Lincoln.


Sure he did. Every war, "traditional" or otherwise, is "indefinite." The fact that something is a "traditional war" does not mean it "would have an end" in any definite or reasonable length of time.


Now you're playing semantic games. There's a real and material difference between "unknown" and "indefinite". Lincoln had no way of knowing exactly when the Civil War would end, but he could reasonably anticipate the circumstances in which it would. The latter is NOT true for Bush's Forever War.


Gitmo is not "here," and it makes zero sense to say that the transfer was for the "purpose" of "dodging habeas," since (unlike with Charles II) we're "transferring" the people from places where it's absolutely clear habeas doesn't apply, like Afghanistan.


Sure, Gitmo is no more "ours" than, say, the Isle of Wight is English.


They're being transferred to Gitmo for convenience, not to dodge habeas.


IIRC, the Administration's internal memos admitted that they transferred the detainees to Gitmo precisely because they thought habeas wouldn't apply there.


And of course "without cause" begs the question.


No, "without cause" is precisely the issue; the reason we have habeas is so that we can verify the Administration's claims of cause. To paraphrase The Terminator, that's what it does, that's all it does.
6.15.2007 12:31am
David M. Nieporent (www):
Funny you should mention that. In fact, they wrote them. General Orders 100 eventually got used as the template for the various Hague and Geneva Conventions.
You'll notice that it forbids torture only for the purpose of extracting a confession, not altogether.

You have a strange sense of values if you consider torturing people less significant than arresting Clement Vallandigham.
Hmm. If Bush had Nancy Pelosi arrested, thrown into military prison, denied habeas corpus, and then deported to Iraq, do you think people would be more upset than they are about mistreatment of prisoners? One may be bad. One is an assault on democracy.

The relevance of this escapes me. In Lincoln's case, the writ was suspended by him and Congress retroactively approved. In Bush's case, he tried to avoid the writ through subterfuge until he finally got a prospective suspension of dubious constitutionality.
The relevance of this escapes me. In each case, the president acted without any legal authority and had his actions ratified by Congress. What distinction are you trying to make?

Now you're playing semantic games. There's a real and material difference between "unknown" and "indefinite". Lincoln had no way of knowing exactly when the Civil War would end, but he could reasonably anticipate the circumstances in which it would. The latter is NOT true for Bush's Forever War.
I'm sure the fact that one could identify the "circumstances" in which the Civil War would end was great comfort to someone imprisoned. I mean, sure, it might have been 10 years, or 30, right?

Sure, Gitmo is no more "ours" than, say, the Isle of Wight is English.
Well, I didn't realize the U.K. merely leased the Isle of Wight from France and explicitly disclaimed sovereignty over it.

IIRC, the Administration's internal memos admitted that they transferred the detainees to Gitmo precisely because they thought habeas wouldn't apply there.
Sure, the Admin didn't send them to, say, Kansas because they were afraid that if they did, habeas might kick in. But these people never had any habeas rights. They didn't need to "dodge" anything. They could have left these people in custody in Afghanistan. The reason they sent them to Gitmo was because it was closer and more convenient.

No, "without cause" is precisely the issue
No, it isn't. You said that Parliament would have objected to holding foreigners "without cause." Well, even though they wouldn't think habeas applied to foreigners in foreign countries, of course they'd have objected to that. But "without a hearing" is not the same as "without cause."
6.15.2007 6:10am
srg:
Anderson,
You say that it's rhetorically questionable,
I say outrageous, borderline idiotic, unmentionable,
Let's call the whole thing off.

(You are right that this really refers to Lazarus, not to you.)
6.15.2007 11:21am
Anderson (mail) (www):
Field: IIRC, the Administration's internal memos admitted that they transferred the detainees to Gitmo precisely because they thought habeas wouldn't apply there.

Nieporent: Sure, the Admin didn't send them to, say, Kansas because they were afraid that if they did, habeas might kick in. But these people never had any habeas rights. They didn't need to "dodge" anything.

Field is correct, and Nieporent is being credulous if he thinks that we went to the expense of Gitmo on a lark. In Afghanistan, Afghan or U.S. law would've applied.

The whole point of Gitmo -- and if you don't get this, then you need to start studying this issue from the ground up, or else start listening to those who know more about it -- the WHOLE POINT of Gitmo was to find an enclave where, arguably, the only authority over the prisoners would be that of the President as Commander-in-Chief.
6.15.2007 11:44am
srg:
Anderson,
I have never understood why they thought Afghan law would create a problem for them. Any ideas?
6.15.2007 12:22pm
Mark Field (mail):

You'll notice that it forbids torture only for the purpose of extracting a confession, not altogether.


I also notice that torture for the purpose of extracting confessions is exactly what Bush is authorizing.

The reason General Orders 100 didn't mention torture as punishment is that it would have been unthinkable.


If Bush had Nancy Pelosi arrested, thrown into military prison, denied habeas corpus, and then deported to Iraq, do you think people would be more upset than they are about mistreatment of prisoners? One may be bad. One is an assault on democracy.


Your standards become curiouser and curiouser. Nancy Pelosi = Clement Vallandigham? You think the American South (where Vallandigham was sent; he actually went to Canada) = Iraq? You think sending someone to where his allies live = sending someone to where she'd be resented if not hated?

Look, the arrest of Vallandigham was wrong, but it was hardly a scorched earth attack on democracy. Torturing hundreds of people (apparently) is, however, a scorched earth attack on the liberal values which support democracy and on the fundamental human rights without which democracy can't exist. Bush's conduct is FAR more destructive of democracy than Lincoln's.

I think Anderson refuted all your other points. Let me just note the full title of the 1679 Act: "An act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas." My emphasis.
6.15.2007 12:27pm
Anderson (mail) (www):
I have never understood why they thought Afghan law would create a problem for them. Any ideas?

Unpredictable. Afghanistan is, I believe, a signatory to various international agreements against torture; and as I repeat tirelessly, the goal was to put our prisoners somewhere that we could torture them. What if the new Afghan gov't actually took the law seriously, perhaps after a falling-out with the U.S.?

A coda to the Bush-Hitler fracas, from Andrew Sullivan, who's been looking at records of postwar trials of Gestapo officers:

Of course, we also learn from the documents that

"The GESTAPO in general believed that other methods of interrogation, such as playing off political factions against each other, were much more effective than third degree methods."

So Bush has more faith in torture than the Gestapo did.


Nice.
6.15.2007 12:36pm
srg:
Anderson,
My guess, and it is only a guess, is that Gitmo was chosen not for purposes of torture but for purposes of indefinite detainment.
6.15.2007 1:21pm
Anderson (mail) (www):
Perhaps "not only for purposes of torture."

But even the indefinite detainment is connected to the torture issue, since evidence extracted by torture would not be admissible in court.
6.15.2007 1:28pm
srg:
Anderson,
I don't follow your logic. The Bush administration thought that under Article II it was free to do whatever it wanted, and that Gitmo was not subject to judicial review. So there is no evidence they were concerned about what evidence would be admissible in court. I assume their main concerns were preventing suspected terrorists from ever being released and preventing future attacks (which of course does not justfiy torture). Their concerns about holding prisoners in Afghanistan were more likely to have been the possibility of prisoners being released at some point in the future.
6.15.2007 1:50pm
Just an Observer:
srg,

Just because the administration "believed" it was not subject to judicial review did not establish that proposition, and the administration knew it. The appeal of a law-free zone in Guantanamo is that it made it easier to get away with stuff if the court had no jurisdiction to begin with.

The administration also pretends with much bravado, in political venues, that it has Article II authority to violate FISA. But its entire strategy has been to avoid judicial review of that very question.

It's basically the John Dillinger approach to the law: Stay out of court by whatever means are at your disposal.
6.15.2007 2:17pm
Anderson (mail) (www):
What JaO said (usually a safe bet). And srg, think about this one:

I assume their main concerns were preventing suspected terrorists from ever being released

Preventing SUSPECTED terrorists from EVER being released ... that's chillingly awful, and an excellent description of what Gitmo seems to've been aimed at accomplishing.
6.15.2007 3:53pm
David M. Nieporent (www):
In Afghanistan, Afghan or U.S. law would've applied.
Eisentrager clearly says otherwise with respect to the U.S., and as for Afghan law... yes, in theory, Afghan law would have applied. As if the Afghan government were going to countermand U.S. authority?

I also notice that torture for the purpose of extracting confessions is exactly what Bush is authorizing.

The reason General Orders 100 didn't mention torture as punishment is that it would have been unthinkable.
Uh, that doesn't make any sense at all. It explicitly mentions torture for extracting confessions. If the only other option were "unthinkable," then it could just have forbid torture, period. You're missing the obvious, which is that there's another option. Not torture to obtain confessions -- if you're not going to charge people, you don't need confessions -- or torture for punishment, but torture to extract INFORMATION.

Look, the arrest of Vallandigham was wrong, but it was hardly a scorched earth attack on democracy.
So arresting and holding without trial political opponents -- Vallandigham is not exactly the only one, as the members of the Maryland legisture could testify -- is not an attack on democracy, but doing the same to foreigners is. Defying a court order, as Lincoln did in the case of John Merryman, is not an attack on democracy, but Bush trying to avoid having the courts rule is. I think you're a little confused.

I think Anderson refuted all your other points. Let me just note the full title of the 1679 Act: "An act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas." My emphasis.
You might want to read beyond the title, perhaps to the actual text of the Act. It forbid sending people beyond the seas. (And by "people," it explicitly meant subjects, inhabitants, residents of the realm. Not foreigners.) In the case we're discussing, these people were already beyond the seas. He didn't need to send them there.
6.16.2007 5:02am
Mark Field (mail):

You're missing the obvious, which is that there's another option. Not torture to obtain confessions -- if you're not going to charge people, you don't need confessions -- or torture for punishment, but torture to extract INFORMATION.


No, YOU'RE missing the obvious: the Union Army didn't torture people (nor did Southerners, to the best of my knowledge; blacks excepted, of course). Not to obtain confessions and not to obtain information. Your gloss on the text simply ignores the actual historical practice.


So arresting and holding without trial political opponents -- Vallandigham is not exactly the only one, as the members of the Maryland legisture could testify -- is not an attack on democracy, but doing the same to foreigners is.


Nice mis-statement of my position. What I actually said was that torture was worse than anything Lincoln did.


Defying a court order, as Lincoln did in the case of John Merryman, is not an attack on democracy, but Bush trying to avoid having the courts rule is. I think you're a little confused.


I think you have a problem with context, and it's not a small problem.


It forbid sending people beyond the seas. (And by "people," it explicitly meant subjects, inhabitants, residents of the realm. Not foreigners.) In the case we're discussing, these people were already beyond the seas. He didn't need to send them there.


It forbade sending people beyond the seas because that was the specific legal dodge Parliament confronted at that point in time. Now look at the situation more generally and ask "why did Charles II send people beyond the seas?" Well, he did so to avoid the jurisdiction of English courts. That, in a nutshell, is exactly the dodge Bush is attempting with Guantanamo.
6.16.2007 11:59am