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The State of Civil Liberties:

University of Chicago law professor Geoffrey Stone, author of the excellent book Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism (among other things), believes the recent FISA amendments are unwise if not unconstitutional. Nonetheless, these legal changes must be viewed in perspective.

The legislation amending FISA is unwarranted, reckless and possibly unconstitutional. Nonetheless, the overall state of civil liberties in the US, viewed in historical perspective, is surprisingly strong. There are no internment camps for American Muslims, no suspensions of habeas corpus for American citizens, no laws prohibiting criticism of the war in Iraq. This might not seem like much, but in light of past episodes, the intrusions on civil liberties since 9/11 have been relatively modest.

UPDATE: Just to prevent any possible confusion, the point of this post is not to dismiss contemporary threats to civil liberties. (Prof. Stone would be the wrong person to cite for that proposition.) Such threats are real and warrant continued vigilance. At the same time, it is important to note that such threats are often overstated and that the federal government does not infringe upon civil liberties in the name of national security as much as it did in the not-so-distant past. We should be proud of this accomplishment, just as we should seek to protect civil liberties even more in the future.

David Sucher (mail) (www):
Stone may well be objectively correct but don't you see how incredible it sounds to write "There are no internment camps for American Muslims, no suspensions of habeas corpus for American citizens, no laws prohibiting criticism of the war in Iraq."

To say that we are not Russia is not very reassuring.
8.20.2007 11:55am
srg:
David Sucher:

It's not just that we are not the Soviet Union (the correct name, not Russia) but that we are doing better than we did after World War I or during World War II under FDR (interning Japanese).
8.20.2007 12:05pm
JosephSlater (mail):
In this regard, are we better than we were during the Korean War, Vietnam War, and/or the first Gulf War? Or do we have to go back sixty-five years, ninety years, or 140 years to find examples of Bad Stuff We Aren't Doing Now?
8.20.2007 12:18pm
Dave N (mail):
srg,

I am not sure who is right in your little exchange. If David Sucher is referring to the old Soviet Union, then you were correct in calling him on that. However, the Soviet Union ceased to exist as a country in 1991. Vladmir Putin is President of the Russian Federation (or Russia).

So if David Sucher is making a comparison to the gulags and the repressive Communist state, then he is correct. If he is referring to the increasingly authoritarian country Putin heads, then you are.
8.20.2007 12:31pm
gattsuru (mail) (www):
Given what we know about the CIA and FBI's movements during the Vietnam War, I think we can probably say we're doing much better than then, as well, although to what degree is probably a matter of personal opinion.
8.20.2007 12:31pm
Dave N (mail):
OK, reverse that--If David Sucher is referring to the current country, then he is correct. If he is referring to the former communist state, then you are.

Note to self--Preview first. Preview first.
8.20.2007 12:32pm
GV:
gattsuru, of course, we didn't know what the CIA and FBI were doing during the Vietnam war until much later. (Indeed, we still don't know the full extent of what they did.)

It's hard to know just how much damage Bush has done to civil liberties until we've had some time to sort out the mess -- and documents from the administration are released. Given what we do know they've done, I'm sure the comparison will look different when the dust settles. (That being said, I'd like to think that things have improved quite a bit since 1789. Of course, as noted above, that shouldn't be the standard.)
8.20.2007 12:35pm
Cassandrus (mail):
Even with your protestation that this graf is not minimalizing the current threats to civil liberties, the fact the the United States has a network of secret torture camps in eastern Europe makes mockery of any attempt to evaluate the severity of the intrusion. It may not be the Trail of Tears, but secret torture camps catapult us into the stratosphere, if you will, where even attempting to make comparisons carries a whiff of the grotesque.
8.20.2007 12:44pm
Houston Lawyer:
A comparison of our armies would show, I am pretty sure, that our soldiers act far more humanely with respect to their perceived enemies now than that they ever have in the past.

We haven't searched the homes of foreign nationals and confiscated their weapons as was done to my relatives (of German origin) during WWII either.

Most of the complaints of civil rights violations in this war are just hyperventilating or based on speculation.
8.20.2007 1:05pm
Jim Hu:
I believe that we've been in the "stratosphere" before, for long periods of time, and under the leadership of both parties (I might have chosen a metaphor in the other direction, btw). From Wikipedia's article on the School of the Americas
On September 20, 1996, the Pentagon released seven training manuals prepared by the U.S. military and used between 1987 and 1991 for intelligence training courses in Latin America and at the U.S. Army School of the Americas (SOA). More manuals like Project X and KUBARK show that torture and other abuse was taught there since 1963.

The point being not that these practices are OK, but that the argument can not be based on comparison to a nonexistent idyllic past. The arguments for and against current practices can and should be made based on other criteria.

The debate about the extent to which ends justify means is a very, very old one, which means that smarter people than us have not settled the issue. I certainly don't have a pat answer. Always is horrific, never is unrealistic. Which means that those of us who want to face the real world are all whores and we must all haggle over the price.
8.20.2007 1:20pm
Brutus:
Even with your protestation that this graf is not minimalizing the current threats to civil liberties, the fact the the United States has a network of secret torture camps in eastern Europe makes mockery of any attempt to evaluate the severity of the intrusion. It may not be the Trail of Tears, but secret torture camps catapult us into the stratosphere, if you will, where even attempting to make comparisons carries a whiff of the grotesque.

Pah, unless American citizens are being taken from the US to these "Secret Torture Camps", there is no civil liberties issue here. Foreign unlawful combatants captured overseas simply don't merit protection of their "civil liberties" or even the protection normally accorded to captured uniformed soldiers. I see no reason at all not to detain such people secretly for as long as necessary.
8.20.2007 1:22pm
vinnie (mail):
"no suspensions of habeas corpus for American citizens"
IANAL but isn't that what we did to Jose Padilla?
8.20.2007 1:22pm
J. F. Thomas (mail):
no suspensions of habeas corpus for American citizens

And Jose Padilla was, what, the exception that proves the rule?
8.20.2007 1:24pm
J. F. Thomas (mail):
Foreign unlawful combatants captured overseas simply don't merit protection of their "civil liberties" or even the protection normally accorded to captured uniformed soldiers. I see no reason at all not to detain such people secretly for as long as necessary.

You are simply wrong. Wrong on legal, both U.S. domestic and constitutional grounds and international law. You are also wrong from a standpoint of basic human rights, decency and morality. Plus you are wrong from a standpoint of a society that claims to be open and free and believes in the rule of law.
8.20.2007 1:29pm
Adeez (mail):
"Foreign unlawful combatants captured overseas simply don't merit protection of their 'civil liberties' ..."

OK, it's 2007, and people are still repeating the same nonsense. How can smart people repeat the same question-begging premise over and over? We have no idea of the circumstances under which these people were captured. That's the point, and that's why there are tons who are likely innocent. Many were captured pursuant to tribal disputes and had no connection to terrorism whatsoever. This point has been repeated over and over (but ya gotta search for it, because surprisingly enough the hippie-dominated mainstream media seems to not mention it too often) and anyone who doesn't realize that by now isn't paying enough attention. As far as I know, at this point Bush can deem anyone an enemy combatant and there's no way that this initial determination could be reviewed. How can this not make the blood of all decent Americans boil?
8.20.2007 1:47pm
kehrsam (mail):
Brutus is living in the glow of knowing that other countries are not spiriting citizens of this country to other places for torture. Yet. Canadians, it seems, are not so fortunate.

Also, isn't "Foreign unlawful combatants captured overseas" rather conclusory? I also feel constrained to point out that the Canadian citizen (whose name escapes me) was seized in New York, not overseas.
8.20.2007 1:53pm
rarango (mail):
Isn't the basic question underlying this entire discussion where (if at all) the line should be drawn in balancing civil liberties against a threat to our national interest? I gather from some of the discussion on VC there are absolutists of either position; but, shouldn't there be some point between the absolutist positions? Just asking. And I agree generally with Professor Stone's analysis. In my time on this earth, I have seen a much greater concern about civil liberties IN GENERAL than existed, say, 50 years ago. Professor Stone's thoughts reinforce my anecdotal evidence.
8.20.2007 1:53pm
DDG:
No he's not wrong for the most part. (Well, perhaps on the secretly part). We don't have good international mechanisms to deal with non-state actors who are, in effect, waging war on a nation-state, i.e., unlawful combatants. Some are the equivalent of bandits or pirates, others are the equivalent of rebels.

Most of the formal mechanisms of the Geneva convention, for example, are based around lawful combatants who wear a uniform and fight for a nation state. There are specific mechanisms to deal with them -- lead up to their eventual repatriation at the end of hostilities.

But what do we do with people who have no nation to return to and who are likely to be a continued danger to the party who captured them. Some of the prisoners released from Gitmo have been recaptured while again illegally waging war.

There's no easy answer.
8.20.2007 1:53pm
Montie (mail):

Even with your protestation that this graf is not minimalizing the current threats to civil liberties, the fact the the United States has a network of secret torture camps in eastern Europe makes mockery of any attempt to evaluate the severity of the intrusion.


Maybe I am being a bit old fashion, but I would suggest that you be careful about what you call a "fact." Serious allegations, yes. Facts, probably not.

Today, there are two many people who are willing to misconstrue non-conclusive evidence as conclusive. For example, I personally took a look at the supposedly "irrefutable" evidence of CIA torture flights through Europe. However, it turned out that the hard evidence was merely (i) CIA planes landed in Europe and (ii) the CIA would sometimes transport prisoners by airplanes. Nevertheless, I saw people refer to this evidence as proof.
8.20.2007 1:53pm
Frater Plotter:
rarango: The point of civil liberties is that they are not "balanced" against "the national interest". Rather, they are limits on the means that may be used when pursuing the national interest.

By way of comparison: It would be improper for the CEO of a company to treat the law as merely something to be "balanced" against his company's profitability. Rather, obeying the law is a limit on the means that he may use when pursuing profit.

Rights are not an interest, to be weighed and balanced against other interests. They are a restriction upon the means that may be used to pursue interests. That's why we call them civil rights and not civil interests.

Pursuing the national interest is a fine thing. However, it must be done within the limits of the rights of man and citizen. The whole point of having a nation, after all, is to protect those rights.
8.20.2007 2:22pm
FC:
Frater Plotter:

You are conflating rights and liberties.
8.20.2007 2:45pm
DDG:
Frater Plotter:

We balance rights against national or other interests all the time (e.g time/place/manner restrictions on speech), or we define rights in such a way that they, in effect, are balanced against other interests (e.g the right to "effective" assistance of counsel, what is "property" for the sake of compensable taking).
8.20.2007 2:47pm
rarango (mail):
Frater Plotter: In addition to FC's point, and while I understand your position, I would suggest that there are simply no absolute rights. The state serves to limit our rights to avoid the Hobbesian war of all against all in which every citizen had absolute rights.
8.20.2007 2:49pm
Josh644 (mail):

but in light of past episodes, the intrusions on civil liberties since 9/11 have been relatively modest


In light of the fact that these "past episodes" were by and large times of war, when such is not currently the case, I am little comforted that we aren't doing as badly now. You can start celebrating when we have a war AND retain a reasonable set of civil liberties.
8.20.2007 2:54pm
Kelvin McCabe:
Much Kudos to Frater Plotter - - this is a point that is often not grasped by most people. Liberty does not simply mean freedom. It means a particular kind of freedom, namely, freedom from the intrusions of the gov.t into citizens' lives. It is an inherent restriction on the government. A negative right of sorts. That is why no matter how sophisticated (referencing the alleged minimization procedures) the NSA can be in eavesdropping or data-mining every communication involving U.S. Citizens to minimize harm to those not involved in or suspected of having ties to "terrorism"; it doesnt really matter from a liberty persective because the liberty invasion has already occurred, and is occurring every time our communications are intercepted, data-mined, etc...

It simply shouldnt and doesnt matter that the government may not use my call to grandma for any "bad" purpose - which is why the "if you have nothing to hide, there is nothing to fear" mantra is complete BS. The violation of liberty has already occured.

"Experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent.(i.e, protect us from terrorists) Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

We would all do well to reflect on these wise words from Justice Brandeis.

And as far as the discussion of the CIA and FBI during Vietnam, dont think times have changed so much. The FBI has been infiltrating anti-RNC protestors, anti-war groups (including religious groups), anti-globalization/IMF groups, and now apparantly so called eco-terrorists, etc... Its the same things repeating themselves over and over...
8.20.2007 3:00pm
Gabriel Malor (mail):
And Jose Padilla was, what, the exception that proves the rule?


J.F. Thomas, Jose Padilla's petition was heard by no less than three district courts, two circuit courts of appeals, and the Supreme Court.

Moreover, the conclusion of his line of cases (if not his ultimate disposition) is exactly what we'd expect after the Supreme Court's 2004 ruling in Hamdi v. Rumsfeld. That case laid out the legal framework for citizen-detainees. The Court ruled that:
(1) citizen-detainees must be given a "meaningful hearing" to determine if they are "enemy combatants."
(2) a meaningful hearing is one in which "the minimum requirements of due process are achieved."
(3) once it is determined that a citizen-detainee is an enemy combatant, "[t]here is no bar to this Nation's holding one of its own citizens as an enemy combatant."
(4) "Congress has clearly and unmistakably authorized detention." AND
(5) citizen-detainees may make habeas petitions if they beleive they have not been given a "meaningful hearing."

The one difference between Padilla and Hamdi is that Padilla was captured in Chicago and Hamdi was captured in Afghanistan. But (as the Fourth Circuit noted) why should that make a difference? Padilla must still be given a meaningful hearing to determine whether he is an enemy combatant and if so Congress has still authorized his detention.

It puzzles me why Padilla is associated with a denial of habeas corpus. He was captured on May 2, 2002. His first habeas petition was filed June 11, 2002.
8.20.2007 3:14pm
Thales (mail) (www):
"It puzzles me why Padilla is associated with a denial of habeas corpus. He was captured on May 2, 2002. His first habeas petition was filed June 11, 2002"

And it took him how long to be charged with a crime or released (the essence of the privilege of the Great Writ)? He was never charged with the conduct for which he was initially detained, and the administration undeniably engaged in jurisdiction shopping and tactics to evade judicial review of the legality of his detention (e.g keeping him on a navy ship parked outside the Fourth Circuit court of appeals and finally releasing him and charging him with something *entirely unrelated* (for which he was just convicted) before SCOTUS could reach the merits of the initial detention). That sounds like a pretty strong brief for the effective denial of the privilege of the writ, which by most accounts is supposed to always and everywhere at the very least apply to U.S. citizens.
8.20.2007 5:44pm
Gabriel Malor (mail):
And it took him how long to be charged with a crime or released (the essence of the privilege of the Great Writ)?

No. The essence of the Great Writ is that the lawfulness of a prisoner's detention can be examined by the courts. It is not that a person be charged or released, and it is difficult to know why you think that's the case.
8.20.2007 5:55pm
advisory opinion:
Gabriel Malor is correct. Citing Padilla to "show" that habeas was "suspended" shows an absolute misapprehension of both fact and law.
8.20.2007 6:20pm
Nessuno:
For Padilla advocates, you do your cause no service by conflating Habeas Corpus rights with the right to a speedy trial.

In the end, his speedy trial rights were limited unjustly, but his Habeas Corpus rights never were.
8.20.2007 6:52pm
Kelvin McCabe:
Fine, fine. Padilla was allowed to challenge his detention eventually, so the great writ wasn't suspended (for u.s. citizens). What say you on the suspension of his sixth amendment rights, and possibly his 4th (questionable has most courts don't deem a person's actual body as subject to the seizure clause, but this case was manifestly different),5th, and 8th amendment rights as well?

Right to speedy trial? HA. Right to counsel? HA Right to see evidence against you and confront witnesses within the context of both of the above? HA. Anybody who wishes to defend the practices, theories and methods that the u.s. government subjected one of its own citizens to as in the case of the alleged dirty bomber (do people still call him that now?) should re-take Crim Law 101. Had it not been for all those lawyers raising a fuss about him, do you think the Fed. Gov.t would have indicted him in Miami to avoid sup ct review of his arguably completely illegal detention, or would they have simply let him rot in military custody until the "forever war" on terror was over? My guess is that the allegation of "dirty bomber", brought to us by Mr. Aschcroft while he was on an unrelated trip overseas, and announced hurriedly for purely political reasons, would have continued indefinately since nobody anywhere and certainly not Mr. Padilla himself (in the administration's view) could rebut it. It was a win-win for the administration. They caught the dirty bomber before he could strike and they got good PR out of it. So typical.

As an aside, is anybody else having a hard time with the fact that Al quaida has membership application forms for its mujahadeen camps? Do they do credit checks too? It just strikes me as odd, i'm not saying they dont really have them.
8.20.2007 7:05pm
Guest 17 (mail):
Yet all the libs on this thread are perfectly fine with seatbelt laws, helment laws, smoking prohibitions, trans-fat bans, criminalize-the-father family laws, the return of the 'fairness doctrine' etc. because its "for the children." Better the nanny you know, huh libs?
8.20.2007 7:07pm
Elliot123 (mail):
For the folks who are concerned with Padilla's time in jail prior to his conviction...

Any concern for the thousands of US citizens who are rotting away in county lockups because they can't make bail? What's the maximum time Padilla could have been held without triggering a civil rights crisis? One day? One week? One month?
8.20.2007 7:21pm
Gabriel Malor (mail):
In the end, his speedy trial rights were limited unjustly, but his Habeas Corpus rights never were.


This is also untrue. The Supreme Court has already ruled that U.S. citizens can be held by the military as combatant-detainees with minimal due process protections. The right to speedy trial obtains only "in all criminal prosecutions." (U.S. Const. Amend. VI)

Padilla's speedy trial rights were not implicated until he was turned over to the criminal justice system. That's when his "speedy trial" clock started to run. He got his speedy trial.
8.20.2007 8:14pm
Hattio (mail):
Guest17,
Nope, I'm a liberal and I don't support any of those things. I just happen to find the Padilla case far more frightening than a law requiring people to have a seatbelt (though that one is plenty frightening).

Elliot123,
It's not that I don't have sympathy for folks who can't make bail...but if they had a bail review (or bail was set at an initial arraignment) they at least had SOME sort of process.
8.20.2007 8:14pm
Kazinski:
Padilla was an enemy combatant (as evidenced by his Al Qaeda application form in his own handwritting). Even if he was found innocent of the criminal charges, the government will still entitled to detain him until the hostilities are over. Being an American Citizen is one thing, a US Citizen adhering to belligerents that have declared war against the US (with Congressional reciprocation) is something completly different. It is the conduct that makes it different, not the goverments whim.
8.20.2007 8:17pm
Mark Field (mail):

No. The essence of the Great Writ is that the lawfulness of a prisoner's detention can be examined by the courts. It is not that a person be charged or released, and it is difficult to know why you think that's the case.


That's a bizarre understanding of the Great Writ. Historically -- and I'm going to use that because it most likely establishes the Constitutional minimum -- the 1679 Act required (a) that within 3 days the sheriff "certify the true causes of [the prisoner's] detainer or imprisonment"; and (b) that the court "shall discharge" the prisoner "unless it shall appear unto the said lord chancellor or lord keeper or justice or justices, or baron or barons, that the party so committed is detained upon a legal process, order or warrant, out of some court that hath jurisdiction of criminal matters, or by some warrant signed and sealed with the hand and seal of any of the said justices or barons, or some justice or justices of the peace, for such matters or offenses for the which by the law the prisoner is not bailable."

This provision had its origins in the Petition of Right following The Five Knights Case. As a result of that dispute, a prisoner must be charged or released.

It's pretty sad that Bush claims power denied to Charles f****** I.
8.20.2007 8:21pm
Thales (mail) (www):
"No. The essence of the Great Writ is that the lawfulness of a prisoner's detention can be examined by the courts. It is not that a person be charged or released, and it is difficult to know why you think that's the case."

Because that is the case, although I was perhaps being a bit unformalistic in pairing the right and the associated remedy (which must be done for a right to have legal effect, or it is simply aspirational). The writ issues to the jailer (gaoler, since we're getting very historical) and commands that he produce the body of the prisoner before the court. The court assesses whether he is being lawfully held (i.e. the prisoner has been charged with a crime and is awaiting trial, or the jailer is authorized by law to detain the prisoner for some other purpose). If that is not the case, the prisoner must be released.

The merits of the lawfulness of Padilla's detention did not receive a final adjudication (meaning all appeals), and it is clear that the administration tried as hard as possible to prevent the lawfulness of said detention from being adjudicated at all.

"Padilla must still be given a meaningful hearing to determine whether he is an enemy combatant"

When did he receive this hearing?
8.20.2007 8:40pm
rfg:
Guest 17:

I am a liberal, and I do not care for seat belt or helmet laws (although I wear both). I would prefer reasonable smoking prohibitions, such as designated smoking areas to minimize the impact of the habit on others (and I smoke, BTW).

I do not support the rest of your list, either.
Generalizations fail again!
8.20.2007 9:49pm
Gabriel Malor (mail):
The merits of the lawfulness of Padilla's detention did not receive a final adjudication (meaning all appeals)

Under your definition of "final adjudication" no case that gets mooted on appeal is "final." That is, of course, nonsense.
When did he receive this hearing?

As you well know, Padilla was transfered out of military detention before he could get such a "meaningful hearing." I'm sure you also know that the very requirement of a "meaningful hearing" was created in 2004 when the Supreme Court ruled that review boards were necessary. This explains why Padilla did not receive one in 2002.
8.20.2007 10:49pm
Frater Plotter:
The question, "Do civil liberties exist?" is the question, "Is there anything that the State absolutely may not take away from you?"

The authoritarian's answer is no: the State may do whatever it pleases to you, and it is your duty to obey. The State is all and the individual is nothing. To the authoritarian, anything done in the name of the State is thereby legitimate. This is the answer of Mussolini, Mao, and more recently Giuliani.

The anarchist's answer is that civil liberties are infinite, because the State has no right to do anything to you, ever. The State has no legitimacy whatsoever; an action taken in the name of the State is, to the anarchist, thereby declared to be illegitimate. This is the answer of Bakunin and Spooner.

The constitutionalist's answer is yes: while the State may do some things to you, it requires a reason, and there are indeed some things it may never do. Whether a State action can ever be legitimate or not depends on whether it crosses certain lines. This is the answer of Jefferson and Hugo Black.

The wimp's answer is to refuse to admit that his answer is the authoritarian's. The wimp always wants the State to be a little more powerful tomorrow than it is today: more laws, more authority for cops or judges or legislators or presidents, so that they can Protect Us From Evil.

The statist believes that the constitutionalist is a closet anarchist, because the constitutionalist does not believe the statist's claim that Authority Is God. But this is false; the constitutionalist believes in a legitimate but limited (manly, not godly) role for the State.

The wimp denies that he is a closet authoritarian, since authoritarians are scary people like Hitler and Stalin. But he votes for authoritarians half the time anyway, because he hopes a strong State can Protect Him From Evil. He thinks the constitutionalist is some kind of weirdo, because the constitutionalist believes that the State should be bound by rules, not unbound by threats.
8.20.2007 11:25pm
Thales (mail) (www):
Gabriel Malor:

These are interesting rhetorical games. None of them change the fact that because of the jurisdictional maneuvering of the administration, their deliberate mooting of the case (though the legitimacy of the mootness is itself debatable) and their evasion of the Article III courts (undeniably because they had a losing case), Padilla did not receive a genuine determination of the legality of his initial detention. As for the "meaningful hearing requirement" being *created* by the Hamdi case, that's a bit of a stretch. That requirement has its roots in more ancient sources, such as the due process clause of the 5th Amendment, the habeas corpus right, and English common law. Just to name three. To be clear, I am not suggesting Padilla is a good person or even someone who does not deserve imprisonment. It may well be that he just finally received due process in the unrelated criminal case and that had he been charged with that crime initially, no civil libertarian would have cause for complaint. But surely there is a point at which seizing and holding someone without charge for four years, with no way to test the assertion that the detention is legal, then switching tactics becomes simply unacceptable under our constitutional order. Couldn't one continually "moot" the issue by simply dropping one set of charges and making up another, or moving the boat around so the prisoner was outside the reach of the courts, or transferring the prisoner indefinitely to a country where our laws don't apply or have no effective reach? By credible accounts, these acts have occurred and continue to occur with other prisoners. At what point, if any, do you think this activity on the part of the government becomes unlawful?
8.21.2007 1:37am
Tom Cross (www):
The point being not that these practices are OK, but that the argument can not be based on comparison to a nonexistent idyllic past.

Is there ANYONE making such a comparison? Frankly, these practices often bore the very civil liberties lessons that we ought to learn by reading rather than by re-enacting. The systems constructed in response to painful historical mistakes have been torn down at whim in past few years. The Geneva convention doesn't quite work right? Well, I'm not going to bother fixing it. People will just trust us! The Writ of Habeas Corpus? What a pain! Lets ignore it!

This history is referenced approvingly by "conflict maximalists" who say that we interned Japanese people at one point in the past, for example, and so its ok to do that again, and we'll do it to muslims just as soon as we get the opportunity another attack is successful.

The inevitable result is that we get to learn these hard lessons again the hard way.
8.21.2007 10:46am
Thorley Winston (mail) (www):

The Geneva convention doesn't quite work right?


More like "the Geneva convention doesn't apply because we're dealing with unlawful combatants who were neither signators to the Geneva convention nor have shown any interest in following them."

The GC's fine when you're dealing with an enemy nation that is willing to play by those rules. Against non-State actors who don't follow any of the rules of war and intentionally target civilians, not so much.
8.21.2007 1:31pm
Thorley Winston (mail) (www):
This history is referenced approvingly by "conflict maximalists" who say that we interned Japanese people at one point in the past, for example, and so its ok to do that again, and we'll do it to muslims just as soon as we get the opportunity another attack is successful.


I haven't heard anyone of any consequence try to make the argument that interning American Muslims just because they're Muslim is "ok" because FDR and Earl Warren did it to Americans of Japanese, German, and Italian origin during WWII. What I have heard people argue is that if we do get hit again, it is likely that Congress and the President will pass legislation -- with strong public support -- that makes the Patriot Act look like the ACLU's wet dream.

The fact that we've done things like massive internments before doesn't mean it's okay, only that it could conceivably happen again. What it does show is as a nation in the past the public has gladly accepted (even cheered) far more restrictions on individual rights than anything we've seen under the Patriot Act or TSP which could be a preview of things to come if the government fails to prevent another major terrorist attack on US soil.

Which adds another dimension to the balancing act mentioned earlier. Not only do we have to weigh individual rights and the government's interest (as well as what legitimate expectations individuals have), people have to weigh the restrictions on their "liberty" against the likelihood that the restrictions will prevent a major terrorist attack that might lead to the public supporting even more restrictive measures.
8.21.2007 1:48pm
Elliot123 (mail):
Tom Cross: "The Geneva convention doesn't quite work right? Well, I'm not going to bother fixing it. People will just trust us!"

How do we deal with real world situations where Geneva is lacking during the years it will take to change Geneva? The last time (1978?) a protocol was proposed to cover people exactly like Al Queda it was rejected.
8.21.2007 4:52pm
Tom Cross (www):
Elliot123: If Bush administration officials are hard at work on an international doctrine for humanely dealing with enemy combatents other than "do what we wilt shall be the whole of the law" it would be the first I've heard of it and I'd love some links to details. As far as I know, most of the doctrine we're now operating under was the product of dicta in Hamdi v. Rumsfled.

Winston: I'm not suggesting that the GC is fine under these circumstances. I'm suggesting is that its not merely a contractual agreement and its not OK to have absolutely no standard at all. The fact that the Taliban doesn't have regular uniforms isn't cause to put their heads on pikes around the DC loop.
8.22.2007 3:44am
Tom Shipley:
for Tom Cross and Others like minded

OK, let's completely pull back from the "Global War on Terror", cease all 'overseas' offensive combat and we never again trample upon the "civil rights" of stateless actors that seek to harm us in the US, OK?

How do YOU respond when a dozen or so members of the Taliban (whose "heads [are not] on pikes around the DC loop" show-up at your front door and 1) Demand entry to perform FGM upon your wife and daughters; and, 2) physically remove you and your sons for your enrollment in a Madrasa?

Just askin'

Shipley
combat vet Nam '69
p.s. I've seen body parts on pikes of those citizens who did not respond favorably to the demands of the VC who showed up at their front door.
8.23.2007 11:42am