a citizen’s journal by Thomas Nephew

It’s lawfare, and we’re losing

Posted by Thomas Nephew on 3rd January 2012

As is well known, President Obama has added his signature to another civil liberties setback – the National Defense Authorization Act (NDAA) and its provisions for indefinite military detention of persons accused of terrorism.  Much has been written about what’s wrong with the NDAA, and I won’t rehearse those arguments here.*

Instead, I want to just observe Benjamin Wittes’ post “In Praise of the Signing Statement” in his “Lawfare” blog, in which he pats Obama on the head for his signing statement — and after a failing grade last year:

…this year’s signing statement, which Steve posted the other day, seems to me a far more creditable effort. […]  Maybe it’s just that I’m feeling mellow following a week in Maui, but I’m not inclined to criticize the administration over its handling of this one.

This kind of condescending approval might seem like sheer arrogance to most, but Wittes’ writings and opinions unfortunately command wide attention.  The “Lawfare” blog he maintains with former Bush OLC chief Jack Goldsmith and others more or less serves as the blog of the Bush/Obama legal consensus legal policies with respect to counterterrorism (occasional forays by guest bloggers notwithstanding) — the negative pole to positive ones like Glenn Greenwald.

In Lawfare’s first blog entry, Wittes attempts to put his own spin on what I think is the discreditable concept of “lawfare”:

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others.

The first option is the common one, the second is Wittes’ admittedly editorial comment — no one but him thinks of ‘lawfare’ this way, but as in much else, Wittes may succeed in blurring the meaning of a word to his advantage.

And that’s the project in a nutshell.  To me, a key secondary attribute of ‘lawfare’ is embodied in NDAA’s detention provisions.  That attribute is purposeful confusion and vagueness — plausible deniability — about what the laws are and how they will be enforced.  Learned folk can debate whether the new law threatens indefinite detention of Americans despite — or because of — passages unctuously proclaiming “no requirement” to do so with respect to Section X, yet not for Section W.  They can argue whether language asserting that ‘nothing in any of this changes existing US law’ is a reassuring affirmation of the Bill of Rights, or an ominous reference to the past decade’s steadily growing power of the executive branch and supine legislative and judicial branches.

They miss the point; the vagueness is the point.  What a President O nobly forswears (or claims to),  a President R or G will gladly seize, and both will point to the NDAA’s language in support.  Instead of law — bright lines protecting our liberties — we get lawfare: blurry lines keeping all of President X’s options open… and abrogating habeas corpus by misdirection.

To me, that’s the opposite of what “the law” should do — or what a government charged with upholding the Constitution should do. But — unlike Mr. Wittes’ views, I’m afraid — my views don’t matter much.  The usual way this kind of ‘lawfare’ manifests is in secrecy about the very nature of laws or their enforcement, but it occasionally becomes plainer (in a manner of speaking, like a visible smokescreen instead of simple cover of darkness) when statutes like NDAA’s detention provisions are debated and passed.

Wittes to the contrary, the things that are actually depressing about civil liberties debates are that he’s depressed about them – and that he’s winning them all the same.  And that he and his allies are winning them with the kind of ‘angels dancing on the head of a pin’ arguments designed to charm yet another arrogant man, working in an oval office across town. Perhaps his ‘praise’ was a misstep in that respect; one can only hope, though it’s too late to do any good with the NDAA.

* For my part, I’ve protested  against the NDAA a couple of times at an Obama campaign office in Maryland, and have appended a “further reading” list to the end of one account.

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Elect to End Torture 2010: congressional scorecards

Posted by Thomas Nephew on 29th October 2010

The National Religious Campaign Against Torture (NRCAT) Action Fund has produced detailed Congressional vote scorecards of House and Senate incumbents’ “actions on major pieces of torture-related legislation in the 109th, 110th, and 111th Congresses,” from 2005 to 2010:

You can tell people how their vote will make a difference by writing a letter to the editor of your local newspaper that either thanks your incumbent Representative or Senator for his or her good votes to end torture – or takes him or her to task for failing to vote against torture. Get involved today – we’ve got suggestions and sample letters available.

I’ve reformatted the data to an online spreadsheet, visible to the right.  NRCAT compiled House votes on the Detainee Treatment Act (DTA), the Military Commissions Act (MCA), and bills about habeas corpus, Army Field Manual “golden rule” in interrogation, videotaping interrogations, and closing Guantanamo, as well as the House attempt to override Bush’s veto of the “golden rule” bill.

For the Senate, NRCAT also reviewed DTA, MCA, habeas corpus, and Guantanamo closure votes, as well as the Mukasey confirmation vote and a vote on establishing a commission to examine detainee treatment abuses.  Scores were computed as the sum of equally weighted positive votes to end torture and negative votes to tolerate it, divided by the greatest possible score for the Congressperson or Senator, expressed as a percentage.

Goal Thermometer
Support these progressives:
Feingold, Sestak, Grayson,
Kilroy, Murphy, Clark, Lentz,
Trivedi, Pingree, Grijalva,

Naturally, I was interested in how “newsrack actblue” candidates or their opponents voted — and I’m very pleased to report that every single incumbent we’re supporting got a NRCAT score of 100. Moreover, two challengers — Tarryl Clark and Manan Trivedi — face Republican incumbents with extremely poor scores: Michele Bachmann (10) and Jim Gerlach (14) respectively.

NRCAT has also published questionnaire responses for selected Senate and House races. One of the Senate races was Wisconsin’s — and while Russ Feingold agreed with the NRCAT position on every count, Ron Johnson stayed true to form by… refusing to answer the questionnaire.

While it’s true that candidates have probably completed buying the air time they can purchase before the election, a Feingold staffer has emailed me that his campaign can still use funds to mount the best possible “get out the vote” (GOTV) drive they can. So if you haven’t donated, there’s still time, and now it’s even clearer that we’re supporting some outstanding candidates.

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“Law and the Long War,” by Benjamin Wittes – a blog discussion

Posted by Thomas Nephew on 18th September 2009

Click the image to
place an order for
this book with
Powell’s Books.

This post announces an ambitious and possibly quixotic effort — the attempt of a legal layperson like myself to launch and carry on a discussion about Benjamin Wittes’ “Law and the Long War: The Future of Justice in the Age of Terror,” published in 2008.

Luckily, I’ll be joined in this discussion by my friend “The Talking Dog,” whose legal acumen and training — as well as self-deprecating wit and engaging writing — are always in evidence at his blog of the same name.  “TD’s” interviews of lawyers, policy makers, human rights leaders (most recently with NYU’s Karen Greenberg), and even Guantanamo detainees have been genuine journalism, and are among the finest things the American blogosphere has produced.

Our plan is to take the book chapter by chapter, at no precise schedule other than to take the chapters in sequence.  We hope readers will check Wittes’ book out from the library, borrow it from a friend, or buy a copy for themselves, so they can read along with us and join the discussions we hope for.

We’ve tentatively decided to divide the chapters up as follows:

Announcements – here at newsrackblog and the talking dog
Introduction – discussions at both newsrackblog and the talking dog
Chapter 1.  The Law of September 10 – discussion here at newsrackblog
Chapter 2.  The Administration’s Response – discussion at talking dog
Chapter 3.  The Real Guantanamo – discussion at the talking dog
Chapter 4.  The Necessity and Impossibility of Judicial Review – discussion here at newsrackblog
Chapter 5.  The Case for Congress – discussion here at newsrackblog
Chapter 6.  The Twin Problems of Detention and Trial – discussion at the talking dog
Chapter 7.  An Honest Interrogation Law – discussion at the talking dog
Chapter 8.  Surveillance Law for a New Century – discussion here at newsrackblog
Conclusion – discussions both at newsrackblog and the talking dog

To leave some time for readers to join in (and for me, at least, to gather my thoughts), our first posts about Wittes’ introduction will be sometime around the middle of next week.  At this blog, this post will serve as one “home page” for the overall effort, and the outline above will link to each post as it is written.  We’ll also try to provide “prior chapter” and “next chapter” and other useful navigational links within each post, time permitting.


Why is this worth doing?  I’m tempted to simply answer: what could be more important?  Whether it’s always clear or not, our lives and our rights are both at risk.  We have to evaluate those risks, and decide what to do about them.

For my part, though, this is also partly just an attempt to become more “fluent” in the legal underpinnings of the debates about the habeas corpus and other human rights of detainees, the costs and benefits of the expansion of executive powers,  and the conduct of international relations and military force in this so-called “long war” of ours.

There are also more immediate reasons to do so: Wittes and his book have proved quite influential, perhaps especially of late.  On its publication, the book merited extended discussion at numerous legal blogs, and gained respectful and often warm reviews in the popular media and the academic press.

Read the rest of this entry »

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Reactions to the Obama and Cheney speeches

Posted by Thomas Nephew on 22nd May 2009

Word cloud of Obama’s speech, via Aziz
. Originally uploaded by abde,
used here by permission.

President Obama and former Vice Torturer Cheney gave much-anticipated speeches in Washington on Thursday. I tend to agree with critics who are a little weary of Obama’s trademark eloquent lip service to constitutional values and rule of law, while belittling those who actually insist on defending it as “finger pointers.” For me, Obama’s most telling lines were these:

…the recent debate has been obscured by two opposite and absolutist ends.

On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: “anything goes.” Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants – provided that it is a President with whom they agree. Both sides may be sincere in their views, but neither side is right.

That first part sounds like a bit of payback for a reportedly testy meeting between Obama, high level staff, and leading civil liberties advocates in the White House on Wednesday, in which “one of the attendees warned the President he was letting George Bush’s policies become his own […] Obama was not pleased by that characterization.” Thanks a bunch for using weasel words like “little allowance” and “almost never” while balancing off the ACLU, CCR, HRW, and HRF against a miscreant like Cheney — a tired “if they’re all mad at me, I’m doing something right” approach.  Yet it’s been groups like these — far more than Obama’s own party — who have been plinking away at U.S. government excesses these last 8 years; it’s an open question whether Obama would be president at all without their work.

Of course, Obama looks and sounds great compared to Cheney:

Some are even demanding that those who recommended and approved the interrogations be prosecuted, in effect treating political disagreements as a punishable offense, and political opponents as criminals. It’s hard to imagine a worse precedent, filled with more possibilities for trouble and abuse, than to have an incoming administration criminalize the policy decisions of its predecessors.

No, it’s hard to imagine a worse precedent, filled with more possibilities for trouble and abuse, than to have an incoming administration shrink from prosecuting the crimes of its predecessors for the sake of expediency.

Trouble is, Obama sees that as some kind of unseemly food fight:

I understand that it is no secret that there is a tendency in Washington to spend our time pointing fingers at one another. And our media culture feeds the impulses that lead to a good fight. Nothing will contribute more to that than an extended re-litigation of the last eight years. Already, we have seen how that kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort, and our politics on the challenges of the future.

With that, here are some reactions from other respected writers in the blogosphere and among activists.

Read the rest of this entry »

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Off to Maine for a week

Posted by Thomas Nephew on 2nd August 2008

Blogging will be sparse at best. Meanwhile some items worth paying attention to:

Vital unresolved anthrax questions and ABC News (Glenn Greenwald) — Greenwald makes a pretty good case that the government’s case against Bruce Ivins (the Fort Detrick germ lab scientist who committed suicide), the m.o. of the anthrax terrorist, and ABC News’s false insistence at the time that lab results pointed to Iraq all add up to a case that urgently requires Congressional investigation. Whoever gave ABC the false “bentonite additive” story has a lot to answer for — very arguably the Iraq war.

Wal-Mart mobilizing against EFCA, pressuring “associates” on how to vote — That’s illegal, and that’s arguably what they’re doing by raising Obama’s support for the Employee Free Choice Act in in-store meetings. The charge is based on a Wall Street Journal article “Wal-Mart Warns of Democratic Win“:

The Wal-Mart human-resources managers who run the meetings don’t specifically tell attendees how to vote in November’s election, but make it clear that voting for Democratic presidential hopeful Sen. Barack Obama would be tantamount to inviting unions in, according to Wal-Mart employees who attended gatherings in Maryland, Missouri and other states.

The main link leads to “Americans Rights At Work,” where you can add your name to a petition urging the FEC to investigate Wal-Mart for potential election law violations.

Last and definitely not least, the ACLU is sounding the alarm about a jaw-dropping legislative initiative by Bush and Attorney General Mukasey:

After years of litigation, the Supreme Court recently ruled in Boumediene v. Bush that detainees held at Guantánamo have a right to challenge their detention through habeas corpus — the ancient freedom that protects people from being thrown in prison illegally, with no help, no end in sight and no due process. Habeas proceedings could allow detainees to bring up the fact that the evidence that the government has against them came from hearsay, or even torture and abuse. Courts could also release people who are detained indefinitely without charge. Attorney General Michael Mukasey wants to make sure neither of these things happen. That’s why he’s calling on Congress to authorize indefinite detention through a new declaration of armed conflict. He is also proposing that Congress subvert the right of habeas corpus with a new scheme to hide the Bush administration’s past wrongdoing — an action that would undermine the constitutional guarantee of due process and conceal systemic torture and abuse of detainees.

More here. Join the ACLU petition to your Representative and Senators here urging them to oppose this misbegotten idea. Thanks to Mick Arran and the Talking Dog for sounding the alarm as well. As Mick says: “Please let’s not give them this one.”

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2008 presidential candidates on executive power: an interactive, downloadable spreadsheet

Posted by Thomas Nephew on 29th December 2007

The spreadsheet below organizes the responses of twelve presidential candidates* to twelve questions about their views on executive power, in light of President Bush’s myriad abuses thereof. The questions were posed by the Boston Globe’s Charlie Savage; the Boston Globe web site with the questions and all the answers is here (“Candidates on executive power: a full spectrum,” Dec. 22).

I developed this so I could play around with grading the responses and see if I could find someone head and shoulders ahead or behind the rest of the pack. Rather than give the full answer to each question, I’ve excerpted the key part or summarized the answer; the full answer can be accessed via the candidate or question links. I graded on a fairly generous 0-4 scale, with answers I saw little or no problem with getting a 4, little problems getting a 3, and so on. I also gave -1’s to “declined to answer” or the like. The last two questions (about who advises the candidates, and whether they think all candidates should answer) struck me as less informative for my purposes, so I gave them lower weights in my results. The weighted average scores — 3.8 for Obama, 3.6 for Clinton in the image above — are the overall score to look at.

The upshot: I see much to welcome about the three top Democratic candidates — or at least expect of them — and little to make me think one or the other is definitely best on this score. Edwards spoke in more of a campaign soundbite format, Obama tended to give long answers. I was mildly surprised that I thought Biden (also prone to some very long answers) did the best overall of the Democrats, but again, the differences were slight. While I’m an Edwards supporter, his answers were sometimes not fully responsive to the question or my concerns for the future; thus, I didn’t reward him merely saying he didn’t “envision” disregarding a congressional statute limiting troop deployments. I’m not sure what happened to Kucinich and Gravel, but they’re missing from this survey, which seems a shame to me.

On the Republican side, I thought Ron Paul was far and away the best of the bunch, though he’d be merely in the middle of the Democratic pack given his answers to congressional limits on troop deployments, and making detainee habeas rights a matter of the specific war involved. McCain was, I thought, noticeably worse than any of the Democratic candidates — yet he’d be a huge improvement on Bush. Romney, on the other hand, distinguished himself by giving one disturbing answer after the other, perhaps most notably his answer to Question 7:

If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president’s authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?

ROMNEY: A President should decline …to provide an opinion as to whether Congress may validly limit his power as to the use of a particular technique…

… but also Question 10:

Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you think is simply a bad idea?

ROMNEY: The Bush Administration has kept the American people safe since 9/11. The Administration’s strong view on executive power may well have contributed to that fact.

So given a chance to put some daylight, any daylight at all between himself and Bush, Romney chose not to. Elect this man at your peril, America.

But Giuliani, Thompson, and Huckabee, by contrast, distinguished themselves by not answering at all — something I can understand for one or the other question, but not for all of them. To me, the issue of overreaching executive power is one of the most fundamental and important issues of the past 7 years, and of this election; a candidate who refuses to inform the public about any of his positions doesn’t deserve anyone’s vote, and his voters are raising their hands that they’d like to live in a dictatorship.

But why take my word for it when you can download this spreadsheet and come to your own conclusions? I don’t see the stuff above as my final answer, for that matter; I could be convinced I’ve got the scores wrong for one set of questions or another, or for one candidate versus another.

Anyway, have a look. For a more convenient look at the spreadsheet itself, go here. To download it to your computer in a useable, interactive Excel form, click here.

* Dennis Kucinich and Mike Gravel either weren’t asked or didn’t respond in time — judging by how they’re not listed as “declined to state” for any of the questions.

UPDATE, 1/15: For other reactions to the questionnaire, see the estimable law professors Marty Lederman and Jack Balkin (”Balkinization”), as well as Andrew Sullivan, Arianna Huffington, Glenn Greenwald, and more.

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Write to Adel Hamad, and for Abdul Hamid al-Ghizzawi

Posted by Thomas Nephew on 29th October 2007

I just got this e-mail:

Dear Thomas Nephew,

We are writing today because there is a simple act you can do that can make a world of difference.

We recently sat down with the lawyers of Adel Hamad to get an update on his situation. We learned that the newest head of Guantanamo has moved the vast majority of the detainees into 22 hour total lock down. This is complete isolation from human contact with a mere 2 hours of “recreation time” occurring in a small concrete room, not outdoors, and often in the middle of the night. Needless to say, more and more cases of psychosis and other significant psychiatric conditions are arising from indefinite detention under these conditions.

Fortunately Adel Hamad is one of about 50 detainees not in lockdown but morale is still at an all-time low. He has watched many detainees, some of whom have actual evidence against them, get released simply because the United States has good relations with their home countries (Britain, Kuwait, Saudi Arabia etc.). Others like him—where the government has produced no evidence– hospital administrators, fruit vendors, people turned in because of bounties offered by the U.S. or Pakistanis simply for being foreigners or looking different– remain at Guantanamo for no other reason than the U.S. is not friendly with their country of origin.

Hamad’s lawyers have just now learned, from their recent trip to Sudan, that he was cleared for transfer in November of 2005, TWO YEARS AGO. The U.S. government never shared this information with his own defense team and obviously do not seem to feel any obligation to expedite the release of a man that they have charged with no crime.

But we aren’t writing you to share yet another piece of depressing news you can do nothing about. For the last 10 months we have been encouraging Project Hamad members to write Adel Hamad at Guantanamo, to make sure the U.S. government knows he has not been forgotten. We were operating under the assumption that he might never see the letters. But he mentioned them to his lawyers as the only bright spot in an otherwise grim existence.. A parish from the midwest that had organized a letter writing campaign on his behalf, has received letters back from Hamad, thanking them, and wishing them well.

We are hoping that you will take a moment, with the two year anniversary of his “transfer approval” approaching, and write Adel Hamad.

Adel Hamad (ISN 940)
Camp Delta
P.O. Box 160
Washington DC 20053


Laura, David and Ben
Project Hamad

I plan to do so, because this seems likely to do a particular someone some particular good. It reminds me of what Amnesty International supporters do for people unjustly imprisoned or persecuted in places like Burma, Zimbabwe, or Belarus… speaking of which:

Guantánamo detainee Abdul Hamid al-Ghizzawi has been diagnosed with hepatitis B and tuberculosis. Amnesty International fears that he may not have access to appropriate medical care to treat his illnesses. […]

Please send appeals to arrive as quickly as possible, in English or your own language:

– expressing your serious concern that Abdul Hamid al-Ghizzawi may not be receiving appropriate medical care for his illnesses…

…as well as urging that he be visited by independent medical personnel, that he be removed from Camp 6, that he be allowed contact with his family, and that Guantanamo detention facility be closed and the detainees there be released or charged and brought to civilian trial. (Mr. al-Ghizzawi was initially judged not to be an enemy combatant by the US military due to lack of persuasive evidence; that judgment was later reversed.)

Pretty fine company we’re in.

The addresses of the appropriate military personnel to send your letter to are provided at the link (“The Guantanamo Blog”), as is background about the case and Guantanamo. (Via The Talking Dog; happy belated birthday!)

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"The military cannot seize and imprison civilians — let alone imprison them indefinitely."

Posted by Thomas Nephew on 11th June 2007

All hail DIANA GRIBBON MOTZ, Fourth Circuit Judge, ruling against the United States executive branch in al-Marri v. Wright. I’m including her full preamble to the detailed ruling below, because I think it’s nothing short of ringing:

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since — without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.

While criminal proceedings were underway against Ali Saleh Kahlah al-Marri, the President ordered the military to seize and detain him indefinitely as an enemy combatant. Since that order, issued in June of 2003, al-Marri has been imprisoned without charge in a military jail in South Carolina. Al-Marri petitions for a writ of habeas corpus to secure his release from military imprisonment. The Government defends this detention, asserting 5 that al-Marri associated with al Qaeda and “prepar[ed] for acts of international terrorism.” It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute — enacted years after al-Marri’s seizure — strips federal courts of jurisdiction even to consider this habeas petition.

We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians — let alone imprison them indefinitely.

Via Marty Lederman (“Balkinization”). The ruling — if it stands up to appeal — is significant for setting limits to the scope of the execrable September 2006 Military Commissions Act, which among other things threatened legal residents with loss of habeas corpus, i.e., recourse to the U.S. judicial system to challenge their imprisonment. Bloomberg News‘ Robert Schmidt spoke with al-Marri lawyer Jonathan Hafetz, of the Brennan Center for Justice in New York, and reported:]

The ruling “protects legal residents and citizens from secret detention,” Hafetz said in a statement. “In the American tradition, the court found that the president cannot expand his power, even in times of terror, above and beyond the other co- equal branches of the government.”

Because he was captured and is being held in the U.S., al- Marri’s case differs from those of about 385 detainees held by the Bush administration at Guantanamo Bay in Cuba. A law passed last year stripped away much of those detainees’ ability to challenge their detentions in federal courts.

Today’s decision held that the law, the Military Commissions Act, didn’t apply to al-Marri. The judges said he was entitled to have his so-called habeas corpus petition granted.

It comes as little surprise that The Talking Dog interviewed Mr. Hafetz last year about the case as part of his excellent series of interviews with people involved in legal issues connected to Guantanamo, the “war on terror,” and detainee treatment; at that time, Hafetz explained that the al-Marri case was as important as the more famous case of Jose Padilla:

Certainly, his case has received less publicity than Padilla, who is, of course, a citizen, whereas Al-Marri is a legal immigrant. The fact is, the government’s argument as a basis for holding him is the same as Padilla: that the entire United States is a battlefield in the administration’s “war on terror.” While the Hamdi case concerned a citizen engaged in hostilities on a foreign battlefield, thus far, the U.S. Supreme Court has not ruled on the legality of the government’s detaining a civilian arrested in the United States itself (and it avoided the opportunity to do so recently in Padilla’s appeal).

In a second post, Marty Lederman (“Balkinization”) summarizes the al-Marri ruling as follows:

The principal merits holding in the court of appeals’ opinion today in al-Marri is that Congress has not authorized the indefinite military detention of a person who is (i) protected by the Due Process Clause (including, at a minimum, U.S. citizens and residents); and who is (ii) not under the direction of an enemy nation — and that if Congress had authorized such a detention, it would raise profound Due Process questions under Milligan.

There’s more to the decision and the case, of course; for example, in what Lederman calls a “hidden alternative finding,” Motz writes that another key feature of the case was that al-Marri was (1) already in civilian custody when he was taken into military custody, and (2) that transfer was very likely done in order to interrogate him in ways prohibited by U.S. law and the Constitution. Lederman says both points suggest that even if authorization of military force was construed to apply against American citizens or legal residents, it would not have authorized this.

In a way, of course, it’s sad it’s possible to get excited about and want to celebrate a ruling as straightforward as this one. Of course people on American soil, at minimum, are entitled to the full protections of American law. Right? No, not of course — only when people actually go to the mat for that principle. Thank you, Brennan Center for Justice and the friends of the court who filed on al-Marri’s behalf, including Human Rights First, Human Rights Watch, Muslim Advocates, Center for National Security Studies, National Immigrant Justice Center and the World Organization for Human Rights USA, among many others.

NOTE: from a comment at “Balkinization,” I gather that Judge Diana G. Motz may well be the spouse of Judge J. Frederick Motz. Mr. Judge Motz ruled in RILA v. Fielder that a Maryland “Fair Share Health Care” law evening the health care costs playing field between Wal-Mart and competitors was void, because it conflicted with federal “ERISA” law. I happen to think that both Motz and (ahem) the appeals court that upheld him ruled incorrectly. But one Motz out of two ain’t bad!

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The disgrace of tyranny freely chosen

Posted by Thomas Nephew on 1st October 2006

Distress signal

From “Monkey’s Paw” by Hunter, at DailyKos:

The torture bill is pernicious. That much is true; that much is undeniable. But we should not make the mistake of presuming it more than it is. It is not a Reichstag Fire. It is not. It is pernicious not for its scope, but for its hollowness, its complete legislative emptiness, dressed up in bloody bow. […]

It sounds horrific to say, and it is, but: allowing for the torture of prisoners in U.S. custody was intended as a distraction from weightier things. No, you should allow that to sink in. It is the truth. There is no pressing need for new torture-authorizing legislation. There is no value in taking up the pro-torture banner now, as opposed to during the next session of Congress. The Bush administration had made it clear that they believe they themselves have the right to authorize the torture of U.S. prisoners. The Congress has, in a fit of very balanced, very sensible, very moderate pique, decided that they wanted to play a role too, in authenticating the U.S. positions on torture, rather than leaving those positions merely dangling, like stray veins and sinews, from the administration’s stained teeth.

The anti-torture choice was abandoned long ago. The “moderate” Republicans could have chosen to block any authorization for torturing U.S. prisoners right from the bat; they refused.

This legislation is political salve; it is not required law. The Constitution and existing law, presuming for the faintest half-shadow of a moment that the administration could be expected to follow it, speak clearly and decisively on the issues of habeus corpus, and trial, and on torture. This legislation is simply a show trial against the Constitution, done for the expediency of displaying Republican toughness, where toughness is defined as having no moral, ethical, or legal boundary that cannot be moved, if a poll number sticks up against it.

Glenn Greenwald responds:

As Ackerman put it: “The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.” Similarly, Lederman explains: “this [subsection (ii) of the definition of ‘unlawful enemy combatant’] means that if the Pentagon says you’re an unlawful enemy combatant — using whatever criteria they wish — then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to ‘hostilities’ at all.”[…]

I fully understand, but ultimately disagree with, the viewpoint, well-argued by Hunter and others, that this bill constitutes merely another step on a path we’ve long been on, rather than a fundamental and wholly new level of tyranny. Or, as Hunter put it: “So this is a merely another slide down the Devil’s gullet, not a hard swallow.” But even with the extreme range of abuses the Bush presidency has brought, this is undeniably something different, and worse, by magnitude, not merely by degree.

There is a profound and fundamental difference between an Executive engaging in shadowy acts of lawlessness and abuses of power on the one hand, and, on the other, having the American people, through their Congress, endorse, embrace and legalize that behavior out in the open, with barely a peep of real protest. Our laws reflect our values and beliefs. And our laws are about to explicitly codify one of the most dangerous and defining powers of tyranny — one of the very powers this country was founded in order to prevent.

Compared to that, Hunter’s “emptiness” and “distraction” are almost comforting, in a cold, mad way. From the L.A. Times op-ed by Bruce Ackerman that Greenwald cites:

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops “during an armed conflict,” it also allows him to seize anybody who has “purposefully and materially supported hostilities against the United States.” This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison. […]

Not to worry, say the bill’s defenders. The president can’t detain somebody who has given money innocently, just those who contributed to terrorists on purpose.

But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president’s initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

Legal residents who aren’t citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president’s suspicions. […]

Though it may not feel that way, we are living at a moment of relative calm. It would be tragic if the Republican leadership rammed through an election-year measure that would haunt all of us on the morning after the next terrorist attack.

(All emphases added.) I suppose you could ignore that last part as Ackerman’s plug for his book: Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism. Or you could actually think about it.

I’m sorely tempted to ignore it. But in my heart, I know Ackerman’s right. This legislation, coupled with the near certainty of another 9/11-scale terror attack as time goes on, sets the stage for wholesale tyranny in America, and invites retail tyranny in the meantime.

To use the political approval of torture as a crowbar to curtail habeas corpus — the right to have one’s case heard at all — is the single most unforgiveable thing the Republican Party has ever done, and that’s saying something. Shame on each and every one of them, shame on their supporters, and shame on each and every Democrat who went along with it. I don’t know you, and I don’t want to know you.

In particular, shame on John McCain for using such a measure as another toehold on his climb to the presidency. I will despise him forevermore for this, and I say to him: You and your party, sir, are a disgrace and a dishonor to your country, your ancestors, and yourselves.

But I’ll be frank: it’s hard not to think a great deal less of a great number of the American people now as well. Those of you who have actively or tacitly applauded torture and legal disappearance of others have your just reward: it will now be a great deal easier to do the same to you and yours as well.

“But I’m no enemy combatant,” you exclaim. Well, of course not, not an upstanding citizen like you. But your cousin the Greenpeace guy, your sister the Middle East activist, your brother the journalist in Iraq, your stupid kid who dabbles with the Revolutionary Spartacists at State U., your mother the legal resident, your Muslim co-worker who gave at the mosque to some charity newly blacklisted by Gonzales et al — they’re all within view of that designation now. The marginal, the minorities, the idealists, the people with a controversial cause: they’ll be the first to feel the chill. You, you’re nothing — probably too timid or lazy even to dabble in legal dissent or democratic politics, your finger to the wind of what the media tell you to think. Best stay that way, it’s safer. What’s on TV?

You did nothing — you may have even applauded — while your ancient birthrights and those of your children were being sold at auction to the highest bidder. Those children were counting on you to give them a world as least as good as yours; that doesn’t mean just keeping them safe from the boogeyman with ritual torture, that means preserving their rights.

You’ve allowed those rights to be squandered. You did that by thinking you’d keep yours while you let someone else lose his. You did it, basically, by not caring enough about those rights in the first place. In all of that, you resemble Congress.

I guess that’s why it’s called a representative body.

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The vote on the Military Commissions Act

Posted by Thomas Nephew on 29th September 2006


Alexander (R-TN), Allard (R-CO), Allen (R-VA), Bennett (R-UT), Bond (R-MO), Brownback (R-KS), Bunning (R-KY), Burns (R-MT), Burr (R-NC), Carper (D-DE), Chambliss (R-GA), Coburn (R-OK), Cochran (R-MS), Coleman (R-MN), Collins (R-ME), Cornyn (R-TX), Craig (R-ID), Crapo (R-ID), DeMint (R-SC), DeWine (R-OH), Dole (R-NC), Domenici (R-NM), Ensign (R-NV), Enzi (R-WY), Frist (R-TN), Graham (R-SC), Grassley (R-IA), Gregg (R-NH), Hagel (R-NE), Hatch (R-UT), Hutchison (R-TX), Inhofe (R-OK), Isakson (R-GA), Johnson (D-SD), Kyl (R-AZ), Landrieu (D-LA), Lautenberg (D-NJ), Lieberman (D-CT), Lott (R-MS), Lugar (R-IN), Martinez (R-FL), McCain (R-AZ), McConnell (R-KY), Menendez (D-NJ), Murkowski (R-AK), Nelson (D-FL), Nelson (D-NE), Pryor (D-AR), Roberts (R-KS), Rockefeller (D-WV), Salazar (D-CO), Santorum (R-PA), Sessions (R-AL), Shelby (R-AL), Smith (R-OR), Specter (R-PA), Stabenow (D-MI), Stevens (R-AK), Sununu (R-NH), Talent (R-MO), Thomas (R-WY), Thune (R-SD), Vitter (R-LA), Voinovich (R-OH), Warner (R-VA).


Akaka (D-HI), Baucus (D-MT), Bayh (D-IN), Biden (D-DE), Bingaman (D-NM), Boxer (D-CA), Byrd (D-WV), Cantwell (D-WA), Chafee (R-RI), Clinton (D-NY), Conrad (D-ND), Dayton (D-MN), Dodd (D-CT), Dorgan (D-ND), Durbin (D-IL), Feingold (D-WI), Feinstein (D-CA), Harkin (D-IA), Inouye (D-HI), Jeffords (I-VT), Kennedy (D-MA), Kerry (D-MA), Kohl (D-WI), Leahy (D-VT), Levin (D-MI), Lincoln (D-AR), Mikulski (D-MD), Murray (D-WA), Obama (D-IL), Reed (D-RI), Reid (D-NV), Sarbanes (D-MD), Schumer (D-NY), Wyden (D-OR).

NOTES: Roll call via U.S. Senate. Links are to selected statements about the Military Commissions Act.
EDIT, 9/29: snarky comment about Olympia Snowe (R-ME) deleted. She was at a funeral for her stepmother and did not vote on this bill.
UPDATE, 10/2: Patrick Nielsen Hayden provides links to leftish and libertarian blog posts about the bill’s passage, using Jim Henley’s summary as the exclamation point:“It is now official United States policy that our security depends on hiding people away and torturing them, said decision to be made in secret without review.”

UPDATE, EDIT, 10/18: House roll call here. The Washington Post does the same by state, with a handful of corrections. Mikulski link added.

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