Balkinization  

Thursday, January 18, 2007

The Bully Presidency

JB

I want to second Marty's excellent post on the Administration's apparent reversal on judicial review of the NSA domestic surveillance program and make only a few additional comments.

First, there is a remarkable similarity between the Administration's behavior in the Padilla case and its behavior here. Recall that the Administration held Padilla in a military prison for three years and insisted that he could not speak to anyone-- much less have the basic rights in the Bill of Rights-- because to do so would put our country at grave risk. Once the Administration realized that the Supreme Court would likely reject its theory of Presidential power, it backtracked and placed Padilla in the criminal justice system-- thus undermining all of its predictions and assertions. It moved Padilla out of a military prison and brought an entirely different set of charges against him, hoping to moot the challenge to what it had done to Padilla earlier and prevent an authoritative rejection of its implausible claims about the powers of the Presidency.

Similarly, in this case, the Administration insisted for months that the President did not need to follow the procedures in FISA, either because of the AUMF or because of inherent Presidential authority. Apparently, it has now retreated from that legally untenable position, hoping to moot, or at the very least disarm, federal litigation challenging the legality of the NSA program. Once again, the goal is to prevent a court from stating clearly that the President acted illegally and that his theories of executive power are self-serving hokum.

When we put these two stories together, a pattern emerges: the Administration repeatedly takes unreasonable positions about its powers. It insists that obedience to these views is necessary to the very survival of the Republic and that those who would dare to disagree are jeopardizing national security. It makes these aggressive claims repeatedly in every venue, hoping that others, cowed by its aggressive self-confidence and patriotic appeals, will be overawed and simply give in. It struts and boasts and threatens and exaggerates until its bluff is called, at which point its previous assertions simply become-- as they once put it in the Nixon Administration-- inoperative. Put another way, the Administration's stance on Presidential power has resembled nothing so much as an altogether familiar character, the neighborhood bully.

If that is so, the best policy for Congressional Democrats and those who oppose the President's high-handedness is not to give in to the Administration's exaggerated and aggressive views about its own power, but rather to repeatedly call the President to account whenever he overreaches. The only way to deal with a bully, it seems, is to stand up to him.

Second, the Administration's credibility is thoroughly compromised by this about-face, that is, if it had any credibility left to compromise. It has long suggested that the NSA program was incompatible with FISA because FISA itself was inadequate to the challenges presented by international terrorism. The NSA program could not be limited to particular targets based on reasonable grounds of individualized suspicion, as FISA requires. That was the chief reason why the Administration-- and defenders like Judge Richard Posner, to name only one-- insisted that FISA was outmoded. Now it turns out, apparently, not so much. By submitting the NSA program to the FISA courts,the Administration seems to be saying that its program is directed at particular targets of suspicion, and is therefore consistent with the FISA framework.

It is possible that the Administration is being deliberately obscure on this point, and that it is, in fact, engaged in broad spectrum data mining of the kind hinted at earlier. But for the moment, we must take it at its word-- at least, that is, until we find, once again, that it has not spoken the truth.

The NSA-- and indeed, the government in general-- is full of patriots who are trying to protect our country from new threats and continuing dangers. But they, and the intelligence community in general, are being very badly served by this Administration. This Administration's primary goal seems to be the accumulation of Presidential power for its own sake; it has used the intelligence services and their programs as a device to promote this end. If the President had been seriously interested in working with Congress-- instead of protecting ever possible assertion of executive power-- the federal government might easily have adjusted FISA to deal new needs for data collection and surveillance, especially in the days following the 9/11 attacks. Instead, the Administration used perceived deficiencies in FISA (some of which, it turns out, were not deficiencies at all) as an excuse to disregard the law, so that it could make claims of unbridled Presidential authority to ignore FISA. Those claims were unreasonable at the outset, and, more to the point, they were wholly unnecessary to achieving sound reform.

Someday, historians will look back on this Administration and regard it as the worst friend the Presidency ever had. It was so eager to amass power that it threw claims of power into disrepute. It stretched the truth and backtracked on its most vigorously asserted claims so often that few believed it any more when it talked about national security. It tried so hard to assert its legal authority that it squandered much of its moral authority. George W. Bush and his cronies did the Executive branch no favors; we can only hope that the next President actually does what Bush said he would do in 2000-- restore honor and dignity to the Presidency.

Comments:

My overall impression of the Bush Admin is that of a thief who pawns whatever they have taken for whatever they can get...now...regardless of actual value.

Anyone who valued the Executive branch would act to reinforce inherent powers.
 

Prof. Balkin... Put another way, the Administration's stance on Presidential power has resembled nothing so much as an altogether familiar character, the neighborhood bully.

The term "bully" as an adjective was a superlative in TR's day, but the effect, a platform from which one may persuasively to advocate an agenda, is the same. I would suggest that this maladministration is not just a bully relying on brute force, but a bully who is skilled in gaming the system. That is, using the rules, policies and procedures of any system against itself for purposes outside what the rules were intended for. Any system with inumerable and complex rules in place, some sufficiently vague and open to interpretation like our constitution, will inevitably lead some to study the rules closely enough over time so they can then use this massive (often contradictory) ruleset to play the "game" their own, unexpected way, often defeating the very purpose of said rules.
 

"Anyone who valued the Executive branch would act to reinforce inherent powers."

Whose inherent powers? Am I missing what you are saying?
 

If the Administration was afraid of bringing the Padilla case to the Supreme Court, then why did it allow the case to go there from the Second Circuit? From the beginning it had his signature on a document requesting training as a terrorist, so it could have brought the current criminal prosecution against him at any time.

More importantly, not only didn't the government allow anyone to talk to Padillia for the first year, but they also didn't use anything he said to prove their case in the original litigation in the District Court in NY. This despite the fact that we subsequently learned that he admitted during questioning that he was an enemy combatant and gave specific details of his mission and commander at the time he was picked up. So they were consistent here even when it was to their disadvantage.

Rather than assuming that the government simply chose Padilla and decided to abuse him, the facts indicate that they really did not want anyone to know that Padilla was talking and providing valuable intelligence, at least until this information could be used to capture Binalshib (9/11/02) and KSM (3/1/03). By the time, however, that the case got to the first appeal, every lead had been followed up and it was no longer necessary to embargo what Padilla had said. The government finally began to release information.

An alternate theory, which makes more sense given the facts and timeline, is that by the Second Circuit appeal there was no longer any reason to keep Padilla in military custody. He was an intelligence asset who was past his "best if used by" date. The government then had a slam dunk criminal prosecution for at least one count of material support for a terrorist organization supported by his signature on a document asking to become a terrorist. Transferring him to criminal court would be "cheaper" than keeping him at the Navy brig.

Except that the government had lost the last court case, and transferring Padilla from military to criminal on a defeat was unattractive. So they waited, and waited, and waited, and finally when the Fourth Circuit gave them their first favorable decision it was time to declare victory and take out the trash.

You may not like to hear it, but the litigation on Padilla's behalf may have kept him in military custody two years longer than would have been the case otherwise.

The government did not "backtrack". It never charged Padilla criminally for anything he did after enlisting in Al Qaeda because, as a soldier, he had combatant immunity from any criminal charges. So he was held in military custody for what he did during this period. However, when he enlisted, he was a civilian and a US Citizen at the time he signed the document, so he could be charged criminally for that act. There is no inconsistency in the government's approach.

Any theory should be verifiable. There is another military prisoner. If the government gets permission to refile the original bank fraud charges on al-Marri, then he too will [if this is right] be transferred from military to criminal jurisdiction. If not, then I suspect the government will be happy to see his case go to the Supreme Court and he may stay in military custody indefinately.

However, while there is a clear record and the history of Padilla has been disclosed, in the current case the government has gotten a non-disclosed decision from an unnamed judge allowing it to do an unspecified thing to unidentified people. It then declared victory and "ended a program" without actually stopping or changing anything. If you want to imagine conspiracy theory on this one, there is no evidence or logic to dispute anything.
 

I don't quite follow the apparent criticism of this post. All lawyers--indeed all advocates--trot out a "parade of horribles" that will ensue if their position is not upheld. If they lose, they go to Plan B (or at least the rational ones do). For example, look at all the university administrators who claim that the sky will fall if their affirmative action programs are curtailed. But, if the programs are curtailed, they modify their admissions process to comply with the law. Or at least I hope they do.

One thing no politician does is admit error, because it doesn't sell. For example, I don't seriously believe that anyone thinks that the Waco situation was handled well, but you sure haven't heard Janet Reno or Bill Clinton say that.
 

@Sean: The criticism is not that Bush is afraid to admit mistakes, but that his overarching goal is the expansion of executive power.
 

Professor Balkin:

If the President had been seriously interested in working with Congress-- instead of protecting ever possible assertion of executive power-- the federal government might easily have adjusted FISA to deal new needs for data collection and surveillance, especially in the days following the 9/11 attacks.

The President notified Congress when this program went on line and they appeared to be singularly uninterested in loosening FISA to allow surveillance of enemy telecommunications. Indeed, they were uninterested in the fact that the President was ignoring FISA.

When the NYT disclosed this program to the enemy and the Dem base, then the Dem politicos managed to muster the equivalent of the Captain Renault line: "I'm shocked, shocked to find that gambling is going on in here!"

Last year, the Congress yet again had the opportunity to amend FISA to allow surveillance of enemy telecommunications. However, the Dems were more interested in making it a campaign issue with their base.

Meanwhile, Justice has apparently bypassed the politicians altogether, convinced the FISC to essentially disregard the FISA statutory probable cause standard and issue program wide anticipatory warrants. For some excellent analysis on this, readers may want to check out these excellent posts by Professor Kerr:

http://volokh.com/posts/1169093067.shtml

http://volokh.com/posts/1169072027.shtml

Instead, the Administration used perceived deficiencies in FISA (some of which, it turns out, were not deficiencies at all) as an excuse to disregard the law,

The plain meaning of the statutory language does not allow program wide anticipatory warrants as the FISC appears to have agreed to issue now. Until the FISC had a change of heart, the NSA could not conduct their surveillance on enemy telecommunications in and out of the country because the probable cause is derived after the fact of the surveillance. That is a rather large deficiency.

Apparently, it has now retreated from that legally untenable position, hoping to moot, or at the very least disarm, federal litigation challenging the legality of the NSA program.

I would disagree. Justice had only lost one round of these cases when Judge Taylor issued an opinion which was pretty much universally considered to have very little chance of surviving appeal on its merits.

The more I think about it, I would suggest that Justice was actively seeking these program wide anticipatory warrants in order to admit any evidence obtained in the surveillance into court. Under United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), the government is allowed to introduce evidence gained under warrantless surveillance into criminal trials only if the primary purpose was to gather intelligence. However, the Truong court held that, if Justice got involved in the surveillance, the Court would consider the primary purpose to be gathering criminal evidence and require a warrant to admit the evidence.

However, if FISC has issued a program wide warrant for the TSP, then under the Truong standard Justice can be involved from the outset and can admit any evidence found in a criminal trial. Moreover, the recent US v. Grubbs decision entered on March 21, 2006 may allow the use of anticipatory warrants.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?
court=US&navby=case&vol=000&invol=04-1414

In sum, FISA appears to have been reduced to a supervision program by the FISC without any substantive restrictions created by the statutory probable cause standard.

Thus, if you opposed the TSP itself as "domestic spying on innocent American citizens," then this news of probable FISC program wide, anticipatory warrants should be very disturbing to you.

On the other hand, if you supported the TSP and supported eviscerating the FISA warrant requirement to allow the TSP to operate under FISC supervision (if not any real FISC limitations), then your wish has been granted.

However, if you are simply a Dem partisan who wanted the President to "lose" on this issue national security be damned, then this news is very thin gruel indeed since the President is still conducting the TSP, only this time with the additional benefit of being able to admit the evidence in court. That is what is known as a win win outcome. You get to gloat over a meaningless "win" and the President gets to continue with his program unabated.
 

NPR reported this morning on my way into work that their sources in Justice claim that they started negotiations with the FISC to issue these warrants for the TSP two years ago before the NYT piece was published.

Take it for what it is worth. I do not trust anonymous sources from either side.
 

It's a sad day indeed when the lead headline reads, in practical effect, "President Agrees to Obey the Law".
 

Howard Gilbert... Rather than assuming that the government simply chose Padilla and decided to abuse him, the facts indicate that they really did not want anyone to know that Padilla was talking and providing valuable intelligence, at least until this information could be used to capture Binalshib (9/11/02) and KSM (3/1/03). By the time, however, that the case got to the first appeal, every lead had been followed up and it was no longer necessary to embargo what Padilla had said. The government finally began to release information.

An alternate theory, which makes more sense given the facts and timeline, is that by the Second Circuit appeal there was no longer any reason to keep Padilla in military custody. He was an intelligence asset who was past his "best if used by" date.


Some wonderful theories there but any useful information Padilla might have had was "perishable" or "stale" within 36 hours after his arrest was publicized on 6/10/2002. More than likely, he only knew what he needed to know. The bare minimum.

You might check the Marine Corps Interrogators/Translators Teams Association (MCITTA).

This 2005 article, THE USE OF "TORTURE" IN INTERROGATION by Maj. Anthony F. Milavic, USMC (Ret.), addresses that as well as debunking the Dershowitz "ticking bomb scenario".

Maj. Milavic's 25-year Marine career included service as: an instructor in Communist Interrogation, Indoctrination, and Exploitation of Prisoners of War; a tactical interrogator in Vietnam and a strategic interrogator; the principal intelligence officer of a Marine squadron, regiment, and division equivalent in combat; and, a DIA briefer for the CJCS/SECDEF.
 

And let's not forget Mr. Hamdi, who was released to Saudi Arabia (though on the unconstitutional condition that he renounce his American citizenship). It simply makes no sense to proclaim that he was one of the "worst of the worst" and then release him to the heartland of the worst form of Sunni Islamicismj (which, I gather, sees some imams now declaring that Shi'ites are really worse than Jews and other infidels).

What is sad, incidentally, is that John Walker Lindh is condemned to 20 years in prison for what is probably no very good reason beyond youthful stupidity. I presume that one reason he accepted this terrible plea bargain was the threat that he would indeed be tried for a capital offense or, at least, sentenced to life in prison.
 

jtdavis: Any system with inumerable and complex rules in place, some sufficiently vague and open to interpretation like our constitution, will inevitably lead some to study the rules closely enough over time so they can then use this massive (often contradictory) ruleset to play the "game" their own, unexpected way, often defeating the very purpose of said rules.

Which, in turn, might be the best-yet argument against Professor Levinson's call for a Constitutional Convention. (Slightly tangential wrt this thread, but spot on for a recurring theme hereabouts.) The best defense against such "gaming" of the rules would seem to be the eternal push for an enlightened electorate wary and accepting of such cheats-in-spirit.
 

"Mr. Hamdi, who was released to Saudi Arabia (though on the unconstitutional condition that he renounce his American citizenship)"

Not exactly. There are two theories that have been knocking around since Quirin. One points out that a US Citizen engaged in combat on the enemy side commits Treason. The other points out that this can never be the case because someone loses his citizenship under US law by serving in an enemy army at war with the US.

So Hamdi arguably had already lost his citizenship and this demand simply acknowleged it. Alternately, the US demanded formalization of his denaturalization before releasing someone who otherwise had to be tried for Treason. Either way, the demand was hardly unconsitutional.
 

"Bart" DePalma is confoozed:

The more I think about it, I would suggest that Justice was actively seeking these program wide anticipatory warrants in order to admit any evidence obtained in the surveillance into court.

...

Moreover, the recent US v. Grubbs decision entered on March 21, 2006 may allow the use of anticipatory warrants.

U.S. v. Grubbs


"Bart" simply misses the boat here; all wiretap warrants are "anticipatory warrants" in the Grubb sense: They, of necessity, permit the collection of evidence that is not present at the time of the issuance of the wiretap, but which is presumed to be "probably" coming into existence in the future.

WTF "Bart" is going on about WRT "program wide anticipatory warrants" is beyond me here. I suspect it's just bafflegab intended to snow those people who can't be bothered to look at what he's saying, what the case he cites said, and think about it.

Cheers,
 

"Bart" say the obvious:

The plain meaning of the statutory language does not allow program wide anticipatory warrants as the FISC appears to have agreed to issue now.

No comment necessary.

Cheers,
 

What is sad, incidentally, is that John Walker Lindh is condemned to 20 years in prison for what is probably no very good reason beyond youthful stupidity. I presume that one reason he accepted this terrible plea bargain was the threat that he would indeed be tried for a capital offense or, at least, sentenced to life in prison.

Lindh trained and served with the Taliban and al Qaeda and was captured with them in Afghanistan carrying weapons against our troops. Lindh pled guilty and admitted: "I plead guilty", he said. "I provided my services as a soldier to the Taliban last year from about August to December. In the course of doing so, I carried a rifle and two grenades. I did so knowingly and willingly knowing that it was illegal."

Taking up arms and joining the enemy in fighting our troops is not a "youthful indiscretion." If the government had two witnesses, they could have charged this person with treason. He is very fortunate to only get 17 years with good behavior. If I were a juror, I would have voted for the death penalty. Of course, I have a very low threshold for traitors taking up arms against our troops, some of whom are friends and family.
 

From today's Senate Judiciary Committee hearing:

Specter: Now wait a minute, wait a minute. The Constitution says you can't take it away except in the case of invasion or rebellion. Doesn't that mean you have the right of habeas corpus?

Gonzales: I meant by that comment that the Constitution doesn't say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn't say that. It simply says that the right of habeas corpus shall not be suspended.
 

"if i was a juror, i would have voted for the death penalty"...

i assume, mr. depalma, that as a good citizen, if you were a juror, you would have listened to all the evidence prior to voting, and would have voted based upon that evidence. while mr. lindh may certainly be guilty, and has plead guilty, i for one do not have all the evidence against him at my fingertips, and i suspect that you don't either.
 

phg: i assume, mr. depalma, that as a good citizen

Assuming facts not in evidence. My guess is that Bart couldn't make it onto a jury because he so merrily wears his unreasoned prejudices on his unthinking sleeve.
 

@Bart: You are a shameless, baldfaced liar. I await your response here, from which the below is excerpted.

Bart: ...you might want to first check his links and then review all the the prior times I have answered his unlinked little horror show hypothetical about the White House disappearing me.

Robert: This, in turn, is a flat-out lie. I have asked repeatedly for text from the MCA, you have repeatedly dodged with various nonsensical retreats. And in this self-same comment thread I repeated the question, "Which words in the text of MCA preclude it being our own Nacht und Nebel?" You never answer with the words of the MCA, because you can't. Neither, apparently, can you admit as much. Your claim that I haven't asked a question, here or elsewhere, or that you have already answered is nothing short of a lie. It ill becomes you, this dishonesty, this cowardice.

 

Don't forget, of course, that the administration also spoke out of both sides of their mouth by RELEASING Hamdi rather than providing him a hearing with minimal DP.
 

Gonzales is partially correct.

Alien enemy combatants have never been granted the right to challenge their wartime detentions under the British and American common law habeas writ which was presumably incorporated into the Constitution by implication under the Suspension Clause.

However, I would not know the basis for denying a US citizen access to habeas review based on their lack of standing. Previous times we denied US citizens habeas review is when they were detained as enemy combatants in a rebellion, which is a trigger for the suspension clause.
 

phg said...

"if i was a juror, i would have voted for the death penalty"...

i assume, mr. depalma, that as a good citizen, if you were a juror, you would have listened to all the evidence prior to voting, and would have voted based upon that evidence.


Of course. I am basing my comment on his admission of guilt to which I quoted.

As an aside, a prosecutor does not want another prosecutor on the jury. One of my colleagues at the DA's office thought he hit the jackpot when the defense ran out of preemptory challenges and a federal prosecutor fell into the jury. However, things did not work out so well. The prosecutor ended up being the foreman, explained in detail to the other jurors how heavy the burden of the prosecutor is supposed to be and why my collegue did not make that burden. The jury acquitted in 30 minutes on a case he might normally have won. I avoid like the plague placing attorneys on my juries. We muck things up.
 

Robert:

I have answered your hypothetical about the WH disappearing me as a foreign enemy combatant on multiple occasions. You simply do not like my answer. Just say you disagree and move on. I am not going to keep reposting the answer.
 

@Bart, Lies and cowardice. You have never responded with words from the text of the MCA---for the simple reason that there are none to support your position. You have never admitted as much, for reasons best left to you and your conscience---if you have one. If, in some past note you replied with the text from the MCA which protects innocent citizens from mistaken determinations, then point us to it and prove me wrong. But if you can't point to some such post then there's really nothing for you to do except admit your lies and live with your cowardice.
 

"Bart" DePalma misreads the Constitution:

Previous times we denied US citizens habeas review is when they were detained as enemy combatants in a rebellion, which is a trigger for the suspension clause.

Rebellion is not a "trigger". It (along with "invasion") is a necessary precondition:

U.S. Constitution, Article I, Section 9:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Cheers,

Cheers,
 

"Bart" DePalma says:

The prosecutor ended up being the foreman, explained in detail to the other jurors how heavy the burden of the prosecutor is supposed to be and why my collegue did not make that burden. The jury acquitted in 30 minutes on a case he might normally have won. I avoid like the plague placing attorneys on my juries. We muck things up.

Assuming arguendo the facts as stated, how is this "muck[ing] things up"?

Anyone who cares about the rule of law ought to be satisfied with this outcome.

Cheers,
 

Robert... Which, in turn, might be the best-yet argument against Professor Levinson's call for a Constitutional Convention. (Slightly tangential wrt this thread, but spot on for a recurring theme hereabouts.) The best defense against such "gaming" of the rules would seem to be the eternal push for an enlightened electorate wary and accepting of such cheats-in-spirit.

I am quite interested in that "recurring theme hereabouts" and Prof. Levinson's position on the issue. I have read what I could find of Jefferson's thoughts on the matter and presume to think I am of a similar, if much less brilliant, mind. Your observation and position are duly noted and do give one pause.

I'm reminded of "Master of the Universe" Sherman McCoy, in Tom Robbins' Bonfire of the Vanities. He "gamed the system" too, but the outcome was a just result and a triumph of what I'll call a "lesser evil over a greater injustice" because I'm not all that keen on self-proclaimed "Masters of the Universe" even if they've been humbled and redeemed. I suppose there is a lesson in there but a clear choice is not apparent to me. I rely heavily on two concepts I learned from a great Prof. during my studies in Criminal Justice:
1) The Constitution is vague by design, and I suppose that is why I'm inclined to see your point, and favor "the eternal push for an enlightened electorate" on one hand... and the other thing she was fond of pointing out is that "there are a variety of elements to the law that are morally ambiguous". I'm still wrestling with that one and I'm not sure if it's even relevant but one bad patch of an un-enlightened electorate can really screw the whole thing up.
 

Arne: Anyone who cares about the rule of law ought to be satisfied with this outcome.

But you forget, with the exception of the fine, upstanding drunk drivers Bart gets paid to get off, anyone charged must be guilty and anything short of a conviction is "mucking things up." For such as Bart "rule of law" means "giving full credence to the ruler's prejudices." No news there, eh?
 

@jt: Professor Levinson's book is quite detailed and well worth the read. I disagree with him as to the likelihood of a new Convention showing a systemic profit (rather than simply putting the whole of the government on fire-sale to whatever corporate interest gave the most cash to NewsCorp.) As for "elements to the law that are morally ambiguous", well, if one stipulates that the cosmology of David and Goliath is empirically unverifiable (i.e., if one allows for the existence of morals other than through interpretation of the holy writings of the Judeo/Christian/Muslim/Bhah'i traditions) then the entire history of law based on the assumption that some gaseous invertebrate will not allow an unjust cause to prevail might indeed qualify as "morally ambiguous." I'm curious on what foundation your professor constructed her theory of morals? It's a sticky wicket, that one...
 

De Palma... We muck things up.

I muck things up.

(fixed your typo)
 

Robert,

Thanks for clarifying. I understand what you are saying. Can't say I disagree. If it ain't broke...
WRT to my prof., suffice it to say, she probably wasn't a moral absolutist, she was a self-described social democrat. (Cue De Palma droning on about socialists in the academy). I think what she was trying to get us to realize was that "moral" outcomes were not always likey to result in matters of law.
 

in Tom Robbins' Bonfire of the Vanities

While I love Tom Robbins, I assume you mean Tom Wolfe.
 

I was just about to fix my own "typo".


Tom Wolfe it is.

I confess to having one too many electric kool-aid acid tests.
 

jt: Cue De Palma droning on...

At this point I am sufficiently convinced of his pusillanimity as to expect him to lay fairly low until there are sufficient new posts for him to jump in on, his hope in such a strategy being that memory of his lies and cowardice might fade away. Either that or he's "researching" freeperville for an "answer" to my question---in which case he's gonna be a while, 'cause there ain't any. The text of the MCA makes no provisions whatsoever for government error. The government can determine any of us an Alien Unlawful Enemy Combatant, and, once having done so, our only recourse is a kangaroo court (Military Commission.) Such a Comission need never be actually convened. It was Bart himself who pointed out that such a designation is tantamount to a life sentence w/o trial. He also observed that, in his prejudiced eyes, the only reason to actually convene such a commission would be to pass a death-sentence. Ever an embarrassment to the Bar, DePalma simply cannot seem to fathom that innocents could get picked up in this net, much less that it is the duty of loyal citizens to protect against such potential error. And that's not even looking at the potential for outright abuse of this particular law in the hands of a "pragmatist who does what it takes to get what he wants."

Still, it's time for me to de-rant. I suppose it's a measure of my folly that I took as genuine Bart's statement of being "conflicted" on a recent thread; my current level of ire is not entirely unrelated thereto. I should know better, eh?
 

Paul Campos, quoting the Attorney General: Gonzales: I meant by that comment that the Constitution doesn't say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn't say that. It simply says that the right of habeas corpus shall not be suspended.

This has haunted me all day. I don't even know what to say about it, don't know where to start. But thanks, Paul, for posting it. It should be banner headlines in all the papers, rather than a little husk of popcorn stuck in the gum of my mind. I haven't heard a single sentence in ages to compare to this one for sheer importance, for need of immediate refutation.
 

For what it's worth, my complaint about the parts of the Constitution I am now most interested in is that they are all too determinate, not lending themselves to ambiguity except in the most fevered academic seminar. We have two quite different Constitutions: One is the one that most lawyers know about, i.e., the "litigated Constitution," which by definition is about provisions that reasonble people can disagree about. Then there is the "never litigated" Constitution that does not really generate disagreement, such as apportionment of voting power in the Senate and my other hobbyhorses.
 

Robert Link said...

The text of the MCA makes no provisions whatsoever for government error. The government can determine any of us an Alien Unlawful Enemy Combatant, and, once having done so, our only recourse is a kangaroo court (Military Commission.)

One more time...

A US citizen need not rely upon the MCA or a military status hearing. You have an implied constitutional habeas right and an express right under the general habeas statute. Thus, as I have posted at least three times now, my attorneys have recourse to the federal courts to challenge your fantasy arbitrary WH designation of me as an alien unlawful enemy combatant without a status hearing.

At minimum, the federal court can determine whether I am an alien or US citizen.

The MCA implies, but does not clearly state, that the executive can make the initial finding of my status as a civilian or enemy combatant. Thus, the federal appeals court may defer initially to a military combatant status hearing or may less likely may make the decision itself.

If the court defers to the hearing and the "fascists" you imagine run these tribunals invent a designation of enemy combatant, then I can go right back to court for another habeas review of that decision.

If the military refuses to perform the status hearing, I am again back in federal court to request that they compel the status hearing or perform it themselves.

Robert, please do not claim yet again that I haven't answered your question. Your base premise is more than far fetched and your reading of the law is wrong.
 

I could not agree more with Prof. Balkin's analysis of the situation regarding Padilla and his characterization of Bush as a "bully." I used the term myself for Bush at the time of the November 2000 "election" when he and Baker and his legal team aggressively clawed their way to power with the help of 5 corrupt (IMHO) SC justices. It has been nothing but a continuation of the same story ever since.

Regarding Mr. Levinson's remark about John Walker Lindh I am also in agreement. One of the facts that seems to be forgotten was that Lindh went to Pakistan because of his interest in the Islamic religion, and months before the attack of 9/11/01. He was indeed young and naive and got mixed up with the wrong crowd who conscripted his service into their paramilitary unit. When he discovered what he got into and wanted out, he was threatened with death, as I recall his story. This all happened before 9/11 and before the Taliban became an "enemy" of the USA. Also, few people seem to be aware of our own country's culpability (especially the CIA's) in helping to create and fund al Qaeda (then known as the Mujaheddin) when our game-playing political leaders (of both Carter and Reagan administrations) were more concerned about geopolitical strategy vis-a-vis the Soviets than their impact on human lives in Afghanistan. Osama bn Laden was one of the Mujaheddin that the CIA funded (probably via Pakistan's ISI intel servcie). The callous disregard for human lives by our political leaders on Mount Olympus has been the cause of much human suffering among our people, as well as foreign peoples.
 

"Bart" DePalma steps in it:

A US citizen need not rely upon the MCA or a military status hearing. You have an implied constitutional habeas right and an express right under the general habeas statute. Thus, as I have posted at least three times now, my attorneys have recourse to the federal courts to challenge your fantasy arbitrary WH designation of me as an alien unlawful enemy combatant without a status hearing.

Ahhhhh. But "Bart" has been vociferously proclaiming for what seems like aeons now that "alien enemy combatants" have no right to habeas corpus. The preznit calls "Bart" an AEC, and "Bart"'s hot'n'heavy lawyers go to court to say: "But ... but ... but ... my client isn't an AEC. I demand a writ of habeas corpus to show the legal grounds on which he has been socked away in Guantanamo." The gummint says: "Well, we have it on good authority from one 'Bart' DePalma, Esq., that alien enemy combatants have never been extended the right to habeas corpus. Having determined that 'Bart' is an AEC, we move for dismissal on the ground that this court has no authority to grant such a writ." Case closed.

But, sad to say, I suspect that "Bart" still doesn't see the problem....

Cheers,
 

ewastud:

Osama bn Laden was one of the Mujaheddin that the CIA funded (probably via Pakistan's ISI intel servcie.

IIRC, Stephen Kinzer, in his book "Overthrow", says that the ISI (the Pakistani secret service) demanded that all the money be funneled through them to the mujahedeen. Thus, the CIA had no control over where the money went (and I'm sure you're right; some went to bin Laden et al). That being said, it's still unconscionable that the CIA would give out money in such a way....

Cheers,
 

Prof. Levinson wrote:

For what it's worth, my complaint about the parts of the Constitution I am now most interested in is that they are all too determinate, not lending themselves to ambiguity except in the most fevered academic seminar. We have two quite different Constitutions: One is the one that most lawyers know about, i.e., the "litigated Constitution," which by definition is about provisions that reasonble people can disagree about. Then there is the "never litigated" Constitution that does not really generate disagreement, such as apportionment of voting power in the Senate and my other hobbyhorses.

Thanks for that explication. I guess it would be obvious to those that read your book (a point on which I am remiss; but I think you've convinced me to put it on the "next to read" list). I understand. There's lots of things that bothered me as a law student, and some of the things you bring up are indeed some of those. I'd love to have a "do-over" and hope to steer things towards a more rational (and IMNSHO, more realistic) direction.

But....

I do sympathise with the nay-sayers, who point out, quite correctly, that a ripping up of the old order, no matter how flawed it may be in certain aspects, introduces the distinct possibility that what we get out at the end may be even more to our discomfort. I beg you to consider the fact that essentially all constitutional amendments as of late that have a fair degree of popukar support are not the ones that you are proposing or that I would like, but are rather those that we would be appalled by.

I wouldn't mind getting rid of the Electoral College, for instance, and if possible, it may be a good thing. But the political forcesthat would arise in any attempt to change the Constitution are beyond our control.

There be dragons, Prof. Levinson. All well to talk about it, but should substantial constitutional change occur, I'm not sure we'd be happy.

Cheers,
 

De Palma... Of course. I am basing my comment on his admission of guilt to which I quoted.

Coerced confessions and eyewitness testimony... the two most "reliable" forms of testimony.


Robert... I suppose it's a measure of my folly that I took as genuine Bart's statement of being "conflicted" on a recent thread; my current level of ire is not entirely unrelated thereto. I should know better, eh?

A thankless task but as I said before, a necessary one. As you noted, the casual reader benefits from what you do. I have no way of knowing but it's entirely possible that he may have taken one of these right wing internet activist courses or even be a paid operative of some group similar to this.
 

Link (that I forgot) to TAP article on the right wing internet activist courses.


Arne... I wouldn't mind getting rid of the Electoral College, for instance, and if possible, it may be a good thing. But the political forcesthat would arise in any attempt to change the Constitution are beyond our control.

I agree with you about the electoral college. I also wouldn't be surprised if some poli sci grad student someplace had done a comprehensive study of the long term outcomes of various state constituutional amendments. Arne and I can point to Prop. 13 that amended the CA state constitution.

It can be a Pandora's Box.

In the 2003 California recall election in which Arnold Schwarzenegger was elected governor, his advisor Warren Buffett suggested that Proposition 13 be repealed or changed as a method of balancing the state's budget. Schwarzenegger, believing that taking such a step would be to touch a political third rail that could end his gubernatorial career, said, "I told Warren that if he mentions Proposition 13 again he has to do 500 sit-ups."

(...)

Proposition 13 has been widely regarded as the most visible catalyst that launched the modern conservative movement - dedicated to lowering taxes, decreasing the size of government, and increasing states' rights - into the national spotlight. The newly launched conservative movement, in turn, was considered to have helped to catapult former California Governor Ronald Reagan into the U.S. presidency and the Republicans into control of both houses of Congress and of a majority of state governments.

 

Professor Levinson: For what it's worth, my complaint about the parts of the Constitution I am now most interested in is that they are all too determinate...such as apportionment of voting power in the Senate and my other hobbyhorses.

Noted, and yet another fine distinction.

But whatever the rule set adopted, determinate or indeterminate, insincere players will "game" them. The parties target small states, allegedly, because of this disproportionate Senate power, and you are able to predict as much because of the "never litigated" nature of this particular rule.

The point is, then, that no matter the rules, sincere players devoted to the spirit of the game will use those rules to forward the purposes of the game, in our case "form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity". I would argue the Cheney's of the world are less interested in these objectives then they are in securing what they deem to be "the blessings" (i.e., great wealth and power) for themselves and their posterity, with Liberty (for some, on an ad hoc basis) only a tool toward preserving those blessings, again, for themselves and their posterity. It's a sad, cynical view, but I can't see much evidence to the contrary
 

Bart: A US citizen need not rely upon the MCA or a military status hearing.

Which is a good thing, for there is nothing within the MCA itself to protect the innocent from life imprisonment pending convening of a commission after a mistaken government determination of AUEC status. This is about as close as you've ever got, you cowardly, lying cheat, to saying so. I take note that even here you hedge and dodge.

Bart: You have an implied constitutional habeas right and an express right under the general habeas statute. Thus, as I have posted at least three times now, my attorneys have recourse to the federal courts...

No, you cowardly, lying cheat. I have implied nothing. I have instead clearly stated that access to due process rights is obliterated by the text of the MCA. It is you, you cowardly, lying cheat, who keep claiming access to habeas and other rights despite clear language in the MCA depriving the innocent as well as the guilty of same. Once a citizen is designated, even in error, as an AUEC there is nothing to prevent the government from locking them up and throwing away the key. So, you cowardly, lying cheat, please stop beating that particular broken drum. The text of the MCA specifically strips the rights to a speedy trial, against compulsory self-incrimination, and relating to pre-trial investigations; here.

Bart: ...to challenge your fantasy arbitrary WH designation of me as an alien unlawful enemy combatant without a status hearing.

As a cowardly, lying cheat once said, "One more time..." The only reason this scenario morphed from a generic one concerned with protecting the innocent (and with preventing political abuses) into a personalized one featuring you specifically is that nothing less seemed able to compel you to address the issue of protections for the innocent and prevention of potential political abuse. You crowed the value of the legislation while never admitting the potential dangers. You, cowardly, lying cheat that you are, refused to address those dangers when phrased generically, and had to be handed a personalized version and called out as a coward to get you to respond at all.

Bart: At minimum, the federal court can determine whether I am an alien or US citizen.

Excuse me, you cowardly, lying cheat, but which words in the text of the MCA give back to the innocent the due process rights required to get them to federal court in the first place? Those due process rights are stripped by the text of the MCA once a "competent tribunal" has designated said innocent person an AUEC. I ask, you cowardly, lying cheat, because a fair few cogent readers see no such power granted to the federal court, just as there is nothing in the MCA providing an innocent citizen's family, or any other potential advocate, be notified of the detention in the first place. You have no answer to this because the only answer is, "The plain meaning of the MCA contains no such provisions." There is nothing in the text of the MCA to preclude the government picking up any citizen, designating them AUEC (in a mistake of good faith or as an act of political repression) and then, absent the right to a speedy trial, absent protection against compulsory self-incrimination, absent pre-trial investigation rights, hold that detainee without trial of any kind indefinitely. If I am wrong, you cowardly, lying cheat, show me with text from the MCA.

Bart: The MCA implies, but does not clearly state, that the executive can make the initial finding of my status as a civilian or enemy combatant.

Wrong, you cowardly, lying cheat. The MCA states clearly, under "Scope of the Act" that initial determination is made by "competent tribunal established under the authority of the President or the Secretary of Defense". Bart, you _are_ literate, aren't you? I mean, that's a requisite even for the Colorado Bar, right? Then maybe you can tell me which words in the MCA establish the criteria for creation of such a "competent tribunal"?

Bart: Thus, the federal appeals court may defer initially to a military combatant status hearing or may less likely may make the decision itself.

Bart, you cowardly, lying cheat, what words of the MCA say so? It's a short document, I've linked to it above, in case you're unable to figure out how. Read it and tell me, which words in the MCA say so? That's the question I've been asking, and which you, you cowardly, lying cheat, have been dodging all along: "Which words of the MCA support your contentions?"

Bart: If the court defers to the hearing and the "fascists" you imagine run these tribunals invent a designation of enemy combatant, then I can go right back to court for another habeas review of that decision.

Yet again, Bart, you cowardly, lying cheat, what words of the MCA say so? Don't bother trying to belittle me with scare quotes and connotations, it is belittling enough to have grappled with you, you cowardly, lying cheat, all these months. Just explain to me with the words from the MCA why things are as you wish them to be, how innocent people are protected from good faith mistakes in designation? Show me with words from the MCA.

Bart: If the military refuses to perform the status hearing, I am again back in federal court to request that they compel the status hearing or perform it themselves.

One more round, Bart, you cowardly, lying cheat, what words of the MCA say so? You still assume access to due process rights which the MCA strips from the innocent as well as the guilty. But any other approach would require of you some courage and truth and honesty.

Bart: Robert, please do not claim yet again that I haven't answered your question.

Bart, you coward, you liar, you cheat, I have asked time and again for words from the MCA. You have had months to search that document for them. You have failed to find them. And you have failed to find the intellectual honesty or moral courage to say so. I ask for text from the MCA, I get cowardly lies and cheating evasions.

Bart: Your base premise is more than far fetched and your reading of the law is wrong.

My base premise is shared by many, to wit, the MCA creates grave potential threats to innocent citizens, even absent fears of political abuse. As for my reading of the law, you cowardly, lying cheat, how about showing me, with text from the MCA exactly which parts I'm reading wrong?

--0--

Apologies, all, but I have had enough. There are vastly more valuable uses of my time than spanking this miscreant, and it is time I turned to them. But as I sign off let me make a suggestion: study the history and sociology of usenet newsgroups. Chronic, dedicated, pathological trolling such as Bart's is not a new phenomenon; bbs users and usenet veterans were dealing with such long before Tim Berners-Lee invented the web. In particular, I'd think any blog such as this or Glenn Greenwald's would benefit from a weekly "FAQ" posting. This could give a little of the follow through lacking in the nature of this medium, and such documents are quite useful for identifying the recurring themes of primary players as well as the repeated cheats of dedicated vandals.

But I won't be compiling that one. I truly need to focus more on my day job and my studies. I'd love to hear from any of you by email, or at one of my sites, information for all of which is available via my blogger profile.

Peace, and out.
 

bart

while i'm a little late on this, and it appears a little outside the thread (i don't check in constantly}, i understand that you are basing your decision to impose the death sentence on an admission of guilt. the admission, however, is simply one piece of evidence in a death sentence hearing. i assume that mr. lindh did not agree to a death sentence in his admission. there is also the possibility that a trial would show that the admission was coerced, that there were mitigating circumstances, etc. in other words, you still have not heard all the evidence, yet based on what little you have heard, as a juror, you would still convict?

as for your friend on the jury...

i too have been seated on a jury under similar circumstances. in this case, both sides ran out of challenges, and in spite of the fact that the attorneys for all parites and the judge knew me, when i told them i could try to be fair, that was it. coincidentally, i was also the foreman on the jury. in my case, the judge pulled me into chambers, and told that i was not to let the other jurors know what i do for a living, so as not to put myself in a position to dominate deliberations (i had been questioned during voir dire outside of the presence of those who had already been seated).

in your friend's instance, his lecturing his fellow jurors on the burden of proof, as far as i am concerned, more than likely tainted deliberations, even if the ultimate result was correct, and should have resulted in a mistrial.
 

Arne Langsetmo wrote: "There be dragons, Prof. Levinson. All well to talk about it, but should substantial constitutional change occur, I'm not sure we'd be happy."

I can think of one reason why a new constitution would go against the welfare of the general populace. Today, its a fact that corporations have more political and economic power that actual people. I think the likelihood that a new constitution would further enshrine such power to be highly likely.
 

phg said...

bart, while i'm a little late on this, and it appears a little outside the thread (i don't check in constantly}, i understand that you are basing your decision to impose the death sentence on an admission of guilt. the admission, however, is simply one piece of evidence in a death sentence hearing.

My friend, I was making a policy comment of how I personally view the proper punishment for traitors who take up arms against our troops. I aimed this comment at Lindh because he admitted doing such in open court.

Professor Lederman made a general comment excusing his activities as a youthful indescretion and I made a general comment in rebuttal. Please do not read anything more into it.

there is also the possibility that a trial would show that the admission was coerced, that there were mitigating circumstances, etc. in other words, you still have not heard all the evidence, yet based on what little you have heard, as a juror, you would still convict?

The admission to which I quoted was made in open court, not under coercive interrogation. I presume the judge preceded this admission with the usual colloquy of questions on whether his plea was coerced. If Lindh had answered yes to that question, the plea would have been rejected and he would not have reached the point of being asked about the facts of the case.

as for your friend on the jury...i too have been seated on a jury under similar circumstances. in this case, both sides ran out of challenges, and in spite of the fact that the attorneys for all parites and the judge knew me, when i told them i could try to be fair, that was it. coincidentally, i was also the foreman on the jury. in my case, the judge pulled me into chambers, and told that i was not to let the other jurors know what i do for a living, so as not to put myself in a position to dominate deliberations (i had been questioned during voir dire outside of the presence of those who had already been seated).

in your friend's instance, his lecturing his fellow jurors on the burden of proof, as far as i am concerned, more than likely tainted deliberations, even if the ultimate result was correct, and should have resulted in a mistrial.


That is an interesting take. Generally, a juror can bring his or her life experiences into the jury room and this can work in the favor of one side or the other. For example, when I was defending a civil wrongful injury case where I thought the medical evidence supporting the injury claim was spurious, I worked successfully to keep a juror with medical experience so that she could help the other jurors with the medical testimony.

I do not know how that principle would apply to a lawyer answering other juror's questions about jury instructions. If he stuck to the correct meaning of the instruction and did not add or subtract anything, I would think that this would be OK. If he changed the instruction, then I would think you have grounds for a mistrial.

Thanks for the story.
 

Robert:

I gather from your lengthy screaming post that you disagree with my take. I'm sorry to have upset you again.

If you do not like my responses to your posts directed to me then I suggest that you stop directing questions to me.

Moreover, if you are going to engage in the arne school of juvenile name calling, I would be glad to ignore you as well.

Your choice.
 

Mr DePalma,
You said this:
"A US citizen need not rely upon the MCA or a military status hearing. You have an implied constitutional habeas right and an express right under the general habeas statute. Thus, as I have posted at least three times now, my attorneys have recourse to the federal courts to challenge your fantasy arbitrary WH designation of me as an alien unlawful enemy combatant without a status hearing."

Apparently, your Attorney General thinks otherwise. In a hearing yesterday, he said this:"[T]he Constitution doesn't say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn't say that. It simply says that the right of habeas corpus shall not be suspended."

I am curious to know if you are planning to defend the notion that there is no right to habeas in the United States. If you do, I trust you will also explain whether this means there is also no right to free speech, etc.
 

sparky said...

Mr DePalma: You said this: "A US citizen need not rely upon the MCA or a military status hearing. You have an implied constitutional habeas right and an express right under the general habeas statute...

Apparently, your Attorney General thinks otherwise. In a hearing yesterday, he said this:"[T]he Constitution doesn't say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn't say that. It simply says that the right of habeas corpus shall not be suspended."

I am curious to know if you are planning to defend the notion that there is no right to habeas in the United States. If you do, I trust you will also explain whether this means there is also no right to free speech, etc.


Apparently you missed my post above at 5:14 PM disagreeing with Mr. Gonzales on the portion of his comment referring to US citizens. I will be charitable and assume that Mr. Gonzales misspoke in the midst of lengthy and heated questioning.

My position is pretty simple: Unless the requirements of the Suspension Clause have been met, US citizens have an implied constitutional right to habeas review of their detentions. In contrast, alien enemy combatants never had such a right prior to the Constitution, thus, the Constitution could not have incorporated such a right when it was enacted.
 

Mr DePalma--
I did see your earlier post but I didn't think it addressed the issue directly. Thanks for the clarification (sorry for the double post, too).

As to your interpretation of the AG's remarks, I suppose we'll just have to disagree. Once upon a time, I would have been more disposed to be charitable myself, but no longer. IMO, this Administration has forfeited any presumption of good faith, at least with regard to the legal arguments offered for public consumption on this subject.
 

"Bart" DePalma says:

Moreover, if you are going to engage in the arne school of juvenile name calling, I would be glad to ignore you as well.

The irony just drips off the screen like molasses.... ROFL.

Cheers,
 

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