Balkinization |
Balkinization
Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Accountability and the Renegade Executive
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Thursday, March 29, 2007
Accountability and the Renegade Executive
Scott Horton Normally, I begin my remarks by saying "Ladies and Gentlemen." But here I'm not sure that's quite the right salutation. On my way down from New York to Charlotte to Memphis to Oxford, Mississippi today, passing over the freshly verdant Appalachians and then down the valley of the Tennessee River to the Mississippi Delta, I read the first chapters of William Faulkner's novel, Sanctuary - it takes placed in a bucolic college town named Jefferson - a town which is remarkably like this one. And there towards the end of Chapter III, I ran across this scrap: "The Virginia gentleman… told us at supper that night about how they had taught him to drink like a gentleman. Put a beetle in alcohol, and you have a scarab; put a Mississippian in alcohol, and you have a gentleman -" So, as it's still too early in the evening to speak of "gentlemen" here in Mississippi, I'll just say "friends." America today is in the grips of a scandal surrounding the machinery of justice, but it is a scandal being played out on more fronts than the mass media seems to realize. Indeed, in the end it turns on the concept of justice, not simply the bureaucracy that supposedly administers it. Eight US attorneys were dismissed by Alberto Gonzales on prodding from Karl Rove. We now know the fateful decision was taken on December 7 (an ironic day, as FDR said, "a day that will live in infamy"). As Gonzales and his deputies Paul J. McNulty and William Moschella trotted out various and contradictory after-the-fact rationalizations for this decision, it has become increasingly clear that the dismissals were politically inspired. Indeed, in the testimony that he has submitted to the Senate Judiciary Committee within the last two hours, Gonzales' chief of staff acknowledges as much. The prosecutors selected for discharge come from "battleground states" which will be key to the 2008 presidential election: New Mexico, Nevada, Arizona, Michigan, Washington and Arkansas. This is no coincidence. Shortly after the 2006 Congressional election, Karl Rove, licking his wounds over a serious defeat, indicated in a speech to Republican lawyers that the public perception of scandal surrounding GOP law-makers was key to that loss. Rove promised he would do something about it. Within a few days, a move to cashier these prosecutors was underway. It is tied to a plan to use their offices to go after Democrats, whether a basis existed or not, and to pursue a voter suppression program focused on prospective Democrats. In other words, it's pure politics. Not high politics in the sense that Aristotle uses the term. But the crude gutter politics of the partisan hack. This sort of politics is not the exclusive province of one party. But over the last years, one party has exercised a monopoly on political power, and this appears to have led to a particularly virulent strain of political hackery. Standing alone, this incident would be cause for grave concern. But it's just one aspect of a far broader crisis in which our country is enmeshed. The crisis has its start in the decision to introduce torture and cruel, inhuman and degrading treatment - in contravention of 230 years of US military tradition, stretching back to George Washington's order after the battle of Trenton. Gonzales had a key role in this process as well, backed up by Cheney's chief-of-staff, David Addington and the now ever-present John Yoo. They tell us that they did this to insure that the president, as commander-in-chief, would have all the tools at his disposal that he might need to fight a war against terror. But if we strip the varnish off that, there are unmistakably unsavory elements underneath: one is a recognition that torture is a crime, and the second is a desire to enlist it into the president's arsenal notwithstanding what the law says. A former president of the Argentine bar, with whom I spoke two years ago, told me that his experience with torture in Argentina's "Dirty War" under a military dictatorship had been very clear. The dictator wanted torture as a talisman. It would show that the military rulers were above the law - subject to none of the restraints that marked the rule-of-law state. No one was under the illusion that torture techniques would actually get any useful intelligence. On the other hand, it would instill fear, and that was useful. He spoke to me with some conviction: the legal profession must oppose the introduction of torture, he said. In the end you will learn this is not about interrogation practices, it is about dictatorship, about tyranny. The experience of Argentina and Chile backs him up. Is the experience of America different? America is not governed by a military junta, of course. Nor can the brutality of technique and number of victims of the "Dirty War" yet be compared with the dark underside of the war on terror. But it is striking that most of the abusive techniques used by the Argentine junta were adopted and introduced in what President Bush has called the "program." This includes waterboarding, which the Argentinians called el submarino, the cold cell (or hypothermia), long-time standing and sleep deprivation in excess of two days. Nevertheless, this is a question we all should ponder. The Argentine lawyer's remarks reminded me immediately of what Gonzales wrote in a memorandum on January 25, 2002 - he speculated that the newly fashioned plans for the war on terror might lead future prosecutors to consider war crimes charges. Gonzales suggested that if Bush declared that the Geneva Conventions did not apply, it would be more difficult for a prosecutor to go after the authors of these new policies. It's chilling to consider that this was written by a man destined to serve as the nation's chief law enforcement officer. But it explains, perhaps, why Bush gave Gonzales the nick name "Fredo" - the name of the younger, loyal, but mentally less adept son of the Godfather crime family, the Corleones. It started with torture but it moved swiftly beyond this. For instance, to a decision to introduce a system of torture-by-proxy through extraordinary rendition. Gonzales also gave this program, which has its origins back in an anti-drug kingpin program launched by Clinton, the green light. And now more than thirty American public servants - CIA officers and military for the most part - stand under indictment in Italy and Germany with counts of assault, kidnapping and other felonies; these are all dedicated public servants performing an official program. The blame for what happened doesn't rest with them, or at least not entirely. It rests with the people who formed the policies that they implemented. Our reputation around the world is a tatters. And nations who want to cooperate with us in a war against terror, and whose support the United States badly needs, repeatedly find they can't do so. If they do, they will be collaborating with a nation that tortures, and they aren't prepared to sacrifice their values the way the Bush administration has sacrificed ours. Recently a friend of mine who works with the Afghan Government shared with me some intelligence the Afghans had gathered from a young man apprehended in connection with an attack using an improvised explosive device. The man had fled as a refugee to Pakistan. There he was seized by the Pakistani Inter Service Intelligence (a close collaborator of the CIA) and told that unless he participated in a planned bombing attack on NATO forces in the Afghan south, the Pakistanis would turn him over to the Americans, he would be taken to Guantánamo and tortured there for years on end. He agreed to participate. Interestingly he was not the only young Afghan to be captured with an account like this. Is the account true? The Afghans are convinced it is, and US intelligence apparently has credited it as well. So there you have it: come full circle. The image of Gitmo used to recruit people to perform acts of terror against us. Gonzales also gave the go-ahead for surveillance that violated FISA, a federal criminal statute. Indeed, Newsweek gave us a fascinating insider's account of how all this went down at Justice. Then Attorney General John Ashcroft was out in the hospital for a gallbladder operation. James Comey, his deputy, said "no," he couldn't possibly authorize this. Neither, apparently, would Jack Goldsmith, the man responsible for the Attorney General's legal opinions. Gonzales had to find alternative means to get this through. And in short order Ashcroft, Comey and Goldsmith were gone from Justice and Gonzales arrived with a new team of enablers. Gonzales gave evasive or false testimony about much of this during the confirmation process, which earned him a distinction that is, as far as I know, unprecedented for a US attorney general. He enjoys such a reputation for "truthiness" (as Stephen Colbert calls it, namely something which has the outward appearance of truth, but is, in fact, a lie) that he is not permitted to speak before the Judiciary Committee without being formally sworn in. And this last weekend, three senior Judiciary Committee Republicans - Specter, Graham and Hagel, were openly discussing Gonzales' truthiness problems on talk shows. Where once our nation had the debate of Jeffersons, Madisons, Websters and Clays, now we have the Beltway punditry - the Fred Hiatts, Chris Matthews and Norah O'Donnells - a vacuous chattering class which is the Muzak of our political discourse. They tell us that all of these scandals - the cashiering of US attorneys, the surveillance, the introduction of torture and torture-by-proxy - this is all just politics. Don't get yourself worked up. In fact, pay no attention. Time to move on. Don't believe them. This is about the country we live in and the country we will pass to posterity. It's about fidelity to the values on which this country was founded. It is about the rule of law and accountability. Our Founding Fathers had faith in mankind, but also a very real sense of man's corruptibility. "If men were angels," James Madison wrote in Federalist No. 51, then we should have no need of government. But men are no angels, and politicians may in fact be closer to what Kant called a race of devils. The genius of the tripartite system of checks and balances that Madison and the other Founding Fathers created was its use of the quest for power latent in so many of us (and especially in politicians) as a brake against itself. But in the last six years this brake has been dismantled and removed. There has been a fundamental shift in the power structure - a sweeping reallocation of power from the Congress and Courts to the Executive. Much of this has occurred secretly, behind closed doors, as a sort of constitutional coup d'état. It's telling that the current scandal began with a secret change in the Patriot Act. Unbeknownst to those who should have run the process, including Senator Specter, then the chair of the Judiciary Committee, a provision was slipped in at the last minute giving the Attorney General a direct power of appointment of US Attorneys, skirting the advice and consent of the Senate. This provision was smuggled into the bill by a young legislative assistant who was promptly appointed, at 34 years of age, as the US Attorney in Utah. He was a friend of Kyle P. Sampson, Gonzales' chief of staff and the man who stage-managed the removal of the eight US attorneys. Sampson, who is going to become a household name in the next few days, has a nickname, "Little Rove," both for his similarity to and friendship with Karl Rove. But the point here is that the Senate should have exercised a brake by looking into the entire process, and through legislative legerdemain that was stopped. Bismarck famously said that with legislation, like with sausage, it was perhaps best not to know what went into it. But that reflects the Bismarckian democracy, which in the end, wasn't much democracy at all. As for our process, we have Madison's admonitions not to legislate in secret, a charge that Congress has rarely lived up to, but has miserably breached these last few years. This week at colleges and law schools around the country, there is a special focus on what is underway at Guantánamo, or Gitmo as my Navy friends call it. Newspapers today are reporting on the first hearings held in the military commissions process. Last weekend, the New York Times informed us that in his first weeks in office Bob Gates, the man who replaced Donald Rumsfeld as secretary of defense in December, put together a comprehensive plan to shut down the Gitmo detention centers and move the entire operation to the United States. This initiative was immediately supported by Condoleezza Rice. Gates and Rice argued that the name "Guantánamo" was now held in such disrepute around the world that no one would ever associate what transpired there with any notion of justice. Gates, it seems, thought that when Bush said he wanted to shut down Gitmo, he really meant it. But he quickly learned that it's dangerous to assume Bush means what he says, especially when he's talking about Gitmo and the war on terror. Alberto Gonzales and Dick Cheney stepped in very quickly to quash the Gates plan. Gonzales said that bringing the detainees to the US could have unpleasant legal consequences for the administration. Indeed it would. It would greatly up the chances that the detainees would be able to challenge their treatment in a federal court, before real judges, who would apply real law - starting with the US Constitution and continuing on to the Geneva Conventions. And it would open the prospect that the American people would learn, perhaps in some detail, exactly what was done to those detainees. Rumsfeld called them the "worst of the worst" but we know thanks to a Seton Hall study that roughly 80% of them were picked up by Afghan and Pakistani bounty hunters, and, in the assessment of both FBI and CIA teams that initially screened them, had no business being there. Gates and Rice were correct when they offered that no one would associate these proceedings with justice. That's because they bear no resemblance to justice, as it has traditionally been dispensed in US courts. Nor do they bear much resemblance to the high and honorable standards that have been established under the Uniform Code of Military Justice and the Manual on Courts-Martial. These proceedings are loaded from the outset. Defendants are not permitted counsel of their choosing, and defense counsel have been subjected to a torrent of abuse and mistreatment. Evidentiary rules are weighted in favor of the admission of coerced testimony, including torture-induced testimony, secret evidence, and evidence which cannot be confronted or properly crossexamined. A fair-minded judge might still get to a just result, but the rules the Pentagon dictated, and the shameful provisions the Congress wrote, will make it perilously difficult to get there. Dwight David Eisenhower, the last of our nation's great warrior presidents, said "Though force can protect in emergency, only justice, fairness, consideration and co-operation can finally lead men to the dawn of eternal peace." He reflected the received wisdom of the nation that won World War II and then turned with swift justice to the work of the Nuremberg and Tokyo Tribunals. Through this process, America demonstrated it had a powerful thirst for justice. It vindicated America's cause in the war. It exorcised the demon of fascism which had laid hold of the heart of Europe. And it produced a new world in which the vanquished foes, Germany, Italy and Japan, emerged as America's allies for the coming generations. Eisenhower's faith in the power of justice, pursued swiftly and with a firm sense of fairness, was borne out. Wielded effectively, justice is indeed among the most potent tools in our arsenal. And this provides reason for us to ask: Why is this administration afraid of justice the way our fathers and their fathers understood it? Why do we wait five and a half years after 9/11 to witness the first sessions of the military commissions? And why do we then witness a confused tumult which embarrasses us in the eyes of the entire world, just as Gates suggested it would? In the end the turn against traditions and values has been about the aggrandizement of power in the executive. It has been about arrogant avoidance of accountability. And it has been about that principle that lies most at the heart of the development of the Anglo-American legal tradition, namely that no man is above the law, not even the king or the man who would be king. As with so many things of recent times, it resonates of England in the seventeenth century, and reminds us of the famous words uttered by Thomas Fuller: "Be ye ever so high, still the law is above thee." But the mantra of the current administration is to frustrate all efforts to hold it to account, to grant itself immunity for its crimes, to strip courts of jurisdiction, including even the great writ. On each of these points, the conduct of the Bush presidency mirrors that of Charles I, the monarch whose conduct provoked Fuller's statement. Americans have inherited a great legacy, one that embraces the worth and dignity of all human beings, the promise of equal justice for all before the law, a principle of limited, carefully divided and counter-posed governmental powers, with full accountability to a people in whom sovereignty rests. The answer to our current problems lies in our past, and in fidelity to the best that America has brought forth. But it requires citizens to be alert and to see what passes before them. And it requires us to take our heritage seriously. Remarks delivered at the University of Mississippi School of Law, Oxford, MS, Mar. 28, 2007 Posted 1:22 AM by Scott Horton [link]
Comments:
In view of the repetion our society has of tottering over the brink... the McCarthy era, Vietnam, and now declared expansion of empire with the Iraq invasion and the premptive war doctrine... there must be something else, some underlying motive, to explain the enthousiatic embrace of such policies.
Hitler wanted to corrupt minds and he may well have suceeded. The comparison of today's horror with the "total horror" of a coldly planned, carried out extermination, first of political enemies, then the "inferior races," gyspies were included with jews, is now deemed more acceptable than the "total horror" and no longer provokes the indignation it should or would have before. If society were not receptive would such ideas take root? Can an expanding military empire function in any other manner? They never have in the past, so surely we are in urgent need of introspection which is not our national pastime.
"It's telling that the current scandal began with a secret change in the Patriot Act. Unbeknownst to those who should have run the process, including Senator Specter, then the chair of the Judiciary Committee, a provision was slipped in at the last minute ... "
The very fact that a bill CAN be secretly changed prior to being voted on, and the members voting on it, let alone the general public, will have no way of knowing before it becomes law, indicates that there's something radically broken in the legislative process. A problem which is logically and historically prior to the executive branch problems being complained of here. Representative democracy is a joke when legislative leaders can arrange for the members to vote on legislation without having had access to the text. The President didn't seize the power to appoint without confirmation by main force, he was given it, and he was given it because the administration of Congress was already corrupt.
while i agree with you, brett, that the the administration of congress may have been corrupt in this process, as somebody had the responsibility to fully vet legislation before members of congress voted on it, i would be more inclined to modify this by saying that the administration of congress in this matter was inept and incompentent in the failure to read vital legislation before it, so as to bring it to the point of corruption by its very incompetence.
this having been said, somebody, most likely the administration or their lackeys in the legislature, slipped the offending provisions into the legislation knowing it would not be fully vetted and understood prior to voting. that is pure corruption.
"as somebody had the responsibility to fully vet legislation before members of congress voted on it, "
"Somebody"? I'm quite sure that "somebody" DID fully vet the damned legislation. Several somebodies, probably. The problem is that 435-n, where n is in the single digits, somebodies were deliberately denied any chance to vet it. The idea that it's ok to force members to vote on legislation they have no way of knowing the contents of, as long as somebody has looked at it, is exactly the problem here. Look, I'm not saying that we don't have a problem in the executive branch, a problem which has been growing worse for decades. (And which I fully expect to be even worse during the next administration, whether or not a Democrat is elected, unless fundamental reforms happen.) But the Constitution is a conscious design for legislative supremacy. The President has not seized power by main force, he's been given it. By the legislature. It's a mistake of the first order to think that the problem is Bush. The problem is that the legislative process is broken. It's broken in a way which is hurting us in too many ways to list here, of which growing executive usurpation of power is only one. Let's fix the root cause.
DUDE! Scott Horton was at Ole Miss this week, and I didn't hear about it?
Damn. I would've driven up from Jackson. --On Brett's excellent point, I like the idea from a while back that every proposed bill be legally required, after its final emendation & a week or two before passage, to be posted on the internet. Between the Josh Marshalls and the PowerLines of the blogosphere, I think we would learn a great deal about obscure provisions before the vote.
Scott:
I am curious about the nature of discourse at our law schools these days. Did the law school provide a counterpoint to your speech or were you speaking to the academic choir? Part of the fun of being one of the Federalists in law school was ensuring that every speech from the left had a counterpoint speech from the right / libertarian view. Sometimes, the professors would be kind enough to participate in debates with speakers we invited. It was nearly impossible to have an intramural debate across the ideological divide among our own professors. I was aware of only one moderately conservative professor. The rest ranged from center-left to unreformed Marxists. We found our lone conservative professor through the process of elimination trying to secure a sponsor for our Federalist group. Thankfully, the student body was not nearly so slanted. By the time I became a 3L, we had almost 50 members in the Federalists compared to about 20 for ACLU. I think our parties were more fun. Fond memories.
Prof Horton [from the post]:
ut the mantra of the current administration is to frustrate all efforts to hold it to account, to grant itself immunity for its crimes, to strip courts of jurisdiction, including even the great writ. This sneaks into the "rationale" advanced by the likes of Scalia as to why the Eleventh Amendment supposedly says precisely what it does not say: That states don't have to wnaswer for their actions in federal courts to any suit, even by their own citizens, unless they want to (and why would they want to?). The king is dead ... but long live the king. We have our "sovereigns" and they don't have to answer if they don't want to. Wasn't my understanding of what that kerfluffle two and a quater centuries ago was all about, but who am I to know? Cheers,
"Bart" DePalma:
The rest ranged from center-left to unreformed Marxists. We found our lone conservative professor through the process of elimination trying to secure a sponsor for our Federalist group. Keeping in mind that to "Bart", everyone left of Scalia is a CommieSympIslamofascist traitor, I'd note that when they needed an advisor for the Federalist Society at Boalt (of which, in the interest of full disclosure, I was actually the treasurer of the student chapter ... long story; I was trying to keep a watch on 'em and keep 'em honest), we got John Yoo. 'Nuff said. Cheers,
"Bart" DePalma:
By the time I became a 3L, we had almost 50 members in the Federalists compared to about 20 for ACLU. I think our parties were more fun. Is that why you don't know basic civil procedure and you think that Brown II says what it does not say? At least at Boalt, I pushed to make sure the funds went to academic endeavours. I will grant the Federalist Society their due; they did put on events with two sides presented (although many, like Lilllian BeVier, David Sentelle, and Michael Greve, went unopposed). I tried to push for events that would present people on both sides ... for reasons that should be obvious to those familiar whith what I say here. That being said, "Bart", why don't you try to engage in actual and honest discourse with your opponents here? Cheers,
Defense Secretary Robert Gates testifying before Congress on Guantanamo Bay: "Is there a way statutorily to address the concerns about some of these people who really need to be incarcerated forever but that doesn't get them involved in a judicial system where there is the potential of them being released, frankly?" Reuters News Report
How has our nation gotten to a point where a cabinet member would sincerely ask such a question?
quitealarmed:
How has our nation gotten to a point where a cabinet member would sincerely ask such a question? Good question. How did we get to the point where the military is reluctant to try prisoners of war as war criminals or to bring prisoners of war into our country because they are worried that the judiciary might release the back into the world to continue their wanton butchery? The military has never faced such a judiciary in the over 200 years this Republic has existed.
This speech illustrates perfectly why Bush can't possibly fire Gonzales. He would have to appoint a successor the Democrats would approve. And no successor the Democrats approve is likely to tolerate the rot that has grown in the Justice Department. A really honest AG might even expose it.
Bush is hanging onto Gonzales for dear life.
QuiteAlarmed, were you commenting on how miserable you think the U.S. justice system is, or how miserable you think our cabinet secretaries are?
Myself, I think your anecdote supports the latter. Secretary Gates evidently thinks that we KNOW certain people are too awful to keep prisoner, but fears that the courts will set them loose. Bearing in mind the appellate process, trial by jury, etc. The only way that begins to make sense if if the "evidence" consists of confessions that would be inadmissible because they were extracted by torture. In which case, who's to blame -- the courts, or the torturers? And how have we come to the point where that question even has to be asked?
Am I the only one here who finds it disturbing that being "conservative" these days is identified with favoring warrantless wiretaps, unlimited executive power and torture?
Bart:
How did we get to the point where the military is reluctant to try prisoners of war as war criminals ... ? The string of epithets that I vented on that statement. What can I say but to call such a misrepresentation a lie, and the liar scum? The whole damn point of the conversation is that the administration does not want to try the prisoners as war criminals. It does not want to call them POWs, it does not want to put them on trial, it does not want to abide by international and American standards for trying war criminals. All of which Bart has been supporting until this very statement. We have a model for trying war criminals: Nuremberg. We did not torture them. We gave them lawyers. We presented the evidence before them. We had public trials. In short, we used the traditional panel of judges from European (and American court martial) proceedings. We applied the law to them in the same way that we were demanding that they had the responsibility to apply to others. That is what is being avoided by the current administration. What "liberals" want is exactly to try them as war-criminals. What the administration wants is to administratively, and not judicially, condemn men to a black hole forever. And that is against the international convention on human rights, and the very legitimacy of our current hegemony. Back to English common law (Bart's star chamber adage), we have known that administrative incarceration and punishment is tantamount to tyranny. Of course, Bart fears that his masters don't actually have evidence of war-crimes, so what he wants is a show-trial, just like his role-models in the old Soviet Union would do. So Bart proves again the old adage: if you want to know what the right is doing, just look at what they accuse the left of.
H. Haler: I offered Secretary Gates' quote because it is appallingly Kafkaesque. In a freedom-loving nation that once embraced sayings such as "better a thousand guilty men go free....", such reasoning should be anathema. And, frighteningly, Secretary Gates is probably one of the better cabinet members in this Administration.
RandomSequence said...
Bart: How did we get to the point where the military is reluctant to try prisoners of war as war criminals ... ? The string of epithets that I vented on that statement. What can I say but to call such a misrepresentation a lie, and the liar scum? I suggest you calm down. You will live longer. For example, I just ignored the above epithets as I do the others thrown at me as if they were arguments. The whole damn point of the conversation is that the administration does not want to try the prisoners as war criminals. Really? Exactly why then did the military with the assistance of Justice set up an elaborate military commission system ready to try many of the prisoners until the Court told Congress to do it all over again in the Hamdad decision. The fact is that the military has been prepared to start these military commissions for years and have been stopped by litigation from the outset. Politically, don't you think that the Bushies would have loved to try the captured al Qaeda leaders before the 2006 elections to demonstrate that these scum can and are being brought to justice? It does not want to call them POWs. These prisoners are not POWs under the Geneva Conventions, only in a generic sense. The military has to call them detainees in order to keep opponents from using the juvenile tactic of saying: "See the Adminsitration admitted that they are POWs and refuses to give them the rights of POWs." On the other hand, I don't give a damn about juvenile tactics and use the generic term prisoners of war for these captures because it correctly describes their status as wartime prisoners. ...it does not want to abide by international and American standards for trying war criminals. You are correct about the former but not the latter. We have correctly rejected the unworkable EU standards for treating wartime unlawful enemy combatants as civilian criminal defendants. However, the military has been following the American standards set by the President and then Congress for military commissions. We have a model for trying war criminals: Nuremberg. We did not torture them. We gave them lawyers. We presented the evidence before them. We had public trials. That was the model for trying lawful combatants from a nation state for war crimes after we had won the war and were in physical possession of all the evidence. We are now attempting to try unlawful enemy combatants from terrorist gangs while the war is still going on and the enemy has physical control of much of the evidence and we are relying upon active intelligence sources necessary to fight the war for evidence in these cases. Different rules for fundamentally different circumstances. Back to English common law (Bart's star chamber adage), we have known that administrative incarceration and punishment is tantamount to tyranny. Hardly. The English and American practice was to hold prisoners of war for the duration of the conflict and to execute unlawful enemy combatants. There is nothing tyrannical about either option. These are the centuries old practices of the world's oldest democratic systems. Of course, Bart fears that his masters don't actually have evidence of war-crimes, so what he wants is a show-trial, just like his role-models in the old Soviet Union would do. As I have posted here before, I personally would not try these captures now and instead hold them as prisoners of war for the duration of the war. If al Qaeda crumbles and we are no longer at war, then perhaps we would want to try some of these captures under more liberal rules ala Nuremburg. The only reason to try these men is to execute them. We are fighting a cult which worships death and executions would create martyrs. I say let them rot at Gitmo and be gradually forgotten. Then again, I am not the President answerable to a People who wants these mass murderers "brought to justice." However, if the miltary chooses to convene military commissions, it will be against the major players they have dead to rights. I have no doubt that the military has the goods on people like Khalid Sheik Muhammad. We have been rolling up their network and their records for years. The people in charge of these prosecutions have also been working under the spotlight and under scurrilous attacks for years. Unless they have evidence which would stand up under the statutory appeals and the scrutiny of those who want the terrorists released, the military prosecutors simply would not bring the cases.
Unless they have evidence which would stand up under the statutory appeals and the scrutiny of those who want the terrorists released, the military prosecutors simply would not bring the cases.
Good thing for them that they're not US attorneys, then.
Bart: The string of epithets that I vented on that statement. What can I say but to call such a misrepresentation a lie, and the liar scum?
I suggest you calm down. You will live longer. For example, I just ignored the above epithets as I do the others thrown at me as if they were arguments. Yeah, that's what they told Grandpa back in Berlin in '32 - don't get so excited, it'll all blow over. It's what they told my cousins in Chile and Argentina back in the early '70's. Sorry, from family experience, I will neglect your advice. Serious matters should be taken seriously and not treated as an intellectual exercise. We may not yet have arrived at '32, but the groundwork is being laid, and you are cooperating with it. Bart: We have a model for trying war criminals: Nuremberg. We did not torture them. We gave them lawyers. We presented the evidence before them. We had public trials. That was the model for trying lawful combatants from a nation state for war crimes after we had won the war and were in physical possession of all the evidence. Numerous of the detainees are from a nation-state we have defeated: Afghanistan. We have not divided them from those from neutral countries. There exists no intention to apply the Geneva Conventions were applicable. We have literally kidnapped innocent people and held them in secret prisons for months, or sent them to third-world hell-holes to be tortured. Disgusting - that is what you are defending, as the inevitable result of administrative "justice". Additionally, we are signatories to the International Covenant On Civil And Political Rights. It makes no distinction between classes of human beings, regarding the right to trial: it is an essential human right, and we have agreed to it; if you want to play the POW exception, you have to play that fully, but you don't get to pick and choose. If you want to change that, lobby congress to revoke our ratification; allow your true colors to show. I can't even respond to your sophistry regarding the phrase POW - you play with that word whenever it is convenient for you. Sometimes "generic" POW, sometimes "detainees". A classic propaganda play with words: “When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean - neither more nor less.”
"Bart" DePalma:
The military has never faced such a judiciary in the over 200 years this Republic has existed. "Bombing begins in five mintes...." Fortunately for us all, the military is not of the same extreme opinions as is "Bart" (and the rest of the rabid RW foamers). And they know they have taken an oath to protect the Constitution, not the preznit. Cheers,
"Bart" DePalma:
I suggest you calm down. You will live longer. For example, I just ignored the above epithets as I do the others thrown at me as if they were arguments. Typo there. You reversed a couple words. "I just ignored the above arguments as I do the others thrown at me as if they were epithets." There, that's better. No charge. Cheers,
JT, I'm not terribly outraged that Spector might not know everything that was in a bill. Congress is pumping out legislation at a rate that's humanly impossible to keep up with, members HAVE to delegate to some extent, and if you delegate, you're eventually going to get screwed over by somebody you trusted.
I AM terribly outraged that Congress runs a system where it is impossible for virtually all members of Congress, and anybody at all outside of Congress, to know what's in a bill before it's voted on. Even if no one member could read the whole thing, they could have several teams go over each bill, and with the redundant eyes looking at it, the chance of being able to sneak something through would be negligable. Whether Specter was directly complicit in this specific instance of sneaking something into a bill is irrelevant. He's deeply complicit in maintaining a system designed to make sneaking things in easy.
"Bart" DePalma:
Really? Exactly why then did the military with the assistance of Justice set up an elaborate military commission system ready to try many of the prisoners until the Court told Congress to do it all over again in the Hamdad decision. False. At first, the maladministration just locked 'em all up and threw away the key. Then, in the Hamdi decision, the Supreme Court ruled in 2004 that a "citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." In response, the U.S., instead of trying Hamdi or doing what the court said they should do, released him in hopes fo making the case go away and not getting an even more unfavourable result or publicity. Then came the Rasul decision, where the Supreme Court said that foreign nationals could contest the basis for their continuing detention in federal court. Then the maladministration, seeing the tides weren't turning their way, pushed for the DTA show trials in lieu of letting courts look at what they were doing. Then the Supreme Court handed down the Hamdan decision, striking down the show trials set up by the DTA. In response, the maladministration pushed through the MCA, whose legal status is still unresolved and will likely be challeneged in teh Supreme Court again. All this while, there was nothing preventing the maladministration from conducting the CSRTs mandated by the Geneva Conventions, and nothing preventing the use of courts martial for the prosecution of any alleged crimes by any of the detainees, including crimes against the laws of war. The maladministratio had to be dragged, kicking and screaming, every step of the way, and they continue to try and avoid by any means possible any review of their acts by any U.S. courts. The fact is that the military has been prepared to start these military commissions for years and have been stopped by litigation from the outset. That's utter bovine scat. Reality and "Bart" have filed for an uncotested, though unamicable divorce. Cheers,
"Bart" DePalma:
[randomsequence]: We have a model for trying war criminals: Nuremberg. We did not torture them. We gave them lawyers. We presented the evidence before them. We had public trials. That was the model for trying lawful combatants from a nation state for war crimes after we had won the war and were in physical possession of all the evidence. "We doan need no steeenkin' evidence...." Horrors, that someone might ask for some evidence. How absurd of them? But I'll accept your 'distinction' here, "Bart", that the maladministration doesn't have the evidence needed to prove guilt. I come to a slightly different conclusion as to the proper remedy for that, though. Don't look now, but your brown shirt is showing. Cheers,
"Bart" DePalma:
We are now attempting to try unlawful enemy combatants from terrorist gangs while the war is still going on and the enemy has physical control of much of the evidence.... "... but we know, it's there. In the area around Tikrit and Baghdad and east, west, south and north somewhat...." Mygawd, why does "Bart" make himself so easy to skewer and roast? Cheers,
PMS_Chicago:
["Bart"]: Unless they have evidence which would stand up under the statutory appeals and the scrutiny of those who want the terrorists released, the military prosecutors simply would not bring the cases. Good thing for them that they're not US attorneys, then. ;-) Too deep for "Bart". You'll have to bring it down about ten grade levels before he catches on..... Cheers,
Bonnie Tamres-Moore said...
1have I somehow stumbled on to "Bartinization"? Once again, I have to apologize for my cyberstalker's spamming. Mr. Langsetmo has some sort of a fixation with me and feels the need to grace us with about five responses to each one of my posts and then throw in additional posts commenting on others replies to my posts. I am doing my best to ignore him so he will stop spamming, although I must admit to lapses where I do reply to his snide taunts. Forgive me but even this apology post will probably generate another five or so posts from Mr. Langsetmo.
"Bart" DePalma said:
Once again, I have to apologize for my cyberstalker's spamming. Mr. Langsetmo has some sort of a fixation with me and feels the need to grace us with about five responses to each one of my posts and then throw in additional posts commenting on others replies to my posts. I am doing my best to ignore him so he will stop spamming, although I must admit to lapses where I do reply to his snide taunts. Forgive me but even this apology post will probably generate another five or so posts from Mr. Langsetmo. Once again I have to apologise for the fact that "Bart" here posts so many inanities each and every day that his posts and the rebuttals thereof clog the threads. I've pointed out more than once that if "Bart" can limit himself to a single stoopid comment, miscite/misstatement of law, or factual error a day, I'll be able to limit my comments to one such as well. A review of the record will verify this. Cheers,
Bart writes:"I am doing my best to ignore him so he will stop spamming, although I must admit to lapses where I do reply to his snide taunts."
Arne's colorful writing taken into consideration, what's he doing doesn't even remotely qualify as spam. Maybe you should hang out at spam.abuse.net before you try that again.
I try to limit my responses to one per comment, compiling all of my objections into a single reply. It can be annoying sometimes to scroll through a thousand short "neener-neener-you're-a-weener" posts, even if it is occasionally deserved and/or entertaining.
I have to confess, though, that I occasionally want to adopt Arne's quotes around people's names, but to use them in person as airquotes. ((((dream sequence waves)))) INT. BEST BUY COMPUTER SECTION A SALESMAN approaches PMS and Glenda, wearing a bright nametag. SALESMAN Can I help you find something today? PMS (using airquotes) Sure, "Chad." I'm looking for an external drive enclosure. Do you think you have any, "Chad"? CHAD (looking perplexed) Um, yeah, over there by the stack of AOL trial discs. PMS Thanks, "Chad." (turning to Glenda) Doesn't "Chad" seem like a nice guy? ((((end dream sequence waves)))) I suppose it can be annoying to scroll through random out-of-format screenplay pieces, too. I promise to refrain in the future. :)
PMS_Chicago:
I try to limit my responses to one per comment. I do to. Can you prevail on "Bart" to limit his nonsense to one item per comment, and maybe we will all be a little happier? Cheers,
If you took all of the credibility of every conservative and conservative apologist, rolled it into a ball, and placed it on the edge of a razor blade, it would look like a pea rolling down a four-lane highway.
There is a time for intelligent discussion on many issues along the conservative/liberal front, that time has long since past. To paraphrase Theoden: We will have peace, when you and all your works have perished. Even if this war is just- as it is not, for were you all ten times as wise you would have no right to rule others for your own profit as you desire-- even so, what will you say of your camps in Guantanamo, of the inhuman torturing of innocent men and women? Of the murder of children and thousands of others whose only crime was to be in the way of your desire for power. When you hang from a gibbet at your window for the sport of your own crows, we will have peace with you. In other words, we should stop trying to debate with them and start throwing their asses out of office and when necessary into the slammer or in front of a firing squad.
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Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |