Balkinization  

Monday, January 25, 2010

Did Massachusetts conduct a "referendum" on health care? NO!

Sandy Levinson

On NPR this afternoon, Senate Minority Leader Mitch McConnell described the Massachusetts election last week as a "referendum" on health care. He was demonstrably wrong.

The first thing to note, of course, is that we do not have, at the national level, the kind of "direct democracy"for which the word "referendum" is appropriate. James Madison and his friends, not to put too fine a point on it, hated the very idea of direct democracy, and designed a system of exclusively "representative democracy." Many, perhaps most, of the American states include some role for direct democracy, most notoriously California. My own view is that there is much to be said for direct democracy as a complement to representative democracy, especially if the mechanisms of government are as awful as those of the national government (or, for that matter, present day California). Obviously, opinons differ on this. But the principal point is that there are no national referenda, period, thanks to the Founders whom, I suspect, Sen. McConnell venerates more than I do.

If, however, one believed that a national referendum on health care would be a good thing, instead of leaving it up to the present-day Senate in all of its illegitimate glory, no sane person would select Massachusetts as the one and only state that would take part of such a referendum. It is not only that Massachusetts, by definition, is atypical of the rest of the US--that, obviously, would be true of any given state. It is one of the reasons that many of us are appalled at the excessive role played by Iowa and New Hampshire in the presidential candidate selection process. But beyond Massachusetts 's atypicality, and the fact that no election, including that of now-Senator Brown, is ever a true "single-issue" election in the way that a referendum, again by definition, is, the fact is that Massachusetts has a very special kind of atypicality: Massachusetts residents enjoy, courtesy of the collaboration of Massachusetts Republican Gov. Mitt Romney and the Democratic legislature, a reasonably decent state medical plan (for which Sen. Brown voted when he was in the state legislature). It is altogether reasonable for Massachusetts voters to wonder if they will indeed be better off under the plan that Congress would presumably pass. It is not really reasonable for the millions of Americans who either have no health insurance or are literally one signifcant illness away from bankruptcy, given the vagaries of the present insurance system, to believe that signifcant reform is not needed. It is like asking only citizens of Nevada or Arizona to vote on whether the rest of the country should continue the substantial subsidies, including access to scarce water, that have enabled Las Vegas and Phoenix to flourish.
So, in every conceivable way, Sen. McConnell's analogy is misleading. One does not expect intellectual honesty from Sen. McConnell (or, to be fair, perhaps from any other senator or either political party). But to the extent that the learned punditry buys the argument that the election was a "referendum" that should be taken seriously as exemplifying national public opinion, they are disastrously wrong and disserving the public they presume to enlighten. If they want to talk about national public opinion, let them talk about polls, some of which indeed suggest majority rejection of the Senate bill. But they should be ashamed of themselves if they overemphasize the Massachusetts vote as a "referendum."




Comments:

At Sandy's earlier post, my comment late last night pointed to yesterday's (1/24/10) Boston Globe editorial on the political situation in MA as reflecting the Senate win of Scott Brown. Yes, MA is heavily democratic. At the state level, the democrats have long controlled both legislative branches. However, until Deval Patrick came along a little over three years ago, MA had 16 straight years of a republican Governors. Yes, MA has a lot of independents; but for the most part, they go along with the heavily democratic legislature, but put the checks on the legislature by going for republican Governors. It seems the independents vote for democrats as their MA House and Senate members but don't trust other democratic House and Senate members. Why has it been so difficult for a democrat insider in MA to become Governor? Perhaps it is because the MA House and Senate democrats can override a veto. So the result is that for the 16 years of republican Governors, it was necessary for these Governors to "get along" with the democratic legislature. Then along came Deval Patrick, an attractive democratic candidate, who was not an insider MA democrat and broke the 16 year spell of republican Governors. Patrick has tried reform measures but has been thwarted by the democratic legislature. Patrick is up for reelection this fall. State Treasurer Cahill, a long time democrat, will be opposing Patrick, not in the democratic primary, but as an independent. This choice may be due to the most likely scenario that Cahill would not succeed in a primary.

But MA has long supported its democratic congressmen, with few vulnerabilities. Ted Kennedy was of course an ican; and Kerry was not far behind. But there had been challenges to them in recent years. With Ted gone, the Kennedy haters were joined by those upset not only with the MA legislature but also that Pres. Obama had not in one year cured the ills of 8 years of Bush/Cheney, especially the financial/economic crises. So MA was ripe like a banana for Brown. Coakley is a decent person, not from the insider ranks of MA democratic politicians. Perhaps gender played some part in this. But Sandy is correct, with his "NO."

By the way, if MA had referenda governance, it might remind one of what is said about New England weather. (Or am I thinking of the Mexican weather report: Chili today, hot tamali.)
 

Sandy:

McConnell observed that the MA election was a referendum on Obamacare. Brown ran explicitly on stopping Obamacare and won resoundingly in the bluest state in the Union to take the Kennedy seat for the first time since 1952. The exit polling showed the voters heavily opposed Obamacare.

Perhaps it was their first hand experience with Romneycare which in some measure led to that vote. Romneycare along with Medicaid is destroying the MA state budget because it came in far above budget and, unlike the Feds, MA may not borrow with abandon.

As with most entitlements and their dependent classes, it is probably politically impossible for MA to escape Romneycare. It will continue to methodically destroy other public services. However, MA is in a particularly good position to knowledgeably vote against compounding the error on a national scale.
 

I tried to vote in this "national referendum" but they rejected my absentee ballot. Something about residency requirements.

What about a state referendum? Off year elections often are times where voters vote against incumbents, including the President. So, it might have had something. to do with it.

But, overall, I doubt if it was health care specifically. Coakley was a weak candidate that had signs of "establishment" and "elite" while Brown was more exciting and seemed a man of the people. etc. Probably was more of a "referendum" of that.

To the degree it was about health care, MA is a hard nut to crack. BP thinks it is a sign they didn't like it. It can very well mean that they were happy with it and/or thought it showed a national plan was not necessary, since they had theirs.

Such a self-interested referendum clouded by other things should not, though many Dems use it that way, stop the game at the two min. warning. One substitution doesn't warrant that.
 

There may be many reasons to call Senator McConnell or any other politician “intellectually dishonest,” but the use of the term “referendum” to describe an election is not one of them. The term is routinely used to describe elections in which a particular issue played a key role in the outcome (eg, the 2006 elections were described as a referendum on the Iraq war, the 2008 elections as a referendum on the Bush administration). If use of words in a non-literal, but widely understood, sense makes one “intellectually dishonest,” you will have a hard time finding even non-politicians who qualify as intellectually honest.

Although your post strains to find every conceivable basis for attacking McConnell’s statement, I don’t see you taking issue with the actual point he was making, namely that Brown won to a large extent because of popular opposition to the healthcare reform legislation. There is plenty of evidence to back up McConnell on this point.

Instead, you raise a different point, which is that Massachusetts voters may have had unique reasons for opposing the healthcare legislation. Maybe so, but this is a weak retort in light of the fact that opinion polls consistently show opposition is just as strong nationwide.

A more interesting question is what this says about your oft-expressed criticism of the Senate’s “unrepresentative” nature. You say that the Senate is “undemocratic” because it allows smaller (and generally more conservative) states to block legislative measures favored by a majority of the population. This would be a rather stronger criticism if the Senate were preventing individual states from adopting whatever healthcare reform their populations prefer. But, as your post demonstrates, Massachusetts and every other state is perfectly free to institute its own version of healthcare reform. Massachusetts has no more legitimate interest in forcing Alabama to adopt its version of healthcare reform than Alabama would have in forcing Massachusetts to adopt its laws on gay marriage. So even if (contrary to fact) we assume that a majority of the population nationwide favors federal healthcare reform, the Senate serves a perfectly legitimate purpose in preventing such measures from being imposed on states which do not want it.
 

You say that the Senate is “undemocratic” because it allows smaller (and generally more conservative) states to block legislative measures favored by a majority of the population. This would be a rather stronger criticism if the Senate were preventing individual states from adopting whatever healthcare reform their populations prefer.

This would be convincing if SL only was concerned about this one issue. But, overall, the Senate inhibits national policy, including things that only the federal government has power to do. This can also in general include certain things with a national scope.

For instance, a state in 1957 could pass civil rights reform. But, this doesn't suddenly inhibit the importance of a national program, especially since on that and other matters a national plan is important to further the ultimate ends.

The Senate still "imposes" on dissident states. If 60 senators agree, 20 states can be "imposed" to do things. OTOH, a filibuster "imposes" on a majority of states when a minority of 41 senators choose to block something. The states can be population thin.

I'm unsure, even if legitimate, this is "perfectly" so.
 

No doubt mls will provide cites to substantiate the following:

"There is plenty of evidence to back up McConnell on this point."

Also, mls is critical of Sandy's post because:

"But, as your post demonstrates, Massachusetts and every other state is perfectly free to institute its own version of healthcare reform."

MA did so several years ago because health care reform was not being addressed at the national level. MA perhaps was following Justice Brandeis' concept of states serving as a lab for ideas. Other states can follow MA, if they choose, with their own versions of such reform. But there remains a national need for health care reform, even for MA residents who for various reasons may relocate to another state. The MA health care reform is not perfect but it has served as an experiment. Health care reform at the national level is long overdue. Should state borders define who gets health care or are the national interests in health care borderless? We MA geezers can take our Medicare across state lines. What about others?
 

Shag- for example, the Washington Post post-election poll showed the following: "Overall, 43 percent of Massachusetts voters say they support the health-care proposals advanced by Obama and congressional Democrats; 48 percent oppose them. Among Brown's supporters, eight in 10 said they were opposed to the measures, 66 percent of them strongly so."

I thought everyone, even Barney Frank, acknowledged that this was a major reason for Brown's win.

Joe- I recognize that SL's opposition to the Senate in general, and the filibuster in particular, is not limited to the issue of healthcare reform. I am merely pointing out that the healthcare reform issue provides a good example of why simple majoritarianism is not necessarily better, or even more democratic, than the structure we have.
 

mls raises an interesting point: Is the widespread use of "referendum" to apply to elections just something we have to accept, in the way we have accepted the collapse of the valuable distinction between "uninterested" and "disinterested"? The fact is that most political scientists, unlike bloviators like Sen. McConnell and most pundits, know that it is hard as hell to "interpret" elections (almost as hard as "interpreting" the term "Equal Protection of the Law." See, e.g., Stanley Kelly, Interpreting Elections. All elections always, without fail, rest on multiple factors, and they are never so crisp as voting on a well-worded question would be.

Anyone who believes that language should be precise, and thus a contribution to analysis, should refrain from calling elections "referenda." To be sure, the California recall of Gray Davis was a referendum on whether one wanted him to continue as governor, but, I dare say, even there the reasons for the public's expressing "no-confidence" in Davis might have differed and, between individual voters, even contradicted one another. This is clearly the case, for example, with regard to discontent to what any sane person has to admit is a seriously flawed health bill. Howard Dean, for example, can not be equated with Olympia Snowe, the ersatz "moderate" who will die before accepting a public option or, God forbid, a single payer system that many of us believe is the best solution. And so on.
 

mls ... it is not really a great example for the reasons I noted.

Or, do you only support the filibuster if it does not inhibit state action? That is, if interstate commerce is involved, and MA can't regulate it, etc.

And, it isn't even a good example specifically. Health care is a national issue. It involves a national economic scheme. Shag on the over 65 thing underlines the national interest in not having a patchwork of protections.

Finally, the poll numbers are a curious thing. We live in a representative system. This includes letting representatives that take the long view into consideration. A mechanism that works differently than let's say CA's ballot system with single issue voting.
 

A contrast among states is an interesting approach to interpreting state election outcomes from the perspective of impactful draft legislation concurrently progressing through congress. Contemplating the range possible permutations states with a robust initiative-referendum-recall process might design, as some commenters in the thread seem to discuss, reemphasizes the difference in structure between the upper and lower chamber of congress, in the instant healthcare insurance matter, precisely because of the wide disparity in demographic composition and total population of each of those various states. Ostensibly, insuring Alabama might be considerably more costly compared to a more populous state, viewed from the insurance actuarial perspective. Perhaps a superior mouthpiece for Republcans wishing to characterize the MA senate election outcome might be found in the lower chamber's leadership, as closer in composition to population size than is the case in the upper chamber.
 

Regarding Joe's points:

"Health care is a national issue. It involves a national economic scheme."

might MA health care reform relate to a dormant commerce clause situation? While that law focuses upon MA residents, does it in a sense regulate commerce among the states? (Joe brought this to mind with this: "Or, do you only support the filibuster if it does not inhibit state action? That is, if interstate commerce is involved, and MA can't regulate it, etc. ")
 

If I might bring up an unrelated issue (taking advantage of Professor Levinson's willingness to allow comments). I note the following from ABC News

"White House lawyers are mulling the legality of proposed attempts to kill an American citizen, Anwar al Awlaki, who is believed to be part of the leadership of the al Qaeda group in Yemen behind a series of terror strikes, according to two people briefed by U.S. intelligence officials."

Since the Balkinization blogger who most focused on these issues is now at OLC, perhaps someone could answer the following-- how is assasinating Awlawki, a US citizen not charged with any crime (a) clearly legal; (b) possibly legal or (c) at least more legal than waterboarding senior al qaeda members like KSM?
 

Sandy:

Generally, you are correct that it is difficult to identify a single mandate from an election in an age where politicians work hard to reduce their message to focus grouped, feel good pablum like "hope and change."

However, Brown's victory was rather unique in that his primary campaign theme at every stop was that he was personally going to stop Obamacare and that was the overwhelming reason his voters cast ballots according to the post election polling.

Thus, while it may be difficult for Obama to claim a mandate for a $2.2 trillion (over the first ten years of full operation) Obamacare bill that violated nearly all of his campaign promises on the subject, it is far more reasonable to see the Brown election as a mandate of one state against that bill.

You might have a better argument that VA and NJ did not provide the same mandate because the GOP candidates were far more circumspect about taking on Obama in their campaigns, although it sure looks like part of the same gathering tsunami heading towards November.
 

mls said...

"White House lawyers are mulling the legality of proposed attempts to kill an American citizen, Anwar al Awlaki, who is believed to be part of the leadership of the al Qaeda group in Yemen behind a series of terror strikes, according to two people briefed by U.S. intelligence officials."

Since the Balkinization blogger who most focused on these issues is now at OLC, perhaps someone could answer the following-- how is assasinating Awlawki, a US citizen not charged with any crime (a) clearly legal; (b) possibly legal or (c) at least more legal than waterboarding senior al qaeda members like KSM?


Under the law of war, it is perfectly permissible to kill enemy combatants at will unless they are incapacitated or surrendering - regardless of their nationality.

This question only becomes difficult when anti war legal beagles attempt to hammer the square peg of war into the round hole of civilian criminal law.

This is yet another reason to again abandon the 9/10 policy of treating wartime enemies as civilian criminal suspects coming right after giving Miranda to the Christmas bomber.
 

Since the Balkinization blogger who most focused on these issues is now at OLC, perhaps someone could answer the following-- how is assasinating Awlawki, a US citizen not charged with any crime (a) clearly legal; (b) possibly legal or (c) at least more legal than waterboarding senior al qaeda members like KSM?

I expect those on your side of this issue would be very helpful in coming up with such an argument.

I thought everyone, even Barney Frank, acknowledged that this was a major reason for Brown's win.

The polls I saw indicated that opposition to the Senate bill comes from both left and right. Those who thought it didn't go far enough also voted for Brown as a protest against the pretty obvious ineptitude/corruption of the Senate process.
 

Mark- do I take it from your comment that you expect ML to tell the White House it can't target Awlawki?

Bart- that’s great, except for the little detail about his being an enemy combatant. Last time he was in the US, under the notoriously weak on terrorism Bush administration, the government didn’t think it had grounds to arrest him, much less declare him an enemy combatant. Is his being an AQ sympathizer and a propagandist for jihad enough to make him an enemy combatant? Can the President just declare a US citizen an enemy combatant without finding that he has actually participated in terrorism?
 

Bart:

This question only becomes difficult when anti war legal beagles attempt to hammer the square peg of war into the round hole of civilian criminal law.

Translation: "We doan need no steenkin' badges..."

Bart seems to be of the opinion that military affairs are beyond the reach of Constitutional law. It just gets in the way of what Needs To Be Done....

Cheers,
 

Bart:

This is yet another reason to again abandon the 9/10 policy of treating wartime enemies as civilian criminal suspects coming right after giving Miranda to the Christmas bomber.

Oh, yeah, forgot about that. Richard Reid did his dastardly deed (or tried to) during the tenure of President Clinton. So says Dana Perino and a host of other Republicans so it must be true.

Cheers,
 

mls said...

Bart- that’s great, except for the little detail about his being an enemy combatant. Last time he was in the US, under the notoriously weak on terrorism Bush administration, the government didn’t think it had grounds to arrest him, much less declare him an enemy combatant.

At that time, we did not have proof he was a member of al Qaeda.

Is his being an AQ sympathizer and a propagandist for jihad enough to make him an enemy combatant?

Sympathizer, no.

An American citizen providing past propaganda for a foreign enemy is legally guilty of treason under several WWII cases. The continuing vitality of that precedent is in question after Vietnam when spreading enemy propaganda became routine in our press and among various elites.

Can the President just declare a US citizen an enemy combatant without finding that he has actually participated in terrorism?

Yes. The current military definition of a person providing substantial assistance to a wartime enemy is correct. You do not have to be a shooter to be an enemy combatant.
 

Some poll data here.

Cheers,
 

"The king is dead, long live the king!!!":

[mls]: Can the President just declare a US citizen an enemy combatant without finding that he has actually participated in terrorism?

Yes. The current military definition of a person providing substantial assistance to a wartime enemy is correct. You do not have to be a shooter to be an enemy combatant.


And what the kin... -- umm, "preznit" -- declares is the law.... Such declarations are unreviewable; "separation of powers", royal prerogative, and all that....

Cheers,
 

arne:

As usual, Think Progress misrepresents the facts. It noted that the Rasmussen Reports post election poll found that only a bit more than half of Brown voters stated that health care was their top issue, while over 60% of Coakley voters did so, as evidence that Brown's election was not a guant thumbs down on Obamacare. Think Progress tellingly ignored Rasmussen's lead finding: "78% of Brown voters Strongly Oppose the health care legislation before Congress."

All is fair in love and Dem politics.
 

Mark- do I take it from your comment that you expect ML to tell the White House it can't target Awlawki?

No, I expect the answer depends on circumstances. It always does.
 

Bart:

As usual, Think Progress misrepresents the facts. It noted that the Rasmussen Reports post election poll found that only a bit more than half of Brown voters stated that health care was their top issue, while over 60% of Coakley voters did so, as evidence that Brown's election was not a guant thumbs down on Obamacare. Think Progress tellingly ignored Rasmussen's lead finding: "78% of Brown voters Strongly Oppose the health care legislation before Congress."

They didn't ignore Rasmussen. They said:

A different poll, from Rasmussen Reports, cast doubt on the notion that Brown voters were primarily motivated by opposition to health care reform. The poll found that 52 percent of Brown voters said health care was their top issue, while an even greater percentage of people who voted for state Attorney General Martha Coakley (D) — 63 percent — placed it first.

This is not inconsistent with what ThinkProgress said elsewhere.

And I'd note that ThinkProgress did not say that "Brown's election was not a guant [sic] thumbs down on Obamacare". This is a false claim of your own manufacture (not to mention, WTF is "Obamacare" outside of some hallucination floating around in the crania of RW foamers?).

Another tidbit from the Rasmussen Poll:

"· 61% of Brown voters say deficit reduction is more important than health care reform."

Cheers,
 

Mark- ok, lets assume the circumstances are these: (1)Awlaki is a dual US/Yemeni citizen living in Yemen; (2) he is known to be an AQ sympathizer and propagandist for jihadi causes; (3) he is believed to be a “member” (whatever that means) of AQ in Yemen (a separate organization from AQ) and a recruiter for terrorist causes. Lets say we have evidence that when Awlaki is contacted by aspiring jihadis, he refers them to others who can evaluate their fitness for various types of jihadist roles, including terrorism; and (4) we have no evidence that Awlaki himself has been involved in planning or carrying out any act of terrorism.

According to Bart, the question is whether these circumstances warrant a determination that Awlaki is an “enemy combatant,” which is apparently an unreviewable decision made by the President based on as-yet unspecified standards. Now, according to Arne, this makes Bart a horrible person and an aspiring monarchist, etc. But, as far as one can tell from your answer, you think the President (or maybe Marty Lederman) has an even broader and more undefined discretion to kill American citizens “depending on the circumstances.”

So if the circumstances are as hypothesized above, how does the President/ML go about deciding if they warrant killing Awlaki? Does it matter how strong the evidence is on point 3? Is the President required to make some sort of finding? Is Bart right that the question is whether Awlaki can be declared an “enemy combatant”? If so, what makes someone an enemy combatant? Is the President required to offer Awlaki the opportunity to turn himself in peacefully before authorizing his assassination? (as far as I know, no one has asked Awlaki to return to the US, nor is there any warrant or subpoena outstanding for him).
 

mls, this is kind of a silly game. I'm going to play just once.

No, I do not believe the President has any legal authority to order a hit in the circumstances you describe. I do not think the President has "broader" authority; I think it's very narrow, but not so narrow that a drone strike is always and everywhere forbidden. As I said: it depends.

I'm not going to comment on Bart's humanity or lack thereof.
 

Mark- first, thank you for your response.

Second, I am not sure what makes this a “silly game,” except to the extent that all of our discussions here might be so characterized. According to the article I cited, there are people in the administration who fear they could be prosecuted if they try to kill Awlaki, and they want legal clearance from the White House before they do so (although, as I understand it, there has been at least one attempt already). Isn’t this exactly the sort of issue that people on this blog, including ML, have been discussing for years? The only difference being, the prior discussions were about past legal advice and actions taken in reliance thereon. Here is a chance to weigh in beforehand, so that the prospective war criminals are duly warned.
 

I'm getting flashbacks ... again, assassination and torture are brought up, and we are asked what is worse. What is "more legal."

Torture has long been understood to be a crime against humanity. It is specifically degrading and causes a special kind of suffering. This is so even if we could execute the person we torture. Even if we could kill them in the course of war etc.

I share Mark Field's general statements, at least the second and third paragraphs of his last comment.
 

Is mls suggesting with this:

"The only difference being, the prior discussions were about past legal advice and actions taken in reliance thereon. Here is a chance to weigh in beforehand, so that the prospective war criminals are duly warned."

that during Bush/Cheney their minions were not duly warned during theadministrattion's 8 years such that they are not war criminals?

With centuries of slavery, segregation, etc, this sounds similar to all of a sudden insisting upon color blindness in matters of race.
 

mls:

Mark- ok, lets assume the circumstances are these: (1)Awlaki is a dual US/Yemeni citizen living in Yemen; (2) he is known to be an AQ sympathizer and propagandist for jihadi causes; (3) he is believed to be a “member” (whatever that means) of AQ in Yemen (a separate organization from AQ) and a recruiter for terrorist causes. Lets say we have evidence that when Awlaki is contacted by aspiring jihadis, he refers them to others who can evaluate their fitness for various types of jihadist roles, including terrorism; and (4) we have no evidence that Awlaki himself has been involved in planning or carrying out any act of terrorism.

According to Bart, the question is whether these circumstances warrant a determination that Awlaki is an “enemy combatant,” which is apparently an unreviewable decision made by the President based on as-yet unspecified standards.


Justice and the military developed a detailed definition of an enemy combatant years covering non-governmental groups like al Qaeda in 2004. This is the standard most court conducting habeas corpus reviews have been using:

“ ‘Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces.”

So if the circumstances are as hypothesized above, how does the President/ML go about deciding if they warrant killing Awlaki? Does it matter how strong the evidence is on point 3? Is the President required to make some sort of finding? Is Bart right that the question is whether Awlaki can be declared an “enemy combatant”?

Awalaki was an enemy combatant as soon as he joined or provided support for al Qaeda.
 

Second, I am not sure what makes this a “silly game,”

It's silly because IMO there is no abstract answer to the question "When is it ok to kill someone?". The answer is always going to depend on the circumstances, and the possibilities are nearly infinite. It's unproductive to take such a large space of potential facts and answer them one by one.
 

Bart:

Justice and the military developed a detailed definition of an enemy combatant years covering non-governmental groups like al Qaeda in 2004. This is the standard most court conducting habeas corpus reviews have been using:

“ ‘Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces.”


Care to write a proffered jury instruction for that?

You know, like defining "associated". "D]irectly supported". "[H]ostilities". "[C]oalition partners". "[B]elligerent act". "[I]n aid". "[E]nemy combat forces'.

And "includes"? Not "includes only"?

Cheers,
 

Mark:
It's silly because IMO there is no abstract answer to the question "When is it ok to kill someone?".

I agree with this as a claim about the morality of killing, and I can see its extension to the legality of killing. Still, are there no fixed restrictions on what a President may legally order?
 

Still, are there no fixed restrictions on what a President may legally order?

In my view, yes. For example, I don't think there's any legal basis for ordering rape.

Killing, though, is different because the Constitution makes the President CinC. In that capacity we expect that he will order people to be killed. The exact circumstances are going to affect the legality.
 

“ ‘Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces.”

Arne: Care to write a proffered jury instruction for that?


This passage is a jury instruction used in military tribunals.

"Belligerent act" means an act of carrying on war.

All other terms are commonly understood and do not require special definitions.
 

Mark Field said...It's silly because IMO there is no abstract answer to the question "When is it ok to kill someone?". The answer is always going to depend on the circumstances, and the possibilities are nearly infinite. It's unproductive to take such a large space of potential facts and answer them one by one.

Actually, the law of war under these facts is very simple. The United States can kill an enemy combatant like Awlaki at will unless he is incapacitated or surrendering.
 

Well, I'm glad we're all so comfy with the President ordering people to be killed. Maybe Awlaki's tombstone will read "all in all, I would rather have been waterboarded."
 

Bart:

All other terms are commonly understood and do not require special definitions.

This is true of "severe pain".

But really:

[Bart]: "'Belligerent act' means an act of carrying on war."

Now define "an act of carrying on war". Does this include taxi drivers?

But no answer to the question: What's the definition of all the other terms? I don't care if they're commonly understood (if they are indeed, WRT the law in question). What's the definition?

Cheers,
 

And:

[Bart]: "This passage is a jury instruction used in military tribunals."

or:

[Bart]: "This is the standard most court conducting habeas corpus reviews have been using:

“ ‘Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces.”


Which is it? Forget what you said a half day ago? You ought to talk to the doctors about that; could be early dementia.

Cheers,
 

I'm not comfy with the President ordering people to be killed; I'm not comfy with capital punishment; I'm not comfy with war; I'm not comfy with terrorists; I'm not comfy with torture; I'm not comfy with people being denied health care. There's a lot I'm not comfy with. I wasn't comfy with Bush/Cheney for 8 years. What I am comfy with is striving to make progress, 2 steps forward, 1 step back, hoping things get better. I don't know what I would do if I were President. I would hope I wouldn't order people killed. I know I would agonize sending our youth into battle. Having been born in 1930, I have been through many wars, conflicts. Fortunately, I have not been placed in a position in any of them to kill. (My two-year draft obligation post-law school was post-Korea, pre-Vietnam.) Those who have and have survived live with problems; it seems these problems have become more serious since WW II, especially now. I would rather not be waterboarded as I, like W.C. Fields would rather be in Philadelphia (where I served the last 9 months of my military duties) even though those steak and cheese sandwiches would eventually kill me.
 

Here's an excerpt from James A. Morone's OpEd in today's LATimes (1/27/10) titled "Democrats must find their voice on healthcare reform" regarding Clinton's failure in 1994:

"Republicans privately expressed alarm that the program might reconnect the Democrats with the middle class. After considerable debate between the old guard and the young rebels, Republicans united and killed the reform (Clinton had 56 votes in the Senate and couldn't, in the end, woo any Republicans to break the filibuster). Sen. Bob Packwood (R-Ore.) famously quipped: 'We've killed healthcare reform. Now we've got to make sure our fingerprints are not on it.'"

It's time to call in the political CSI team.
 

arne:

Medical science has found that they cannot objectively measure pain.

You have failed to objectively define severe pain.

We each have different subjective views of what constitutes severe pain.

In sharp contrast, every term in the enemy combatant jury instruction is objectively defined and nearly all of them are commonly known.

Of course, you already know this.
 

Glenn Greenwald's take on this issue can be found here.
 

Bart slings the same ol' mouldy hash:

Medical science has found that they cannot objectively measure pain.

Care to give a peer-reviewed article cite for this 'fact' you've manufactured?

And even if we assume arguendo this is true, SFW?

Cheers,
 

And OBTW, Bart:

Define "objectively"....

Cheers,
 

Medical science has found that they cannot objectively measure pain.

You have failed to objectively define severe pain.


Hey Bart,

Why don't you objectively define the word "red". Now ask, is an "objective definition" (reference to a range of light wavelength?) necessary for a jury to understand the word?

The wonderful thing about "severe pain" is that exactly zero formal education is required to understand what it means. Every human being understands what it means unless they suffer from a rare medical condition...

There isn't any problem for a jury understanding the term and as usual you're full of nonsense.
 

Mark- thanks for the link to Greenwald's piece. Apparently he sees the same inconsistency as I do between the outraged response to Bush's assertions of presidential power and the ho-hum attitude toward the Awlaki assassination:

"Just think about this for a minute. Barack Obama, like George Bush before him, has claimed the authority to order American citizens murdered based solely on the unverified, uncharged, unchecked claim that they are associated with Terrorism and pose "a continuing and imminent threat to U.S. persons and interests." They're entitled to no charges, no trial, no ability to contest the accusations. Amazingly, the Bush administration's policy of merely imprisoning foreign nationals (along with a couple of American citizens) without charges -- based solely on the President's claim that they were Terrorists -- produced intense controversy for years. That, one will recall, was a grave assault on the Constitution. Shouldn't Obama's policy of ordering American citizens assassinated without any due process or checks of any kind -- not imprisoned, but killed -- produce at least as much controversy?"

I suspect that if it were 2004 this blog would have nothing but posts on the subject of such "illegal" assassinations, and not one about the "unconstitutional" filibuster. But, hey, the law evolves.
 

MLS,

So, you've pulled off the mask and admit that your question was simply a leading question so you could claim inconsistency on the part of anybody who isn't sufficiently opposed to presidential assassination.

In other words, it was a game, like Mark said.

By the way, I'm opposed to presidential assassination. And the death penalty. At present, though, all I see is circumstantial evidence that a) Awlaki was an intended target and b) the Yemen strike was entirely the US's responsibility.

I'm struck by the contrast between your historical willingness to give the Bush/Cheney administration every benefit of the doubt and your absolute certainty in this case.

After all, many of us gave Bush significant benefit in the years 2001-2004. Not me. And I've about given up on Obama, although I'll probably have to vote for him again as the lesser of two evils.

Oh, and Bart? I'm not sure that even "war" is completely objectively definable at the present, but I'm pretty sure that almost everybody except possibly an oxycontin addict knows what "severe pain" means.
 

Apparently he sees the same inconsistency as I do between the outraged response to Bush's assertions of presidential power and the ho-hum attitude toward the Awlaki assassination

I'm not sure who you think has a "ho-hum" attitude. Best I can tell, everyone here thinks that assassinating him under your hypothetical facts (which may or may not be the real ones) would be wrong.

If you mean others are blase about it, well, bad on them. Whoever they are.

I do differ with Greenwald in one respect, though. As I understand his post (and I could be wrong), he'd rule out targeted assassination of US citizens in all situations. I wouldn't; they'd be VERY rare, but they could happen (e.g., in circumstances giving rise to a common law self-defense or justifiable homicide case).
 

C2- I was wondering where you had gone to.

I don’t know what you are referring to by my willingness to give the Bush administration “every benefit of the doubt.” I can assure you that this was not my position on a number of Bush administration policies, most particularly the Iraq war.

It is true that my position on some of the Bush administration’s war on terror policies was rather more nuanced than those of most others here (actually, probably all others, since Bart and Brett are less nuanced in the other direction). Some of the assertions of power by the prior administration were troubling, but I also believe that some of the criticism was overstated or just over the top.

With respect to targeting Awlaki, my position is just the same. I am troubled by the assertion of a presidential power to order an American citizen killed, but I think that if a President decides that the national security demands such an extraordinary step, the propriety of that action is to be judged by Congress through oversight or impeachment, not in the ordinary courts of law (and certainly not in the Hague). On the other hand, I am not sure that I see what the justification is or would be in the case of Awlaki, who has not been charged with a crime or even asked to surrender to the US.

So I wouldn’t go as far as Greenwald, who would evidently consider that Awlaki’s killing would make Obama and other government officials murderers/war criminals. But at least Greenwald is being consistent. Is anyone else?
 

mls,

So am I to understand that you regard the Constitution as a worthless piece of paper?

If you think Congress is going to uphold the law, you're just dumb. The fact of the matter is that the Republican Party is a criminal organization, and the Democrats are buying into enough of their BS that they soon will be too.

If you think that's "overstated", then once again, that's just you being stupid -- and stupid is the kindest assumption I can make when you assert that the President and/or Congress has the authority to murder ANYONE -- whether a US citizen or any other.

And stupid is putting it far too kindly: we did not revolt against Britain to adopt a government like that of the Nazis, and anyone who doesn't understand that isn't mentally fit to be a citizen. If you aren't insane, the only other reasonable explanation is that you're a TRAITOR by virture of sheer laziness and negligence. You people are just absolutely disgraceful, and a worse threat to this country than Al Qaeda will be. By orders and orders of magnitude.

Find a faint clue already.
 

See, now Charles is consistent. Deranged, possibly, but consistent. I take it that he believes Obama and Marty Lederman should be put on trial right along with Bush and Yoo. And probably me too, moron traitor worse than al qaeda type that I am. And perhaps Mark Field as well. And C2did say he would vote for Obama again . . . Better keep an eye on him.
 

But at least Greenwald is being consistent. Is anyone else?

I think everyone here is being consistent; they just start with slightly different premises.
 

Who said anything about Marty Lederman?

I've never heard Marty say anything even remotely that stupid. Did you think fraudulently trying to argue guilt by association makes you look any smarter or honest??

All it does is make it obvious that you're also a habitual liar. Just another new age-Nazi making up excuses for murder.
 

PS:

If I'm so deranged, why don't you try answering my questions and show me just how deranged I am?

You gasbags couldn't argue your way out of a wet paper bag. It's all just an endless stream of lies, delusions, and innuendos.
 

Gee, let's hope that Pat Buchanan's name is not brought up at this Blog. I trust that some of the viewers here noted mls' vituperative comments at the Volokh Conspiracy in defense of Buchanan. mls' efforts at guilt transference for 8 years of Bush/Cheney to Obama will not fly.
 

Shag- I have absolutely no idea what you are referring to. Perhaps you could enlighten me. I am curious as to what I could have said on another blog on another subject that is so relevant you would feel the need to bring it up here. The discourse at VC is, generally speaking, rather more civil and respectful than here, so I find it hard to imagine I said something there that would even remotely jump out at you as “vituperative,” particularly after reading the comments from Charles.

More generally, it seems to me that the issue I raised on this thread is a serious one and is worthy of serious discussion. Since Greenwald has subsequently raised precisely the same issue, I fail to see the point in making it about me.

Charles- the only “question” you asked me was whether I thought the Constitution was a worthless piece of paper. I took that to be more in the nature of a rhetorical question, but the answer is no.
 

Perhaps mls is looking for a debate on "THOU SHALT NOT KILL" whether on the basis of original or living interpretation as the world's population has increased and societies have become more complex since this promulgation of one of ten. Consider the violations that have taken place since. It is so transparent that mls wishes to pass the onus of Bush/Cheney onto Obama with his continuation on this thread sort of like attempting to set a trap as in the case of being a little bit pregnant. This is not a simple matter, as THOU SHALT NOT KILL has undergone so many interpretations for much, much longer than provisions of our Constitution.

mls can of course stand Pat. But I can't.
 

A better translation might be "thou shall not murder," since killing was quite popular in the olden days.

It is also like saying not lying when the limitation was a specialized one involving false witness. BTW, I'm not "comfy" about things either, just to put it on record.

Oh well. I'm off to read Prof. Levinson's book "Wrestling with Diversity." He is a bit obsessed with other things now, so it will be nice to read him on another subject.
 

Questions for mls (and our other neo-fascist trolls):

Three old ones...

So am I to understand that you regard the Constitution as a worthless piece of paper?

Who said anything about Marty Lederman?

Did you think fraudulently trying to argue guilt by association makes you look any smarter or honest??


Two new ones...

What's the difference between Al Qaeda and the Republican Party?

What's the difference between you and Osama Bin Ladin?


And NB: there isn't anything "rhetorical" about any of it.
 

Оса 800 электрошокер в Москве.
 

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