pecunium

Quite apart from my personal reactions to the memos, there is the question of how well the system of interrogation they describe works.

The first two memos pretty much cover all we need to go over (after the first forty pages they become redundant, as they elaborate the various excuses, rationalisations, and "justifications" behind the answers they came up with. You can find them all here. You can find some legal commentary here at Law of War.org). The short answer to the questions the 'utilitarian', who wants to justify the use of torture, needs to ask: 1: does it get good information, 2: does it make the US, and her residents, safer, and 3: Does it further the overall agenda of the US in the "War on Terror"? is no, it does not.

So let's look at them, and see why.

Right at the front, in the second graf we see the largest part of the problem. "In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase."

The information they believed him to have. From the get-go that’s a red flag. One doesn’t interrogate to get confirmation. One interrogates to find out what the subject knows. The only confirmation one is ever looking for is not what one “believes” the source to know, but rather corroboration of things other sources have said.

Even that’s problematic. Going “fishing” for specific facts runs the risk of leading the source to the answers the interrogator is looking for. It’s a form of training, and leads to confirmation bias. (when one gets to the end of the memos, one finds that half of the reports the CIA filed in 2004 came as a result of just “a few” subjects. When just a few sources are the basis for more than 3,000 intelligence reports; in a single year, something is wrong).

The training starts when they begin to remove his, “expectations of treatment.” They lay out 10 techniques, designed in concert with the “Survival, Evasion, Resistance, Escape (SERE) training psychologist” they were working with. SERE isn’t meant to be a blueprint of “how-to”; it’s meant to show the students that torture can be used to break anyone. Even those who know they can actually get out. SERE is a form of the Milgram Experiment, writ small, and with more safeguards.

The ten things they outline are: ”(l) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6)wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard. You have informed us that the use of these techniques would be on an as-needed basis and that not all of these techniques will necessarily be used. The interrogation team would use these techniques in some combination to convince Zubaydah that the only way he can influence his surrounding environment is through cooperation. You have, however, informed us that you expect these techniques to be used in some sort of escalating fashion, culminating with the waterboard, though not necessarily ending with this technique.”

"Not necessarily ending with that technique." Nice to know that they aren’t planning things out so carefully. After they waterboard him, they might go to “the stand-up”. Every one of those techniques can be torture. Some of them are torture on their face (The Stand-up, Waterboarding, Cramped Confinement). The others might not be torture, but in this context (convincing him that his present “circumstances” are changed), they probably are.

The one which is most problematic and the one which most people in this line of work keep in the “gray area” is sleep deprivation.

Lack of sleep makes for odd reactions. It reduces willpower. I’ve been sleep deprived, and done some strange things. I’ve had hypnogogic events. My personal feeling is that sleep-dep is less than useful.

If I were brought a source who’d not slept, I’d not refuse to question him. In that state he’d be less likely to recall any training he had against interrogation. The second thing I’d do is get him a meal, and a bed. Then I’d do my best to get enough sleep to be alert when I talked to him the next morning.

That’s not what they had planned.

Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual's ability to think on his feet and, through the discomfort associated with lack of-sleep, to motivate him to cooperate. The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction_ You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.

They didn’t plan to keep him awake for more than 11 days at a time. 11 days. I’ve never gone more than about 60 hours without sleep. That led to some of those “waking dream” states I mentioned. I wasn’t being forced to do it. It’s just the way the training went. If I’d been lower in the chain of command, I’d have gotten a couple of hours of sleep in that time. But I wasn’t, so I didn’t.

The other time I recall such events was in the middle of Basic Training. I’d been averaging about four hours of sleep a night, for about three weeks. Then I had a run of nights where events conspired to cut that to no more than three hours (or a couple of two-hour stretches). Next thing I knew I was reading about how to defend myself against chemical attack, while
dreaming about something else at the same time. Deuced strange, and I’d
rather not do it again, thanks. Eleven days at a time. Which implies they might let him sleep a few days, to allow “the effect of such sleep deprivation to remit”, and then do it again.

Which is stupid. One of the things sleep-dep does is blur the lines between real and unreal. When one is having hypnogogic events, one is in a dream state. Who among us hasn't awakened from a dream while slightly out of phase with the world? The rules are different in dreams. I don't want a source to be the victim of that sort of thing because he will believe things which aren't true. Which will come back to bite me in the ass, because when I repeat them to him they will become true; in his mind. After that, good luck sorting the fantasy from the real; you will have screwed yourself over.

There is then a bunch of blather about how many people went through SERE training without ill-effects. This is irrelevant. The people taking SERE know it will end. They went to the course voluntarily. That’s not the case for a prisoner. He doesn’t know when it will end. He doesn’t know the people holding him won’t decide to just kill him.

Then comes the “definition” of torture. First they divorce the mental from the physical. Then they say that the acts they are being asked about aren’t the same as beatings with clubs or weapons, and don’t inflict, “severe” pain, and therefore they aren’t, ipso facto torture.

When they move on to the question of mental, they rationalise that, “pain and suffering,” are linked, so the suffering the waterboard causes isn’t torture, because it doesn’t involve pain (because no one is beating on the prisoner), and even that’s not a problem, because the pain and suffering have to be, “severe” to rise to the level of torture.

Even when all of these methods are considered combined in an overall course of conduct, they still would not inflict severe physical pain or suffering. As discussed above, a number of these acts result in no physical pain, others produce only physical discomfort. You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition. Accordingly, we conclude that these acts neither separately nor as part of a course of conduct would inflict severe physical pain or suffering within the meaning of the statute.

Got that. Neither separately, nor as a course of conduct.

What about that bugbear, “mental pain and suffering” (after all, I’d think being convinced one was being drowned, would count. The idea that my captors were trying to kill me slowly, I think I’d call that "suffering.”

Certainly, in light of what 18 U.S.C. § 2340(2) says:

(I) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application of mind-altering substances Or other procedures calculated to disrupt profoundly the senses or the
personality; (3) the threat of imminent death; or (4) the threat that any of the preceding acts will be done to another person. See 18 U.S.C. § 2340(2)
(A)-{D).

They say it’s not a problem: the question is whether any of these acts, separately or as a course of conduct, constitutes a threat of severe physical pain or suffering, a procedure designed to disrupt profoundly the senses, or a threat of imminent death. As we previously explained, whether an action constitutes a threat must be assessed from the standpoint of a reasonable person in the subject's position.

Me... I’d say a reasonable person being held prisoner, abused, repeatedly half-drowned, forced to stay awake, bounced off walls (which were designed to make it seem worse than it is: which is part of the plan), part of a system meant to convince the prisoner that his circumstances are not what they were, that, “the gloves are off,” might conclude that the threat of severe physical pain, or imminent death, was a real possibility.

Waterboarding is something they say does just that. But (you knew there was a but), because he doesn’t actually die, and the effects are transitory; and they aren’t, painful, they don’t count, because “profound mental harm” is, so they say, a predicate requirement of the act.

What it boils down to is them saying, unless you do ALL the things listed in 18 U.S.C. § 2340(2) (A)-{D);at the same time, then it isn’t torture.

That gets us through the first memo (about 20 pages).

Memo number 2

Right at the start we see amother problem. To avoid becoming a subject for the “enhanced” techniques the prisoner has to "provide information on actionable threats and location information on High-Value Targets at large-not lower-level information, for interrogators to continue with [this]
neutral approach”

Right there is an institutional disaster. The only way to avoid being tortured is to give up information. If one doesn’t have the information, than one is doomed to be abused. The most willing “detainee” will not be believed, unless he has information about high value targets. This is defined as a “very high” standard.

What it actually is, is no standard. Everyone is presumed to be knowledgeable, and the only way to avoid being tortured to get at that knowledge is to have it to give up.

Honest ignorance will get you tortured. Devotion to the truth of one's ignorance will only "prove" that one is a die-hard fanatic. And "die-hard fanatics" need to be abused, so they will "give up" the information we knew they had. Catch-22.

The report just released about Zabudayah shows where that leads. Millions of dollars, and thousands (if not tens of thousands) of wasted man hours chasing false leads.

To get the prisoner to cooperate the neutral techniques are abandoned, and a “baseline state of dependence” is established: by stripping them naked, depriving them of sleep (while shackled) and manipulating their diet. This isn’t torture, no, it’s meant to "demonstrat[e] to the [detainee] that he has no control over basic human needs" and helping to make him "perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting

Heaven help the detainee who has no information to protect.

Why? Because the methods being used will teach him to lie. He will, in fact, have to lie. His comfort is dependent on his “cooperation": The insult slap is used "periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee's response or non-response... Another corrective technique, the abdominal slap, "is similar to the insult slap in application and desired result" and "provides the variation necessary to keep a high level of unpredictability in the interrogation process... a third corrective technique, the facial hold, "is used sparingly throughout interrogation. It is not painful; but "demonstrates the interrogator's control over the detainee... Finally, the attention grasp "may be used several times in the same interrogation"

In short, when one says something the interrogator doesn’t like, one gets smacked.

The only way to not get smacked is to tell the interrogator what he, or she, wants to hear.

If there is any doubt that this is what was (is?) going on: The interrogators remove the hood and explain that the detainee can improve his situation by cooperating and may say that the interrogators "will do what it takes to get important information." As soon as the detainee does anything inconsistent with the interrogators' instructions, the interrogators use an insult slap or abdominal slap. They employ walling if it becomes clear that the detainee is not cooperating in the interrogation. This sequence "may continue for several more iterations as the interrogators continue to measure the [detainee's] resistance posture and apply a negative consequence to [his] resistance efforts." The interrogators and security officers then put the detainee into position for standing sleep deprivation, begin dietary manipulation through a liquid diet, and keep the detainee nude (except for a diaper). The first interrogation session, which could have lasted from 30 minutes to several hours, would then be at an end.

The next session starts with a slap, and the process repeats itself, until the interrogators hear what they want to hear. This can go on for 30 days. If the subject continues to resist, it can be continued, until he breaks.

Which is no way to collect information.

The final grace note is the “detention conditions”

The CIA maintains certain “detention conditions" at all of its detention facilities. (These conditions "are not interrogation techniques,” and you have not asked us to assess their lawfulness under the statute.) The detainee is subjected to white noise, not to exceed 79 decibels, and to constant light during portions of the interrogation process."

They do admit there are some gray areas, in which the pattern of behavior might combine to make otherwise legal methods torturous:

Finally we emphasize that these are issues about which reasonable persons may disagree. Our task has been made more difficult by the imprecision of the statute and the relative absence of judicial guidance, but we have applied our best reading of the law to the specific facts that you have provided.

Absence of judicial guidance means that the courts haven’t decided what tortures are legal, and which are beyond the pale, which has made their task “more difficult,” but never fear, they applied their best reading of the law to it, and decided that, so long as there were doctors present, none of the things they are talking are likely to rise to the level of torture.

What they did (as is plain in one of the footnotes) is decide that “torture” wasn’t really defined, and there was no way to interpret it which was useful so they could chop it up and make it legal. This, of course, flies in the face of the intent. Torture was broadly defined so that people couldn’t game the rules and say, “We didn’t chop his fingers off, we just scored his flesh with shallow cuts.”

Their best reading of the law.

Jesus wept.

There have been comments, and memos, and assertions made that Bush has all sorts of power because we are, "at war," and that until such time as we are no longer at war he gets to do all sorts of things which would be otherwise unacceptable.

The Dept. Of Justice now officially believes, so far as I can tell, that anything Bush does is, perforce, legal. We are you see at war, and the Congress has authorised force, and so the only thing that matters now is that the president believes his actions are in furtherance of the end authorised.

DoJ released a document entitled, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT. It has some stunning stuff in it. According to the theory they are spinning if there is any conflict between what the NSA has been ordered to do, and FISA, then FISA, and the FISA Court are unconstitutional.

Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context.

Whew!

Part of what goes before that says The AUMF places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided in the AUMF, the President’s action here falls within category I of Justice Jackson’s framework. Accordingly, the President’s power in authorizing the NSA activities is at its height because he acted “pursuant to an express or implied authorization of Congress,” and his power “includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635

Interestingly, Congress, back in 2002, was debating this very question. They decided to engage in a little bit of what Jackson's concurrence called, congressional authorization and deny the White House the permission to engage in the sort of wiretapping the NSA was already doing. Mike DeWine wanted to ammend the statue to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion in the FISA.

In a bit of irony (the sort where the left hand doesn't know what the right hand is doing) the Justice Dept. said The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going "up" on those suspected terrorists in the United States.

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism...

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it...

The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions. (and thanks to Glenn Greenwald of Unclaimed Terriroty for finding that.

The DoJ thought the PATRIOT Act had made lowering the stanadard needless.

They also said they didn't want it lowered because that might make it harder to get evidence into court, and so hurt the aim of fighting terrorism.

But over at the NSA we had Gen. Hayden saying that (on the President's say-so) they had gone to a "reasonable suspicion" standard. OK... There are a number of things cops can do with "reasonable suspicion", bring in dogs to sniff a car, luggage, etc. Detain a suspect for a little while while they frisk him, pull a car over, &c. They do, however, have to explain themselves, and can get in trouble if they do it for no reason. My dad's a Auxilliary
Dept. Sherriff in Tenn. If he wants to pull someone over, they will do something which counts. Drift over the speed limit, forget to use a turn signal, heck, if they drive perfectly he can pull them over; because that level of care shows they were worried about being pulled over; which is suspicious, so the standard is pretty loose. But it can be because the cop/agency is liable (generally speaking) if the suspicion wasn't reasonable.

Back to Gen. Hayden. I heard part of his little press conference, and I sat straight up when I heard this exchange:


QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the --

GEN. HAYDEN: That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable --

GEN. HAYDEN: No. The amendment says --

QUESTION: The court standard, the legal standard --

GEN. HAYDEN: -- unreasonable search and seizure...

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

It was more apparent when one heard it that he was saying the Fourth Amendment didn't require probably cause, and that the employees of the NSA are familiar with it.

For the rest of us, who aren't so familiar with it at the good folks running the NSA, I'll (purely as a public service) reprint it here:

" "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "

In some sense, he's right. It says we are secure from unreasonable searchs and seizures, and since the NSA wasn't worrrying about warrants the fact that "no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" isn't really wrong either.

Where am I going with this? It goes back to the 42 pages of the DoJ argument I started this with.

"The same day, the Attorney General elaborated and explained that in order to intercept a communication, there must be “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.”

Have any of you ever played six degrees of separation? I have. I'll bet I can get to OBL inside those six degrees. Lessee, 1: Former SecDef 2:Clinton 3: House of Saud 4:OBL.

Whoo! That was hard.

Maybe I have to go to five, what with just who in the House of Saud OBL knows, and Clinton met with, but that's still connecting me, to him, and didn't need all six steps.

What else is in there? Oh yeah, part of the justification is based on the preamble to the Authorization of Force. That's what lawyers call predicate language, it has no legal force (it isn't the first time this administration has done this... they used parts of the predicate language (which they supplied) for the authorization of force against Iraq to show that Congress really wanted them to do it, but I digress).

They take passages of the Federalist Papers, which address the Gov't in general (The Founders, after all, intended the federal Government to be clothed with all authority necessary to protect the Nation. See, e.g., The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (explaining that the federal Government will be “cloathed with all the powers requisite to the complete execution of its trust”); id. No. 41, at 269 (James Madison) (“Security against foreign danger is one of the primitive objects of civil society . . . . The powers requisite for attaining it must be effectually confided to the federal councils.”). Reading that closely says the total of the Gov't is now vested in the Executive, and they say this is what the founders wanted.

Angels and Ministers of Grace.

They take a number of decisions from before FISA, and say those liberties, to surveille, are still extant (never mind the fact of Congress acting in it's role as the maker of laws, passing a few which curtailed that)

The core argument is that FISA was seen to allow electronic surveillance, and that as this is a time of war, and the people being targeted are "reasonably believed" to be either the enemy, supporting the enemy, or at least speaking with the enemy, there is no need for a warrant because this is just part of normal intel-gathering in a war. That actually makes a certain amount of sense, save that there's no way to know that. There's no oversight.

Looking at this argument The amendments that section 201(b) of FISA made to title 18 are fully consistent, however, with the conclusion that FISA contemplates that a subsequent statute could authorize electronic surveillance outside FISA’s express procedural requirements. Section 2511(2)(e) of title 18, which provides that it is “not unlawful” for an officer of the United States to conduct electronic surveillance “as authorized by” FISA, is best understood as a safe-harbor provision. what I see is that Congress contemplated just such a statutory change and rejected it. Congress decided the 4th amendment concerns were at least as important as gathering intel. From the lack of prosecutions, the complaints of the FBI about the leads they were handed and suchlike it seems they were right.

They go on:

As explained above, it is not necessary to demarcate the outer limits of the AUMF to conclude that it encompasses electronic surveillance targeted at the enemy. Just as a majority of the Court concluded in Hamdi that the AUMF authorizes detention of U.S. citizens who are enemy combatants without expressly mentioning the President’s long-recognized power to detain, so too does it authorize the use of electronic surveillance without specifically mentioning the President’s equally long-recognized power to engage in communications intelligence targeted at the enemy. And just as the AUMF satisfies the requirement in 18 U.S.C. § 4001(a) that no U.S. citizen be detained “except pursuant to an Act of Congress,” so too does it satisfy section 109’s requirement for statutory authorization of electronic surveillance.10 In authorizing the President’s use of force in response to the September 11th attacks

That seems to argue they think it legal to do this to anyone. If one can detain a US citizen by calling him an enemy combatant, how much less of a stretch is it to say one can tap his phone?

The most frightening thing (and with this I will end this, as it is already longer than it probably ought to be) is the way they interpret the Authorization for the Use of Military Force as being more sweeping, and so conferring more power to the president than an actual declaration of war would be.

As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act. Thus, Congress could reasonably expect that an authorization for the use of military force would address the issue of wartime surveillance, while a declaration of war would not. Here, the AUMF declares that the Nation faces “an unusual and extraordinary threat,” acknowledges that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” and provides that the President is authorized “to use all necessary and appropriate force” against those “he determines” are linked to the September 11th attacks. AUMF pmbl., § 2. This sweeping language goes far beyond the bare terms of a declaration of war.

Recall that all of the broad claims to presidential power have, thus far, been couched in terms of fighting a war; but this is seen by them as being bigger than a war, which implies the president needs more powers than he has already (and they are claiming some pretty broad powers) when it's only understood to be a war.

So, not to put to fine a point on it, the McCain Amendment is as worthless as I said it was.

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

That's what the president said in his signing statement on the bill.

He reserves the right to make it up as he goes along, and Congress, the Courts, the Constitution, and We; the People, can go piss up a rope.

He, after all, will be doing it for our own good, and that trumps all.

Further, if I am reading the decision referred to correctly, there is, per the Administration no way for anyone to enjoin; nor petition for redress, since the restriction is; as interpreted, placed only so long as the Executive deems it expedient (Alexander v Sandoval is a piece of Scalia's less clear writing, explaining why a petitioner has no right to make the intial case. Hinging on layers of meaning one [who is only as versed in the law as I am, an amateur who reads it for pleasure] might say it is a riddle wrapped in a mystery inside an enigma, but I suspect it's a trifle less opaque, but just a trifle). It will be for the courts to decide whether any appeal of violations of this law are allowed to be heard, but from my reading of that statment the White House position is, "We won't torture anyone unless we have to, at which point it will be legal, because the President says so, and if you have any problem with that, you can pound sand, because we also decided these people aren't entitled to any civil rights (I guess they aren't as inalienable as all that). So it's going to be an uphill battle.

(p.s. Hilzoy has more, at Obsidian Wings Comments there can be interesting, but the signal to noise ratio is often high)

I've been mentioning, of late, the Gonzales and Yoo memos, about presidential power in time of war.

Bruce Schneier sums it up pretty damned well here (it was also an op-ed in the Minneapolis Star Tribune, but he goes into more detail on his blog, if I read it right).

My complaint with the Bush administration's views is that they argue the president has unlimited powers during wartime. This is the idea which led Bush to say his telling the NSA to spy on people was legal, and to allow torture, hold citizens as, "enemy combatants" and all the other things people (at this point on both sides of the aisle, from Bob Barr [of all people] to the ACLU).

But on to what Bruce had to say on it.

Here's the opening paragraph of the Yoo memo. Remember, think of this power in the hands of your least favorite politician when you read it:

You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

There's a similar reasoning in the Braybee memo, which was written in 2002 about torture:

In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President's Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President's] trust. As Hamilton explained in arguing for the Constitution's adoption, ‘because the circumstances which may affect the public safety’ are ‘not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy.’ . . . [The Constitution’s] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President’s obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.

The crucial point, is here, "Yoo starts by arguing that the Constitution gives the president total power during wartime. He also notes that Congress has recently been quiescent when the president takes some military action on his own, citing President Clinton's 1998 strike against Sudan and Afghanistan.

Yoo then says: "The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks. ... The President's power to respond militarily to the later attacks must be correspondingly broader."

This is novel reasoning. It's as if the police would have greater powers when investigating a murder than a burglary.

More to the point, the congressional resolution of Sept. 14, 2001, specifically refused the White House's initial attempt to seek authority to preempt any future acts of terrorism, and narrowly gave Bush permission to go after those responsible for the attacks on the Pentagon and World Trade Center.

Yoo's memo ignored this. Written 11 days after Congress refused to grant the president wide-ranging powers, it admitted that "the Joint Resolution is somewhat narrower than the President's constitutional authority," but argued "the President's broad constitutional power to use military force ... would allow the President to ... [take] whatever actions he deems appropriate ... to pre-empt or respond to terrorist threats from new quarters."

Even if Congress specifically says no.

And that's what scares me. This president believes he is the final arbiter of what is legal.

When I look at the GAO saying the Ohio vote was suspect, and probably corrupt, the President's supporters arguing that it's more important to investigate those who leaked that spying of questionable legality was going on (never mind that those to whom they leaked sat on it for a year; that's another issue altogether, one which ties into whom the Press is serving, and how much it can be trusted in these days) rather than to ponder the idea that the president has been, for the past four years, engaging in wiretaps without warrants. When I see real harm to our intelligence efforts being done, and those same supporters saying that's just business as usual, "nothing to see here, move along." When I see the Courts being used to avoid review (for which the 4th Circuit just slapped the administration upside the head; with statements that the credibilty was in jeopardy, because questions of similar nature would come up again, and this makes it hard to think them acting in good faith), when I see the president saying he can declare anyone, anywhere, an enemy combatant; at which point they lose all civil rights, when I see him ignoring the findings of the tribunals he constitutes, and holding those deemed innocent by them...

When I see things like that, I begin to think him a threat to the republic, as great a threat as we have ever faced.

I begin to see an American Caesar.

Today, in 1791 the Bill of Rights was ratified.


Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.


Those ten amendments, probably more than any other aspect of the Constitution define who we are as a nation.

To quote Lincoln we are now engaged in a great struggle to see if any nation so conceived can endure.


For years, even decades (hell, practically since the inception of the country) the Gov't has been trying to chip away and file down the protections those ten amendments provide. I think this a bad idea. It isn't that I think them Holy Writ, graven in stone by some sacred set of Iconic Founding Fathers who knew all, and made no mistakes. Some things need to be adjusted to meet the needs of the present (who here thinks that 20 dollars at issue ought to be the threshold at which a jury trial is guaranteed? Next time you want some fun, ask that question of a, "Strict Constructionist), but rather those ten additions to the Constituion probably have more to do with what we are, and what we ought to be, than the rest of it put together. The actual text of the constitution is about mechanics. How we go about governing ourselves. How the social compact is administered.

The Bill of rights, on the other hand, (with some late additions, after the Civil War) define the social contract.

In my lifetime, however, major aspects of it have been compromised, in the name of law and order.

Warrants are no longer required to search any vehicle, within 50 miles of the border. If, however, the cops fail to find anything they aren't obligated to put your car back in order, nope, they acted, "in good faith," and so are protected, even if (as has happened) the motorist's vehicle has been completely disassembled at the side of the road, requiring, at the very least, a good set of tools and some hours to put back together.

RICO was brought out to stop the Mafia, by going after the ill-gotten gains. But in the War on Drugs (and on porn, at least once) it's been used as a bill of attainder; and one which would have made Elizabeth I blush (or, as I would like to think, blanch). No need to actually charge anyone, just make a RICO seizure and they lose everything. If you do charge them, well the stuff they own can be used to finance the prosecution, and if they are acquitted, so sorry, nothing left to return (this happened to a bookstore in Fla.. The DA decided Marvel Graphic Novels were pornographic. Sent a couple of 17 year-old boys in, about ten minutes apart, and used those two sales to show, "a pattern of criminal behaviour," and invoked RICO. They were acquitted, but all they had in the shop was gone, merchandise and furnishings.)

These days the bogeyman isn't the Mob, nor so much the Drug Cartels, it's terrorists. We are told this is something completely new, and the old ways of doing businsess are outmoded. The answer was, The PATRIOT Act. So important was this that we passed it, unread, some four years ago.

There is one part of the PATRIOT Act which might be useful, which is the part where the various agencies working on things are supposed to talk to each other more easily, when say the FBI finds links to terrorism while it's working on a plain-jane criminal matter. But it doesn't The CIA is also expected to give plain-jane criminal info to the FBI when it enounters it in a terorism investigation. That's a camel's nose. It puts the CIA in domestic affairs. Not good. That way lies the deuxieme beaureau of Napoleon, or Stalin's NKVD.

That seems a tad extreme, but since, without a warrant the FBI took down, into permanent files, a host of information on everyone who got a room in Vegas for an entire weekend (they had, "credible" information that a terrorist attack was going to take place. It didn't, but by gum, if it turns out later that one of the tens of thousands of people who stayed in Vegas that weekend becomes worth looking at, there will be a working file).

That, at least, was done legally (no matter how odius the law might be), and could be stopped. Then again maybe not. The WaPO, and the New York Times report, not denied, that the White House arranged for the NSA to spy on uncounted persons who made international phone calls, or sent e-mail overseas. They did this on the simple say so of the president. No warrant, no National Security Letter, no nothing, except the command of the man in the Oval Office. No oversight.

Today, however, the Senate decided enough was enough. Some senators have been declaring public qualms (not least among them Russ Feingold
the only one who stood up and opposed it at its inception. Others only lately.

Few of them seem willing to just let the thing die, and trust that the systems we had in place before this rancid piece of legislation was passed could do the job, but they are willing to question some of the most offensive aspects. They asked for three months, so they could investigate (four years, it seems, wasn't enough).

The White House said no. Pass it, or don't, but anything less than permanent extenstion would be vetoed (this seems an empty threat to me, this president hasn't vetoed anything. Just today he caved in on McCain's anti-torture amendment... the one he said he'd veto, even if it was on an appropriations bill for the war in Iraq. Why anyone believes he'd veto an extension to a law he likes, rather than let it die is beyond me).

So some senators did what they were hired to do, looked down the road to see where we were going, and they decided they didn't like it. The pulled a filibuster, despite the usual fear-mongering of those who want to railroad this sort of curtailment of rights. Take, for example, the words of Jon Kyl (R-Ariz) [The PATRIOT Act]he Patriot Act "will prevent future acts of terrorism unless we allow it to expire.". If a filibuster resulted in the act's ceasing to exist and an attack occurred, "everyone who votes to support a filibuster will have to answer for that.

Which is arrant nonsense.

Anyone who's studied the problem will tell you the question isn't if, but when. It may be some external threat, it may be another McVeigh, or Rudolph. We've stopped a number of attempts, and those through classic law enforcement. The Millenium Bomber, caught by an alert Customs Agent.

The folks in Texas, with the makings of a whole lot of chemical weapons (goodly folk too, God-fearing white people) they weren't snared up because the CIA was tapping their phones.

That's what's most offensive about things like RICO, and the PATRIOT Act. They ask us to sacrifice our freedom for percieved safety. As Franklin said, those who are willing to do that deserve neither.

He also said we have a Republic, if we can keep it.

These things, IMO, are grave threats to our keeping it, and I don't want to see it vanish from the face of the earth.

Call your senators (and your rep) and tell them this thing is bad, evil, a dog's breakfast and we don't need it. Tell them why (there's lots of reasons why), and just maybe we can get a little closer to those ten amendments again.

It matters.

It probably matters more than any other right we have.

It goes back to the very beginnings of the ideas the grand experiment the U.S. of A sprang from.

No freeman shall be taken or imprisoned or disseised or exiled or in anyway destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers

To no one will we sell, to no one will we refuse or delay, right or justice.

Those passages are from the Magna Carta, all the way back in 1215 (emphasis added).

Senator Graham says we have to deny the right of these prisoners, to demand justification for their being held, because they are, "clogging" the courts with their pleas for justice. How many... a few hundred. If the courts are so busy that a couple of hundred petitions bring them to a ginding halt, then we're so fucked it isn't funny.

Where, one wonders will this theft of rights end? Who will next be on the list of those who can be locked up without release, or charge, or reason? When will the gov't decide there are citizens who aren't to be allowed to walk the streets, not for what they have done, but for what they have been accused?

Am I waxing hyperbolic? A tad, but not so much as I wish it were the case.

This is primal. It is worse than torture. It's about freedom, liberty and the rule of law.

"The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."

Winston Churchill

"He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself."

Thomas Paine


It's true. If you doubt this, then look to Padilla. He was held for months before we were told about it. From a comment I heard on the news, it was only to "wag the dog" that we were told. His lawyers weren't allowed to speak with him. Ponder that. He was held, for months, without charges. Kept in a navy brig, in solitary, and not allowed to speak to his lawyers.

He's a citizen.

We didn't treat Göering, and the rest of the Nazi powerful who didn't kill themselves before capture this way. We had the courage of our faith in being right. We tried them in the light, making certain the world could see how fairly they were treated. Some, were hanged (Göering cheated the noose, with suicide by poison) some were imprisioned. Some were, to the shock of many, acquitted.

Stalin wondered at the idea. His plan was to shoot them all. Cheaper than a trial, and not the least risk of them being acquitted.

The law won.

Some say we can't afford to let these people go, because they might want to attack us. So what? Which essential liberties are we going to forsake next in our search for some mythic security? The Nazis did far more harm than bin Laden and his ilk will ever manage; are we to say then that such minor injuries (in comparison to the hundreds of millions who died because of the Nazis) as the few thousands we might lose to some attack in the future is worth our principles?

I sure as hell hope not.

Worse (from that spurious line of defense) such things make us less safe.

To go to a war story, we arrested a guy in April of 2003, in the plain sight of his family. They watched him go to a checkpoint to ask a question. They then saw him, and his companions hauled away.

When they went to the Army (or perhaps the CPA) to find out why, they were told we hadn't done it. They were given a list of maybes (maybe it was Ba'athists, maybe it was some Sunni with a grudge, perhaps it was some rival Shi'a group [the guy was a big name in the south of Baghdad) but it most certainly wasn't the U.S. Army.

Only it was.

I talked to him (he was very polite, and seemed to understand that shit happens and it wasn't personal) and we took him home.

Now, let's say we hadn't. Let's say his family never saw him again (we'll ignore his congregation/adherents). Think they might have nursed a grudge? I do. Heck, I'm certain of it. As certain as I am that Abu Ghraib made more insurgents and terrorists (worldwide) than it saved lives. I will wager the high-handed treatment of prisoners will, over time, kill more Americans, here; in the States, as well as in Iraq and Afghanistan, than any lives saved by the information those prisoners might reveal.

And that's only the pragmatic part.

Wherewith shall I come before the LORD, and bow myself before the high God? shall I come before him with burnt offerings, with calves of a year old?

Will the LORD be pleased with thousands of rams, or with ten thousands of rivers of oil? shall I give my firstborn for my transgression, the fruit of my body for the sin of my soul?

He hath shewed thee, O man, what is good; and what doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?

Micah 6:6-8

Do justice, love mercy; is that too much to ask?

We have innocents in GitMo. We admit it.

Adel is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.

The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later.

Detainees Deserve Court Trials Washington Post

Adel has been in prison for four years. Not only is he innocent, we rewarded the men who condemned him. This sort of thing used to exist in Russia, in the France of the Terror, it was called denouncing. I suppose we are better than Revolutionary France, we; after all, aren't sending the denounced to Madame Guillotine, but rather keeping them in cells, depriving them of human contact, isolating them from family, religion and the world.

Even after we acquit them.

Justice delayed is worse than justice denied, because to delay it is to keep something which ought to be done from being done; when you know it should be done: "Well, yeah, we could make it so the Pinto won't blow up when it gets rear ended, but that would cost money, and we'll probably pay out less in lawsuits than it would cost to prevent the problem."

This must be fought.

If not now, when?
If not me, who?

I said yesterday that I was worried by the odd views of what constitutes the Constitution, and the limits of property (in both the modern sense of the word, "things," and the more archaic sense, "person"), and how much leeway the state ought to have in the excercise of encroaching on such liberties.

One of the more troubling aspects of Scalia (and as Alito is protrayed as a Scalia's Scalia, it seems apropos) is that his views on stare decisis, which is the idea that precedent is a controlling factor, unless something has gravely changed (which is part of why Plessy v Ferguson stood for as long as it did) are that it isn't all that binding.

Scalia avers that all decisions stem from the Constitution itself, and so caselaw isn't as important as the parent document, with which I, tend, to agree. Where it becomes a problem is that no one can truly say what some aspects of the document, mean, because the nature of a proscriptive text is that it's vague.

The fifth commandment reads, "Thou shalt not kill". Ok, seems pretty straightforward, but what does "kill" mean? In the original Hebrew the word rendered as, "kill" in the King James was what we now translate as murder. Which only narrows the field a little, since what is defined as murder is variable.

The Constitution is much the same. Such thing as "cruel and unusual" or "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," are not as plain as say, E=MC^2.

Scalia claims to know the intent of the framers. Conveniently for him it seems the agreed with his prejudices on things (he might say it's convenient for us that he is such a throwback he knows what the meant, despite the passage of time, and despite the bending of previous minds to the problems, where they saw, "as through a glass, darkly" he has the clarity of purest glass with a good source of light, but I digress, and through a phrase snarkly).

What then of Alito? How does he look to established law (in the form of precedent)? From the evidence, not so well. He's been reversed a lot.

More interestingly is the things he's reversed. Eric Muller (Is That Legal) has a piece up on this. What happened is that Alito reversed an opinion of the court he was on (which he'd not been on at the time, or at least wasn't part of the trio re-hearing the case). The case was a first ammendment question (separation of church and state, as related to a nativity, to which was added some non-christian trimmings. The Third Circuit ruled (unanimously, a Reagan, Clinton and Bush Pere, appointee each on the panel) that the non-christian bits didn't change the essential nature of the religiousity of the crêche. When it came back, Alito said it was kosher.

The whole thing is worth reading Here

Some of the juicy bits:
Jersey City again appealed. This second time, the case came before a mostly different panel: Judge Nygaard (Reagan appointee) was on it again, but now he was joined by Judges Rendell (Clinton appointee) and Alito (GHW Bush appointee).

Over a strong dissent by Judge Nygaard, Judge Alito upheld the display. Although the earlier panel had been quite clear in saying that Frosty and the sleigh and the Kwanzaa ribbons did not defeat the display's message of religious endorsement, Judge Alito characterized that as "dictum" in the earlier opinion (that is, legally non-binding commentary, rather than legally binding precedent), and concluded that the supposedly secular doo-dads in the display actually did make the display satisfy the First Amendment.

Judge Nygaard was, to use a piece of appellate technical jargon, "pissed." "This constitutional about-face in the same case," he said, "troubles me greatly, strikes to the core of the legitimacy of our jurisprudence, and exposes us to well-earned criticism for inconsistency and for giving insufficient respect to an earlier instruction by the Court." Judge Nygaard was of the view that only the Third Circuit en banc (that is, all of its members together, as opposed to just a panel of three) could set aside an earlier panel's opinion like this.

As a technical matter, Judge Alito may have been right that the first panel phrased its analysis in a way that turned its sharp condemnation of the Jersey City display into dictum. The condemnation was, however, so clear (and unanimous) that surely Judge Alito could have chosen to honor it, or pressed for en banc consideration of the case, rather than just pushing it aside and replacing it with his own vision of the right outcome under the Establishment Clause.

If Senators are interested in understanding how Sam Alito thinks about how much deference a court's earlier pronouncements deserve, they should question him closely about what it was that led him to choose to abandon the clearly expressed, unanimous view of an earlier panel in the same case, rather than honoring it or seeking the ruling of the entire Third Circuit sitting en banc.

That's where the meat of the matter is.

It isn't about choice. Not only do we lose on that one (because the Right is loud, and the base wants Roe overturned. The Republican Party doesn't really want it overturned, because 1: the majority of the populace likes things the way they are, so it's not actually a good move for those who want to be re-elected, and 2: because Roe is how they keep large parts of that base energised. I'd wager, in my cynical moments, the present push to portray Christians as persecuted {with things like Nativities being forbidden if done with public funds; or apparent sanction, being part of that bit of the propoganda mill of the class and culture war the Right is waging} being how they are getting around being in charge of all three branches, and not getting what the base wants done (gutting choice) done), but choice is only a part of the picture, and the picture is about liberties.

It's about my being allowed to swing my fist, so long as I don't hit your nose. It's about 218 years of tradition and caselaw. Some of it dreadful (Plessy) some of it painful (Dred Scott), but all of it the attempt to make a compact which was meant to confer, and preserve, the greatest liberties to the greatest number; and make it not just an ideal, but a viable way of life.

Pop quiz: Name this decision.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

Who knew (or even took a wild-assed guess and came up with) Dred Scott v Sanford

If you ask me it pretty much gives the lie to things like this, "Mason said the U.S. government is interpreting its powers in such a way that passengers never intending to enter the U.S. connecting to international flights at U.S. airports must prove they are no threat and could be allowed to enter the country.

If passengers are deemed to be inadmissible, they have no constitutional rights even if later taken to an American prison. Mason told Judge David Trager that's because they are deemed to be still outside the U.S., from a legal point of view.

"Someone who's inadmissible is in the same category as the people that the CIA snatches and grabs from other countries," said Barbara Olshansky, a lawyer for the U.S.-based Center for Constitutional Rights, which is suing a number of U.S. officials on Arar's behalf.

"You are fair game for however executive branch wants to treat you." Flyers passing through U.S. have few rights, Arar judge told

That might give me pause, were I Mexican, or Canadian, and planning a tripp which passes through the US. because, "Fair game for the executive," sounds a little scary to me, and I'm a citizen. Then again, so was Richard Reid. He hasn't been tortured, so far as we can tell (mind you, per the Atty. Gen.s' office that means the've not caused pain consonant with organ failure or death, so...)

They promise they won't condone torture. They don't promise to let you sleep or eat, but torture (the real kind) that's not going to happen. Mind you Maher Arar might not have so sanguine a view about it, as he was in a Syrian prison for something like a year, and claims he was tortured. The US Gov't doesn't even deny that, not really. They take a more biblical view and wash their hands, after all, Syria ia a soveriegn nation.

On the plus side they did catch a guy trying to get onto a plane with a bomb. I'm sure it was easy, because we all know what they look like. This one was white, and a US citizen, but they caught him anyway.

But I digress.

Dred Scott is a favorite of those opposed to Roe v Wade and Balkinization is having a nice little conversation about that here, where the issue is substantive due process.

He points out the better parallel isn't Dred Scott, but rather the more recent decision, Kelo v New London (because they are both, at heart, sunstantive due process cases, relating to the taking of private property, and giving it to another private person) I've long held the case of Dred Scott was properly decided (apart from the silly aside where Taney tried his hand at "original intent," and muffed it something fierce, in the very passage which the Roe v Wade opponents quote, and misunderstand [that whole persons clause, which Balkinazation covers, so all I'd be doing is quoting, and you can read the swipe at Scalia for yourself).

The result (from that very referenced passage) was horrid. It served to unperson an entire people, and was used to keep them in a state of semi-personhood for another century. We are still working our way past it.

I'm digressing again (this was much more coherent before the computer crashed and all was lost. The stuff in the clipboard was, of course, gone too).

Dred Scott says we owe it to the residents of our territories (be the citizens or not) the same rights citizens have inside the actual borders.

Sadly there are decisions, relating to the land we took from Spain, which call some of that into question (it was held those territories were different, because they were taken, not incorporated, and so the full writ of the Constitution didn't really run there), but Dred Scott (that bogeyman) has kernels of hope, points we can cite to show that the Constitution is as big as those who like think it to be.

The U.S. was founded on some very big ideas, some powerful (and frightening) Ideals. The sovereignity of people, collected, was what made Gov't legitimate. It's a dangerous ideal, and has caused great strife (France, Viet-nam, Germany, Russia, Poland, Hungary, the United States, Bolivia, South Africa; all have had wars because of the manifesto we sent George the Third. That list of grievances turned the world upside down).

If we can keep those principles, as we defined them in the Constitution, we have a great thing. But we can lose them. All we have to do is let the Gov't take them back, one little bit at a time.

We have to recall what it was which made the Declaration of Independence needful, the thousand little slights which became too much to bear. If we remember soon enough, it shan't be needful to reclaim them the way they were bought the first time.

I've been boiling about this for a few weeks. The simmer started when Judge Lefkow's family members were killed and the fringey-right started crowing about it, while trying to say it was not only not their fault, but people were wrong to look at them suspiciously.

Since people like Hal Turner as Orcinus points out, not only say things about judges needing to look over their shoulders, but they get treated well by the Republican Party the fringe is moving into the "Big Tent."

That's odious enough, so too is the part of the party trying to side-step little things like the First Amendment by trying to remove theocratic laws from the purview of the court. The Constitution Restoration Act

The nut of the act is,
Sec. 1260. Matters not reviewable
"Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government."

and

SEC. 201. INTERPRETATION OF THE CONSTITUTION.
In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.

Scary. This has been introduced before, and it failed to leave committee, which is what will probably happen now. That is, to some degree what the co-sponsors (which number 23) probably want. They get to pose for the fringie elements of their constituency, without having to pony up a vote which might piss the rest of us off.

So it might be better for this nonsense to see the light of day, that the snake-oil salesmen be forced to drink their own potion, or be shown up for the frauds they are. On the off (and right now it's a very off chance) the foul thing passes, well it will be ruled unconstitutional (there are ways in which it can be brought before a court, diversity being the easiest).

this time around the author added the second clause That is the one I fear most, because it calls for an ossification of the law.

England has the Common Law, which is an ever changing thing, and might be completely replaced by a single act of Parliament (they could make the Monarch absolute again, should they so choose). We have a Constitution, a more rigid document, but not absolute.

There is a parallel, in my opinion, in the Old Testament, and how it applies to Orthodox Jews. The Law is defined. There is no question about what it says. God ordained it, and meant Man to follow it. But Man is fallible, and cannot completely apprehend the fine turns of God's meaning, so they have the Talmud. A bit more than 2000 years of case law to refine the application (not the meaning) of the law.

The Bible does not address cars, nor electricity, nor any of a vast host of modern inventions. Does a cotton-poly blend violate the prohibition on the mixing of unlike objects? Is electricity fire? If it is, how is it kindled (since one cannot light a fire on the Sabbath this is a crucial thing to ascertain)?

The Talmud deals with this, and is still growing, because the problems of people never end.

We have the same, and we have been arguing those cases for more than 200 years. This law would cast all that aside. Dred Scott v Sanford becomes as dead as John Brown.

The States become completely autonomous save for those laws which the Feds specifically apply to them.

It, in short, invalidates the principles of Federalism and returns us to the Articles of Confederation; which worked so well we disposed of them.

The leadership of the party has gotten on board with this. Tom Delay (Speaker of the House) has said "I believe the judiciary branch of our government has overstepped its authority on countless occasions, overturning and in some cases just ignoring the legitimate will of the people.” as well as, “The time will come for the men responsible for this to answer for their behavior, but not today."

His most amazing claim was the laying of blame for the aforementioned riding over the will of the people on the Congress , “"I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them."

So he seems to think Art. III of the Constitution, creating a Supreme Court is immaterial, as well as that pesky little Bill of Rights.

Rights are the heart of this issue, they have been since Nixon started railing about “strict construction.”

The question before us is this, “Is the Constitution prescriptive, or proscriptive?” That is, does it tell us what rights we have, or does it list only those rights we cannot lose?

The language of the Bill of Rights is proscriptive. It details those things the Executive, and the Legislative cannot take away, and the Judiciary is set to keep them from doing it, which is why judges are appointed for life.

Which means the Gov’t has to show a legitimate interest before it can limit a right, even those not enumerated.

That is the nub of the Ninth Amendment, the one Madison felt essential lest, by enumerating particular exceptions to the grant of power, it would disparaged those rights which are not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a Bill of Rights into the system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

Alexander Hamilton said much the same, “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” (Federalist Papers 84)

There are those, as with Kurt Lash,, Texas Law Review, Vol. 83, No. 2, December 2004, who argue the 9^th isn’t meant to protect the rights of citizens, but rather is part, and parcel of the 10^th, Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. (I think Lash errs in his basic premise holding the only reason Madison intended the amendment was to appease states and reduce the encroachment of the Feds on them. The 10th does that. The Ninth is meant to see the same encroachment isn’t done piecemeal to individuals.

Madison’s private correspondence to Jefferson seems to contradict this, "My own opinion has always been in favor of a Bill of Rights; provided it is so framed as not to imply powers not meant to be included in the enumeration.... I have not viewed it in an important light, because there is great reason to fear that a positive declaration of some of the most essential rights cannot be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely to ever be by an assumed power.”

So the people are reserved those rights and powers not expressly given to the Feds. Privacy is perhaps greatest among them. The Declaration of Independence made the decisions to raise Liberty over Property and the principles of the Nation certainly are that, so long as one doesn’t infringe another, one may do as one likes.

But Privacy, or Speech,Religion, Marriage, or any other right being, “created” by the courts is a red-herring; a myth. The People hold those rights. Unless the Government has a compelling interest in the limit of them (which one can argue for firearms, to property; in the pursuit of information leading to a crime, and to property, by way of taxes; in that we demand the Gov’t provide services and somehow not only the services, but the labor of those who provide them must be paid for). The questions we face are always, how many of our rights is the Gov’t, and its agents, allowed to infringe, and when they are so allowed, to what degree.

That is the Court’s job. Abusing judges for doing what they are told to do, even when we disagree, is a moral wrong. It violates the social contract. The majority is not always right, and cannot, by brute force be allowed to run roughshod over the minority. Worse would be allowing a vocal minority to take advantage of beating the drum and rending their hair to appear they are being abused and thus impose a limit to others freedoms because they disapprove of them.

Making the Judiciary a subservient branch of Government (which is what the DeLays, and the Shelby’s, and; though not so obviously, the Frists, want) would be the unmaking of the Nation.

I will close this (already long enough) with some words from Alexander Hamilton, According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.” but that is the beginning, there are words which have been left out of other people’s quotations of Federalist Papers 78.

“This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

… A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute….

It's a sad day when learns one of one's friends, even a distant one with whom one is pretty much out of touch, turns out to be out of touch in a way one finds, at best disturbing; at worst, reprehensible.

Eugene Volokh thinks torture, as a norm in judicial punishment isn't wrong. Worse, he seems to think it laudatory.

I've not been reading the Volokh Conspiracy much lately because I have been a coward. I dislike the amount of time I have spent in the past year or so defending what I do for a living, while trying to correct those who either see it as evil, or needing torture to work best. Eugene's various comments on the matter (that torture, per se, isn't necessarily to be shunned... the Ticking Bomb defense, writ large) made me unwilling to wade in much where so many others, with wider followings than mine, were doing yeoman's work.

But this, gives me the willies.

If you look at the bottom you will see links to more of his general philosophy on the matter, but in brief I think it can be summed up like this. "Make criminals suffer, not so much to discourage others, but because vengeance is good for society."

His summation of his views is this, One can certainly reach a different judgment than I do: Even if one thinks there's some moral benefit to executing the Eichmanns or even the serial rapist-killers, one might say that the benefit is small enough that it's exceeded by the risk of error, and the very serious moral cost of that error. As I mentioned at the outset, I am keenly aware that I may be wrong on this general question, and the matter that causes me the most trouble is precisely this one. Yet my tentative current sense is that for a small number of extraordinarily monstrous crimes, the need for retribution is so strong — and the risk of error can be made so low — that not just death but deliberately painful death is the proper punishment.

The part I have the most disagreement with is this one, from higher up the piece,

"5. Humanity: Likewise, I think, with Mark's argument that deliberate infliction of pain, even on monsters, "makes the person who engages in it a little bit more of a beast, and a little bit less of a human being, than he would otherwise be." First, we should recognize that this is a metaphor; I may be mistaken, but my sense is that most literal beasts (i.e., animals) don't actually try to inflict pain as punishment for wrongs. Literally speaking, this desire is quite characteristic of human beings (though perhaps some other higher primates might be included; I'm not sure). This doesn't make Mark's argument wrong, but only shows that we need to look behind the metaphor.

So what's behind the metaphor? It could be a judgment that it's beastly, less-than-human, and thus morally improper to succumb to our visceral emotional impulses. But I don't think that's what Mark literally means. Love, empathy, the desire to pick a mate, the desire to have children, and other worthy emotions are also visceral emotional impulses; while we should certainly indulge in them with rational caution and care, there's nothing wrong in following emotions, and it's sometimes bad to resist them.

I take it, then, Mark's point is that it's beastly, less-than-human, and improper to indulge this particular emotion. But that too, I think, assumes the conclusion. When someone rapes and murders twenty children, why is it a "beastly" impulse as opposed to a worthy one to try to exact a harsh retribution? Mark acknowledges that retribution in general is a proper goal of punishment — but his argument doesn't, I think, explain why this particular sort of retribution is not. (To be fair, he does say "in my eyes, at least" — here we may be returning to a point I mentioned in my original post, which is that a lot in this debate rests on people's visceral moral intuitions.)

My response to this is that I have met people who have crossed the line, and been torturers, most of those in the pursuit of what they deemed to be higher moral aims (that is to say they were not indulging personal desires, not wallowing in some deviant urge, whereby they got a specific pleasure from inflicting pain on those who were not able to avoid it) and they are now damaged, mentally, and morally. They no longer see people as people. They see some as being not-quite people (I don't know how better to put it) and therefore not to be treated with the same respect, humanity; if you will, that everyone else gets.

The problem is, that as time goes on, they seem to have put more and more of the world into the category of, "not quite human."

This is not a new thing. A huge amount of the shift in human relations, the benefit of nations, even of empire, is to increase the number of people who counted as people. The Clans of the Highlands used to exterminate each other, root and branch, because those not in one's own family weren't quite as human. The scale shifted too, after all, those who weren't speakers of some form of Gaelic were less human still.

Read the Icelandic sagas; we see people casually settling scores by killing people's slaves. Person A (a family member) had given grave offense, so that night person B whacked person A's favorite slave in the side of the neck with an axe. It made him feel better, proved a point to his father (person A), but wasn't all that nice to the slave. More interesting, one must presume Person B knew the slave, had known him for years, but didn't think his life was as important as making the point.

Where am I going with this? I don't want to live in a place where hanging someone with piano wire, from a meathook, is seen as not enough punishment (and Eugene makes exactly that argument).

Call me sentimental, but if we are to have a death penalty, I want it to be more parallel to putting down a rabid dog; distasteful, but a sad necessity; and done without passion, than to having heritics hung, drawn and quartered.

Appealing to the base in human nature seems to me a poor thing, and I don't see that vengeance has had a calming influence on the countries which put it's practice into graphic; even public methods of punishing malefactors.