kurt's nightmare

Generally, I post once a week. Topics are randomly selected and depend mostly upon whether it's baseball season or not. Other topics will include sex, politics, old girlfriends, music, and whatever else pops into my little brain. If you'd like to read, or ignore, my blog about China: http://meidabizi.blogspot.com/

Location: Dayton, OH, Heard & McDonald Islands

I'm an Associate Professor of Philosophy at the University of Dayton. I represent no one but myself, and barely do that. I'm here mostly by accident.

Tuesday, March 28, 2006

Hamdan v. Rumsfeld

I'm not a lawyer, so I can't pretend to be an expert in this. (On the other hand, I'm as much a philosopher as someone with a J.D. is a lawyer, and I rarely hear someone say "I'm not a philosopher, so I can't really speak with any authority about x, y, and z," which could be, say, abortion, life after death, and whether language or thought precedes the other.)

The Supreme Court--with John Roberts recused--is hearing oral arguments in the case of Salim Ahmed Hamdan v. Donald H. Rumsfeld, adding an extra half-hour to the usual hour for such arguments. First, the facts (or the "facts"):
Hamdan was captured in Afghanistan in November 2001, then transferred to Guantanamo. In 2004 he was referred to a military commission to be tried on conspiracy charges. The administration claims Mr. Hamdan, as bin Laden's driver, delivered weapons to al Qaeda members and was aware of bin Laden's role in the 9/11 attacks.
The strategy of the Bush administration has been to identify such a person as an "enemy combatant," and claim that as such he or she has no protection under any of the Geneva Conventions. Consequently, Hamdan--in this case--can be tried and punished by a military tribunal, without the right of any appeal to an independent court. Indeed, such an appeal would go to the White House.

In short, the Administration can identify, capture (or arrest), try, convict, and execute someone without any external check or independent judicial review.

To many, this seems like a terrible idea. Obviously enough, to communists like the ACLU, such powers are redolent of precisely both the source of the complaints in the Declaration of Independence, and fail to consider the Constitutional protections against those complaints. But others--over 35--have filed amicus briefs in support of Hamdan.
"This has nothing to do with 9/11 or supporting terrorism," said Paul Saunders, a Cravath [Swaine & Moore] partner who wrote a brief in Hamdan. "This case raises probably more fundamental issues of jurisprudence than any other case I can think of -- whether the president has the power to create a parallel system of courts that is self-executing."

Saunders, a former JAG officer in the Vietnam War, said the political implications of going up against the administration in Hamdan "were not an issue for us, not even considered."
There are some technicalities in the law here, one stemming from a much earlier case (Ex Parte McCardle):
For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance. Not since the immediate aftermath of the Civil War, in a case that arose from the power struggles of the Reconstruction era, has the Supreme Court permitted Congress to divest it of jurisdiction over a case it has already agreed to decide.
As Linda Greenhouse [this may require registration] explains the point:

Fearful that a Supreme Court ruling in favor of the editor, William H. McCardle, could result in invalidating military control of the former Confederate states, Congress enacted a law over President Andrew Johnson's veto to deprive the court of jurisdiction. The court then dismissed the appeal, rejecting the argument by McCardle's lawyer that it was permitting Congress to usurp the judicial function.

The McCardle case has been seen by many modern legal scholars as problematic, a regrettable expression of judicial weakness. Mr. Hamdan's lawyers cite it as well, but for a different proposition. While Congress spoke clearly in the court-stripping amendment at issue in the McCardle case, their brief tells the court, the Detainee Treatment Act is ambiguous on its application to pending, as opposed to future, cases. The court should interpret the act as not applying to the Hamdan case to avoid the "grave constitutional questions" that would otherwise arise, they say.

There are other problems, such as that arising from Roberts's recusal. The Court could tie 4-4, which ordinarily upholds the earlier appellate decision but establishes no precedent. But because of what statutes were in place at the time, it gets really really confusing about what such a tie would mean, and what it would say about the appellate decision. (This is where I need to be a lawyer, although I bet a lot of lawyers couldn't fully explain this situation.)

Those are legal issues. There are, of course, political and moral issues as well. But to keep this brief (if you've read this far, you deserved that pun), let's just consider (yet again) the precedent being set, if the Administration gets the right to do this.

A President can identify someone he or she believes to be an enemy combatant (and this can include American citizens, as far as I can tell, as in the John Walker Lindh and José Padilla cases). That person can be arrested (and, if the Italians are correct, someone can drive up next to such a person on the streets of Milan, or Portland, and stuff him or her in the backseat of a car). This person can then be tried secretly, sentenced secretely, and, conceivably, executed secretly.

Add this to the claim of the Administration that it can wiretap (and physically search) American citizens without warrant, if determined as legitimate by the Administration (and its rather generous conception of what does and does not constitute "torture").

Just exactly how different is this than the system of justice so mightly criticized by Jefferson, Madison, and Monroe? We had George Washington and George H.W. Bush; do we really want George III?

Isn't this closer to Argentina of the late 1970s (as described in Jacobo Timmerman's Prisoner Without a Name, Cell Without a Number, among many other places)? Do we really want to introduce the notion of deseparicidos into the American jurisprudential vocabulary?

Many--including the Administration--argue that this is all justified by the Global War on Terror, which they sometimes remind us could last beyond any of our lifetimes. Thus they seem to be arguing for a blank legal check (with no balance).

To drive the point home, I like to repeat this situation to my conservative friends. They say, well, it's a messy world, but most people are willing to give up liberty for security.

Then I say "President Hillary Clinton."


Anonymous Frodo said...

The administration has suspended just a few of your constitutional rights but you still have a lot left right? My question is where will this all end, everytime I think it cant get any worse somebody will stand up and stop the madness. Somebody will say the president cant just claim “executive privilege” or “we’re at war” and get away with suspending a few more civil rights from American citizens. Toss them in jail with no charges, no representation, no trail,… and then the furher subsides and another breach occurs again, kind of scary. (Pun intended)

Its getting quite scary if you pay attention. That leads to my agreement with your previous media watch blog about the FOX news watchers study.

If you really pay very close attention to FOXNEWS you do worse than the control group with the TV turned off.

How can this be? Have we sunk so low in our society? The report tends to show news-magazine-ish shows are just god awful propaganda. What once wsa a bastion of truth in News on TV, Radio, newspapers all competing to get the true facts to the people. Do I just see the past with rose colored glasses? Was the press always this controlled in the United States? 1900? 1850? 1800? The yellow rags with headlines screaming “Remember the Maine” that was just a minor misprint? Cheerleaders misrepresenting the facts?

Considering the type of news(TV, Radio, newspaper) we have access to in this country. It is very one sided and tightly controlled. News is totally and completely controlled we are beginning to rival Nazi Germany’s propaganda machine. The Republican Presidential or National machine faxes press releases that are not collaborated, unconfirmed, some just out-right lies(easy example Colin Powell at the UN "why we need to invade Iraq this weekend") and the news agencies all dutifully printed it, reprint it, report it and FOX leads with the Republican news-spin for days. Repeating the same story over and over with different "experts" voicing opinions.

I know what your thinking, well there is this thing called the Internet, free expression news and information. Where I express my unfiltered misconceptions of my own. I use the Internet for news but I'm in the minority in this news-thru-Internet class. Yeah, they exist but don't go all Deaniac on me, it doesn't change the political landscape. Check out the Pew research:


People who get their news from the internet represent only about 13% plus or minus 4%. It is a small amount of folks. Yes is it growing but… not fast enough to educate the public.

But hey, what cha gonna do? You cant beat em.
My job on the dock pays me good wages, but its a freaking pain to convert drachmas to dollars, what a bunch a freaking Dubia-ass muyas! Know what I’m talking about? Don’t get me started I’m gonna get Tony to crack some heads.

1:25 AM  
Blogger Bazarov said...

You actually read and put quotes and stuff in your blogs before you post them? Wow. I just get pissed, let the steam build, and then go into some incoherent rant. Maybe I should try this whole, "Think before you speak" thing.
I don't know what to say. I'm shocked at what's happened so far but feel like I shouldn't be given the complacency of so many around me. Should I really be worried? Rights seem to travel down a one-way street though. Government taking them is easy, getting them back is usually impossible without spilling some blood (or a lot).
Iceland sure sounds nicer and nicer; only 300,000 people too! Biggest worry there is about volcanoes as far as I can tell. Sure sounds easier to deal with than power-hungry, short-sighted, fanatical fools waving Bibles around.

9:37 AM  
Blogger kmosser said...

I like to think of it more as a rant with quotes.

12:15 PM  
Anonymous Anonymous said...

So what are you going to do? Frodo? Mosser? ArkLady? What are you going to do to stop the fanatical neo-nazi monkey headed, bible waving fanatics who are breaking the law. What are you doing? What are we to do? Damn it. Are we going to revolt in this country or sit complacent and wait for the guns to break down our door? I can tell you the guns have been doing so for years. It happened right before my eyes for atleast 15 years. I know what it means to REALLY have NO RIGHTS. Not just thinking that I might have no rights and I might be jailed and or murdered if I cross the wrong person. There are those people who face this every day and have so for ever. Scott Nearing. The sixties underground. What the hell is going to happen before people actually start to take action. Antioch is a great school but for all its alternative thinking it is just another faux free thinking, faux action encouraging University. University of Dayton has many great students and professors who are working voluntarily to change the world in a non violent way. Fulbright can be bullshit. PeaceCorp can be bullshit. If the guns show up on your door right now, tonight, what are you going to do? Without a search warrant, without due process, without innocent until proven guilty, with a gun in his hand and you standing naked...what will you do? Run? Go? Try to fight with the FBI over the unjust behavior of the guns? How far will that get you? No where, I promise. If anyone is paying attention and thinks they can really prepare to withstand a search and seizure I would bet money they've never truely dealt with the law. We are all helpless if not complacent. Don't tell me to vote because we all know that is bullshit and not just since the beginning of WB. Just listen to Ani DiFranco's To The Teeth. Her solution is the only I can think of unless people in this country are truely ready to give up their 'rights' and comfort and forget about the media in all forms. Jennifer

12:35 AM  
Blogger kmosser said...

I do worry about "the fanatical neo-nazi monkey headed, bible waving fanatics who are breaking the law."

Perhaps we can start by doing little things--convincing friends to vote their self-interest (which, ironically, is to adopt a classical liberal strategy to defeat classical liberals); to do what Ani DeFranco does (although I of course know what that is through the "media" in some sense, so I'm not sure how to reject it entirely); stay informed; join fellow-minded folks who accomplish some small things.

My guess is that a "revolution" would only be in the offing if some of the rickety financial underpinnings of the US rot--which they might--and we discover that an economy based on oil and service industries can collapse quickly. Otherwise, baby steps might be the way.

Or drink to excess?

9:17 AM  
Blogger Bazarov said...

My strategy for dealing with people who like to wave the Bible and trade in liberty for security is to be a whole lot ruder. I believe the main reason bad thinking continues to go on unabated is because it's never challenged in the public sphere. People can get away with saying a whole lot of nonsense because it's protected by tradition and wishful thinking. Religion is the most obvious example. Whenever someone says something utterly silly, like that we shouldn't pursue stem-cell research because those little clumps of cells have a "soul", I say we call them on their bullshit and make them make the case. But if you do that you're suddenly called rude or an asshole (which I won't deny; I very well may be both). I really don't have a problem with what people believe, that is until it becomes public policy. Religions need to be neutered and made impotent. A cleric has as much place in politics as a carpenter has in brain surgery. People who can't hold their untenable beliefs without demanding them to be made into public policy simply need to be intellectually stomped into the ground and forgotten. One of my favorite quotes readily applies to this domain: "What can be smashed should be smashed; what withstands the blow is fit to survive; what flies into pieces is rubbish; in any event, smash right and left — no harm can come from it." D. Pisarev.
Given the new poll results though from the U of Minnesota sociological study, this won't be taken lightly...after all, it seems parents would rather their children marry a highschool drop-out than an atheist.
As far as other politics go, I think a little economic trouble could help a long way. Fat people hardly complain. Let people go hungry for a while and things will change quickly. The neo-cons once said something along these lines, "We need a Pearl Harbor like event to get public support for our policies...". Well they got that with 9/11. What we need are some stomach pains and $5 dollar/gallon gas prices.
I'm not much for outright revolution (those are bloody). I guess if I had the solution I wouldn't be so confused.
I think being a lot ruder and upfront is a good start. I do think there is some momentum to this idea. Shows like "Bullshit" and a whole slew of books have come out that challenge commonly held beliefs, and they hold few if any punches. Don't flinch when people call you "_______ intolerant". It's just rhetoric. If they have a case, let them make it, otherwise stomp em and walk on to the next blabbering, benighted boob. Whenever someone says something that would normally be allowed because manners dictate we let them get away with it, stop and be a rude asshole. Sure you'll draw some heat for it, but isn't that better than believing things will just get better on their own? If you know you're tied to the track and you hear the train coming, wishful thinking isn't going to stop the inevitability. Only a critical analysis of the situation and a well laid plan will get you another chance to hear the train come another time.

11:09 AM  
Blogger Bazarov said...

I know this isn't related to the post, but I'd like your opinion. Could the news about Bush authorizing leaks be turned into the Russel's Paradox?
If Bush fires everyone corrupt in his administration, does he fire himself? He's claimed he'd fire anyone who leaked information, and now it appears that he himself did just that.

8:17 AM  
Anonymous Anonymous said...

Russel's Paradox?

12:28 PM  
Anonymous Anonymous said...

I'm sorry Arklady but I think your beliefs are bullshit. I don't think you have any basis for you beliefs. I don't believe you should be voicing your opinion on public policy regarding anything, including religion. You have an obvious aversion to anyone who thinks different than you. Therefore your opinion should be banned from schools, government, private companys, private organizations, and in any way in which another person might hear it. I, in fact, know not what your opinion is. This is intolerable. You must make your opinions and beliefs known, clear and concise. Regardless of your clarity, though, I think you are wrong so you will not have any consideration or allowance in many realms of society, namely politics. Therefore, you are banned and do not exist. jraunick

6:24 PM  
Blogger kmosser said...

I think ol' whatsherface is right that you are wrong to be right in saying that others are wrong, if and only if in being wrong they are right. Right?

Anyway, I think it is Russell's antinomy.

8:39 AM  
Anonymous Anonymous said...

An anomaly maybe. Nothing else. That is what we all are. No questions asked. No questions answered. Just my solution. Plain and simple, with or with out John Corbett and a roll in the hay, Oh Ye who ascribith to faith in the Socratic Method and condemns those who offer 'No Solutions, but many questions'. It isn't truely a refuge for the shallow to be silent. Rather, the Silent, without solution, know well that a bull in a China Shop changes nothing save the China. We are not China. We have cracks but rarely do I think others solutions penetrate to the point of mending. What do I know? I always end with a question? Don't I? Jenniferface

12:51 AM  
Anonymous Anonymous said...

OOppps, I forgot to make this solution. Or comparison. Deaf people should be banned from Movie Theaters because they can't hear, just as Religious people should be banned from politcs because they are religious. Jenniferface

4:20 AM  
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