Ogged is so toast. (And not just because toast is brown too.)
Ogged always lands butter side down?
God, I hope we can change this back. Fast.
(2) is the opposite of the truth, IYKWIM, AITYD.
(3) on the other hand is the right way to feel. It would be funny if not sad how quickly this action follows on various pundits insisting that the Act does no such thing.
I assume everyone saw Olberman's comment? The line that should be sent to everyone who still thinks this is no big deal:
"And if you somehow think Habeas Corpus has not been suspended for American citizens but only for everybody else, ask yourself this: If you are pulled off the street tomorrow, and they call you an alien or an undocumented immigrant or an "unlawful enemy combatant" — exactly how are you going to convince them to give you a court hearing to prove you are not? Do you think this Attorney General is going to help you?"
Incidentally, LB, did you see that the Latino voter suppression was an action by a Republican campaign?
God, I hope we can change this back. Fast.
Not until 2009, at the earliest.
That was an awesome Olbermann comment. He's gonna be Howard Beale in a week or so.
No, it's possible (I'm not saying likely, but possible) that we could flip the House and the Senate, and intimidate enough Republicans to get a veto-proof majority. It could change back as early as next February.
My magical friendly invisible unicorn buddy told me.
Incidentally, LB, did you see that the Latino voter suppression was an action by a Republican campaign?
Yeah, I updated the post. Minor kudos to the Orange County Republicans for asking that he withdraw -- it's something, not much, but something, that they're capable of shame.
It would change back tomorrow if all right-thinking Americans wrote outraged letters to their representatives today, forcefully demanding repeal of this monstrosity.
This assuming that the number of right-thinking Americans is not small. Which may be the unicorns talking.
That was an awesome Olbermann comment. He's gonna be Howard Beale in a week or so.
I agree regarding the awesomeness but am wary of the comparisons to Howard Beale.
Don't worry LizardBreath, Abu G. explains everything is fine here.
Q: If you, Mr Gonzales, were arrested and classified as an unlawful enemy combatant and you were an innocent person, what course of action would you take?
A: Again, I want to emphasize that the Military Commissions Act does not apply to American citizens. Thus, if I or any other American citizen were detained, we would have access to the full panoply of rights that we enjoyed before the law.
Bush has demonstrated he's perfectly willing to tell Congress to go fuck itself. I'm afraid this may be a "how many divisions does the Pope command" situation.
I'd almost welcome that. If the situation is really that bad, we need to know it.
Yer shittin me, 'Po -- the Pope's not in Congress is he?
14.---I liked the part where he explains that the military trials will be totally available for public scrutiny, except for those few bits that need to be classified for national security reasons.
Re: 14 -- to be fair, it seems likely that the way this plays out is that courts will grant preliminary hearings to determine citizenship. If an "unlawful enemy combatant" is found to be a citizen, then the full array of rights does become available. If not, then the court will not/cannot consider the merits of any of their other claims -- regarding the legality of their detention, interrogation methods, etc. (Unless the constitutionality of the act itself is being challenged, which it of course will be.)
I don't think this is overly optimistic unicorn talk, but perhaps could be wrong.
18 - Yeah. As I note over at ObWi, the whole Q&A sessions is just freaking unbelievable.
, it seems likely that the way this plays out is that courts will grant preliminary hearings to determine citizenship.
Justify "likely."
Brock - I hope so. But AFAICT the administration would just file a motion saying the court has no jurisdiction even over the question of citizenship once the executive branch has determined that the person in question is an "unlawful enemy combatant," no matter how false that determination may be and whether or not the person is a citizen.
22: citing evidence that can't be made public or available to the defense due to national security concerns.
21/22- likely because we have an independent judiciary, (mostly) full of smart, thoughtful people. When the motion in 22 is filed by the gov't, any sane court would say "wait a minute, that doesn't make any sense...". Just because the gov't files a motion doesn't mean they win. And I don't think they even have a very good argument in this case, so I think it very unlikely they *would* win.
I think (but as far as I know CharleyC doesn't agree with me, so don't rely on this too hard) that Brock is right and Ugh is wrong. AFAIK, the jurisdiction-stripping applies only to alien unlawful enemy combatants, so a motion like the one Ugh described would be properly decided against the government. A court always has jurisdiction to decide whether it has jurisdiction, and if the UEC in question could demonstrate citizenship, the court should retain jurisdiction.
This doesn't mean that the government doesn't have the practical power to throw you in a cell and not let you call your lawyer, and that the 'legal' existence of a category of prisoner with no legal rights doesn't make it practically easier to deprive someone who is legally entitled to access to the courts of that access. But I think a citizen still formally has the right to habeas review under this law.
If you're refused a citizenship hearing, what is your recourse? (American citizens of Mexican descent have already been deported to Mexico. IIR, because they didn't have documentation when they were picked up in a sweep.)
If a citizen is held without recourse, it's still a violation of the law. We're all vulnerable to the *unlawful* restriction of our access to courts, which is a problem that, obviously, can't be solved by legally requiring access.
23 - then the court can view the evidence in camera. (Privately). Happens all the time with confidential info.
Really, these aren't even hard questions, or difficult solutions. I find it a little hard to imagine a court could rule otherwise.
What FL said. Laws aren't self executing -- the fact that it appears likely that the administration will overreach even the ghastly powers granted by this law doesn't mean that the law also grants it the power to overreach.
And I don't think they even have a very good argument in this case, so I think it very unlikely they *would* win.
I am extremely suspicious of the need for a good argument in cases like this after that whore Luttig's pair of decisions on Padilla.
Right, after posting I realized I'd repeated 25. It's important, in these conversations, to keep in mind what kind of badness we're dealing with-- whether it's legal or a predictable violation of the law or something else. I could, in one sense, be dragged off to jail without any kind of judicial recourse, if my local police are crazy enough.
This doesn't mean that the government doesn't have the practical power to throw you in a cell and not let you call your lawyer
This, of course. But then again, any branch of the gov't could do this to anyone at any time. If the local sheriff's office wants to round up some black folk and throw them in cells without telling anyone or giving them any contact with the outside world or letting them call or speak to lawyers, what power do the arrestees have to stop them? But what you're talking about here isn't what the law says or doesn't say, but rather a total breakdown of the rule of law. If that's what we've come to, well... I suppose I really do need to purchase some quality weaponry. But I hope we're not yet there.
32 so thoroughly pwned, from so many different sources coming from so many different directions, that honestly I'm left a bit dazed and confused in the aftermath. And sore.
Does it help that you were right first?
Sincere question for the lawyerly: Would José Padilla have been treated differently had this new law been in effect when he was originally detained? If so, how?
I don't think so. There's a difference between being able to seek habeas relief and there being any law under which a court will actually let you go or do anything for you.
Padilla had the right to be heard in a courtroom, and that had some good effect on how he was treated. And under the current law, I believe that, as a citizen, he still has that right.
Can someone provide a 2-minute version of what happened to Padilla? I really should know the case, but never found time to sit down and actually read it, and didn't even follow it closely in the news.
Laws aren't self executing
IANAL and IANAPh, but AFAIK, laws aren't self-interpreting either. It's a muggs game to separate the law from the people interpreting and enforcing it.
Is that technically a split infinitive in 37, or is it okay? "to sit down and actually read"? "to actually read" is bad, and my phrase expands to exactly that, but I don't know the technicalities here.
Sure, but there are core areas of any law within which there isn't much ambiguity, and this is one. A judge who, looking at a habeas petition accompanied by proof that the petitioner was an American citizen, concluded that it had no jurisdiction over the petition under the MCA wouldn't be engaging in questionable interpretation of an ambiguous provision, they'd be lying about the meaning of an unambiguous provision. (Accusations like this get thrown around like confetti by the right; the fact that they're usually bullshit doesn't mean they couldn't possibly be true.)
http://en.wikipedia.org/wiki/José_Padilla_(alleged_terrorist)
Is that a . . . split infinitive . . . or is it okay?
Aaahhh! False dichotomy!
People are expressing confidence that the administration will stay within the limits of the new law, broad though they are, or at least that the law will force them to. Have they been staying within the narrower limits of the laws now in effect? It seems to take 2-3 years even to get a case heard in court. If the administration defies the law, drags its feet, and appeals everything, the time required for a case to be decided could be 5-10 years. That's effective nullification of the rule of law, in the sense that they get 5-10 years of free torture.
Justice Stevens is 86 and in poor health. If the Democrats don't win the Senate, we could be in terrible trouble.
41- thanks FL. Having read that, it seems I knew more about the case than I thought I did.
People are expressing confidence that the administration will stay within the limits of the new law, broad though they are, or at least that the law will force them to.
No, not at all. Just saying that if they don't stay within the limits of the law, the problem is not one with where those limits are set. The MCA did not, AFAICT, deprive citizens of habeas rights. The administration may lawlessly do so, but evil as that is, it's not directly an effect of the passage of the MCA.
42- are you some sort of barbarian?
No, just a fluent writer of English prose. The guy I work for unsplits all my infinitives at the cost of fluency and euphony, and I despise him for it. Among other things.
they'd be lying about the meaning of an unambiguous provision.
I read "unambiguous provision" to be equivalent to "uniform probable interpretation by the judiciary." I cannot compare Scalia's and Thomas's opinions in Hamdi and believe in uniform probable interpretations.
Also, the history of the rule is highly disreputable. It is, in short, the following.
It is impossible to split an infinitive in Latin (I have no Latin training, so let me know if this is wrong).
Latin is good.
Let us agree not to split an infinitve in English.
Some contemporary grammarians (incl. Fowler): Nah, that's nonsense.
Others: No, because see, Latin is good stuff.
And then it somehow was passed down as a hard-and-fast rule.
48: Yeah, Scalia should get an annual day out of hell for that one when he dies. But that's disagreement wasn't over statutory interpretation, where you really do get some unambiguous questions. They just never become hot topics of discussion, because judges get them right. I think the question of whether the MCA strips citizens of habeas rights is in that category of unambigious.
(Mind you, I'm not saying that they can't detain a citizen UEC indefinitely without trial -- they probably can. But the citizen UEC would still, I'm pretty sure, be entitled to get into a courtroom to complain about it.)
Look, I'm not saying it makes sense. It's just one of those things that intially sounds weird and unnatural, until one is punished for misuse over the course of a sufficient number of years, until eventually a split infinitive grates the ears like nails on a chalkboard - a pavlovian response, the physical discomfort resulting from the punishment one knows is surely imminent.
Only a barbarian would have it any other way.
52- Exactly. And that seems like a sound enough basis for grammatical rules.
45: It's a spinoff of the fact that they can now hold some people without recourse to habeus corpus, whereas the number before was none. So the argument now depends on the ID of the person held, and the criteria and process set for proving citizenship. Seemingly once citizenship is denied, even wrongly, there'd be no way for the prisoner to appeal.
Furthermore, don;t they now have ways of stripping people of their American citizenship?
I like the (completely appropriate) intermingling of the topics of torture and split infinitives.
53 and 54 together: Grammatical unctuousness is a consequence of radical-right constitutional theories and Congressional cowardice.
Has anyone found a link to whatever it was that the DOJ filed?
DaveL, if you want a copy of DOJ's filing, drop me a line.
I don't think that section 7 of the MCA deprives a citizen of the privilege of the writ of habeas corpus. As a legal matter.
As a practical matter, there are real issues, which are not so much consequences of the MCA, but of the other interpretations of the law of war. The government can seize (arrest) a citizen without a warrant, and hold him/her without arraignment or indictment until the end of the war. Which will never end. That citizen can be held incommunicado, in a secret prison in North Africa. He/she can't contact a lawyer, can't complain about abuse short of torture, can't contact family members. He/she has a right to petition but no way to file a petition.
The real problem, then, for a citizen is eliminating the requirement of a warrant for arrest, a phone call, Miranda, and a speedy trial. So BL's supposition that a judge will get a look at a detention presupposes action on the part of the prisoner not, as is the usual case, on the part of the government.
Rather than email a pdf -- which has 9 pages of caption -- I'll just cut and paste the entire text of DOJ's thing here. Footnotes are in original. (We filed our response today that it is unconstitutional and of ne effect for the reasons given in our filing last week.)
NOTICE OF MILITARY COMMISSIONS ACT OF 2006
Respondents hereby give notice that on October 17, 2006, the President signed into law the Military Commissions Act of 2006, Pub. L. No. 109-___ (copy attached) ("MCA"). The MCA, among other things, amends 28 U.S.C. § 2241 to provide that "no court, justice, or judge shall have jurisdiction" to consider either (1) habeas petitions "filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination," or (2) "any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States" as an enemy combatant, except as provided in section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005, Pub. L. No. 109-148, tit. X, 119 Stat. 2680 (10 U.S.C. § 801 note).* See MCA § 7(a) (located on pages 36-37 of attachment). Further, the new amendment to § 2241 takes effect on the date of enactment and applies specifically "to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001." Id. § 7(b) (emphasis added).*
___________________
* Section 1005(e)(2) of the Detainee Treatment Act provides that the United States Court of Appeals for the District of Columbia Circuit "shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant," and it further specifies the scope and intensiveness of that review. See Pub. L. No. 109-148, § 1005(e)(2). Similarly, § 1005(e)(3) of the Detainee Treatment Act, as amended by the MCA, provides that the Court of Appeals for the District of Columbia Circuit "shall have exclusive jurisdiction to determine the validity of any final decision rendered by a military commission." Id. § 1005(e)(3).
** Counsel for detainees in certain of the pending Guantanamo detainee appeals, Boumediene v. Bush, No. 05-5062 (D.C. Cir.), and Al Odah v. United States, No. 05-5064 (D.C. Cir.), have requested the Court of Appeals to permit supplemental briefing regarding the effect of the MCA.
58:I am wondering if a third party, say a lawyer, without having seen the detainee or knowing his location or getting testimony or a signature, has any standing to apply for a writ on said citizen's behalf.
I somehow doubt the lawyer could even prove detention without official assistance. What case?
You're a good man, Charlie Carp.
Bob, a petition can be filed by a 'next friend.' The Supreme Court has set out some limits on who can be one. This was the big issue in the first round of Hamdi, and the courts (4th Cir, iirc) decided that the public defender assigned by the district court to represent Hamdi could not be a next friend, but that Hamdi's father could be. Opinion (pdf).
Every normal man must be tempted at times to spit upon his hands, hoist the black flag, and begin slitting throats.
63: I'm sorely tempted, although I'm not quite up to spitting on my own hands yet.
Legalistic discussions of these issues have to be put in the political context. Legally, the below are all different issues:
Guantanamo, secret CIA prisons, blowing off the Geneva accords, blowing off the UN, blowing of the International Court of Justice, the definition of "illegal combatant", habeus corpus, torture, Patriot Act I, Patriot Act II, the unitary president, signing statements, special wartime powers of the president, domestic surveillance.
I count 15 issues there. Some of them probably can be merged or put in groups, but some of them also need to be divided up into separate headers.
My point is that the Guantanamo issues, for example, may legally have no specific relationship or overlap with the Patriot Act issues. But politically they're all the same thing -- the attempt to make the American executive absolutely autonomous and unchecked.
"But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism...."
"(2) The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
(3) No Bill of Attainder or ex post facto Law shall be passed."
http://www.unfogged.com/archives/week_2006_10_15.html#005631
Thanks, CharleyCarp. Followup question: isn't that kind of a bizarre thing to file? It reads more like "you can't make me" than something you'd expect to see in federal court. Have the issues been so thoroughly briefed already that there's not much more to say, or is the DOJ being provocative (or both)?
I tried to comment on this thread for a half-hour in the middle of the night, and kept getting error messages. It was this great piece quoting Scott Horton and Long Sunday on Carl Schmitt and coining a neologism "blogoterrorism", defined as throwing Agamben and Tronti into Ezra Klein Health Care threads.
Too bad y'all missed it.
DaveL, it's only intended to be a placeholder. As I described in this comment, the real action will be at the Circuit.
Thanks, CC. I forgot to go back and check the OW thread.