Many of us said during the days of the Bush administration that restrictions on civil liberties motivated by the conflict with Al Qaeda would be maintained during any subsequent administration, whether Democratic or Republican, as long as the terrorist threat remained. This prediction has been amply confirmed. The most recent example is the implementation of an explicit profiling program for airline passengers. The ACLU aside, there has not been much criticism of this initiative. (Maybe because some of the most prominent critics of the Bush administration’s counterterror policies are now members of the Obama administration.)
The persistence of policies across ideologically divided administrations is good evidence that those policies are now mainstream rather than partisan and ideological. Of course, many people will continue to disagree with them, just as many people continue to object to a standing army and a central bank; but these people are now officially on the fringes. There will also continue to be arguments about interrogation practices and the like, but a wide range of Bush administration policies—indefinite detention without charges, trials by military commission, the use of military force against suspected terrorists in foreign countries, secrecy privileges that undermine litigation against government officials responsible for terrorism policies, profiling on the basis of nationality, and much else—are now politically entrenched.
This development seriously weakens some common arguments heard over the last years. The major theory was that Americans support unnecessary or unjustified limitations on their liberties because of “panic,” exploited by elected officials for political gain. If this theory is correct, then it applies to the Obama administration, which is acting just like the Bush administration—not quite as aggressively on the margin, but almost so. But the theory was never a very good one. If “fear” or “panic” is to be given any meaning, then it can’t be the case that Americans are in the same panic today as they were nine years ago. Many policies have been modified, to all appearances reflecting rational consideration of their costs and benefits. But the “fear” trope was always just a way to criticize policies without coming up with a plausible, empirically informed account of why the government was wrong to think that for any particular policy, the gains are greater than the costs.
The Al-Bihani case is another signpost on the road. The striking dictum rejecting the view that “the war powers granted by the AUMF and other statutes are limited by the international laws of war” may not survive in the long run—this is in tension with Hamdi, as Judge Williams notes, although on the other hand the Supreme Court has hardly been consistent in requiring that international law be used to interpret statutes. But the whole opinion, including the concurrences, is pregnant with a kind of resentment that courts are being asked to determine whether the U.S. army properly picked up an (alleged) enemy soldier on foreign territory—and one way or other, the courts are going to maintain their historical stance of deference to the political branches. The anti-international law dictum is best interpreted as reflecting very sensible doubt that judges are in a good position to figure out how the laws of war should be applied in this quasi-war. If the president wants to interpret them strictly, then nothing about the opinion prevents him from releasing Al-Bihani on laws-of-war grounds. Of course, the president does not want to interpret them strictly, in yet another way advancing the legacy of the Bush administration.
Chris Travers says:
With due respect, I think there are a couple of important points here that need to be addressed.
The first is that there is a tremendous difference between profiling based on either behavior or country of origin (as current policies do) and profiling based on race, religion, or ethnicity. I think there is a great deal of objection to the latter still (myself included, for both practical and ideological reasons), but the former has not generally seen the same sort of opposition (in fact I favor it).
The second issue is that some people, such as myself, voted for Obama on account of his voting record on civil liberties and were greatly disappointed in the role of his administration in maintaining and indeed expanding these policies.
A third issue is that I think you underestimate the practical concern over some of the opposition. It isn’t just ideological. For example, if you could convince me that there were adequate controls in place to prevent NSA blanket wiretaps from leading to domestic search warrants, then I would be all for such a program (in fact, the fact that the Washington Post reported on the FISC’s involvement in trying to ensure such has lead me to mute criticism of that project). In some areas, the issue has been as much (or more) with execution as with concept. In short a lot of opposition isn’t unconditional.
For example, I oppose no-fly lists unless there is an adequate means for an individual to challenge his/her status on that list. If there is an adequate means, I think it would be a good idea. If there is not, then I think the program is unacceptable.
In short I think many lines are drawn in the sand down the middle of issues, not on either side of them. I have rarely if ever met anyone unconditionally opposed to any of the programs you mention.
January 7, 2010, 12:40 pmMark Field says:
Sadly, I’d have to agree with much of this post. While there has been criticism of Obama’s record by the left blogosphere, those criticisms don’t seem to have had much influence yet and may not ever.
January 7, 2010, 12:46 pmmooglar says:
Of course policies that aren’t defnitively repudiated will “persist” across administrations. Bruce Fein, among others, was very vocal in the waning days of the Bush administration, pointing out that if Congress didn’t impeach Bush and Cheney for their overreach of powers and violations of the Constitution that it was certain those policies would persist.
Unfortunately, I don’t think this point was well understood by the country as a whole, or, importantly, by many critics of those policies. I think a lot of people who voted for and supported Obama believed that electing him would signal a repudiation of those policies and end them. And there were many of us (including myself) who beat the drum and pointed out that any power or policy used or abused by any administration becomes just another tool in the toolbox for succeeding Presidents, unless Congress steps in and removes that tool through impeachment.
Since Congress didn’t do anything — with Pelosi stupidly ruling impeachment out right off the bat when she became Speaker — the tool stayed in the toolbox. And it’s no surprise to those aware of how things work in Presidential politics — even liberals like myself — that Obama is using those powers and following many of those policies now that he is in the White House.
It’s an old story. There are lots of powers that you don’t want someone else to have, but when you have them, they suddenly seem like a good idea. Expecting that in the future there will be some heroic figure who becomes President and doesn’t fall prey to that most human of foibles is foolishness.
January 7, 2010, 1:12 pmCharles says:
If anything, in the future this belies the “it’s just a temporary measure against a current threat” arguments that some use to encourage support for these policies.
You can say it’s not fear and panic but the arguments in support of these policies almost always invoke the fear of the unknown, otherwise what would be the “benefit” in the cost/benefit analysis. They reignite the fear of nine years ago.
To talk about policies that were put into place without fear you’d have to look at policies in place before nine years ago. Then you’d have to add in rational policies, in the context of what we now know, to them.
Instead what we have is a bunch of policies put in place during a time when the country was panicked about terrorism. One can make the argument that there wasn’t panic then, but I can’t see how panic induced policies would stick without continually invoking panic.
January 7, 2010, 1:21 pmJohn Burgess says:
I think impeachment might be seen as repudiating a president, though not necessarily his policies. There are other, far less controversial way to pull back policy. Impeachment would have been seen as a petty and vindictive attack on the person of Bush and would have cost Democratic leadership heavily.
As sometimes a cigar is just a smoke, sometimes a policy is just a good policy, no matter who’s running the show.
January 7, 2010, 1:21 pmLarryM says:
The well known fact that governments rarely voluntarily give up powers once they are acquired is (1) not an endorsement of the need for such powers, and (2) if anything, further reason to criticize the initial decision to adopt the policies that led to such additional powers.
You would think that this simple message would be well understood on a blog with a reputation of having a libertarian slant, but apparently not.
As an aside, I don’t really buy the panic argument either (my cynical take is that the prior administration was not itself paniced, but took advantage of the public’s panic to enact policies granting themselves and their successors more power, that would have been dificult to enact ansent such panic on the part of the public), but the fact that they policies weren’t overturned says nothing about the validity of the panic critique. Again, libertarians above all should recognize that powers often are retaiend by governments for reasons entirely divorced from the original reason said powers were taken on.
January 7, 2010, 1:28 pmChris Travers says:
Congress did less than nothing. They gave the telecoms immunity from suit. They expanded FISA powers. They acted as a willing partner. One ray of hope was that Obama’s voting record on these issues was relatively good. However, to be a good President I suppose you have to have confidence in executive power….
January 7, 2010, 1:33 pmBrianMac says:
So because more than one executive likes having expanded powers, then those policies (restrictions of civil liberties) are mainstream? The argument is just ridiculous on its face (before even saying anything about institutional inertia).
January 7, 2010, 1:35 pmTwirip says:
I’d be interested in hearing your explanation as to why you regard this as a violation of civil liberties.
January 7, 2010, 1:43 pmTwirip says:
Of course Congress could merely alter the law if they don’t like it. That seems doubly advisable when you consider there were no legitimate grounds for impeaching either Bush or Cheney.
January 7, 2010, 1:49 pmegd says:
How did he vote on expanding FISA powers and telecom immunity again? I can’t seem to recall…
What exactly are the practical objections to profiling based on race, religion, and ethnicity? Is it because most terrorists are Middle Eastern Arab Muslims? Or for some other reason?
As someone once said, “you are at war with an enemy without uniforms, without morals, without a country and without a leader — but the one advantage you have is they all look alike”
January 7, 2010, 1:50 pmTwirip says:
This is absurd. All these policies were already “entrenched” before Bush ever took office. I’d expect a law professor to be a little more familar with the history in this respect.
“Profiling on the basis of nationality” – I seem to recall a certain amount of this going on in WWII.
January 7, 2010, 1:53 pmWallace Forman says:
This post might benefit from addressing the Higgsian argument that government authority tightens as a ratchet (a la “Crisis and Leviathan”). If a new administration does not repeal the expansions of its predecessors, this does not prove that the expansions are moderate, reasonable, or “mainstream”. It may merely prove that the status quo exerts its own bureaucratic interests, and that majoritarian governments like having a lot of power.
January 7, 2010, 2:08 pmAultimer says:
I’m with BrianMac. We’re the ideological fringe where governments seem to like government power overmuch – we’re called “Believers in Machiavelliansm”, or “Realists” if you prefer.
That fringe looks alot like the same fringe that calls itself “libertarian”, no?
January 7, 2010, 2:13 pmTwirip says:
That’s to be expected, surely. In any case I’m not seeing the civil liberties aspect in detaining an enemy combatant. And that’s he is by his own admission, your curious “alleged” notwithstanding.
January 7, 2010, 2:21 pmorca says:
There are few true opponents of government expansion left.
Certainly too few to matter.
January 7, 2010, 2:27 pmU.Va. Grad says:
That depends on what one considers “legitimate grounds” for impeachment; if you’re a fan of Gerald Ford, it’s whatever Congress happens to think “legitimate grounds” means at the time.
January 7, 2010, 2:44 pmChris Travers says:
As a friend of mine put it, Congress can impeach the President because they don’t like his table manners.
If they could impeach Presidents Clinton or Johnson, I am pretty sure they could impeach Bush….
In reality though, impeachment proceedings are usually about party politics…. The only exception really being proceedings against Nixon and that didn’t come to trial because Nixon knew he would lose anyway and resigned.
January 7, 2010, 2:52 pmChris Travers says:
It depends on what “combatant” means. There seems to be no dispute that he never actually engaged in combat, for example. However, my thinking is whether or not he was a combatant, by his own admission, he was a part of enemy armed forces by his own admission. He is therefore properly detained as a prisoner of war, “combatant” status questions notwithstanding.
January 7, 2010, 2:55 pmmooglar says:
Twirip wrote:
The grounds on which Fein and others advocated impeaching Bush and Cheney were their failures to follow the laws passed by Congress (by failing to get warrants from the FISA court for wiretaps, for instance). So Congress “merely alter[ing] the law” would not have been a reasonable option.
January 7, 2010, 3:03 pmKirk Lazarus says:
How do you think policies become mainstream?
January 7, 2010, 3:52 pmyankee says:
This is a curious post. Posner starts by observing, correctly, that the Obama administration has ratified many Bush administration policies, and that those policies are now “mainstream.” So far so good, but Posner goes on to conclude that the Obama administration’s ratification of Bush’s so-called anti-terror policies show that those policies were a good idea. I take it as an indication that the government likes having power and doesn’t want to give it up.
For what it’s worth, off in leftblogistan there are no shortage of critics of Bush’s (now Obama’s) policies on this point.
January 7, 2010, 4:03 pmSuperSkeptic says:
Are you aware that that someone was Ann Coulter (or, more specifically, her speaking through the voice of a fictional alien assessing our scenario), or did you think that obscuring your source would lend (or at least not detract from the) credibility and legitimacy of the statement? People often fail to mention controversial authority, but I feel that if a statement is true, it should rest not on its authority but on its merits, no?
http://www.anncoulter.com/cgi-local/article.cgi?article=348
January 7, 2010, 4:17 pmegd says:
Did Fein et al. acknowledge that this was the same basis for the Johnson impeachment?
If you don’t think the Nixon proceedings were about party politics, I have an airport in Pennsylvania that you might be interested in purchasing.
January 7, 2010, 4:22 pmegd says:
Yes, in fact I agree that a statement should rest on its merits, rather than on its authority. Which is why I omitted the source of the comment, because it’s irrelevant to the merits of the comment.
If you’re only concerned with the merits of a quote, then its source is irrelevant. For example, some might consider the following idea to be a good one for government to support:
And opposition to such a position should be principled, rather than relying on and disparaging the source of the statement.
January 7, 2010, 4:34 pmLarryM says:
“If you don’t think the Nixon proceedings were about party politics, I have an airport in Pennsylvania that you might be interested in purchasing.”
There are few ways in contemporary politics to more quickly lose credibility than to trot out the old “Nixon was the victim of a partisan witch hunt” canard. I’m sure party politics played a role in the impeachment, as they have in virtually every issue considered by the legislature since the founding of the Republic. But the effort would not have been successful but for the fact that many Republicans were ultimately convinced of the substantive merit of the charges; the Dems by themselves didn’t have the votes for a successful impeachment trial. Nixon resigned when the Republican Senators told him he didn’t have the votes to win. Nixon was impeached because of extensive and tawdry lawlessness, and failure to recognize this represents a particularly obvious and laughable political blindspot.
January 7, 2010, 4:44 pmChris Travers says:
I thought it was about
whitewatertravelgate…. ;-)Actually the point is that the obstruction of justice issue in watergate created a form of public interest that did not exist with Clinton or Johnson.
January 7, 2010, 4:47 pmGuy says:
In my opinion, the problem with the Johnson impeachment wasn’t that it was politically motivated, the problem was that he had a legitimate defense – he wanted to create a test case for the Supreme Court. If the President violates a law in bad faith, rather than trying to test the constitutionality of what he believes to be an invalid law, impeachment is an appropriate response. There is no evidence that Johnson would have ignored a Supreme Court ruling against him. I think(?) we can all agree that contempt of the Supreme Court in a significant case is appropriately an impeachable offense.
January 7, 2010, 5:51 pmTwirip says:
TIf that is true, then there was/is a simple legal remedy. Take Bush/Obama to court and force them to follow the law.
But no court has ever held that Bush and Cheney failed to follow the laws made by Congress, so you’re left doing what you’re doing – blowing smoke. Let me also point out that the logic of your own stated position should compel you to call for the impeachment of Obama. According to you, he’s currently breaking the law. I’d take you a little more seriously if you believed your own arguments.
January 7, 2010, 5:53 pmegd says:
The fact that it’s unpopular doesn’t make it less true. Nixon was going to be impeached because he was an unpopular president, had a face for radio, and left a trail of evidence pointing directly to the White House, all in the face of a congress controlled by the opposing party. His actions, as opposed to Clinton’s, weren’t very different than those of his predecessors.
Were Nixon’s actions wrong? Yes. Was Congress ready to impeach Nixon for his actions? No.
Compare this to Johnson, whose actions were not wrong (he acted against a plainly unconstitutional statute), but Congress impeached him anyway.
Then there’s Clinton, who was impeached not because of his political attitude, but because of his actions (not that there wasn’t a political element, but it didn’t overshadow as did the Nixon case).
January 7, 2010, 5:55 pmTwirip says:
That depends on what the Supreme Court says. Not infrequently, contempt is the correct response.
But this is all moot here. No President is treating any Supreme Court edict with contempt.
January 7, 2010, 5:56 pmGuy says:
I’m not saying impeachment of Bush would necessarily have been a wise or measured response, but it is significant that his policies were intentionally calculated to avoid judicial review, thus claiming for himself the power “to say what the law is”. If he felt the laws he violated were unconstitutional, or that the constitution provided him with an exception to those laws, he should have been willing to allow some sort of court review, one cannot be a judge in one’s own case. The greatest damage done by the Bush administration was not any of the substantive policies he put in place, but rather the sustained attack on the judicial branch that occurred to protect those policies.
January 7, 2010, 6:04 pmGuy says:
I was talking about why Johnson shouldn’t have been impeached – he was making a good faith effort to obey the rule of law – I’m not alleging that Bush ignored a Supreme Court order. Perhaps some Supreme Court decisions ought to be viewed with contempt, that’s one of the reasons why Congress decides whether or not to impeach, when both the legislative and judicial branches agree the law is being violated, it’s hard to say that the executive should prevail.
January 7, 2010, 6:06 pmTwirip says:
Would you care to back up that hyperbole with some actual facts?
It seems to be news to the judicial branch that they were under “sustained attack” from Bush.
January 7, 2010, 6:07 pmTwirip says:
If and when that happens, I’ll be sure to get upset about it.
January 7, 2010, 6:09 pmTwirip says:
Objection. Assumes facts not in evidence.
January 7, 2010, 6:10 pmGuy says:
Trying to strip the judiciary of any meaningful ability to review the status of Guantanamo detainees, or to determine the adequacy of the procedures by which it was established? Trying to divest the Supreme Court of all jurisdiction in those cases? Issuing wiretaps without warrants? Granted, he had some help from Congress with some of those, but Congress’ unwillingness to formally suspend the writ clinched it.
I’m saying why Congress would have been justified if they had chosen to impeach, not that impeachment was clearly called for.
I think refraining from impeachment was a wise decision because regardless of the underlying merits it would have been perceived as revenge for the Clinton impeachment. Not impeaching to avoid the perception that impeachment is a valid tool to be used against any President who Congress dislikes is a good decision.
January 7, 2010, 6:14 pmJames Tierney says:
Professor Posner says:
If the Obama administration is responding to the same incentives as the Bush administration, this supports the panic theory—especially when the response closely follows a high-profile security event.
I am not convinced that Posner can effectively brush away the panic theory simply by citing to his book. Ethan Bueno de Mesquita has articulated a convincing formal economic model explaining a variant of the panic theory. Specifically, he writes, “the government will always allocate resources to observable counterterror in excess of the social optimum. This inefficient distribution of counterterror resources is because, not in spite, of the voter.” Ethan Bueno de Mesquita, Politics and the Suboptimal Provision of Counterterror, 61 Intl Org 9, 11. The relevant chapter of Posner’s book, by contrast, argues that the panic theory is based on a conception of fear that may actually lead to optimal provision of counterterror, but why fear should be the touchstone—and not electoral incentives—is puzzling. Perhaps characterizing the panic theory as based on “fear” is as much of a straw man, cf David Cole, 75 U Chi L Rev 1329, 1343, as lumping gold standard advocates in with those who are concerned about executive overreaching.
Posner appreciates the economic logic that can underlie these policy problems. I wonder whether he is familiar with his colleague’s work—Bueno de Mesquita works down the street from Posner at the Harris School for Public Policy at the U of C—and if so, what he thinks of it. Terror in the Balance makes clear that Posner (and co-author Professor Adrian Vermeule) think, essentially by hypothesis, that the executive can and will never provide counterterror at a suboptimal level.
January 7, 2010, 6:22 pmTwirip says:
You are confused both as to the history of these matters and to the powers assigned to the different branches of government..
Congress, not the President, has the power to “strip” certain cases from court review. And Congress did so here, limiting judicial review of the Gitmo prisoners to one particular court.
In this particular case the Supreme Court ignored the other two brances of government and the clear text of the US Constitution. For some reason this seems not to bother you, but if anybody should be impeached here it’s people such as Justice Stevens.
Your reasons are nonsensical.
January 7, 2010, 6:24 pmJoe says:
If “fear” or “panic” is to be given any meaning, then it can’t be the case that Americans are in the same panic today as they were nine years ago. Many policies have been modified, to all appearances reflecting rational consideration of their costs and benefits. But the “fear” trope was always just a way to criticize policies without coming up with a plausible, empirically informed account of why the government was wrong to think that for any particular policy, the gains are greater than the costs.
It might not be the “same” panic, but as with the “war on crime” issue in the 1980s, the responses to the recent attempt underlines there is “fear” all the same, and that “fear” is being used to justify or call for certain policies.
Please explain how “rational” is the best term to use when proposing that people shouldn’t go to the bathroom on flights during the last hour or various other suggestions put forth of late that actual serious experts deem counterproductive or of very little value. Fact is “fear” still is driving things as is dislike of the “other” and other things that simply is not “rational” cost/benefit analysis.
It is thus no “trope” — and that fact that Obama is joining in the fun doesn’t change that. As many former Bush hands underline, he is centrist or even a bit conservative in respect to this area. Given his centrism and caution overall (why someone like Andrew Sullivan supports him), yes, it is pretty clear that limits on civil liberties would not suddenly end on 1/20/09. This is not novel. It would in fact be a hard thing to truly shift things antebellum, so to speak, and Obama was not the one to take such a major shift.
We are left with stuff on the margins and so forth that isn’t enough, but notable enough to support him over the opposition avaiable.
January 7, 2010, 6:34 pmGuy says:
I’m not arguing that those two cases were impeachable offenses, I’m presenting them as evidence of the underlying hostility towards the judicial branch, which is relevant to whether impeachment is an appropriate tool, and yes, Congress was the real villain there, but the President’s involvement shouldn’t be ignored. The impeachable offense was the warrantless wiretapping within the United States that tried to avoid any meaningful oversight from the other branches
Stripping the Supreme Court of all appellate jurisdiction in certain cases can show hostility toward the judicial branch even if it is a valid exercise of the Exceptions Clause, but to deny all federal courts, not just the Supreme Court, of habeas jurisdiction while failing to provide an adequate substitute is clearly invalid unless interpreted as an exercise of power under the Suspension Clause, an interpretation which the government did not ask for.
January 7, 2010, 6:39 pmTwirip says:
I’m bemused as to how Congress is a villain when it exercises its Constitutional powers. I suspect you won’t be addressing that question, or the question of what authority the Supreme Court had to defy the law.
Again, this is bunk. (1) No court has ever found for the position which you constantly assert. (2) The other branches HAD meaningful oversight. The Democrats in Congress were briefed on this. (3) Nothing here was new when Bush did it, or whe Obama did it. (For some reason you seem reluctant to impeach Obama for the same alleged crimes.)
For instance -
But just as is the case with Obama, the left seemed disinterested in impeaching Clinton.
January 7, 2010, 7:03 pmTwirip says:
.
The Suspension Clause for habeas corpus relates to suspending habeas for US citizens. Captured terrorists or enemy combatants of any sort do not have habeas rights under the US Constitution.
Jurisiction was not denied to “all federal courts”. The DC circuit court was granted juristiction.
Why don’t you make the effort to learn the basic facts surrounding this topic before opining on it?
January 7, 2010, 7:14 pmGuy says:
I already explained why the law was unconstitutional, and an exercise of Constitutional powers can still make one a “villain” in the loose sense I was using it in. Surely you agree not every Constitutional law is good?
January 7, 2010, 7:18 pmI don’t know how meaningful that oversight was, there was virtually nothing the briefed members could have done, even so, I agree passing clarifying legislation would have been a better first step, given the circumstances, than jumping straight to impeachment (which I already explained would be unwise in my opinion).
Guy says:
There is no textual basis for that assertion and citizenship was not even defined in the Constitution, there is also no basis for that assertion at common law. the writ of habeas corpus can be issued to any person who detains another under color of U.S. law.
January 7, 2010, 7:20 pmGuy says:
The Due Process Clauses, which at least protect the core right not to detained unlawfully – a right enforceable only through the writ of habeas corpus – clearly say “no person”. Even in the Fourteenth Amendment, which defines citizenship, the Due Process Clause says “no person”, not “no citizen”, so you have an uphill battle to face if you want to assert that the ability of a court to issue the writ turns on the citizenship of the detainee. It would seem that jurisdiction over the custodian is all that is required.
January 7, 2010, 7:42 pmSeerak says:
The lesson here is that the Left’s purported opposition to the Bush policies were never more than skin deep…. which would have been obvious to those of us observing the much farther-reaching counterparts to the Patriot Act being passed in other countries where the Left is much more dominant (most notably the UK). It isn’t the first time that one side quietly retains policies enacted by the other side, that happen to work just as well for *their* ends, once the elections have passed and the media leads mainstream attention elsewhere.
See: campaign finance reform and Medicare Part D for recent examples; the New Deal and associated expansions of government power for a more historic one.
The key lies in realizing how similar those ultimate ends of the supposed “opposites” are.
January 7, 2010, 7:58 pmrichard says:
As someone once said, “you are at war with an enemy without uniforms, without morals, without a country and without a leader — but the one advantage you have is they all look alike”
Can you tell me how the Christmas bomber, a black African, looks like the shoe bomber or the 9/11 murderers? Jeez, its one thing to stand behind stupid, bigoted statements (by Ann Coulter no less) but at least those comment should have some sort of relationship to reality.
January 7, 2010, 8:05 pmRandom Must-Reads » The Anchoress | A First Things Blog says:
[...] Further Limitations on Civil Liberties: Many of us said during the days of the Bush administration that restrictions on civil liberties motivated by the conflict with Al Qaeda would be maintained during any subsequent administration, whether Democratic or Republican, as long as the terrorist threat remained. This prediction has been amply confirmed. The most recent example is the implementation of an explicit profiling program for airline passengers. The ACLU aside, there has not been much criticism of this initiative. (Maybe because some of the most prominent critics of the Bush administration’s counterterror policies are now members of the Obama administration.) [...]
January 7, 2010, 8:19 pmGuy says:
My understanding is that the FISA court has authorized the wiretapping as it is currently being performed by the Obama administration. But if that’s not true, if Obama is wiretapping illegally, without that court’s authorization, then that would also be an impeachable offense.
January 7, 2010, 8:37 pmloki13 says:
Who is this Twirlip guy? This guy who is rude and condescending and knows everything about the Constitution, unlike the rest of us mo-rans. Hmm…. oh yeah….
There is no “free association clause”. If you want to continue this, I expect you to (finally) pull up a copy of the Constitution online and look it over.
That guy!
My copy of the Constitution apparently includes not only the Bill of Rights, but is missing the part that instructs you on how to combine obnoxious comments with a complete lack of self-awareness.
January 7, 2010, 8:51 pmJoe says:
“Left’s purported opposition to the Bush policies were never more than skin deep”
Does this includes those on the “left” who are against Obama retaining certain Bush policies or the unpopular policies the Bush Administration itself changed or tempered because of opposition (including from the courts) or Bush policies Obama did change? Or are we just talking cliches here?
Unlike some opponents, many Obama supporters realized his centrism, which included not pushing for a major shift in various areas, especially when it would be difficult to do so (e.g., closing Gitmo is not something he could do all by his lonesome without funding or authorization to shift detainees to U.S. prisons). Thus, he himself didn’t say he would do things like stop using signing statements, but would use them more carefully.
January 7, 2010, 8:54 pmGuy says:
Habeas jurisdiction certainly was denied to all federal Courts, the jurisdiction left to the DC Circuit Court only had a very limited scope that was not adequate to provide the same procedural rights as the writ.
January 7, 2010, 9:00 pmAllan Walstad says:
Many of us also said that aggrandizement of arbitrary federal power would continue as long as pols’ thirst for power remained. That prediction has been amply confirmed.
Sounds like the typical sort of “nyah, nyah” rhetoric one gets from collectivists intent on locking in the gains to collectivism without any of the hard work of serious debate.
January 7, 2010, 9:17 pmMark Field says:
This is arrant nonsense. Pretty much the ONLY criticism of Obama on this issue has come from the Left. The right-libertarians (which these days seems to be most of them) have remained notably silent, just as they were under Bush.
January 7, 2010, 9:19 pmMark Field says:
Not only is there no textual support, but the federal courts allowed non-citizens to petition for habeas beginning nearly Day 1 of the new Constitution.
January 7, 2010, 9:21 pmAmerican Psikhushka says:
Mr. Posner-
The persistence of policies across ideologically divided administrations is good evidence that those policies are now mainstream rather than partisan and ideological.
Not at all. Just because two groups of political elites choose to retain a particular set of powers does not in any way imply mainstream acceptance. Especially when there was such a conscious and continuing effort to shield review of these powers from both the judicial branch (little or no judicial review) and the public(secrecy).
Of course, many people will continue to disagree with them, just as many people continue to object to a standing army and a central bank; but these people are now officially on the fringes.
Most libertarians don’t object to providing for national defense. Indeed many feel that it is one of the few functions that should be provided to some degree by a national government. Many do feel that the massive amount of taxpayer money we spend on it – far more than anyone on the planet – is too much. But even current military doctrine doesn’t solely rely on a standing army, as the large Reserve and National Guard components of the current military indicate. So you may be mistating or misinterpeting general libertarian opinion on that issue.
As far as a central bank is concerned, that is largely an issue of education, awareness, and media coverage. If you polled the public and asked them if they want to pay double the current price of a loaf of bread or a gallon of milk ten years from now, the answer would most likely be “no”. Same for a poll that asked them whether they wanted the same or lower level of real wages for the next thirty years. Lack of awareness does not indicate acceptance.
There will also continue to be arguments about interrogation practices and the like, but a wide range of Bush administration policies—indefinite detention without charges, trials by military commission, the use of military force against suspected terrorists in foreign countries, secrecy privileges that undermine litigation against government officials responsible for terrorism policies, profiling on the basis of nationality, and much else—are now politically entrenched.
Similar to the assertions above you are equating entrenchment – that involves shielding the policies in question from judicial and public scrutiny and oversight – with acceptance.
The major theory was that Americans support unnecessary or unjustified limitations on their liberties because of “panic,” exploited by elected officials for political gain. If this theory is correct, then it applies to the Obama administration, which is acting just like the Bush administration—not quite as aggressively on the margin, but almost so. But the theory was never a very good one. If “fear” or “panic” is to be given any meaning, then it can’t be the case that Americans are in the same panic today as they were nine years ago.
There is some panic fatigue and cynicism, but the panic today is quite similar to the panic nine years ago because there has unfortunately been a fairly consistent drumbeat of coverage of attacks on our troops in Iraq and Afghanistan. Those attacks are largely those of convenience that would not be occurring if we were not occupying those countries nine and six years later. The occupations of Iraq and Afghanistan unfortunately provide a constant stream of violence and loss that would not exist if our troops and other assets were not there providing easily reachable targets.
As a libertarian I do not support all of Ronald Reagan’s policies, but one thing he did realize after the bombing of the US Marine barracks in Beirut(and other, less publicized violence against intelligence personnel in the area) was that if we were not close to terrorist controlled areas we would be much more difficult to attack. Hence the pullout from Beirut and the avoidance of more casualties. You talk about cost-benefit analysis – there is one for you: it is much more difficult for a poorly equipped enemy to inflict casualties on you if they have to travel halfway around the world and smuggle weapons on their person to do it.
Per Newsweek (quoting a congressman) it costs approximately a million dollars($65 Billion total) per soldier(68,000) to send them to Afghanistan, and after all that it is much easier for a poorly equipped enemy to attack them. And unfortunately we are also provoking non-extremists that would not normally go out of their way to attack US interests due to the occupation and the mistakes, errors, and collateral damage that come with it.
The anti-international law dictum is best interpreted as reflecting very sensible doubt that judges are in a good position to figure out how the laws of war should be applied in this quasi-war. If the president wants to interpret them strictly, then nothing about the opinion prevents him from releasing Al-Bihani on laws-of-war grounds. Of course, the president does not want to interpret them strictly, in yet another way advancing the legacy of the Bush administration.
As other posters on this thread have pointed out, it isn’t necessary to go to international law when the Constitution applies to anyone held by US authorities or on US soil, including non-citizens.(Although I am unfamiliar about how much they were hamstrung, if at all, by earlier decisions.) The Constitution being undermined by two branches of government, including the one assigned to apply and safeguard it, is an unfortunate set of events.
January 8, 2010, 1:45 amzuch says:
Some people set a rather low bar for impeachment a while back.
Cheers,
January 8, 2010, 1:51 amzuch says:
Nixon resigned when it was clear that even the Republicans in Congress had turned on his antics.
Cheers,
January 8, 2010, 1:54 amRicardo says:
Take a look at one of the previous comment threads and notice the discomfort among people who have been advocating “Israeli-style” security at the fact that someone was asked how much money he made and who he worked for at Customs. Profiling as it is done by the Israelis and others involves often lengthy questioning of someone to both get more information about that person to see if he (usually) or she fits a profile as well as to assess nervousness or evasiveness.
If Americans are not willing to be asked how much money they make by security officials, how are they going to react to intimate questions about their religion, how many times they attend service in a month, the name of their priest, rabbi, imam, etc. (and you have to do it this way if you want to screen based on religion — how do you know whether someone is telling the truth otherwise)? As a non-lawyer, I would have trouble imagining this kind of questioning would be constitutional under the First Amendment and it would generate a lot of bi-partisan outrage. And finally if you are going to object and say these questions will only be asked of Arab-looking men, I will simply point out that no security expert believes that that is the right way to do it. WASPs and Jews have apparently been questioned extensively by Israeli security in the past.
January 8, 2010, 2:04 amreadery says:
Can a fetus sue an abortion doctor under international law?
Since the Bill of Rights’ lack of “prenatal application” means that a fetus isn’t a person — and regarding a fetus as a person is nothing more than an imposition of a private religious view on our secular republic in violation of the Establishment Clause — why shouldn’t the Bill of Rights’ lack of “extraterritorial application” be treated any differently?
Isn’t the idea that an extraterritorial is a person just as much as a religious idea as the idea that a prenatal is? Why should such an idea have any more place in our secular republic? Isn’t it equally a violation of the Establishment Clause?
The idea of a fetus suing a doctor under international law for an abortion would be rediculous. Courts can’t use international law to get around the Bill of Rights’ lack of prenatal application or the consequences of that lack for fetuses. International law can’t trump the constitutional definition of personhood or American’s right to reproductive services. So how in the world could it be thought to trump the equally constitutional definition of personhood when it comes to Americans’s equally fundamental constitutional rights to security services?
What’s the difference here? What makes “extraterritorial application” any different from “prenatal application”? Why are liberals’ religious beliefs about extraterritorials be entitled to trump the Establishment Clause but not conservatives’ religious beliefs about prenatals? Does the Establishment Clause only prohibit the establishment of religious doctrines that the judicial establishment disagreees with?
Security professionals, just like reproductive health professionals, sometimes do things things that religious and emotionally-addled folks feel squeemish about. However, courts are vigilant to preserve Americans’ constitutional liberties from invasion by just the sort of moral-mongering at issue here. As Justice Stephens explained in Carhart, reproductive health professionals should not be distracted from performing their duties just because someone thinks their job “barbaric”. There’s no rational basis for treating security professionals differently.
January 8, 2010, 2:08 amreadery says:
Justice Stephen’s opinion in Stenberg v. Carhart is worth quoting in full.
What possible interst could the United States rationally have in a security professional doing anything other than that which will protect Americans’ constitutional right to security? The rationale given here — that the procedures security professionals use are “gruesome” and “barbaric” — seems identical to the arguments Justice Stephens so scathingly dismissed in Carhart. As Justice Stephens noted, if you can kill ‘em (as you can in war just as you can in aboriton), then it’s simply irrational to be squeamish about the procedures used to do the job. It’s just not rational for the state to worry about it. There doesn’t seem to be any rational basis for treating the two cases differently.
January 8, 2010, 2:21 amRicardo says:
As I understand it — and I’m not a lawyer or legal historian — the idea that a fetus has no legal rights goes back to the common law “born alive” rule. Certainly the rights of citizenship can only accrue to people who have been born — citizenship is under the text of the constitution and the relevant citizenship statutes acquired at the act of birth and not before. Is there precedent under common law or within the text of the Constitution for denying rights to extraterritorials? Note that people outside the territory of the U.S. could sometimes be American citizens.
January 8, 2010, 2:51 amBob from Ohio says:
Only “indefinite detention without charges” of citizens raise any real civil liberties questions. “Indefinite detention without charges” of non-citizens, especially those arrested/captured abroad, affect no American’s liberties.
The people overwhelmingly support all of these alleged “horrors” and always have. Its always been the “fringe” who cared. [The ACLU has always been a fringe organization.] No panic or fear involved. Just realization by most that they are reasonable and useful.
Especially silly is the idea that “use of military force against suspected terrorists in foreign countries” involves civil liberties. Do you think that maybe a warrant is needed first?
January 8, 2010, 10:38 amzuch says:
It’s that “suspected” in there. Keep in mind that, even after years to dig uo evidence and make a case, most of the Guantánamo detainees were actually innocent. Not to mention civilian “collateral damage” (something that is carefully circumscribed by international law).
Cheers,
January 8, 2010, 11:03 amegd says:
I don’t think the First Amendment is implicated in this case. More likely the Fourth, and the Fourteenth.
I don’t see how “bi-partisan outrage” is a reason that a solution isn’t the right way to solve a problem. Social security is nearly in default, but suggesting means-testing or eliminating the program would both provoke bi-partisan outrage and solve the problem.
January 8, 2010, 12:17 pmBob from Ohio says:
innocent?
Who says so? They were let go for political reasons because the fringe kept bleating about “liberties” for terrorists (suspected or otherwise) or to satisfy allies.
No Arab in non-Arab Taliban Afganistan in September 201 was “innocent”, they were all up to no good, either terrorism or drug running. Whether it can be proven in court doesn’t make them “innocent”.
How is this a “civil liberty”?
January 8, 2010, 12:34 pmzuch says:
No, it’s not…
How does that solve the problem? What “problem” are we talking about here?
Cheers,
January 8, 2010, 12:36 pmTwirip says:
We don’t live under a common law system. At least, we’re not supposed to.
The Constitution applies to Americans, not to extraterritorials (Except in the rare case where an extraterritorial is also a US citizen.)
There is plenty of Supreme court precedent for denying rights to “extraterritorials”, even when they are present on US soil. You’ll recall that German and Japanese POW’s in WWII did not have habeas rights. In fact the SCOTUS upheld the “exclusion orders” for Japanese-American citizens, Korematsu v. United States.
January 8, 2010, 1:00 pmTwirip says:
Guy says:
You cannot “deny” something which does not exist. The writ of habeas corpus does not extend to enemies captured in wartime. For that matter it does not extend to non-Americans. This is the American constitution after all, not the constitution of the known universe.
January 8, 2010, 1:04 pmzuch says:
Actually, the Ex parte Quirin folks did have habeas. They got heard, and their petition was denied on the merits (they weren’t granted Article III trials, e.g., because we don’t grant our soldiers Article III trials for cases of military [courts martial] jurisdiction).
Korematsu, as I’m sure you’re aware, is widely considered to be a mistake and a blemish on the American judiciary. Both Congress and the executive have apologised for the incarcerations.
Cheers,
January 8, 2010, 1:14 pmMark Field says:
As I pointed out above, the courts have extended habeas rights to non-Americans since nearly Day 1.
January 8, 2010, 1:18 pmmooglar says:
Twirip wrote:
Apparently you missed the significant discussions that went on at the time, including here on this blog, about the difficulties surrounding Congress taking the President to court. As I recall, it wasn’t clear who in Congress might have standing to do so (and, in fact, there was talk of Congress passing a law to give itself such standing), and further, owing to past precedent, many felt that the courts would not rule on such a case, considering it a matter between the “political” branches. In addition, it was widely believed that the courts would tell Congress that the Constitution gave Congress the method to deal with a President refusing to obey the law: impeachment.
As such, it is/was in no way clear that “there was/is a simple legal remedy” to the situation short of impeachment. If you’d been following the issue at all you would know this and thus know better than to pronounce your judgment on the matter as fact.
You have an interesting point about whether those who favored impeachment of Bush and Cheney should be calling for Obama’s impeachment, if he continues the same policies. Would impeaching the second President to do something remove the tool from the toolbox in the same way that impeaching the originator of the policy? In addition, does it make sense to impeach someone who continues the policy and not the originator? Would the fact that Bush wasn’t impeached for those policies be a defense for Obama?
Much to think about that I had not considered. But I think it is disingenuous and wrong to accuse me (and others) of hypocrisy because we don’t see the issue the way you do, Twirip. Just because it makes sense to you that calling for Bush’s impeachment logically necessitates calling for Obama’s does not mean that there are a priori no legitimate reasons not to.
Accusing your opponents of bad faith for failing to do what you think they should do isn’t very constructive and does not help foster a meaningful dialogue, IMHO.
Of course, it isn’t clear that any kind of constructive or meaningful dialogue is your goal, so perhaps you are accomplishing your goals, whatever they may be, with such tactics.
January 8, 2010, 1:24 pmzuch says:
It’s not too late to impeach Dubya and Ctheney. One of the penalties of impeachment is the ineligibility for any further office within the U.S. gummint, and the end of their elective offices doesn’t moot this.
Cheers,
January 8, 2010, 1:36 pmTwirip says:
That’s specious at best. The word “person” is used throughout the Constitution. In almost every case it is used interchangably with “citizen”. Look at the 12th Amdt for instance.
In the rare instances where “person” does not mean “citizen”, it is used to obliquely refer to the slaves – “free persons” vs “other persons”. There are no instances in which a “person” is understood to be a non-American.
And if you read the due process langauge of the 14th Amdt carefully, it places no bar on the federal goverment.
January 8, 2010, 1:39 pmTwirip says:
I don’t know what “toolbox” you are talking about. I do know that you are uttely clueless as to who originated this policy. I suggest you read my comment here. The lefts sudden pretend interest in civil liberties is downright embarrassing. The real civil libertarians were up in arms about this back in the ninties. At the time, people like you dismissed them as “black helicopter” crazies and “militia men”.
If Congress wants to remove some “tool” from the “toolbox” of the executve, they need to pass a law doing so and see that it passes constututional muster. Impeaching a president does not accomplish that goal, as I’m sure you are already aware. Let’s drop the stupid pretence that your desire to impeach Bush has anything to do limiting Obama’s powers.
January 8, 2010, 1:50 pmzuch says:
Not exactly true. While a person who is non-U.S. citizen may not be president, that is not implicit in the 12th Amendment. This restriction is covered in other places in the Constitution, along with other restrictions that exclude even some U.S. citizens from eligibility.
… by Twirlip. He’s ignorant of the relevant law, though.
Cheers,
January 8, 2010, 1:50 pmTwirip says:
Thanks for proving the comedic entertainment here.
January 8, 2010, 1:59 pmTwirip says:
Then by all means, list all the places in the Constitution where “person” is used to mean “persons who are not Americans”.
You’re ignorant of the Consitution, which is why you carefully avoid discussing it.
January 8, 2010, 2:03 pmzuch says:
Twirlip:
Talk about being non-responsive when you’re getting your a$$ waxed (although that may be the only possible rejoinder under the circumstances)….
Care to respond to the substance of my post, where I explained (in a manner most sapient beings could understand) why you were wrong in the first case, and how (with a cite) you were ignorant of Constitutional law in the second case?
<*sounds of legitimate legal scholars and practitioners snickering…*>
Cheers,
January 8, 2010, 2:15 pmTwirip says:
Article 3, Section 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Person here means “American”, not “person who happens to be resident in America at the time”. Otherwise the charge of treason does not apply to them. A Mexican in America who gives “Aid and Comfort” to our enemies may be gulity of some crime, but it’s not treason. The German saboteurs who came here in WWII were not granted 14th Amdt protections just for being present on American soil. Many were executed, but not for treason.
January 8, 2010, 2:19 pmmooglar says:
Twirip wrote:
See my first comment in this thread, here:
http://volokh.com/2010/01/07/further-limitations-on-civil-liberties%E2%80%A6/comment-page-2/#comment-722244Echelon didn’t start under Clinton either. So your response to my rhetorical questions is not responsive. The same questions would apply there. But you were hoping I didn’t know that, weren’t you? I guess the “real civil libertarians” who were up in arms about this in the ninties were also just johnny-come-latelies like you are accusing me of being, huh?
Oh, wait, you do know what toolbox I was talking about. You can’t even keep your story straight through the whole of one comment, can you?
Asserting your point as if you have proven it does not make it true. I have explained to you why Congress simply passing laws does not necessarily reign in the executive branch. If it did, then there would have been no reason for Congress to be given impeachment power in the first place. You have offered no counter argument other than reiterate that you believe I am wrong and am arguing in bad faith. I will take this to mean you are aware that you have lost the argument and have nothing of substance to add.
January 8, 2010, 2:23 pmTwirip says:
Perhaps you should stick to not working in the IT field and skip your fantasy that you’re some sort of “legal scholar”.
There was no substance to your post. You made your usual ignrorant snarky one liner.
Your delusions of intellectual grandeur are duely noted. Now if you’d try to back them up with some actual reasoned factual arguments …
January 8, 2010, 2:25 pmzuch says:
They didn’t make any Fourteenth Amendment claim.
Cheers,
January 8, 2010, 2:33 pmzuch says:
<*crickets*>
Cheers,
January 8, 2010, 2:35 pmTwirip says:
Assume for the sake of argument that it started before Clnton. (Though I’m pretty sure that the necessary computing power did not exist in the 1980′s.)
My point still stands. How can you claim that Bush was the “originator” of a policy which precedes him by decades?
My response to your rhetorical questions is to ask rhetorical questions of my own. I’m not sure why this offends you.
No, I don’t, which is why I put “tool” and toolbox” in quotation marks.
Yes, we can take it for granted that the impeachment power is there for a reason. You still have not explained what you think Bush did which deserved impeachment. According you you, he broke some law. Even though no court ever made that finding. In fact the courts have been on the Bush/Obama side in all this wiretappng business. Do you admit that much?
January 8, 2010, 2:36 pmmooglar says:
Twirip wrote:
Nope, sorry. If non-citizens can’t be charged with treason, then it is still true that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court,” even if “person” means “any person” and not just “American citizen.” Just because some subsets of “person” wouldn’t be accused of treason in the first place doesn’t mean that it isn’t still the case that they couldn’t be convicted without the testimony of two witnesses in open court. It isn’t necessary for the word “person” to mean “American citizen” in this case, and therefore this isn’t a good argument that it must only mean that.
January 8, 2010, 2:39 pmTwirip says:
Is there supposed to be some point to that remark?
A “person” who is standing on US soil is either entitled to full Constitutional protection purely on that basis, or not. George John Dasch was either entitled to those protections, or not.
As a crack internet “legal scholar”, where do you stand?
January 8, 2010, 2:43 pmloki13 says:
Things I have learned from Twirlip recently:
1. The Constitution doesn’t protect freedom of association.
2. Libertarians believe in the government telling people where to live and who to marry.
3. America has no common law, and no common law tradition.
4. “People,” in the Constitution, always referes to U.S. Citizens, and has always been intepreted that way.
5. Habaes corpus is only for U.S. Citizens, and has only worked for them.
6. When in doubt, ignore other people or accuse them of delusions of intellectual grandeur.
I don’t need no fancy book learnin’, cites to “facts” or history when I have my (slightly modifed) Constitution!
(Are you related to The Ace?)
Seriously- most entertaining thread in a while. Pass the popcorn. Better than Jersey Shore.
January 8, 2010, 2:46 pmTwirip says:
It is absolutely neccessary for the word “person” to mean “American citizen” in this case. Look up the meaning of “treason” if you don’t believe me.
This has nothing to do with the legal meaning of the term “person” in the Section in question. It means “American citizen”. The number of witnesses or whether the court is open or closed is immaterial to that point. The word “person” in this context clearly refers to the subset of persons who are American citizens.
January 8, 2010, 2:51 pmmooglar says:
Twirip wrote:
Echelon started in the ’60s. Perhaps knowing something about topics you choose to bring up would help you to understand the discussion thereby engendered.
But I never said Bush “originated” Echelon. Echelon is not the warrantless wiretapping program that I was discussing and you know it. So what, exactly, is your point here?
You didn’t respond with a rhetorical question. You called me “clueless” and made a bunch of other assertions. I’m amazed how you can’t even keep your own statements and arguments straight.
Oh, I see. You used them in the same sense I used them, but only by accident? Wow, that’s lucky.
You’re obsessed with this “no court ever made that finding” thing, aren’t you? Where, in the text of the Constitution, do you find that a President can only be impeached if he or she has been found guilty of something in court? You won’t. The courts aren’t involved, and as I explained before, they likely would choose not to be involved. The Constitution provides that Congress is the court where the President is tried for breaking the law. Do you understand?
And impeaching the President means bringing him or her up on charges in the Congress. Do you understand that? As such, I believe that Bush and Cheney were involved in acts, such as failing to get warrants from the FISA court for its wiretaps, that were likely illegal and merit them being impeached. I didn’t say Bush and Cheney were guilty and should have been removed from office… that would have been determined by the impeachment trial. I simply think there is enough evidence of wrongdoing that it merited such a trial.
The courts have never and will never rule on whether Bush and Cheney committed “high crimes and misdemeanors” of the sort that merit removal. That is what impeachment by the Congress is for. Congress makes those decisions.
January 8, 2010, 2:55 pmmooglar says:
Twirip wrote:
Can a Mexican be convicted of treason without two witnesses testifying against him or her in open court? If the answer to that question is no, then there is no reason that “person” here doesn’t mean any person and not just “American citizen.” No one can be convicted of treason without those two witnesses in open court, American or otherwise, and so “person” means exactly that: any person.
January 8, 2010, 2:58 pmTwirip says:
You are exceptionally illiterate if you “learned” that from me. I certainly believe that the Constitution protects freedom of association. I’ve used freedom of association arguments on a regular basis.
Libertraians believe in freedom of association. That means libertarians believe that people can’t live wherever they feel like.
Again, it takes a wonderful degree of illiteracy to take that from what I’ve written. I specifically noted that the Constitution refered to slaves as “persons”.
In general, I think it’s pointless for liberals to insist on trying to define libertarianism to libertarians.
I’ve noticed liberals also like to define Christainity to Christians, so this is a liberal trait.
January 8, 2010, 3:01 pmTwirip says:
You are the most illogical commenter I’ve ever met here.
No, A Mexican national cannot be convicted of treason in the US “without two witnesses testifying against him”.
A Mexican national cannot be convicted of treason in the US with two witnesses testifying against him. A Mexican national cannot be convicted of treason against the US at all.
January 8, 2010, 3:10 pmAn American can be convicted of treason though. And the reason why an American CAN be convicted of treason while a Mexican CANNOT is that “person” in Section 3 means “American person”.
Twirip says:
You certainly give precious little evidence of any book learning, fancy or otherwise.
You may well have. I’m citing the actual Constitution which anyone can read.
January 8, 2010, 3:16 pmmooglar says:
Twirip wrote:
Circular arguments are often convincing.
January 8, 2010, 3:19 pmloki13 says:
I learned that from you in the Turkey thread! You were schoolin’ everybody on the Constitution, remember? Or did you forget? Or did you move the goalposts again (let’s see– you’re going to say that when you said there was no free assosication clause, and people pointed out it was in the First, the BoR, etc., you thought they were talking about a writing workshop?)
Seriously- the mix of insults and cluelessness is priceless. You should get reality show. Twirlip and the Situation discuss ConLaw.
January 8, 2010, 3:22 pmTwirip says:
One of the funniest comments on this thread.
The one about how it’s still not too late to impeach Bush was pretty good too.
I don’t know that, and neither do you. The NSA “wiretapping” program, based on what little is known of it, seems very similar to Echelon.
It’s too late now in any case. Obama is in office and doing the “illegal” stuff now. Are you game for impeaching him for breaking the law? If not, why not?
January 8, 2010, 3:30 pmTwirip says:
You did no such thing. Somebody in that thread based his position on “the free association clause of the US Constitution”. I pointed out there there is no “free association clause of the US Constitution”. If you think I’m wrong, go ahead and the cite the clause.
I’m glad you are so opposed to “insults”, because otherwise I’d suspect that your faux idiotic spelling is meant to insult me. But you’re against any horrible insulting, right?
I’ve argued my positions on this thread and others. That’s what these threads are for. If you don’t like what I’m saying I suggest you try to counter my arguments instead of chanting “Shut up!”.
Talk about cluelessness. Why don’t you stop emoting for five seconds and try to write a coherent sentence?
January 8, 2010, 3:39 pmTwirip says:
I’ll be calling people “teabagger rethuglicans” next.
January 8, 2010, 3:42 pmloki13 says:
But you see Twirip, that is why you are so clever! When you feel like demanding a case, you do so. When there is caselaw (see, e.g., NAACP v. Alabama), you ignore it! You boldly state that habaes rights aren’t extended to non-citizens, and when people point out that’s not the case- you move on! You blithely assert that the United States has nothing to do with common law… and continue on your merry way!
What a wonderful world you must live in- being able to make outrageous statements, selectively choose what to defend, ignore the many times you’ve been wrong, and gratuitously insult people.
Unfortunately, you’re not a very good troll- trolls usually provoke anger instead of bemused laughter.
January 8, 2010, 3:56 pmzuch says:
I was voting for “snickers”. Can we have a show of hands? This is an important point.
Cheers,
January 8, 2010, 4:06 pmTwirip says:
Has somebody offered NAACP v. Alabama as a rebuttal to anything I’e said on this thread or elsewhere? If not, how have I “ignored it”?
I have not seen anyone point out that that is not the case. And I am not “boldly stating” anything. I’m quoting the US Constitution in supprt of certain arguments. And nobody, least of all you, is countering what I’m saying.
We’ve been over this before. My claim re common law is based on the words of the Federalist Papers. What are your claims based on?
if you’re going to try to ridicule somebody it helps to know more than they do. You don’t know more than I do, loki.
Yes, how stupid of me to forget that only liberals are allowed to insult people around here.
I’d insult you back, but you’d just whine about it.
And anyone can see the emotions going through your head from the words you write. Bemused, maybe. Laughter, never.
January 8, 2010, 4:09 pmTwirip says:
That’s about as intelligent as anything else you’ve written here.
January 8, 2010, 4:11 pmFlint says:
I’m not sure the possibilities for the conduct of the Obama administration in embracing Bush’s legal atrocities have been fully exhausted. Perhaps Obama and Holder perceived the threats as real, and the responses to them appropriate and necessary, but chose, for partisan advantage, to mouth the claims of the far left about the “politics of fear.” That such a course would be utterly contemptible is not sufficient evidence to negate its existence.
January 8, 2010, 4:18 pmzuch says:
See here:
There is a cite there which directly refutes your claim.
There’s none so blind as those that will not see:
Cheers,
January 8, 2010, 4:22 pmMark Field says:
US v. Villato, 2 US 370 (1797).
January 8, 2010, 4:23 pmzuch says:
Not fair. 18th century cases aren’t in Lexis/Westlaw (for the most part). Not that I think that Twirip uses Westlaw; I suspect he just reads his handy-dandy Pocket Constitution and just fills in around the edges (and makes up “facts”) as he sees fit. With him, it’s like shooting fish in a barrel. The least he could do is to flop around a bit to make it more sporting. Save me, but when I start wishing for the likes of Bart in opposition, the legal standards of discussion have really sunken low. I got better legal argumentation in opposition on Usenet….
Cheers,
January 8, 2010, 4:42 pmloki13 says:
Twilip-
The sad thing is, you truly don’t understand why this is funny. Really- I would pay money to see you, the Situation, and the cast from the Real Wives- Atlanta debate the intricacies of ConLaw. High Comedy!
January 8, 2010, 4:51 pmRoger Zimmerman says:
I believe you are referring to the case of Michael Yon. But you misrepresent the case. Yon was not “unwilling to be asked”. He was unwilling to answer the question. At that point he was taken into custody and handcuffed. This is what he objected to, and rightly so.
Yon goes further in making the point that the question and methodology were worthless from a security perspective. And the Israeli experience supports this. What Israeli airport security staff does is ask very specific questions about the travel plans and reasons of the subject, so as to a) gauge their reaction to these questions in order to determine if they have something to hide and b) ask them again (usually by another guard) to see if the answer is the same. When used by intelligent, educated, trained staff, these are extremely effective techniques for identifying potentially dangerous people. Of course they false alarm sometimes, but that is worth it, especially in Tel Aviv, where the travel volume is low enough to be able to afford an occasional extra interrogation or two.
In American airports, by contrast, asking a question such as Yon was asked is sure to yield a very high false alarm rate, a rate that is likely going to make the overall security situation worse, due to limited resources. For the same reason, intelligent profiling is an absolute necessity to have an effective airport security process in the U.S. (I won’t debate the rights implications of profiling here, beyond asserting that I don’t think it poses any problems).
The Yon case simply points out that current TSA procedures (and the staff that implements these procedures) are worse than ineffective. They make air travel less safe. But that is obvious.
January 8, 2010, 5:44 pmGuy says:
The writ is issued to the custodian who detains under color of U.S. law, not the detainee. At any rate, the central holding of Boumediene was that Guantanamo was not extraterritorial, the lease itself acknowledges that the U.S. has complete jurisdiction and control. To rule otherwise would be to say that the executive can summarily execute non-citizens outside the 50 states and District of Columbia without any restraint allowed to the other two branches. Also asserting that habeas does not extend to enemy combatants is begging the question – many of the detainees assert that they are not enemy combatants.
January 8, 2010, 6:28 pmGuy says:
Somehow I’m not thinking that the Framers were worried about non-citizens being charged with treason, what’s wrong with charging non-citizens with treason if we choose to? Especially since resident aliens need not be unprosecutable for that crime. I understand that Congress enacted a more specific treason statute, but that is their right. (The Constitution is most reasonably read to establish a ceiling, not a floor, on what acts may constitute treason.)
Care to back up that astonishing assertion with some sanity?
January 8, 2010, 6:40 pmGuy says:
So if U.S. citizen Mohammed McIslamshariadullah refuses to answer screening questions you agree there’s nothing else to be done? I had no idea your definition of civil liberties was so expansive. Or are you saying that travelers can personally choose to nullify “unreasonable” screening questions as long as they are sufficiently smug about it?
January 8, 2010, 6:50 pmGuy says:
Actually, the statute says “Whoever, owing allegiance to the United States,” and could therefore be construed to apply to resident aliens.
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January 9, 2010, 6:57 amOld Soldier says:
Apparently there is a complete unwillingness to accept that we are at war with people who intend to kill us whenever and wherever they can. You may be willing to sacrifice yourself, your families, and your friends, but I am not.
January 9, 2010, 1:56 pmAmerican Psikhushka says:
Old Soldier-
Apparently there is a complete unwillingness to accept that we are at war with people who intend to kill us whenever and wherever they can. You may be willing to sacrifice yourself, your families, and your friends, but I am not.
I realize that there are islamic militants that want to kill us. But is spending billions upon billions of taxpayer dollars (which takes money from the private economy and weakens it) to ship soldiers halfway around the globe where it is much easier for militants to get at them the best solution? Especially when there are indications that it just galvanizes existing militants, makes martyrs out of the ones we do kill, and possibly radicalizes some moderates and those effected by collateral damage?
Especially when we have statements directly attributed to Bin Laden saying that their goal is to bleed, exhaust, and bankrupt the US?
January 9, 2010, 10:49 pmreadery says:
As I’ve noted before, Roe v. Wade held that the Bill of Rights lacks “prenatal application” using the same argument, and almost same language, that Johnson v. Eisentrager used when it held the word “person” as used in the Bill of Rights lacks “extraterritorial application” and hence that individuals held as enemy combatants outside U.S. territory are not entitled to apply for writs of habeas corpus and are not entitled to judicial review of the legitimacy of their “enemy combatant” status.
The key difference is that Roe v. Wade made the advance of holding that government is not permitted to consider or protect the interests of nonpersons when they conflict with the rights and civil liberties of citizens. Johnson v. Eisentrager merely said it isn’t required.
January 9, 2010, 11:37 pmGuy says:
1) It was central to the Court’s holding that Guantanamo is not “extraterritorial” in any meaningul sense of the word.
2) The holding that it isn’t required reeks of the rule of avoidance, I suspect that had there been a serious Due Process claim, they may have found a different result.
January 10, 2010, 12:44 am