Over at the New York Times Room for Debate Blog, Andrew McCarthy comes close to accusing pro bono lawyers for Guantanamo detainees of treason. In his words, such lawyers, “assist[ed] the enemy . . . against the American people during wartime.” McCarthy writes:
Here is the legal profession’s message for the American people: “We’re just more important than you are.” Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans.This is a ludicrous concept, so the profession has to engage in serial deceptions to sell it. Most prominent among these is the assertion that every one, no matter how unpopular, is entitled to counsel. Nonsense.
Only criminal defendants are entitled to counsel, and those who represent them do indeed perform a constitutionally valuable function. It has never been the law, however, that war prisoners are entitled to counsel to challenge their detention as enemy combatants.
. . .
The lawyers chose to offer themselves, gratis, to our enemies for litigation the Constitution does not require. They did so knowing that this litigation would be harmful to the war effort — a fact the Supreme Court emphasized when it denied war prisoners the right to file habeas claims in 1950. The fact that we don’t forbid lawyers from doing this hardly means Americans have to approve of it.Perhaps the most unworthy deception is the comparison of those who volunteer to represent Guantánamo detainees to John Adams’s representation of British soldiers involved in the Boston Massacre. The United States was not at war at that time, the British soldiers Adams agreed to represent were not non-uniformed terrorists, and those soldiers were defendants in a criminal trial. The proud American legal tradition involves defending the unpopular who are accused of crimes but presumed innocent.
It has nothing to do with assisting the enemy in lawsuits against the American people during wartime.
I find McCarthy’s arguments ridiculous, and I want to explain why.
Consider McCarthy’s basic argument that lawyers who represented detainees “aided the enemy in wartime,” and should normally be guilty of treason. If that’s true, isn’t the federal judiciary, and aren’t the Justices of the Supreme Court, also guilty of treason? In fact, aren’t the judges the kingpins of this treasonous plot to “hurt the war effort”? After all, lawyers only make arguments to judges. It doesn’t actually help detainees to make argument courts reject. It’s up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they’re only minor players: It’s the judges, and especially the Justices, who are the real guilty parties, as they’re the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be “indicted for coming to the enemy’s aid during wartime”?
Second, McCarthy’s claims about the right to counsel strike me as just wrong. The Bush Administration had initially taken the view that Yaser Hamdi, detained as an enemy combatant, did not have a right to counsel. The Administration caved when the case got to the Supreme Court, though, and the Supreme Court had this to say about Hamdi’s right to counsel:
Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (emphasis added). Hamdi was a U.S. citizen, but lower courts have concluded that Gitmo detainees who are citizens of other countries also have the right to counsel. See, e.g., Al-Joudi v. Bush, 406 F.Supp.2d 13 (D.D.C. 2005) (ordering the government to inform detainee counsel about information relating to Guantanamo detainees in light of the detainees “right to counsel, which requires that counsel be able to communicate with them”). Indeed, in the Al-Joudi case, the judge went out of her way to applaud the pro bono lawyers who were representing the Gitmo detainees:
The Court recognizes that Petitioners’ counsel are providing their services on a pro bono basis. Such pro bono representation, especially in controversial and high profile cases such as these, is in the very finest tradition of the American legal profession.
Given these precedents, McCarthy’s claim that “only criminal defendants” have a right to counsel, and that “it has never been the law” that the Gitmo detainees do not, strikes me as simply incorrect.
I find McCarthy’s dismissal of the Boston Massacre comparison very weak. McCarthy is right that the United States was not formally at war with Britain at that time. Of course, there was no United States yet: the trial of the Boston Massacre occurred in 1770, six years before the Declaration of Independence. But more broadly, my understanding is that there was no right to counsel as we know it today in the Boston courts in the pre-Revolutionary period. At common law, defense lawyers were forbidden: When a right to counsel was recognized, as it was generally recognized in the colonies, it was a right to have a lawyer represent you if you happened to be lucky enough to find one willing to represent you. At the time, many criminal defendants had no counsel at all. This matters because it puts John Adams in a pretty different light, I think. When Adams agreed to represent the English soldiers, he was not fulfilling some sort of obligation: No one had to represent the Englishmen. Adams acted — and was criticized then, but celebrated now, for it — because he agreed to represent the soldiers out of a personal conviction that no person should face a trial without counsel.
Finally, McCarthy strangely overlooks the basic fact that much of the litigation for the Guantanamo detainees concerns whether they are in fact the enemy. McCarthy presupposes that we all know that all the folks at Gitmo are terrorists, and the only issue is whether we feel like helping them knowing that it hurts America. But like the soldiers at the Boston Massacre, and like other criminal defendants, the Guantanamo detainees are “the accused.”
To be clear, I don’t think the lawyers who represented Guantanamo detainees are some kind of heroes. They’re just lawyers doing what lawyers do, presumably for the same weird mix of reasons that lawyers take on other pro bono cases. But that’s the point: There’s nothing exceptional about their decision to represent detainees.
Mark Field says:
As David Luban points out at Balkinization, McCarthy is wrong about the right to counsel being limited to criminal proceedings. See, e.g., Lassiter v. Dept of Social Services.
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March 10, 2010, 10:06 amMaryG says:
“But that’s the point: They’re just lawyers doing what lawyers do.”
Respectfully, there’s an awful lot of folks out here who find that to be the problem I think. What lawyers do. Sure there’s some good too, being in the academy you cleanly understand that, but after an encounter with a divorce, bankruptcy, criminal misdemeanor (domestic, DUI, disorderly, etc.) the fact that we’re making money off people’s woes, often with very little tangible relief to them... well, you can understand why less sophisticated people might wonder exactly where we’ve parked our morals to make our money. (Especially in those family court + money-related cases, where that really is food in kids’ mouths.)
McCarthy is off, but laypeople surely have opinions of the types of pro bono works attorneys choose to meet the growing piles of unmet American legal needs. Liz Cheney might be fanning some flames, but her p.o.v. shouldn’t be summarily dismissed without a decent examination, like you’ve provided here.
Too easy to just dismiss McCarthy as ... another McCarthy out witchhunting, like we’ve heard plenty of commenters do in recent days in trying to shut down consideration of Cheney’s opinion. It’s out there, like it or not.
[OK Comments: A minute or two after posting, I realized I should change that last line and did so It now reads, “But that’s the point: There’s nothing exceptional about their decision to represent detainees.”]
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March 10, 2010, 10:07 amCornellian says:
If you believe McCarthy, presumably you believe Korematsu really was a threat to national security.
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March 10, 2010, 10:07 amThales says:
Well said. I find the efforts of Elizabeth Cheney, McCarthy, et al. in this “argument” quite preposterous and insulting to the very concept of the rule of law. They’re really not far away from advocating summary execution or black hole indefinite detention for essentially anyone *accused* [a key concept often elided in their factual claims] of being “the enemy.” There are certainly legitimate debates to have about the scope of national security and anti-terrorism efforts–this doesn’t strike me as one of them. McCarthy is earning his namesake.
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March 10, 2010, 10:07 amcboldt says:
– They’re just lawyers doing what lawyers do ... –
Likewise for McCarthy. He’s advocating the other side, now to a public audience. I think he naturally slips into advocacy mode, given his education and experience.
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March 10, 2010, 10:08 amAnon21 says:
I would also note the odd assumption made by McCarthy, and made explicit by Stewart Baker, posting at VC yesterday, that litigation on behalf of Guantanamo detainees could have no objective broader than springing a specific set of people from their detention. The issues decided in Hamdan and Boumediene go to the core of habeas corpus, a fundamental procedural protection whose vitality is of deep interest to American citizens, whether they realize it or not.
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March 10, 2010, 10:19 amMGA says:
I agree that McCarthy’s rhetoric is greatly overstated and I certainly do not question the patriotism or good faith of those who represented alleged terrorists. I do think that there is a kernel of truth in McCarthy’s position.
If anyone had suggested during World War II that a German POW held in the United States had a right to either counsel or habeas relief, the suggestion would have been ridiculed. Al Queda is violating the Geneva Convention in several ways, not least by fighting out of uniform and deliberately injuring civilians. How can an illegal combatant have much greater legal rights than a soldier?
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March 10, 2010, 10:20 amStephen Lathrop says:
First lynch law. Then McCarthyism. Now, new and improved, lynch law plus McCarthyism!
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March 10, 2010, 10:22 amRandy says:
“To be clear, I don’t think the lawyers who represented Guantanamo detainees are some kind of heroes.”
Perhaps not, but McCarthy and Liz Cheney are doing a great job on making the lawyers some kind of martyrs.
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March 10, 2010, 10:34 amjperkins says:
i strongly disagree with McCarthy, but i hardly find it persuasive to point to case law to prove him wrong because these issues deal with first principles where there is substantial disagreement.
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March 10, 2010, 10:39 amThales says:
MGA writes:
“If anyone had suggested during World War II that a German POW held in the United States had a right to either counsel or habeas relief, the suggestion would have been ridiculed. Al Queda is violating the Geneva Convention in several ways, not least by fighting out of uniform and deliberately injuring civilians. How can an illegal combatant have much greater legal rights than a soldier?”
Perhaps this is indeed a colorable legal argument (though one that the Supreme Court has partially demolished), but again, the question presupposes that the person in question is in fact an “illegal combatant.” Cheney et al. would deny legal process even to challenge that factual assertion of status.
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March 10, 2010, 10:39 amKen Arromdee says:
Adams defending the British in the Boston Massacre is a bad comparison because it’s the equivalent of the ACLU defending Nazis–it would normally look suspicious, but the suspicion is negated by the known fact that the lawyer and the suspects are on opposite political sides.
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March 10, 2010, 10:41 ampc says:
You are putting the cart before the horse. How do you know the accused are combatants, illegal or otherwise?
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March 10, 2010, 10:42 amcboldt says:
I was looking for McCarthy on the Hamdan decision (because I think he’s been critical of the Courts as well), and notice that his maligning of counsel for detainees is not new. He referred to “the Al Qaeda bar” in November last year. Holders friends in the al-Qaeda bar caused the trial delays he now criticizes — Nov 17, 2009.
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March 10, 2010, 10:44 amNobody Really says:
I think McCarthy is wrong on one point: Lawyers aren’t the only profession that demands such immunity from the normal responsibilities of citizenship. Journalists demand it for themselves as well.
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March 10, 2010, 10:50 amBobC says:
I would argue that is how it should be. In the case of the regular soldier, the POW system considers Habeas petitions unnecessary. It is designed to accomodate capturing whole companies of men equipped with arms and armament, wearing the flag, in uniform, and an expectation that the soldiers will not contest their confinement. Also, none of them will face criminal charges.
Now, often, terrorists are picked up singly or in small groups, do not wear uniforms, may not carry arms, and will likely face a criminal investigation. I would say damn right a person in that situation should have a habeas petitition. Can a POW captured in accordance to international law not be a POW? Extremely unlikely. Can a person captured as an illegal combatant not be an illegal combatant? Possibly
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March 10, 2010, 10:51 amleo marvin says:
You seem to be assuming the conclusion. Do you have any more evidence than Cheney and McCarthy have come up with (i.e., none) that the Al Qaeda 7 and the detainees they represented aren’t also “on opposite political sides?”
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March 10, 2010, 10:56 amAnderson says:
If anyone had suggested during World War II that a German POW held in the United States had a right to either counsel or habeas relief
The Gitmo prisoners have never been afforded POW rights, which is part of the problem, and which makes your analogy irrelevant.
In Quirin, the German “unlawful combatants” *did* have counsel.
(Of course, Quirin predates the 1949 Geneva Conventions, which is easily forgotten by some people.)
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March 10, 2010, 10:59 amChris Travers says:
Interestingly and pun-intended, my mother’s uncle spent a large part of his career during the McCarthy era defending those who were prosecuted under the Smith act and other anti-Communist dragnet laws. Both federal and state governments saw him as little more than a traitor and the federal government charged him for perjury (and lost). Because the law firm where he worked refused to touch such cases, and made it clear they didn’t want him to touch such cases, he went into business for himself. They eventually filed politically motivated tax evasion charges which resulted in him spending a year in jail and being returned to the bar immediately following release. I have always looked up to him as a figure who represents courage and a willingness to fight for justice, both legal and social, even at moderate risk and substantial cost to himself.
I bring this up because Senator McCarthy’s policies in part targeted lawyers who, like my relative, were seen as “aiding the enemy.” There is no threat so severe that we should go back to that point. If we lose who we are as a nation of liberty, then there is nothing else worth preserving.
I think some of the lawyers involved in the current struggle are probably ones like my mother’s uncle. Others are probably involved for a variety of other reasons. Either way, I think Prof. Kerr’s post is well thought out and worth pondering.
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March 10, 2010, 11:03 ambyomtov says:
If anyone had suggested during World War II that a German POW held in the United States had a right to either counsel or habeas relief, the suggestion would have been ridiculed.
Isn’t that because POW’s were held under well-defined rules, and the circumstances of their capture made it clear that they were indeed POW’s?
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March 10, 2010, 11:06 amR. Nebblesworth says:
Ah, I see McCarthy is familiar with the little-known “everybody knows” standard of proof. As in, “everybody knows they’re guilty — so they don’t need lawyers!”
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March 10, 2010, 11:09 amAnderson says:
Here btw is a famous “traitor” according to Andrew McCarthy: General Kenneth C. Royall, last Secretary of War, who as a colonel defended the Quirin case.
“Royall later said he believed his defense of the Nazis was the most important work he did in a long and illustrious career.”
Of course, it was just like the Democrats to make a traitor not just a general, but Secretary of War.
(Royall, a North Carolinian, is not quite Great American material — he resigned rather than enforce Truman’s order to desegregate the Armed Forces. But I would hardly expect a writer for National Review to fault Royall there.)
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March 10, 2010, 11:10 amDenver says:
The problem is that McCarthy just assumes he is dealing with an “enemy.” What ever happened to the conservative idea that distrusts government and its power? He proposes a totalitarian regime where the executive or his minions can imprison someone forever with no evidence, no proof, and no adjudication. He then suggests that any lawyer representing an individual in this circumstance is guilty of treason for “aiding the enemy.” Just how far is he willing to take this? Am I guilty of treason for criticizing him and his totalitarian ideas? Can’t he make the same arguments when it comes to any criminal defendant, as after all that defendant is an enemy of ordered society? This presumption of guilt is absolutely vile and betrays McCarthy as a political hack in search of an all powerful state. His views are a deep and cynical betrayal of core American values. If his reasoning were applied to himself and his actions he is arguably himself guilty of treason in time of war by reason of his attempt to undermine core American values.
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March 10, 2010, 11:12 amChris Travers says:
Nah. He just knows a terrorist when he sees one..... ;-)
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March 10, 2010, 11:16 ambpbatista says:
The Adams analogy is idiotic. In that analogy aren’t the British soldiers now the U.S. government (i.e., the powers that be)? And aren’t the patriots (who were wronged by the powers that be) now al Qaeda?
I don’t know about you, but I have a hard time equating al Qaeda with Crispus Attucks and the rest of the patriots.
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March 10, 2010, 11:16 amAnderson says:
What ever happened to the conservative idea that distrusts government and its power?
What indeed? Andrew Sullivan was wondering something similar — he had thought conservatism was against ideology, not just promotion of one ideology over another.
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March 10, 2010, 11:18 amRoger the Shrubber says:
With some notable exceptions, that conservative idea seems to evaporate in the presence of the police or the military.
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March 10, 2010, 11:22 amGuesty says:
Look, let’s just say it like it is. Some Conservatives who served in the Ashcroft/Gonzales DOJ are suffering from serious problems in the same way that Americans who supported the USSR did upon learning of Stalin’s crimes (see Paul Robeson, etc). They just can’t admit they were horribly wrong and that they dedicated their lives to something that was monstrous. So they’re lashing out at their enemies and refusing to put down their ideological blinders even though they’ve already been relegated to the dustbin of history.
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March 10, 2010, 11:24 ambyomtov says:
Well done, Orin.
Isn’t McCarthy the guy who was claiming that Obama’s autobiography was ghost-written by Bill Ayers? Who at the NYT decided he was worth givng space to?
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March 10, 2010, 11:28 amChris Travers says:
I thought it evaporated when they had political power (congressional majority, presidency, etc)....
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March 10, 2010, 11:28 amGW Law Grad says:
3 points:
1) Really?? your argument that non-US citizens have a right to counsel is a SINGLE district court decision by a Judge who has devoted most of her pre-judicial career to liberal/democratic causes. And as you point out, she hardly hid her bias by making totally uneccessary comments praising the pro-bono lawyers. What did that have anything to do with the outcome of the case?
2) The fact that “United States was not formally at war with Britain at that time” is a HUGE point that you seem to gloss over. McCarthy and others seem to be arguing that the fact that we are at WAR is a major consideration regarding how these detainees should be treated.
3) You say “They’re just lawyers doing what lawyers do, presumably for the same weird mix of reasons that lawyers take on other pro bono case.”
Sorry to be repetitive...Really??? the reasons that lawyers decide to assist on a pro-bono basis a veteran get benefits, a refugee get asylum status, a poor single mother deal with her landlord, & oh say the MySpace mother because the lawyer thinks the law is being wrongly applied by the prosecutor, or even a criminal defendant because the lawyer wants to get trial experience are the SAME as thos who went out of their way to represent the Guatanomo detainees? Even if your statement is true, I don’t think “presumably” is good enough. I think it might be extremly important to nail down EXACTLY what motivated these lawyers working at the DoJ to previously go out of their way to represent the detainees.
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March 10, 2010, 11:31 amRAFinlay says:
All writers at NR are closeted segregationists? So anyone you disagree with is ipso facto an evil person guilty of any heinous belief that comes to mind? I am surprised that you disagree with McCarthy, sharing his mindset like you do.
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March 10, 2010, 11:32 amArthur Kirkland says:
Say it ain’t so! I was counting on a Cheney-McCarthy ticket (“Two Names You Can Trust — because history is for liberals!”) for the Republicans next time around.
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March 10, 2010, 11:37 amdelurking says:
“Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime. ”
Really? How about the doctors at POW camps or Guantanamo?
How about the chefs? The plumbers who make sure the toilets work?
Many people aid enemy prisoners during wartime. If they didn’t, the prisoners would die rather quickly.
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March 10, 2010, 11:39 amAssistant Village Idiot says:
“But that’s the point: There’s nothing exceptional about their decision to represent detainees.”
OK, what would be exceptional, then? What would be different enough that voicing suspicions about motive might cross our lips?
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March 10, 2010, 11:41 amElliot says:
These are all interesting arguments for the legal community, and we can observe Cheney losing in that arena. However, I suspect Cheney is winning with the public. Remember, she’s making a political attack, not writing for a legal audience.
I think Kerr’s initial last line of his post most accurately reflects the public opinion: “But that’s the point: They’re just lawyers doing what lawyers do.”
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March 10, 2010, 11:44 amBruce Boyden says:
Elliot, if the American public doesn’t believe in the rule of law, then we have bigger problems than Liz Cheney.
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March 10, 2010, 11:50 amorca says:
Giving space to a guy who makes the Republican party look like a lynch mob was a bad move on their part?
If you listen closely this week, you can hear the air slowly escaping from the Republican’s “comeback” this November...
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March 10, 2010, 11:50 amAndrew says:
It does seem like a valid point that lawyers who donate free assistance in CIVIL matters can usually be presumed to have some sympathy for whatever cause is involved. However, this detainee stuff was not CIVIL, however else one might characterize it. So, I don’t think McCarthy has a very good argument here. On the other hand, if a person in a non-civil matter ALREADY has access to competent counsel, then donating additional services to that person does begin to raise questions about where the donor’s sympathies lie.
In any event, I don’t see why DOJ should not name its seven attorneys who previously represented detainees. That’s merely information, and I don’t see why it shouldn’t be available. As far as I know, attorney-client privilege does not extend to anonymity for attorneys, and publication of the information would not endanger the attorneys AFAIK. After all, no one kept John Adams’ representation of the British a secret.
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March 10, 2010, 11:55 amThales says:
Ken Arromdee says:
“Adams defending the British in the Boston Massacre is a bad comparison because it’s the equivalent of the ACLU defending Nazis–it would normally look suspicious, but the suspicion is negated by the known fact that the lawyer and the suspects are on opposite political sides.”
I don’t think your point on Adams is clearly true as a historical matter–Adams had not yet taken a clear position on a war/struggle for independence at the time of the massacre. As for the ACLU defending (actual) Nazis to vindicate their free speech rights and the modern pro bono attorneys defending (accused or actual) AQ members to vindicate their due process, habeas corpus and related rights . . . well, why is this disanalogous? Under AQ ideology, as many conservatives keep pointing out, there would be no such thing as what American lawyers understand to be basic procedural legal protections. There’s no more reason to suspect these pro bono attorneys of having sympathy for terrorism than to suspect a Jewish ACLU attorney of wanting to establish Nazism.
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March 10, 2010, 12:00 pmKen Arromdee says:
The fact that someone defends a disreputable person is already evidence. Further evidence can rebut the implications of this evidence, but if that evidence doesn’t exist, it’s not a no evidence case, it’s a no further evidence case. No further evidence means that the only evidence that exists (the fact that they defend the guy) is damaging.
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March 10, 2010, 12:01 pmU.Va. Grad says:
If being “formally” at war is relevant, then I don’t see the difference, since we aren’t “formally” at war now (nor were we at any time during the past 10 years).
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March 10, 2010, 12:04 pmKen Arromdee says:
Again, they may not have complete sympathy in the sense of wanting to go to Afghanistan and shoot Americans, but terrorists nowadays tend to be anti-West, anti-Israel, anti-imperialism, pro-Palestinian, anti-Bush, etc. and this leads leftists to sympathize with them. It’s not as diametrically opposed as Jews defending Nazis.
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March 10, 2010, 12:04 pmBobC says:
The two groups a free people should distrust the most.
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March 10, 2010, 12:08 pmAnderson says:
RA, if NR has ever apologized for that editorial, I would appreciate having that apology brought to my attention.
... GW Law, I believe that the Supreme Court has held that Common Article 3 applies to non-US-citizen prisoners. That article reads in pertinent part:
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: * * *
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Particularly where sentences of life imprisonment or death are at issue, I think the burden is on McCarthy to argue that the right to counsel is not one of those “judicial guarantees which are recognized as indispensable by civilized peoples.” I notice that “right to defence” (including counsel) is important enough to the drafters that it’s required in tribunals conducted by an occupying power.
The ICRC commentary to Article 3 notes: “All civilized nations surround the administration of justice with safeguards aimed at eliminating the possibility of judicial errors.” I had thought that the right to counsel was one of the most important such safeguards. Did they teach you differently at GW?
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March 10, 2010, 12:13 pmArthur Kirkland says:
Look for this comment to be cited, 30 or 40 years from now — in a top-secret government memorandum authored by Liz Cheney’s child, John Yoo’s niece, David Addington’s grandchild, and Rush Limbaugh’s new 23-year-old mail order bride — advocating treason charges against any doctor, plumber or chef providing services at Guantanamo, even if some of the elderly detainees from the Even Longer War Than We Thought are dying from lack of health care, facilities and food.
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March 10, 2010, 12:16 pmMaryG says:
“Elliot, if the American public doesn’t believe in the rule of law, then we have bigger problems than Liz Cheney.”
This is exactly the dismissive attitude I was describing at 10;07, responding to the original post. Elliot at 11:44 is spot on, if you want to take the discussion outside the legal chambers.
And not to validate your opening clause Bruce Boyden, but fwiw? America indeed has much bigger problems right now than Liz Cheney’ proffered opinions.
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March 10, 2010, 12:17 pmAnderson says:
... David Luban provides more authority re: right to counsel: Lassiter v. Dep’t of Social Servs.:
it is the defendant’s interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to appointed counsel ...
In sum, the Court’s precedents speak with one voice about what “fundamental fairness” has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured
To repeat, I believe the burden is on McCarthy.
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March 10, 2010, 12:23 pmpc says:
I’m not sure why the onus is on the DoJ to slice and dice the resume of its employees at someone’s whim. As I pointed out yesterday:
list_of_doj_lawyers.each { |lawyer| list_of_detainee_lawyers.include?(lawyer) puts lawyer }
There. You have your list of DoJ lawyers that represented detainees. The people going on the witch hunt were too lazy to do their own leg work so they tried to make it look like Holder was hiding something.
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March 10, 2010, 12:23 pmMark Field says:
They also got to file a habeas petition.
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March 10, 2010, 12:24 pmAnderson says:
They also got to file a habeas petition.
Right, but back then we were fighting just toothless old fascism, not Islamofascism. Hitler never posed nearly the threat that Osama bin Laden does.
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March 10, 2010, 12:27 pmJack says:
Orin’s post is not persuasive. To me, McCarthy has the better of the argument.
As far as I can tell, the reference to Hamdi is inapposite. The Court stated that Hamdi had the right to ACCESS to counsel — that is, the government could not prevent him from meeting with counsel if he happened to get counsel. That is not the same as stating that he has “right to counsel,” meaning that counsel would be provided to him by the government unless he was able to find counsel on his own.
Orin cites the Al-Joudi case for the proposition that the detainees have right to counsel.
However, like Hamdi, the issue in al-Joudi was counsel’s ACCESS to their clients, not whether the detainees have a right to counsel.
Accordingly, the two cases cited by Orin do not have anything to do with McCarthy’s (entirely correct) point that war prisoners are not “entitled to counsel to challenge their detention as enemy combatants”. If a detainee has counsel, the government must provide that counsel some access to its client. If a detainee does not have counsel, the government is under no obligation to provide counsel (at least to file a habeas action to challenge the detainment). This is consistent with many cases that have found that prisoners do not have the right to counsel in habeas cases (which is what is at issue here), even where the habeas case presents the first crack at the claims at issue. See, e.g., Mackall v. Angelone, 131 F.3d 442 (4th Cir. 1997) (en banc); Jeffers v. Lewis, 68 F.3d 299 (9th Cir. 1995) (en banc).
If these high powered law firms did not provide their pro bono services to the detainees, and the detainees could not hire legal services on their own, then the detainees would simply not have legal representation (although they do have a “Personal Representative” to represent them at their status tribunals), and the government would have no obligation to provide any such representation.
Accordingly, McCarthy’s characterization of the pro bono services provided by these law firms seems to me to be accurate, and Orin’s objection thereto seems to me to be incorrect.
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March 10, 2010, 12:29 pmStephen Lathrop says:
Even if you accept the notion that Guantanamo prisoners are, without exception, being held in consequence of something they did against the United States, is it correct to call them “the enemy?” Aren’t prisoners the former enemy, who are now prisoners?
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March 10, 2010, 12:30 pmDavid M. Nieporent says:
I repeat: it was available. It’s not a “secret,” but a matter of public record. Go on PACER and you can see it. As could those asking the questions.
The DOJ is not a private research service for an individual congressman. If he wants to find out, he can look it up.
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March 10, 2010, 12:30 pmStephen Lathrop says:
To put it another way, if you are holding them as prisoners, is it acceptable still to be waging war against them?
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March 10, 2010, 12:31 pmDangerMouse says:
Hmmm.. Libs seemed to have a different opinion about conservative lawyers representing clients that libs don’t like:
http://christopherfountain.com/2010/03/08/the-horror-conservatives-throw-guantanamo-defense-work-in-faces-of-appointed-lawyers/
http://newsbusters.org/blogs/lachlan-markay/2010/03/09/amazing-nyt-only-upset-when-conservatives-question-lawyers-backgroun
This is just more lib double standards at work.
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March 10, 2010, 12:33 pmOrin Kerr says:
GW Law Grad:
As I recall, after the U.S. Supreme Court concluded that Hamdi “unquestionably” had a right to counsel, the Bush Administration conceded that the other Gitmo detainees did, as well. The only litigation on right to counsel issues that has followed Hamdi has been a few district court cases on the precise scope of the right to counsel for the detainees. So I don’t think anyone has contested the right to counsel point in years, with the exception of Andrew McCarthy, and it seems, you. Either way, I believe the concession by the Bush Admininistration has prevented the cases from being decided on the issue. Certainly, if you know of any authority that says the detainees don’t have a right to counsel, I would be interested in the citations you have in mind.
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March 10, 2010, 12:33 pmcboldt says:
– They also got to file a habeas petition. –
Ex parte Quirin, 317 U.S. 1 (1942)
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March 10, 2010, 12:34 pmOrin Kerr says:
Jack,
Two quick points. The idea that the right to counsel means a right to counsel paid for by the government is a modern notion introduced by the Warren Court the 1960s — it is not the traditional historical meaning of the right to counsel. Second, I believe the detainees have been in fact been provided appointed counsel when law firms have not volunteered, (and in some cases , when they have), just like in criminal cases.
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March 10, 2010, 12:37 pmThales says:
Jack,
I think you are overreading McCarthy, or at the very least McCarthy is not clearly making any distinction between the (negative) right to access to counsel and the (arguably more positive) right to provision of counsel from the government. As I read McCarthy he is criticizing the very notion that the POWs in this conflict are entitled to any legal process at all, let alone access to lawyers in such processes.
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March 10, 2010, 12:41 pmThales says:
“Again, they may not have complete sympathy in the sense of wanting to go to Afghanistan and shoot Americans, but terrorists nowadays tend to be anti-West, anti-Israel, anti-imperialism, pro-Palestinian, anti-Bush, etc. and this leads leftists to sympathize with them. It’s not as diametrically opposed as Jews defending Nazis.”
I think this is a non-responsive blanket associational smear; no one has presented any evidence at all that a single pro bono lawyer in question sympathizes with the goals or means with respect to acts that their clients have allegedly engaged in. The onus is on the accusers, and the thin gruel the accusers have presented thus far is pretty distasteful and unbecoming of rational discourse, whatever one’s political sympathies.
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March 10, 2010, 12:45 pmAnon21 says:
No, you have certainly misunderstood McCarthy’s point, and McCarthy has misunderstood the law. Only criminal defendants are entitled to counsel provided at state expense. All litigants are entitled to be represented by counsel whom they themselves have hired. That’s the situation of the Gitmo detainees–no one was arguing that the government should have hired high-powered lawyers to represent them in their habeas filings. Rather, they had private lawyers, and the question was whether they were entitled to have those lawyers represent them, and to have access to them. You appear to concede that the answer to that is yes on both counts.
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March 10, 2010, 12:47 pmCrazyTrain says:
DangerMouse’s reference to liberal criticism of Judge Kuhl’s prior clients is worthy of note, and the NY Times deserve to be criticized for such criticism. However, that does not make McCarthy’s arguments any less ridiculous and absurd.
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March 10, 2010, 12:47 pmCheckEnclosed says:
As a U.S. citizen & taxpayer, I believe my country has an interest in making sure that it is not spending money and other resources keeping people detained if they were initially detained in error.
Likewise, if there are folks out thre who wrongfully identified individuals as Taliban or Al Qaeda members/supporters, then I want to know who has been sending us on wild goose chases.
Does anyone seriously contend that it is in the U.S. interest to wrongfully detain people, and then spend untold fortunes keeping them in places like Gitmo and interrogating them?
If so, tell me your reasons.
If not, then what could be wrong with people (even lawyers) seeking to determine that the folks we do keep detained were not detained in error?
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March 10, 2010, 12:51 pmSteve says:
They also got to file a habeas petition.
Kinda sorta. I mean, when the Executive strongarms the Supreme Court by threatening to cause a constitutional crisis by executing the prisoners regardless of what the Court rules, that’s not exactly a fair day in court. There was technically a habeas petition but the outcome was foreordained. As Justice Scalia wrote in his compelling Hamdi dissent: “The case was not this Court’s finest hour.”
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March 10, 2010, 12:54 pmBruce Boyden says:
MaryG, I don’t understand why you think I’m being dismissive. If the American people generally don’t believe that unpopular defendants deserve a fair trial, then we really are in big trouble.
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March 10, 2010, 12:59 pmSteve says:
Where was the paper’s disdain for the ideological and political attacks on Carolyn Kuhl, President Bush’s nominee to the Ninth Circuit Court of Appeals? As a 29-year-old lawyer with the Justice Department, Kuhl had urged the Attorney General to reverse an IRS decision denying tax-exempt status to Bob Jones University.
It should go without saying that Bob Jones University was not Carolyn Kuhl’s “client” when she worked at the Justice Department. Rather, the argument against Kuhl was that she had been an advocate within the DOJ for a variety of right-wing positions, like urging the Solicitor General to file an amicus brief supporting the reversal of Roe v. Wade. There’s a significant difference between being the line attorney who writes the anti-Roe brief and actively lobbying for the DOJ to file such a brief in the first case. It’s sorta like the difference between a lawyer who represents detainees pro bono and a lawyer who writes a memo saying, “We need to defend these people, they are brave freedom fighters against capitalist oppression!”
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March 10, 2010, 1:01 pm1040 says:
Well, isn’t the fact that they are in a democratic administration, and further that they are appointees of a socialist fascist communist foreign born president who clearly wants to destroy the country (have you asked Ponnuru and Lowry lately?) proof enough?
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March 10, 2010, 1:09 pmJonny Scrum-half says:
It’s depressing the number of educated, intelligent commenters on a libertarian blog who defend the government’s right to imprison people indefinitely without charge and without right to counsel. The McCarthys of this world have to understand the distinction that’s already been explained here — that prisoners of war aren’t tried or given legal counsel because there’s no question that they are, in fact, associated with the enemy. As I understand it, that’s the precise issue with many of the “Al Qaeda” detainees — whether or not they are, in fact, “waging war” against the United States. Without adequate legal process, the government would be free to detain anyone for any reason. That position doesn’t sound too “conservative” to me.
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March 10, 2010, 1:13 pmChris Travers says:
Ok, let me draw a strong parallel for you.
My mother’s uncle (who probably had some Communist sympathies, but who clearly loved our system of law and despised totalitarianism) spent a lot of time in the McCarthy era defending folks accused of violating the Smith Act. As a Yale grad, who was an associate in a prestigious law firm, he made the difficult choice of going into practice for himself rather than dropping this work in the face of political pressure. His efforts resulted in a series of politically motivated criminal prosecutions against him which eventually resulted in a year in prison (among other things he discovered he was better off in prison than married to the woman he was married to at the time). Politically he was further left than FDR... Methodologically he was more conservative than Justice Thomas..... He was an interesting fellow. While I might disagree with some (but by no means all) of his political leanings, he was someone I looked up to as a very courageous man. The most prestigious case I know of that he was involved in was US v. Fukuyama, which was vacated and remanded by the Supreme Court for proceedings in line with their Yates v. United States decision. This convinced the 9th Circuit that the Smith Act was more or less unenforcible for its intended purpose and so all charges were dropped.
I don’t think a lawyer is likely to take a pro bono case without there being the sense that there is a fundamental moral imperative to do so. You seem to be looking at the courts as defining who wins, and that lawyers should focus on ensuring that the right person wins. But many people, including my mother’s uncle, also realize that it isn’t just about who wins. An individual verdict affects an individual case. But a legal ruling is something that will be with us far longer. Long run, our rule of law is more important than the outcome of any given case. I am sure that many lawyers involved see defending such detainees as a fundamentally patriotic duty, as opposed to the humanitarian one of helping the single mother deal with her landlord. These are different drives. The question is whether, in a modern democratic nation one can really be a patriotic traitor against one’s country. I don’t think that works.
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March 10, 2010, 1:29 pmSonicfrog says:
I have an interesting question. If you are a Taliban supporter, yet have never risen up in arm against the United States, are you still an enemy or enemy combatant?
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March 10, 2010, 1:34 pmMark Field says:
So? Nobody has the right to win a habeas petition, but the Bush Administration argued that the detainees couldn’t even file one. As Quirin shows, that’s wrong.
Agreed. I was making a procedural point only.
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March 10, 2010, 1:34 pmDilan Esper says:
Again, they may not have complete sympathy in the sense of wanting to go to Afghanistan and shoot Americans, but terrorists nowadays tend to be anti-West, anti-Israel, anti-imperialism, pro-Palestinian, anti-Bush, etc. and this leads leftists to sympathize with them.
I think this comment gets to the nub of why some folks on the right (and it is only some) are defending Liz Cheney. There’s a certain sort of person who assumes that his or her political enemies are motivated by the worst possible motives. (Heck, it happens on the left too.) And when I say the worst possible motives, I don’t mean, for instance, the assumption that some on the left don’t think very much of religion or that some on the right don’t think much of women’s rights (both of these things are actually true). I mean the belief that there is no distinction between one’s political enemies and nihilistic terrorists.
This, of course, is paranoid, tinfoil hat territory. Indeed, if I really set out to come up with a workable definition of what political extremism really is, it is exactly this– the belief that people whose views are in the mainstream of American political thought are actually deliberately out to destroy America or collaborate with those who want to do so. That’s what Joe McCarthy and the John Birch society, for instance, believed about American liberals– that they were working with the Commies to foment a socialist revolution and turn the US into the USSR.
So yeah, if you believe ex ante that liberals are terrorist-sympathizers, then yeah, I can see how you could come to the McCarthy/Cheney position about lawyers representing alleged terrorists. Of course, the problem with that view is with its premise. Since most of us understand that both liberals and conservatives want what is best for the country but have different views as to what that is, we understand that when a liberal (or a conservative for that matter) goes to work for an unpopular client, it isn’t because he or she shares the client’s views.
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March 10, 2010, 1:41 pmSteve says:
If you are a Taliban supporter, yet have never risen up in arm against the United States, are you still an enemy or enemy combatant?
I think this is an open question. The proposed McCain-Lieberman detention bill (still in the very early stages) closes this loop by distinguishing between those who have sworn allegiance to al-Qaeda (who are “enemy belligerents” regardless of what else they might have done) and adherents of the Taliban, who are only “enemy belligerents” if they have actually done something aggressive.
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March 10, 2010, 1:43 pmcboldt says:
– but the Bush Administration argued that the detainees couldn’t even file one. As Quirin shows, that’s wrong. –
Quirin concludes that the accused could not “file” a habeas petition in any meaningful sense of the word. The Court would not look at one. Arguing that Quirin or Eisentrager stand for the proposition that enemy have a right to habeas is flat wrong.
The terrorist cases have to be (and are) distinguished from Quirin and Eisentrager on factual bases.
– If you are a Taliban supporter, yet have never risen up in arm against the United States, are you still an enemy or enemy combatant? –
working form memory, “it depends,” on citizenship, IIRC. Also, “support” is construed under the relevant statutes as “material support,” with material support being a criminal act for citizen and non-citizen alike.
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March 10, 2010, 1:45 pmDilan Esper says:
It should go without saying that Bob Jones University was not Carolyn Kuhl’s “client” when she worked at the Justice Department. Rather, the argument against Kuhl was that she had been an advocate within the DOJ for a variety of right-wing positions, like urging the Solicitor General to file an amicus brief supporting the reversal of Roe v. Wade.
This gets at the distinction between the “Al Qaeda 7″ and John Yoo and Jay Bybee as well. I think I answered an earlier Orin Kerr post on this issue, but if the law compels an unjust result, there’s nothing wrong (and indeed, everything right) with a Justice Department lawyer saying “follow the law”. But if the law does not compel that result, a Justice Department’s lawyer’s advocacy that the Justice Department should advocate the unjust result anyway is quite suspicious. And if the law compels the opposite result, a Justice Department’s lawyer’s advocacy of a position that is rejected and inconsistent with the law (and which results in government officials relying on the position and performing illegal acts) is extremely troubling.
None of this is remotely comparable to a lawyer simply taking on an unpopular client and advocating non-frivolous legal positions on the client’s behalf in court.
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March 10, 2010, 1:46 pmAnon21 says:
This is an impoverished understanding of Quirin. The Court’s formal conclusion was that the petitioners couldn’t be heard, but if that’s all there was to it, the opinion would never have expanded from the original paragraph-long order. There was a substantive evaluation of the merits of the petitioner’s claims in both Quirin and Eisentrager. It wasn’t a full-blown re-examination of the government’s evidence and procedures, but it went considerably beyond a simple jurisidictional analysis, regardless of what the Court said it was doing. Nor, of course, has the current Court suggested that habeas for the Gitmo detainees needs to amount to a full-blown re-examination of the government’s evidence and procedures; something more circumscribed is contemplated. But in the 1940s, just as today, it is anathema that people could be punished by the U.S. government under procedures which are plainly below minimal standards of procedural fairness. That is the principle that these much-maligned lawyers were fighting for.
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March 10, 2010, 1:51 pmyankee says:
It’s plenty conservative. Conservatives have spent decades fighting every attempt to enforce the procedural rights of people accused of crimes, so it’s completely consistent for them to oppose procedural rights for people accused of terrorism as well. It is not a libertarian position, but few of the commenters on this blog are libertarians.
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March 10, 2010, 1:52 pmFederale says:
Wow, where to start. McCarthy is correct on every issue. You seem to be ignoring the fact that the Supreme Court has reversed itself. You ignore every precedent up until these most recent decisions. And it is a fact that the trials of the British soldiers were regular trials not conducted during wartime. Members of the military are tried by civilian courts for regular crimes quite frequently in the U.S. Alien combatants are not. American citizens were tried for war crimes during WWII by courts martial. Axis war criminals were tried by both courts martial and special commissions and the Supreme Court decided in the favor of the government, especially in the Nuremburg trial cases. The Court ruled that no enemy aliens had any rights under the Constitution.
And, yes, any decision to the contrary is wrong, and if it is treasonous, depends on the motive of the individual. It is clear that the attorneys on these cases sympathize with their clients. Why didn’t any of these attorneys defend the juvenile in Louisiana who was arrested for hanging a noose on his pickup to protects the fake Jena Six crimes? Any of these attorneys volunteer to take a 2nd Amendment case? Any of these attorneys volunteering to defend American soldiers accused of crimes in Iraq, like the Navy Seal who punched a terrorist in custody? Not likely. Why, decause they sympathize with the cause of the terrorists.
Now, which justices sympathize with the terrorists? All of the democrat ones. As to Justice Kennedy, I don’t know. But that is the price you pay for overturning SC precedent and basically involving the court in a foreign policy and political issue.
They are reaping what they did sow.
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March 10, 2010, 1:58 pmcboldt says:
– This is an impoverished understanding of Quirin. –
Mark Field asserted, “[The defendants in Quirin] got to file a habeas petition.” This is not true. The filed a motion for leave to file a habeas petition, and the motion was ultimately rejected. The Court found adequate justification for military jurisdiction over the defendants.
The modern cases caveat the conclusion that accused have a right to habeas, on finding that the protection afforded to accused (in military detention) is inadequate. And even THAT conclusion is limited, see 10’s of thousands of detainees held in the middle east.
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March 10, 2010, 2:07 pmJoseph Slater says:
What Dilan Esper said in his 10:41 post: cosign, exactly that. And what “federale” said at 1:58 — exactly not that.
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March 10, 2010, 2:11 pmcboldt says:
– if I really set out to come up with a workable definition of what political extremism really is, it is ... the belief that people whose views are in the mainstream of American political thought are actually deliberately out to destroy America or collaborate with those who want to do so. That’s what Joe McCarthy and the John Birch society, for instance, believed about American liberals — that they were working with the Commies to foment a socialist revolution and turn the US into the USSR. –
But, conversion into Communist form is okay as long as the conversion happens without “destroying” America (whatever that means), and as long as there is not a “revolution” (whatever that means).
See Chapter 2 of the Communist Maifesto for a short list of desirable socio-government attributes, per communism.
I believe a significant number of Democratic Party members of the US House of Representatives are members of an openly communist-leaning organization (Democratic Socialists of America), as well.
All that is far afield from the topic of the thread, but I think it’s worth noting that there is open political advocacy in the US for “communism-lite.”
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March 10, 2010, 2:23 pmKen Arromdee says:
I don’t need to. It wasn’t an attempt to present evidence, it was a reply to the implicit criticism that there’s no reason why someone not as extreme as the terrorists would sympathize with them.
And the fact that the lawyers are defending accused terrorists pro-bono is already evidence. Knowledge about their political sympathies is further evidence; it’s not the only evidence in existence. If this further evidence is absent, it can’t strengthen or weaken the initial evidence, but the initial evidence is still there, and it’s not correct to act as if this means there is no evidence.
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March 10, 2010, 2:23 pmKen Arromdee says:
I didn’t say they’re “out to destroy America”, I listed specific issues where the left may be more on the terrorists’ side than the average person. Do you really think it’s paranoia to think that the left and terrorists are both more likely to be anti-Israel, or anti-Bush, or anti-imperialism?
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March 10, 2010, 2:27 pmAnderson says:
Thanks for the Quirin correction, Cboldt.
Re: the DSA, if “a significant number of Democratic Party members of the US House of Representatives are members,” could you perhaps direct us to a source for that? “Significant” means different things to different people.
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March 10, 2010, 2:31 pmBob from Ohio says:
Elliot’s point at 11:44 is exactly right.
It is only liberals and certain establishment lawyers who are attacking Liz Cheney. The broader group of conservatives and republicans, to the very limited extent they have even heard of this Beltway tempest, agrees generally with Liz Cheney and Andy McCarthy, not Orrin Kerr or the critics here.
As for Orca’s dreams of representing terrorists being a game changer in November:
Who knows, maybe an ad attacking lawyers that nobody saw will reverse the tide. But I doubt it. Who likes lawyers? Who likes terrorists? Who likes lawyers who defend terrorists?
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March 10, 2010, 2:32 pmDilan Esper says:
But, conversion into Communist form is okay as long as the conversion happens without “destroying” America (whatever that means), and as long as there is not a “revolution” (whatever that means).
But, conversion into Iranian-style Theocratic form is okay as long as the conversion happens without “destroying” America (whatever that means), and as long as there is not a “revolution” (whatever that means).
Now, if someone described the goals of politically active American religious conservatives (even if limited only to the more extreme ones like Pat Robertson) in that fashion, I suspect you would instantly be able to understand what is grossly misleading about that argument.
In any event, congratulations for totally missing my point, which is that the criticism of liberal lawyers for representing terrorists in court is implicitly and sometimes explicitly premised on an assumption that liberals sympathize with terrorists anyways, and it’s a telltale sign of extremism that one believes that sort of thing about people in the political mainstream whose views one disagrees with.
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March 10, 2010, 2:32 pmDilan Esper says:
I didn’t say they’re “out to destroy America”, I listed specific issues where the left may be more on the terrorists’ side than the average person. Do you really think it’s paranoia to think that the left and terrorists are both more likely to be anti-Israel, or anti-Bush, or anti-imperialism?
Even if I take your characterizations as a given (I would say that a lot of the dispute between left and right (and indeed, some internecine disputes on each side as well) about Israel is as much a debate about what it means to be “pro-Israel”), you could play the exact same game on the right and say that right wingers and terrorists are both more likely to be religiously conservative, anti-feminist, anti-pornography, anti-separation of church and state, etc.
And this tells you next to nothing about two groups of people who may share a few political views on some discrete issues but who have totally different worldviews (and specifically, where one of the groups subscribes to the basic rules of a civilized society and the other group is involved plotting mass murder).
Again, I have no doubt that some on the right believe this and that this is the basis for their belief that there’s something wrong with liberal lawyers who represent accused terrorists– it’s assumed that liberals are terrorist-sympathizers in the first place. But anyone who really believes that mainstream American liberals are in any way “on the side of terrorists” except in the narrow sense that, same as American conservatives, they may share a few discrete political views with some of them is basically a crazy extremist. Seriously.
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March 10, 2010, 2:38 pmAnderson says:
Mr. Arromdee, are your remarks somehow not applicable to Col. Royall in his defense of the Nazi saboteurs, in which he went above & beyond his duty, going so far as to write directly to the president and to seek review by the civil courts?
Was he more on the side of the Nazis than the average person?
How about John Adams?
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March 10, 2010, 2:40 pmcboldt says:
– if “a significant number of Democratic Party members of the US House of Representatives are members,” could you perhaps direct us to a source for that? –
Google cache of http://www.tysknews.com/Depts/gov_philosophy/dsa_members.htm puts the number at seventy (70).
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March 10, 2010, 2:40 pmSarcastro says:
Folks, there is a new goalpost: is this a good move politically. Stop yer moralizin’ and philosophizin’ and get with the cynical populist program! Admit Liz Cheney is a good demagogue or you “have some views aligned” with terrorists!
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March 10, 2010, 2:43 pmJoseph Slater says:
For the record, D.S.A. is bascally the equivalent of a mainstream European social-democratic, socialist, or labor party. It is not at all “pro-communist.”
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March 10, 2010, 2:50 pmcboldt says:
– In any event, congratulations for totally missing my point ... –
I was only addressing the sub-text that you used to justify your conclusion, in particular the examples that imply mainstream Democrats are faithful to the limited federal government of the US Constitution.
And again, that is afield from the narrow point you were making, that Democrats are not sympathetic to al-Qaeda.
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March 10, 2010, 2:54 pmAnderson says:
From what I can see, Joseph Slater is correct about DSA.
Cboldt’s link is to a site criticizing DSA and listing the alleged 70 members without any links or authority. I wonder what their source was? And how exactly did Fox News miss the allegation that 70 members of the House are socialists?
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March 10, 2010, 2:56 pmThales says:
Ken writes: “And the fact that the lawyers are defending accused terrorists pro-bono is already evidence.
[Evidence of what? What does that fact, shorn of further context, tend to prove?]
Knowledge about their political sympathies is further evidence;
[Do you in fact possess any such knowledge about the political sympathies of the seven pro bono lawyers in question? From where did you obtain it? Are you making a bootstrap inference that the fact of their representation, without more, is itself evidence of sympathy with terrorism?]
it’s not the only evidence in existence. If this further evidence is absent, it can’t strengthen or weaken the initial evidence, but the initial evidence is still there,
[again, evidence of what?]
and it’s not correct to act as if this means there is no evidence.”
[Under my standards of (and the implicit burden of) proof, you have not in fact presented evidence even tending to prove the assertions you have made; you have at best provided speculative, unsourced associations. Unfortunately the only rational response at this point is to stop the conversation, as you are either arguing in bad faith or simply cannot be persuaded to accept reasonable standards of accusation, proof and fairness.]
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March 10, 2010, 3:01 pmDilan Esper says:
I was only addressing the sub-text that you used to justify your conclusion, in particular the examples that imply mainstream Democrats are faithful to the limited federal government of the US Constitution.
Talk about assuming your conclusion! They are faithful to the consensus interpretation of the US Constitution that is established by seven decades of consistent US Supreme Court precedent. Under your definition, probably 2/3rds of the American population is out to destroy America.
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March 10, 2010, 3:05 pmpc says:
I’m pretty sure John Adams was not objectively pro-Nazi.
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March 10, 2010, 3:08 pmAnonsters says:
Someone should tell that to General Yamashita.
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March 10, 2010, 3:08 pmmetro11 says:
dilan esper:
For those who went after (and are still going after) John Yoo and Jay Bybee: would such Yoo/Bybee criticisms be, in your words:
“implicitly and sometimes explicitly premised on an assumption that ... [conservatives] sympathize with [torture] anyways...”
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March 10, 2010, 3:09 pmJC says:
On one hand, Baker argues (and then retracts) yesterday on VC that there was no need for pro bono counsel for Gitmo folks because they all had military lawyers. (Oops, no they didn’t.)
On the other, McCarthy argues that they had no lawyers and that’s the way the framers of the Constitution intended it.
These guys need to get their stories straight. And they need to actually read some of the primary materials associated with these issues because they seem to be getting really basic foundational facts wrong.
And the bordering-on-ad-hominem “everyone at Guatanamo is by definition an enemy because otherwise they wouldn’t be at Gitmo” proposition ignores the fact that folks have been released from there with charges dropped. So either we’re releasing avowed enemies for no reason or (gasp) we’ve occasionally relied on some bad information.
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March 10, 2010, 3:10 pmAnderson says:
I’m pretty sure John Adams was not objectively pro-Nazi.
Thomas Jefferson wasn’t so sure about that.
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March 10, 2010, 3:12 pmAnonsters says:
Yeah, but he was a Jacobin, so who cares what he thought?
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March 10, 2010, 3:15 pmcboldt says:
– Under your definition, probably 2/3rds of the American population is out to destroy America. –
Probably 90% of Americans think our form of government is a democracy, well over half are happy to vote money for themselves out of the public trough, and I recall a cite to a poll that found Americans under 30 to prefer communism over capitalism. All of that can be accomplished by creative interpretation of the constitution.
– listing the alleged 70 members without any links or authority –
I’ll look for a source or sources. I didn’t find a list of members at DSA’s website, but I didn’t look hard. Does the list seem “incredible” in light of what the DSA website describes as points of member advocacy?
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March 10, 2010, 3:16 pmRoger the Shrubber says:
Based on personal experience, I can totally believe that.
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March 10, 2010, 3:18 pmAnderson says:
Yeah, but he was a Jacobin
And even worse, a Democrat.
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March 10, 2010, 3:18 pmDilan Esper says:
For those who went after (and are still going after) John Yoo and Jay Bybee: would such Yoo/Bybee criticisms be, in your words: “implicitly and sometimes explicitly premised on an assumption that ... [conservatives] sympathize with [torture] anyways...”
Not really. Yoo and Bybee were advising the government as to what the law allows. If that advice was wrong or deliberately misleading, and as a result illegal acts were committed in reliance on the advice, that’s a substantive criticism that has nothing to do with any background assumption about how conservatives feel about torture.
Similarly, you will notice that I am NOT arguing that what Lynne Stewart was accused of doing is excusable or should not be held against her. Nor would I argue that a mafia lawyer, or a lawyer for a corporate client, who encourages his or her client to go ahead and engage in plainly illegal conduct should be excused. But again, that’s not because I am making an assumption about what the lawyer believes– it’s because the lawyer’s CONDUCT is clearly outside the bounds of professional ethics and furthered illegal conduct.
This issue is about simply representing bad clients and going into court and making perfectly colorable arguments on their behalf. That, as Professor Kerr said, is what lawyers normally do and is considered entirely ethical conduct (in contrast to advising your client to go ahead and break the law). The only reason you can conclude that is wrong is if you assume, in the first instance, that the type of lawyer who would represent a terrorist must sympathize with the terrorist’s goals in the first place.
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March 10, 2010, 3:19 pmThales says:
“And the bordering-on-ad-hominem “everyone at Guatanamo is by definition an enemy because otherwise they wouldn’t be at Gitmo” proposition ignores the fact that folks have been released from there with charges dropped. So either we’re releasing avowed enemies for no reason or (gasp) we’ve occasionally relied on some bad information.”
The proposition doesn’t commit the ad hominem fallacy; it commits the viciously circular fallacy.
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March 10, 2010, 3:20 pmmetro11 says:
At least no one is discussing disbarring the AQ7 ... like was discussed for John Yoo:
http://delong.typepad.com/the_torture_memo/2009/02/michael-isikoff-yoo-disbarment-proceedings-now-visible-on-the-horizon.html
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March 10, 2010, 3:22 pmSmarty says:
A foreigner caught in a foreign land where there is a military action is not entitled to sue the government.
For an American citizen to rush forward uncompelled by law to help this foreigner, particularly when some of the tactics knowingly harm our position in the military action, is treason. If lawyers don’t agree, then that is too bad, but the word still has meaning.
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March 10, 2010, 3:23 pmAnonsters says:
And even worse, a Democratic-Republican. The worst kind of flip-flopper.
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March 10, 2010, 3:23 pmsteve says:
To paraphrase another VC post, defending the ‘Al Qaeda 7′ is putting lipstick on a pig. Dress it up however you like and argue until the cows come home that they just did what attorneys do’ and so on... but at the end of the day you’re defending people who volunteered to work for free defending non-Americans accused of being terrorists and they did so knowing that their efforts would make us less safe.
They weren’t ordered to do so by their military commanders... they can’t claim they only did so in order to feed their families... they can’t say they were standing up for their fellow Americans in need of representation... there’s nothing noble about what they did and your collective efforts to excuse them is sad, sad, sad... at least to the public.
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March 10, 2010, 3:24 pmDilan Esper says:
If lawyers don’t agree, then that is too bad, but the word still has meaning.
Treason does have a meaning (levying war against the United States, or adhering to its enemies), that meaning is set out in the Constitution, and it doesn’t in any way mean what you think it means.
But then, what do I know? I’m a lawyer.
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March 10, 2010, 3:25 pmmetro11 says:
“treason” in the blogosphere is a far cry from DOJ memos actively pointing to your disbarment.
http://delong.typepad.com/the_torture_memo/2009/02/michael-isikoff-yoo-disbarment-proceedings-now-visible-on-the-horizon.html
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March 10, 2010, 3:28 pmpc says:
What about Padilla and Hamdi?
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March 10, 2010, 3:29 pmRoger says:
Yes, McCarthy and Jack concede that. But Hamdi and the Gitmo detainees have no such right. Orin and others have misstated the law.
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March 10, 2010, 3:29 pmAnonsters says:
Your trolling on this point is boring. Just saying.
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March 10, 2010, 3:31 pmSarcastro says:
Meaning handed down from high by the ever-certain of his omnecience Smarty! US law, the motivations of strangers, the definition of Constitutional terms, all are open to the amaaaazin Smarty!
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March 10, 2010, 3:33 pmmetro11 says:
anonster: you, no doubt, find boredom whenever you cannot respond with substance. it is probably easier.
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March 10, 2010, 3:34 pmzuch says:
The Constitution doesn’t require any litigation.
One of the issues being litigated was whether the detainees in question were in fact “terrorists” or just “the unpopular [or unfortunate] who are accused of crimes but presumed innocent” (a determination of which was something that the U.S. Supreme Court held was their right as of law). Absent such determination, which is what the lawyers were asking for, the presumption of innocence is a perfectly valid one.
Cheers,
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March 10, 2010, 3:34 pmOldEasterner says:
Does everybody see that the unintended consequence of making it more expensive to take non-uniformed enemy combatants as prisoners is that fewer will be taken prisoner?
Why would they wait for a surrender when they only have to call in an air-strike and move on?
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March 10, 2010, 3:36 pmAnonsters says:
No, there’s just no point in responding to someone who can’t tell the difference between lawyers doing pro bono work and lawyers providing cover for people to violate torture laws and advocating the unrestrained power of the president to do whatever he pleases, law be damned.
As it happens, I would have no beef with a lawyer who represented Yoo or Bybee in disbarment proceedings, whether paid or pro bono.
But I’m not expecting you to be able to distinguish those various situations, so I won’t bother with more substance.
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March 10, 2010, 3:38 pmBleh says:
Didn’t you know that liberals (and surely each of the Al Qaeda 7 must be a stereotypical liberal) have always been on the same political side as terrorists?
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March 10, 2010, 3:49 pmBleh says:
Some terrorists also tend to be anti-gay, pro-religion, anti-civil liberties, anti-Clinton, etc, etc... So now it becomes clear to me that ‘rightists’ must also sympathize with terrorists. Because all ‘rightists’ share those ideals, obviously. . . Seriously, I’m secretly on your ‘rightist’ mailing list, so I know these things. . .
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March 10, 2010, 3:52 pmAnderson says:
Orin and others have misstated the law.
Y’know, Prof. Kerr has cited case law; I’ve cited the Geneva Conventions and some case law.
What have *you* got? What has McCarthy got?
If you’re going to say that we’ve misstated the law, would you kindly state some law? Not wishes about the law, but actual law?
If you don’t have any citations, then perhaps you should consider the possibility that the people citing actual law are the ones who are correct on the matter?
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March 10, 2010, 3:52 pmzuch says:
Not exactly. The Ex parte Quirin prisoners were afforded a hearing on their habeas petition by the U.S. Supreme Court (but were denied the relief sought on the merits). And I’m willing to bet they didn’t argue their case pro se.
Cheers,
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March 10, 2010, 3:54 pmAnderson says:
As it happens, I would have no beef with a lawyer who represented Yoo or Bybee in disbarment proceedings, whether paid or pro bono.
Completely concur. I would rather represent Yoo myself than see him have no representation at all.
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March 10, 2010, 3:58 pmMark Field says:
From the opinion:
“The Government challenges each of [defendants’ arguments]. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President’s Proclamation undertakes in terms to deny such access to the class of persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners’ contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission.” Emphasis added.
Again, the original claim to which I responded was that these detainees were not even entitled to have the courts hear their cases. This was false under Quirin and it’s more false now after Hamdi.
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March 10, 2010, 3:58 pmpc says:
I know that conservatives hate big cities, but now you want to call in an air strike on Chicago O’Hare?
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March 10, 2010, 3:59 pmzuch says:
Yes. The Constitution clearly states what changes in time of war ... and it states that habeas relief automatically disappears ... oh, waitaminnit ... nevermind.
Cheers,
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March 10, 2010, 4:01 pmmetro11 says:
Anderson:
the Yoo criticism i’ve seen has primarily been about disclosing his legal advocacy and/or punishing him for engaging in that legal advocacy.
the AQ7 criticism i’ve seen has been primarily about disclosing their legal advocacy and/or punishing them for engaging in that legal advocacy.
of course, the merits of their positions have been criticized too. i will defer to Professor Kerr and Andrew McCarthy on that re: the AQ7: obviously bright people disagree about the merits.
what i’m addressing is this: if you are criticizing discussions about disclosing/punishing the AQ7’s legal advocacy — then your criticism is inconsistent if you fail, also, to criticize discussions about disclosing/punishing Yoo’s and Bybee’s legal advocacy.
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March 10, 2010, 4:01 pmAnderson says:
I know that conservatives hate big cities, but now you want to call in an air strike on Chicago O’Hare?
Blue states are harmful to the war effort.
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March 10, 2010, 4:03 pmKen Arromdee says:
In the case of John Adams we have further evidence which mitigates the “defends bad guys” evidence, namely, we know John Adams’ political sympathies and they’re not pro-British.
I assume that Royall’s political sympathies were known at the time and that they included opposition to Naziism, which would make his case similar. But even if they were not, that just means that there was evidence pointing to his guilt and he’s innocent anyway. Sometimes evidence points in the wrong direction; if it never did so it wouldn’t be evidence, it would be proof.
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March 10, 2010, 4:04 pmAnderson says:
[Metro 11, I’m not sure why you are pasting the same comments here and on Prof. Anderson’s thread, but I’ve responded to you there, and would rather not clot up this thread with parallel comments. Please look there if you are curious as to my response. Thanks!]
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March 10, 2010, 4:04 pmAnderson says:
Arromdee assumes the conclusion, i.e., that representing bad guys is evidence of sympathy with bad guys. (I believe someone pointed out his fallacy upthread.)
Given the obvious reasons for a loyal American to represent Gitmo inmates — major issues of Constitutional law! — there is no basis for Arromdee’s assumption, and thus, none for his conclusion.
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March 10, 2010, 4:07 pmzuch says:
Their request for a writ was denied. On the merits. After the Supreme Court had considered the case on the merits.
Cheers,
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March 10, 2010, 4:12 pmzuch says:
Typo there: “If you are a future Taliban supporter, yet have never risen up in arm against the United States, are you still an enemy or enemy combatant?”
Guess we have to lock up all those IslammmmooooFascist babies as well. And maybe sterilize the prospective mothers. Can’t be too sure, now....
Cheers,
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March 10, 2010, 4:18 pmjukeboxgrad says:
Orin, I think your excellent post contains an editing error, where you say the opposite of what you mean. It’s in a passage that is confusing because of a double negative.
You said this:
I think you meant to say something like this:
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March 10, 2010, 4:19 pmAnderson says:
Guys, I think Cboldt is right about Quirin, though the Court did pretty much analyze the merits of the habeas claim.
Maybe part of the confusion is from the odd procedural status:
In these causes motions for leave to file petitions for habeas corpus were presented to the United States District Court for the District of Columbia, which entered orders denying the motions. Motions for leave to file petitions for habeas corpus were then presented to this Court, and the merits of the applications were fully argued at the Special Term of Court convened on July 29, 1942. Counsel for petitioners subsequently filed a notice of appeal from the order of the District Court to the United States Court of Appeals for the District of Columbia, and they have perfected their appeals to that court. They have presented to this Court petitions for writs of certiorari before judgment of the United States Court of Appeals for the District of Columbia, pursuant to 28 U.S.C. 347( a), 28 U.S.C.A. 347(a). The petitions are granted. In accordance with the stipulation between counsel for petitioners and for the respondent, the papers filed and argument had in connection with the applications for leave to file petitions for habeas corpus are made applicable to the certiorari proceedings.
So the habeas papers were pretty much what the Court considered on the appeal, which is why the Court appears to discuss the merits but ends up denying leave to file the petitions?
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March 10, 2010, 4:19 pmzuch says:
Which is why they discussed the merits over the many pages of the opinion, nicht wahr?
Cheers,
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March 10, 2010, 4:22 pmAnonsters says:
And, um, weren’t the petitioners dead by the time the actual opinion was handed down?
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March 10, 2010, 4:22 pmzuch says:
News to me. Care to proffer a cite to such a decision?
Same for this claim.
Cheers,
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March 10, 2010, 4:25 pmzuch says:
All two of them? Kind of like the 41–59 Republican majority in the Senate, I guess....
Cheers,
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March 10, 2010, 4:29 pmzuch says:
Communism is not prohibited by the U.S. Constitution.
Cheers,
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March 10, 2010, 4:31 pmAnderson says:
And, um, weren’t the petitioners dead by the time the actual opinion was handed down?
Make that very unusual procedural status.
[T]he Supreme Court decided in the favor of the government, especially in the Nuremburg trial cases.
Ah yes, back when the Supreme Court of the United States sat at Nuremberg, Germany. Good times, man, good times.
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March 10, 2010, 4:31 pmAnonsters says:
Oh yeah? Give me a citation to a case proving it.
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March 10, 2010, 4:33 pmSonicfrog says:
Actually, he was a Republican. They didn’t call themselves Democrats until Andrew Jackson shed the Republican term in about 1824(ish).
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March 10, 2010, 4:40 pmzuch says:
No. Just insinuating that they be tried and hung as traitors.
Cheers,
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March 10, 2010, 4:40 pmSonicfrog says:
It couldn’t be prohibited, as it didn’t exist at the time the document was written.
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March 10, 2010, 4:46 pmRandomEngineer says:
While arguing about habeas petitions and counsel for Nazi saboteurs within the U.S., everyone seems to forget that the current enemy combatants in question have never set foot within the United States. There’s a reason they’re being held at Gitmo. What is unprecedented is the continued attempt (represented by the pro bono litigation) arguing to extend constitutional rights to non-U.S. persons outside of U.S. territory. That is what conservatives are pushing back against. The be-all and end-all of due process does not always mean review by an Article III judge. McCarthy has been making the case for a while (and I agree with him) that judges have no right second guessing executive war-making decisions outside of U.S. territory.
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March 10, 2010, 4:47 pmMark Field says:
Anderson (and cboldt), fair enough on the technical point. My broader point had to do with the fact that the Court in Quirin DID consider the merits, something the Bush Administration, like the government in Quirin, argued the courts could not/should not do.
True, but of course the Federalists did call Jefferson’s party “democratic”, intending an insult. As so often the case, the insult became the name (see, e.g., Protestant, Whig, Tory).
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March 10, 2010, 4:49 pmzuch says:
Yes. That was the ‘theory’ behind setting up the legal “black hole” of Gitmo (a place where the U.S. has complete jurisdiction [so that no other country’s courts could possibly get in the way] but does not have “sovereignty”). The U.S. Supreme Court rejected this ‘theory’.
Cheers,
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March 10, 2010, 4:51 pmAnonsters says:
You’ve lost this argument. Boumediene held that Gitmo is not beyond the Constitution. It’s time to move on.
Oh yeah? Give me a citation to a case proving it.
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March 10, 2010, 4:51 pmAnonsters says:
Jinx.
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March 10, 2010, 4:55 pmChris Travers says:
You presuppose a lot.
My mother’s uncle (the one who spent a lot of time fighting the Smith act prosecutions of Communists during the McCarthy era) later ended up donating a lot of time to the Seattle chapter of the Black Panthers. I understand some work there involved the Second Amendment.
Interestingly the only time I remember talking with him about the Second Amendment (a year or so before he passed on) was in the late 1990’s. The view he advocated was almost exactly along the lines of the majority in Heller. Had he still been alive during the Heller case, I would not have been surprised to see him involved in some way.
In his article McCarthy really comes across as pining for the good old days of the McCarthy era, where the government would launch politically motivated criminal prosecution of lawyers donating their time against what the government felt were government interests.
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March 10, 2010, 4:57 pmRandomEngineer says:
Yes, a more’s the pity. But it’s not like the Court has never been wrong before. I’m sure some of you guys think that about the recent corporate speech ruling. Boumediene may have required a basic habeas hearing, but it did not grant full constitutional rights as a U.S. person would have. So the entire Constitution does not actually apply at Gitmo, yet.
But this actually proves my point, and why McCarthy takes issue with. That the case was decided the way it was was a result of the pro bono lawyering. You may think the end result a good thing, but others disagree. Those held are not criminals in the common civil rights sense, where it is better that 9 guilty men go free so that 1 innocent man is not imprisoned unjustly. Yet many are bound and determined to apply that reasoning. It’s a straw man to argue that our civil liberties are somehow endangered by the circumstances at Gitmo. It’s special circumstances don’t translate to U.S. citizens or persons.
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March 10, 2010, 5:04 pmLouis Cyphre's Attorney says:
You are aware that if we really did have lynch law, you’d be hanging from a lamp pole, right about now?
How about cooling the overheated rhretoric? Or else, posting an address so we can make your accusation a reality? No? I didn’t think.
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March 10, 2010, 5:10 pmRandomEngineer says:
Not every speck of land on the globe is required to be in some national court’s jurisdiction. That’s just lawyer group-think. It’s also a non-sequitor to say that Gitmo is a legal black hole. Nice talking point. Even after these recent Supreme Court decisions, it’s Article I and II of the Constitution that are controlling there. There is law there, just not entirely what everyone agrees upon. Despite your lawyer mindset, not all rights and issues are adjudicable. The lack of an Article III avenue does not make a place a black hole.
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March 10, 2010, 5:14 pmpc says:
There were a couple other incidents where the executive was making a power grab that involved putting US citizens in a legal black hole; under the circumstances it shouldn’t be surprising that citizens who value the constitution and the rule of law decided to stand on principal and fight the government overreach.
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March 10, 2010, 5:16 pmSarcastro says:
And those successful pro-bono lawyers (as well as the Justices!) are traitoris horibilis under the law according to RandomEngineer.
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March 10, 2010, 5:16 pmzuch says:
You mean like voting? Imagine that. But the original claim was that such people had no rights.
Cheers,
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March 10, 2010, 5:17 pmChris Travers says:
My reading of Quirin was that for violations of the laws of war, anybody (citizen or not) could be tried by a military tribunal and that there was no guarantee to any trial by jury to any offence not recognized as requiring such a right under English common law at the time of the adoption of the Constitution. A lot of the analysis focused on the argument that we were dealing with a foreign power which was engaged in a formal war with the United States. The court was willing to grant jurisdiction to military tribunals for such a case in those circumstances.
It seems to me that our general jurisprudence regarding procedural guarantees has evolved in the area of criminal prosecutions so much in the last fifty years that Quirin is deeply eroded. We have moved from a sense that trials must not offend a basic sense of fairness to a more objective view of procedural safeguards, for example. With more emphasis on procedural safeguards, it is worth asking if Quirin is still a useful precedent regarding anything outside a true, formal declaration of war (not merely an AUMF).
Furthermore, I don’t think you can just look at the WWII cases in a vacuum. They substantially relegated ex parte Milligan to a historical footnote (while not overturning the ruling, essentially limiting it to its facts), and were in turn relegated to the same status by more recent cases. Furthermore, Quirin involved a formal declaration of war, not merely an authorization to use military force, so whatever applicability remains in it would seem to require that sort of instrument from Congress.
Unlike WWII, we are not engaged in a formal war against a formally defined enemy, or even informally at war against an enemy defined by Congress. We are informally at war, with permission of Congress, against an enemy solely defined by the executive branch, with no possibility of attaining any formal victory or end to the informal war. Consequently drawing parallels to WWII are just not helpful, and the cold-war-era issues regarding the Smith Act are much more appropriate comparisons.
Time was when we saw ourselves in a cold war against the Soviet Union, where merely distributing an English-language copy of the Communist Manifesto was evidence of criminal sedition bordering on treason. Yet we won that war, both against Communism and against Totalitarianism at home and our war-loot consists of a number of Supreme Court opinions which provide greater assurances of Freedom. Perhaps if we are lucky this will turn out the same way.
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March 10, 2010, 5:20 pmLee Kane says:
I’d like to make a motion. Godwin’s Law should apply to references to McCarthyism in this debate henceforth.
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March 10, 2010, 5:20 pmzuch says:
You might sit down and discuss that with Yaser Hamdi.
Cheers,
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March 10, 2010, 5:20 pmLouis Cyphre's Attorney says:
This has the effect of incentivizing enemies to become illegal combatants. This is exactly opposite of the goals of the Geneva Conventions, etc., which is to offer legitimate POWs greater protections as an inducement to following protocols of ware designed to reduce civilian casualties.
From a purely sociological perspective, there’s an argument to be made that its better to execute all the illegal combatants in as gruesome a manner as feasible, simply to perserve the incentives of fighting according to the GC.
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March 10, 2010, 5:21 pmChris Travers says:
the 4th Cirtuit’s opinion in the Padilla military detention case still stands.... So it’s not a straw man. It’s an argument based on existing jurisprudence.
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March 10, 2010, 5:21 pmzuch says:
Indeed. It’s a real neat trick for an authoritarian gummint to have some handy “law-free zone”.
Too bad the Supreme Court didn’t see it that way.
Cheers,
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March 10, 2010, 5:23 pmpc says:
Andrew or Joseph?
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March 10, 2010, 5:24 pmRandomEngineer says:
Nice ad hominem. Disagreeing with a Court ruling is equivalent to calling someone a traitor? You will find no such wording in any of my posts, and I was careful not to take a position on McCarthy’s traitor language.
I assumed the level of discourse at this respected blog would be better, but I guess I was wrong.
People can trade Supreme Court cases where they disagreed with the outcome and thought the result dangerous to the public good until the cows come home. For the collective good in the United States, there is often another recourse for government actions deemed undesirable. It’s called an election. So I reject the argument that if you can’t sue in federal court, there is no alternative to counteract government overreach. It’s funny, we had one (election), and yet much of the Gitmo policy is unchanged.
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March 10, 2010, 5:24 pmChris Travers says:
Yates v. United States?
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March 10, 2010, 5:25 pmLouis Cyphre's Attorney says:
I don’t think that argument is much of an obstacle with the portion of the public that supports the Bush-era policies on detainees. Many are already convinced that liberal judges are at least unintentionally aiding the enemy, if not actively treasonous. As such, they would be just as happy with tossing the judges, and a few justices as well, into the same bog with the lawyers.
If this is an appeal to authority, its badly misplaced.
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March 10, 2010, 5:26 pmhippo says:
Andy McCarthy wins this “debate” with Orin Kerr. It’s not even close.
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March 10, 2010, 5:28 pmRandomEngineer says:
And Hamdi’s different, because he’s a U.S. citizen. It’s not like it’s hard to develop a bright line there. U.S. citizens and persons have constitutional rights. I won’t defend everything the Bush administration has argued in court. Hamdi’s situation is analogous to anyone and everyone, so you’ll get no argument from me. It seems simple logic about where and when those constitutional rights apply for the standard I’m advocating.
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March 10, 2010, 5:31 pmSarcastro says:
[Sorry, RandomEngineer. I know you were arguing the law, though in rather declarative terms. The point was not that you think they are traitors but rather that many on this thread would throw folks into jail for disagreeing with your proposition.
I was using you to make a larger point about crazy people, if a bit of my anti-crazy got on ya, my apologies.]
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March 10, 2010, 5:31 pmAnderson says:
From a purely sociological perspective, there’s an argument to be made that its better to execute all the illegal combatants in as gruesome a manner as feasible, simply to perserve the incentives of fighting according to the GC.
I’m sorry, I don’t speak Trollish. Could you provide that in the original German?
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March 10, 2010, 5:32 pmLouis Cyphre's Attorney says:
There’s a larger point that everyone seems to be missing. The law serves the whims of the greater public, and is useless without its support.
If the law becomes widely perceived to aid the enemies of the country, in a way that dramatically impacts the public, it will be swept aside like a wet tissue.
There is a balancing act that must be played out, to preserve the niceties of legalism and due process and all that on one side, and to be seen as fufilling the societal goals of public safety on the other.
9/11 altered, at least for a while, the calculus. If another such effective terrorist act were to occur, and if were tied to any of the detainees liberated with the aid of legal profession, how well do you think those same members of the profession might fare at the hands of the public?
Its all fine and well to stand by your principles, but people should be careful that they are not walking the plank in doing so.
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March 10, 2010, 5:34 pm1040 says:
Few people ever are able to deal with, let alone, meet the expectations of forebears carrying their name. I am glad that Andrew has manfully and successfully stepped up to the challenge.
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March 10, 2010, 5:34 pmAlanmt says:
I hate to make sweeping generalizations. And yet . . . .
One would most likely have to be ignorant of the legal profession and blinded by ideology not to understand that while there may be many motivating factors for the pro bono attorneys, one of the most central and universal of these was respect for due process brought about by belief in the American system of justice and the principles on which it is based, added to a related abhorrence for the arbitrary governmental action, and especially torture, which frustrate and pervert justice and are the tools of ruthless ideologies and governments that are everything we try to rise above, and yet were being used by our government against these individuals.
Any reasonable person can see that part of the reason that these attorneys did what they did is because they love the United States.
If you cannot see that “Everyone deserves a lawyer” “everyone deserves due process” and “We’re Amercia, we don’t torture” are much more likely the guiding principles ot the pro bono attorneys than “I like Al Qaeda”, you’re a moron.
Name-calling isn’t constructive. Or courteous. But it is occasionally warranted, nonetheless. In my humble opinion, now is such a time.
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March 10, 2010, 5:35 pmRandomEngineer says:
No worries, I understand the point behind your post now.
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March 10, 2010, 5:37 pmAnderson says:
Andy McCarthy wins this “debate” with Orin Kerr. It’s not even close.
... So, no one is going to cite legal authority in favor of Mr. McCarthy’s position? Just declare him the “winner”?
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March 10, 2010, 5:40 pmAnonsters says:
Louis Cyphre’s Attorney aptly demonstrates why liberals were foolish to jump on the popular sovereignty bandwagon in constitutional theory.
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March 10, 2010, 5:41 pmdoodahman says:
Just because the gov’t, in collusion with the media, punditry and a host of nincompoops say this is a “war” and those captured (via bounty hunters, or seized far from a battlefield or active military operations) are “prisoners of war” doesn’t make it so.
Super or extra constitutional powers come into existence (in theory) in a state of war. To the extent that, theoretically, the state of war (like an “insurrection”)exists, it is supposed to be clearly defined and ensconced in legal procedure. Congress declares war. It declares it against a particular, identifiable, and immutable enemy (you can add to the list of countries, but we didn’t declare war against the Nazis– we declare war against Germany). Wars end in treaties, or in surrender of a political entity– all relatively clearly defined limits. Those limits are what makes the granting of extra constitutional powers acceptable and less likely to result in interminable tyranny.
But this is nothing like that. This “war” has no geographic or temporal bounds. There is no easily identifiable bright line ending point. To conflate a state of war with a campaign to stamp out a criminal tactic (terrorism) is to essentially render null and void constitutional limitations of all types, for all times. Isn’t that the suicide pact that the extra-constitutionalists are always whining about? Haven’t they euthanized the Bill of Rights once and for all?
If this is a “war”, then there is no difference with the “war” on drugs. Which, come to think of it, was probably the first exercrable slip on this slipperly slope that now finds apologists for torture getting a hearing on the tv as if they were discussing gardening tips.
I guess what makes this so obviously reprehensible is the fact that this position is not grounded on any rationale but on unreasoned, exaggerated fear, and not a little bit of an ingredient called “sadism.” Attacking lawyers is just another piece of the public discourse which now hosts a vast array of ideas and concepts that are nothing but fascism– everything but the name itself. Fascist “reasoning” and fascist concepts and fascist paradigms are now considered mainstream.
Which means, the battle against fascism is lost. It’s here, and it’s not going away because there is only one way to deal with fascists, as we learned in the period of 1936–1945. The question is whether there’s enough guts and honor left in the anti-fascist population to put up a good fight when the fight has to come.
Sic semper tyrannus, baby.
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March 10, 2010, 5:45 pmChris Travers says:
I agree here to a point, but not very far.
We have a system of Constitutional protections to avoid victimizing people at the whims of the greater public. Lori Drew is a good example of some of those protections in action. However, it is probably better to look at a few times in our nation’s history when laws were used far more to protect us from ourselves than they are now.
The first of course, being the McCarthy era and the Smith Act (which is still on the books, but greatly limited by Yates v. United States). The Smith Act followed your principle and made it a crime to advocate the moral rightiousness of overthrowing the US government by force (free speech protections were seen as helping the Communists). Eventually the court ended up having to face the fact that this was being used to punish what was seen to be an enemy ideology, and so in Yates v. United States, the courts ruled that the act was unconstitutional except when applied to individuals who were advocating, in context with their actions, specific steps to make this happen.
The court ruled in Yates that the Constitution demanded that advocating the moral necessity of violence against the state must not be criminalized. One would think that extending this protection to Communists would be a relief for right-to-rebellion NRA types (after all, “We have the second amendment because the people have a fundamental right to rebel” seems criminalized by the McCarthy-era interpretation of the Smith Act just as much as distributing the Communist Manifesto does), but many people think “this is bad. The communists won” without realizing that the same rule protects their own views as well.
The second case was during the Reagan-Bush years, when the federal government essentially declared an informal war on pornography. The typical approach was to file as many suits in as many jurisdictions as possible and force pornographers to sign away their Constitutional rights as part of the settlement process. This was effective for a time but eventually the court concluded that this was not legit and the tactic of multi-jurisdiction prosecutions came to an end. This wasn’t the only executive overreach of those years, but it is the one which was perhaps the greatest affront to our rule of law.
The law is more than the whim of the general public. It is the structure that we agree must be kept in place to allow the public to have their general wishes without trampling on minority viewpoints and liberties.
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March 10, 2010, 5:54 pmleo marvin says:
... or worse still, represent himself.
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March 10, 2010, 6:31 pmAnderson says:
... or worse still, represent himself
No, I would let him do that. I would love to see him defend the torture memos in oral argument ... sadist that I am.
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March 10, 2010, 6:36 pmOrin Kerr says:
... So, no one is going to cite legal authority in favor of Mr. McCarthy’s position? Just declare him the “winner”?
I believe that is correct (at least as to those who declare him the winner).
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March 10, 2010, 7:05 pmMark Field says:
Damn it’s hard to get Coke out of my keyboard.
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March 10, 2010, 7:14 pmzuch says:
My whole point was that this can happen even to citizens like Hamdi. He did get tossed in Gitmo. Had they thrown away the keys, and no one knew where he was or who might be holding him, he would have been SOL. Certainly he was in no position (physically ... or legally, according to your thinking) to file in court a petition for an evaluation of his status or even of his citizenship. When the Dubya maladministration was refusing ICRC visits and refusing to disclose who was in Gitmo, there was little recourse for him.
Cheers,
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March 10, 2010, 7:38 pmCrazyTrain says:
I don’t know why Orin bothers with this guy; I mean just because Andrew McCarthy starred in Weekend at Bernie’s does not mean he is qualified to opine on issues of this importance.
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March 10, 2010, 7:54 pmElliot says:
It’s possible for the American public to believe in the rule of law, yet disagree with the application, interpretation, or specific laws themselves.
We can observe significant disagreement in society as to whether foreigners attacking the country should have the same rights as US citizens. We can have that discussion while still maintaining and supporting rule of law.
However, should we decide specific aspects of the law are detrimental rather than beneficial, changing that law or advocating for a different interpretation does not imply a rejection of rule of law. We create the law.
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March 10, 2010, 7:54 pmJTHC75 says:
I think it might be extremly important to nail down EXACTLY what motivated these lawyers working at the DoJ to previously go out of their way to represent the detainees.
You’re kidding, right? Is there any credible evidence that these attorneys illegally assisted their clients a la Lynne Stewart? If not, asking about the mindset of these attorneys is asinine. Do you ask pro bono criminal defense attorneys “Do you approve of rape? Do you think murder should be legal?” I’m astounded that you graduated from law school and think that it’s legitimate to demand that an attorney defend himself against thoughtcrime.
Plenty of us conservatives still believe in the rule of law and basic principles of American justice. If we’re going to bring these alleged terrorists into a court of law to answer charges, they must have the right to counsel.
Yeah, it’s the law, and it’s a law that protects everyone, not just innocent people. It’s meant to protect us against a tyrannical government. I don’t recall any rule that “If we know they’re guilty, they don’t get lawyers.” I hate terrorists just as much as the next guy, but I would defend these people. I would also defend rapists, murderers, and the like. It’s not because I sympathize or approve of their actions, but because I believe in our Constitution.
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March 10, 2010, 8:22 pmArthur Kirkland says:
I believe Americans have not seen this much hostility toward efforts to help the innocent and vindicate constitutional rights since the ‘50s and ‘60s.
Some people probably have been itching for this chance for quite a while.
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March 10, 2010, 8:25 pmJTHC75 says:
It is only liberals and certain establishment lawyers who are attacking Liz Cheney. The broader group of conservatives and republicans, to the very limited extent they have even heard of this Beltway tempest, agrees generally with Liz Cheney and Andy McCarthy, not Orrin Kerr or the critics here.
So what? Winning a poll doesn’t make you correct.
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March 10, 2010, 8:28 pmChristopher Cooke says:
Crazy Train: I find Mr. McCarthy’s role in St. Elmo’s Fire to be the highlight of his career. His unrequited love for Ally Sheedy may explain his recent hostility and bitterness towards the world, as expressed in his increasingly bizarre and unhinged legal analysis.
Regardless, perhaps some of the lawyers might have represented the Gitmo detainees on a pro bono basis because they believe that everyone is entitled to present a defense and to be treated humanely by the US government, and not simply thrown down some rat hole, never to be seen again.
There is a long tradition in the legal profession of representing the despised and unpopular, especially when the full weight of the government is acting against someone. That is why John Adams’ representation of British soldiers is an apt comparison. Tim McVeigh’s lawyer, Stephen Jones, probably acted out of the same type of motivation.
True, some lawyers could have been secret Al Qaeda sympathizers, but my guess is that most lawyers from the big NY firms that represented the Gitmo detainees were not. And, I suppose, some lawyers could have been seeking to work on a high profile case, and wanted fame/glory, and others were avoiding having to work on more mundane civil cases that paid their firms’ bills. I don’t know their motives, but then neither does Mr. McCarthy or Liz Cheney, who assume the worst.
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March 10, 2010, 8:52 pmSoccer Hooligan says:
Well said, professor, thank you.
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March 10, 2010, 9:04 pmLouis Cyphre's Attorney says:
Of course there is such a rule. It’s applied all the time in war. Often the guilty get blown to bits by a JDAM or Hellfire. That is what differentiates war from civil proceedings.
Your statement only applies if you assume a priori that the allegedly guilty party is being handled by the civil system — which is the entire issue that is still open to being resolved: which people “apprehended” by U.S. forces get civil trials, and which get military treatment.
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March 10, 2010, 9:17 pmLouis Cyphre's Attorney says:
And there are a fair number of people who don’t extend such niceties to those who we judge to be beyond the pale. Even allowing that maybe not everyone in Gitmo meets the standard for human refuse, there are undoubtedly some whose hatred towards US forces and proven capacity for violence are such that the only acceptable options (to many) are the rat hole or a grave.
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March 10, 2010, 9:28 pmChris Travers says:
What about someone like Jose Padilla? Should he be allowed to be held indefinitely at a navy brig just because there are allegations of terrorist plans?
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March 10, 2010, 9:31 pmChris Travers says:
More’s the pity. Those who can but avoid doing so are shirking their patriotic duty more than any draft dodger in any declared war.
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March 10, 2010, 9:33 pmLouis Cyphre's Attorney says:
I’ll let you know in 2025, when Abdullah al-Muhajir gets out (assuming he isn’t out earlier for “good behavior”). What are the odds that he is “reformed” and no longer intent on killing as many Americans as he possibly can?
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March 10, 2010, 9:39 pmRicardo says:
It’s just like Orin Kerr to go ahead and bring facts and logic to the discussion. The reality is that whatever his prior career achievements may be, Andrew McCarthy is a second-rate GOP hack who is interested in cowardly attacks on lawyers in an attempt to gain partisan advantage.
He writes, “The fact that the Supreme Court has now unwisely permitted such lawsuits, under the rubric of habeas corpus, does not mean the prisoners filing them have a right to counsel. They don’t.” Aside from the fact that the courts have ruled that there is a right to counsel in some circumstances, McCarthy ought to at least have the courage to say what he thinks of the members of the Supreme Court who “unwisely” permitted legal challenges to detention. Are they traitors also? After all, they largely accepted the legal arguments made by the allegedly treasonous lawyers.
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March 10, 2010, 9:42 pmLouis Cyphre's Attorney says:
You comment is an exemplar of moral preening. Playing “catch and release” with terrorists out to kill Americans is paying for your principles with other people’s lives. Why not put the gun in your own mouth, if you feel that strongly about it?
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March 10, 2010, 9:45 pmElliot says:
OK. So what? That’s how politics works.
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March 10, 2010, 9:57 pmMark Field says:
Well yeah, because we’re raining Hellfires all over Chicago and Bosnia.
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March 10, 2010, 10:13 pmLouis Cyphre's Attorney says:
According to your link, the rights you list apply to “Protected Persons”. The link on the ICRC web site for the definition of “Protected Persons” leads here: Chapter II: Wounded, sick, and shipwrecked where I notice a list of qualifiers, such as:
I think that there are quite a number of people who think that the “detainees” don’t meet the qualifications listed above, and if they do not meet them, then they do not qualify for the perks.
Life as a a terrorist is a bitch.
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March 10, 2010, 10:39 pmLouis Cyphre's Attorney says:
Note to the web master (since I couldn’t find a link to same): The “Edit Comment” function sucks. The countdown timer refreshes the edit window, resetting it back to the top, and making it almost impossible to make the edit. Is it possible to correct this?
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March 10, 2010, 10:45 pmChris Travers says:
Nobody that I know of is advocating playing catch and release with terrorists. Nice straw man.
However, the basic question is this: You seem to think that it was potentially a mistake to give Jose Padilla a civilian trial. Here is a US citizen, apprehended in the US, accused of plotting terrorist activity. If the mere accusation is sufficient to hold him indefinitely, then you have a problem. See, talk is cheap, and accusations are just talk. It means that anybody could be held indefinitely anytime the President says he has decided it is necessary.
I don’t want to live in a country like that. If so, we might as well just install someone with a similar leadership style of Saddam and be done with it. A month worth of auto-accident deaths shouldn’t change that.
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March 10, 2010, 10:52 pmFloridan says:
Louis Cyphre’s Attorney: If another such effective terrorist act were to occur, and if were tied to any of the detainees liberated with the aid of legal profession . . .
I’m not sure that any terrorists have been released as a direct result of representation by the legal profession. On the other hand, the Bush-Cheney Administration did release a number of Gitmo detainees, some of whom have returned to their former terrorist ways.
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March 10, 2010, 10:55 pmAnderson says:
According to your link, the rights you list apply to “Protected Persons”. The link on the ICRC web site for the definition of “Protected Persons” leads here
You are misled. Common Article 3 applies to “all persons in enemy hands, without adverse distinction,” says the ICRC.
Had you read the text at the link I provided, you would have found that CA3 applies to:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ’ hors de combat ’ by sickness, wounds, detention, or any other cause
Those people are thus entitled to judicial guarantees recognized as indispensable by civilized peoples.
The “protected persons” you attempt to describe appear to be POW’s, who are entitled to protections beyond those of CA3.
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March 10, 2010, 10:57 pmAnderson says:
Ah. In fact, LCA was citing to “Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.”
I believe we sank al-Qaeda’s navy during the Cole incident?
... Re: the edit function, it could be improved, but I find that if I make an edit, wait a moment, force the edit window closed, and then refresh the page, the edit turns out to’ve gone through. It’s better than nothing.
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March 10, 2010, 11:01 pmLouis Cyphre's Attorney says:
Absolutely. But, I think there was more to it than just an accusation. al-Muhajir’s conviction surely proved that.
Look. Padilla is the difficult case. I grant you that. U.S. Citizen. Apprehended on U.S. soil. Conspiracy to commit an act rather than actually shooting at or killing someone. I understand the challenging of his status, and the reasons for it, and the need to clarify the powers of the state in those circumstances.
Its the pretense that everyone in Gitmo is an innocent sheepherder until proven otherwise in a court of law that I reject. And I get the impression that a lot of people are trying to go there.
To most “normal” people the question of where the laws of the state and the laws of war intersect is a difficult one. We want to protect against state abuse, but not tie “warfighters” down with Mirandizing the enemy or having to gather evidence from the battlefield (whatever that might actually be these days). Most of the comfortable definitions that we used in the past aren’t of much use in this “battle”, and it will take time to figure out new ones, and the mistakes along the way will probably hurt.
IMHO, I don’t think either side really has the high moral ground. I’m just tired of a lot of the sanctimony, and not above tossing a few sh*t bombs back, on occasion.
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March 10, 2010, 11:07 pmAnderson says:
Its the pretense that everyone in Gitmo is an innocent sheepherder until proven otherwise in a court of law that I reject.
Who has ever written such a thing? The problem is that many of the people there are probably guilty and dangerous, and others are neither, and we need to tell them apart. The whim of the Executive has not proved itself trustworthy in this regard.
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March 10, 2010, 11:18 pmLouis Cyphre's Attorney says:
I only went where the link you provided took me. So, it is always possible that I was inadvertently led astray.
It’s that “members of armed forces” part that I remember as disqualifying those who fight outside the protections offered by the GC. I readily agree that civilians and POWs have extensive protections, of which you listed a number.
Aren’t hostis humani generis (enemies of mankind), like pirates and terrorists, outside the protection of the GC? I thought that they weren’t covered by International Humanitarian Law, but only by the weaker provisions of International Human Rights Law.
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March 10, 2010, 11:19 pmChris Travers says:
Without a trial, you don’t know if it is just an accusation. Allowing the executive to detain people indefinitely on mere accusations means that they don’t have to have evidence that is particularly strong. That’s not an environment where a democratic or free republic can exist.
Also regarding folks at Gitmo, I think that we have to remember that there are several classes of individuals detained there. These include individuals captured during classical military activities. It’s fair to assume these individuals are properly detained absent proof to the contrary. But it has also included individuals who, for one reason or another ended up in US custody unrelated to direct military activity (folks such as Boumedine). The contours that the Supreme Court has carved out have (wisely, IMO) seemed to try to separate those two categories and afford relief primarily to the latter.
I personally think this line is the proper line. But if folks refused to donate effort into fighting for some due process considerations, such a line probably wouldn’t be drawn at all.
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March 10, 2010, 11:22 pmAnderson says:
LCA, the article applies to “persons taking no active part,” including — but not limited to — certain members of armed forces. It’s a grammar thing.
I do not know whether pirates are covered by the GC, but “terrorist” was a popular label applied by the Germans in WW2, and the GC were crafted to be inclusive. The commentary to CA3 is interesting and merits attention.
For instance, the ICRC saw through the arguments of those who think a Torture Act should specify what acts constitute torture:
However much care were taken in establishing a list of all the various forms of infliction, one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes.
Re: who is covered: The formula used (“without any adverse distinction founded on...”) is cumbersome. But in view of past atrocities the authors felt it desirable to enter into detail in order to leave no possible loophole.
Further, re: the object of CA3: it is concerned with persons, not as soldiers but as human beings, without regard to their uniform, their allegiance, their race, or their religious or other beliefs, without regard even to any obligations the authority on which they depend may have assumed in their name or in their behalf. Wounded or sick, they are entitled as such to the care and aid which the respect for human personality enjoins.
This language does not suggest exceptions for “unlawful combatants.”
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March 10, 2010, 11:29 pmChris Travers says:
BTW, that is why I see these individuals as doing a patriotic duty (folks donate effort on pro bono causes for a variety of reasons, some patriotic, some humanitarian, some perhaps for other reasons) for lawyers to push for such rights. I believe that as long as there is some balance in effort, the courts will struggle to do the right thing and will end up doing something reasonable. I may not always agree with the decisions (I would have preferred the Scalia/Stevens dissent in Hamdi to the plurality opinion), but at least those considerations make it into the court’s thinking.
If nobody is willing to fight for due process rights for someone like Boumedine or Padilla, or ask the more difficult questions to the court on behalf of other detainees, then our system of law suffers. If a certain class of accused is too hot to handle and cannot find legal representation, then we no longer can count on our nation remaining a nation of liberty and justice.
I am not saying that every Gitmo detainee should be freed. Some are clearly held properly for the duration of the conflict in Afghanistan. Others may also need to be tried on criminal charges. And the courts have not held otherwise. However the lines that are drawn in these battles by the courts are the ones which protect the freedom of each of us. Hence the patriotic duty.
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March 10, 2010, 11:40 pmAnderson says:
(I would have preferred the Scalia/Stevens dissent in Hamdi to the plurality opinion
Scalia was absolutely right. Treason is defined in the Constitution. If the feds are holding a U.S. citizen on grounds equivalent to treason, then charge him or release him. It’s not a magic crime with no boundaries.
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March 10, 2010, 11:42 pmshipwreckedcrew says:
Frankly, I don’t think it’s too far off the mark to say that the majority of the Supreme Court and lower courts that ruled in favor of detainees did commit treason.
The reason is that when Congress declares war, and the Executive executes war, they do so on behalf of all US citizens, all the States of the US, and all the governmental entities of the United States, including the Federal Judiciary. The Judiciary doesn’t get to sit on the sidelines as an honest broker or neutral observer during a war.
So, when the Court weighs in with rulings that benefit the enemy, then they have given aid and comfort to the enemy.
The remedy for an unwise wartime policy is at the ballot box. The remedy for an illegal wartime policy is impeachment.
The Judiciary should have stayed out of these issues altogether and denied the detainees their “lawfare” strategy.
War is messy. Rights are sometimes compromised and abused both intentionally and unintentionally.
Hell, sometimes people even die.
Kerr needs to get out of the Ivory Tower and into a courtroom a little more often.
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March 11, 2010, 12:31 amOrin Kerr says:
Louis Cyphre’s Attorney: I’m just tired of a lot of the sanctimony, and not above tossing a few sh*t bombs back, on occasion.
I was going to try to characterize your argument, but I see you have done it for me.
Shipwreckedcrew: Kerr needs to get out of the Ivory Tower and into a courtroom a little more often.
Oh, I agree– I was last in the courtroom in December, three full months ago, and I miss it already. But I was literally in the courtroom during Rasul, Hamdi, and Padilla — in a seat over by the side of the courtroom with the other law clerks.
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March 11, 2010, 1:40 amRoger says:
No, it is not. If these lawyers are incapable of explaining themselves, then they are not competent to be DoJ lawyers.
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March 11, 2010, 3:28 amRicardo says:
The Hamdi decision is interesting. I read it and got the sense that the case was really about whether Congress or the Supreme Court gets to define which Americans are enemy combatants — everyone seems to have rejected the notion that the President can do this unilaterally. According to Scalia, it’s Congress that gets to do it by suspending the writ of habeas corpus and giving the executive a free hand to indefinitely incarcerate certain classes of people. The suspension power is very broad and subject to little if any judicial oversight in Scalia’s view.
I think the majority compromised on the text of the Constitution in order to keep the ball in their court in future cases. Because under the majority opinion, it’s the Supreme Court rather than Congress that gets to decide the future policy on detaining American citizens as enemy combatants. I’m not a lawyer or a court-watcher at all — did other people get the above impression also?
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March 11, 2010, 3:49 amRicardo says:
Well, has anyone actually bothered to ask Jonathan Cedarbaum, Eric Columbus, Karl Thompson, Joseph Guerra, Tali Farhadian, Beth Brinkmann, Tony West, Neal Katyal or
Jennifer Daskal to explain themselves? I would imagine they are not authorized to speak to the press in an official capacity and are represented by the DOJ’s official communications officials instead. All I see is a bunch of speculation on what their true motives must have been by partisan hatchet-men like McCarthy, Kristol, and their apologists here.
As for Tony West, who was one of John Walker Lindh’s (probably paid) lawyers, he already did explain himself back in 2009 before being confirmed in his current position. He said he asked for assurance that Lindh had no role in planning or executing the attacks of September 11 (no one ever suggested he has) and that he personally did not take up arms against the U.S. (more controversial on this count but note that the Bush Administration did not succeed in prosecuting him for treason or any violent crime against an American citizen). Otherwise, West’s opinion was that Lindh deserves the same due process as any other American. That sounds right to me.
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March 11, 2010, 4:00 amshipwreckedcrew says:
Orin — some of us are in the courtroom nearly everyday, both at the trial court level, and less often at the appellate court level — and not as clerks sitting off to the side ready to return to our little debating circles behind closed doors.
In fact, I’ve got a little business due in San Fran tomorrow where I make a stand on behalf of a party.
But, I’ll just wait for you to respond to the issue I raised at some later time.
Is the Judiciary Branch part of the United States Government that is at war, or isn’t it? If it is, then justify it’s conduct.
As for your comments above, what bothers me is this belief that lawyers never have to respond in the court of public opinion for the professional choices they make. Don’t like criticism or being called names? Grow up.
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March 11, 2010, 4:09 amleo marvin says:
shipwreckedcrew,
I missed where it says the Constitution takes a vacation during war. If you said wartime exigencies entitle the Executive to some extra deference, the Supreme Court would probably agree. But exempting the Executive from judicial review any time we’re at war is the exception that swallows the rule of law. What about this country do you consider worth defending, and how sanguine are you it doesn’t rely on our system of checks and balances?
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March 11, 2010, 4:32 amshipwreckedcrew says:
leo marvin:
Where in the Constitution does it say that it’s protections apply to sworn enemies of the United States?
The protections of the Constitution and Bill of Rights inured to the benefit of the citizens that were to be ruled by the government established by the Constitution. I think the Framers would roll over in the graves if they had known that the way their work is being interpreted now would have meant that British soldiers captured during the War of 1812 had the right to mount habeas challenges to their detention while the war was ongoing.
The Executive is a CO-EQUAL branch of government — that is where the Court owed it’s deference. The Executive is not subservient to the Judiciary on matters of foreign policy or war-making. The exercise of its powers under Art. II, in the manner it deems appropriate, is not subject to judicial review. The checks on that authority are at the ballot box and impeachment — exactly as provided for in the text of the Constitution.
The Executive is not exempt from judicial review during war — except to the extent that review is sought for the manner in which it is conducting that war.
What is the limit on judicial review as you envinsion it? Down that path I see motions for injunctive relief to prevent airstrikes on particular targets, with ex parte TROs, and emergency applications for stays, appeals to appellate courts, blah, blah, blah.
Judicial review is judicial review. It’s only limit, in your world, seems to be the size of the brass balls of the district judge being asked to issue the order.
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March 11, 2010, 4:48 amRicardo says:
For citizens, there is “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.” The Fifth and Sixth Amendments spell out more clearly just what exactly is required to convict someone of any federal crime (including treason) and, along with the habeas suspension clause, also prohibit the indefinite detention of someone who is merely accused of a crime (including treason) unless Congress authorizes a suspension of habeas corpus in the event of an insurrection or rebellion.
As for non-citizens...
The point is that few if any British soldiers ever challenged their status as soldiers, exactly because being a uniformed soldier actually protects you. If you are a regular person found shooting at Americans, you will be put on trial for attempted murder and any number of other ordinary crimes. If you are a soldier, you get to go home once the conflict is over and you can expect better treatment during your imprisonment.
In a “conflict” with Al Qaeda that often involves people who don’t wear uniforms and deny their status as enemies, the situation presents genuine complications that aren’t easily answered by historical analogies. We do know, for instance, that Jefferson pushed for the repeal of the Alien and Sedition Acts which tried to track down and punish subversive foreign elements (especially spies and secret agents from France and Spain) within the U.S. and also didn’t see anything extraordinary in granting Aaron Burr a jury trial when he was accused of treason.
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March 11, 2010, 5:01 amRicardo says:
In fact, Chief Justice John Marshall ordered one enemy alien, an (alleged) civilian British subject named Thomas Williams, released pursuant to a writ of habeas corpus in 1812. So we know what at least one fairly important figure in early American jurisprudence thought of the question. Here’s an article. I think this deserves a bit more attention and research.
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March 11, 2010, 5:19 amAnderson says:
Good catch, Ricardo. Why did John Marshall hate America? He needed to get out of the ivory tower and learn the hard truth about war. If only he’d had experience comparable to Dick Cheney’s, he would’ve known that war is messy.
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March 11, 2010, 7:20 amSara says:
Also, a leading ratifier, adopting the Constitution and captain in the continental army during the revolution. So, he knew something of war, as well as the Constitution.
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March 11, 2010, 8:23 amSarcastro says:
Since the remedies are ballot box or impeachment are such a panacea against tyranny, I figure we should expand their use. Like how the other branches should defer to the executive about financial stuff, or health care! If the public doesn’t like it, there’s always ballot/impeachment!
I forsee no problem with giving the executive unlimited powers when waging wars — especially ones the executive starts himself! It’s like pulling yourself up by your own bootstraps, only at the end no one can stop you!!
Also, I’m pretty unhappy at the sanctimony and high-horse coming from people without my particular background. Only folks with my background can make good arguments. Furthermore, everyone else should stop looking down their nose at me, so I can look down my nose at them!
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March 11, 2010, 8:38 amepeeist says:
I totally agree that someone, lawyer or not, may honestly not believe there are Constitutional violations. But someone who DOES believe the U.S. Constitution has been violated, and for that reason defends a detainee pro bono, is doing so out of patriotism and to uphold the Constitution.
Of course, we can’t know the motivation of any particular lawyer, it might have been for ignoble reasons like publicity. Just like the motivations of certain media commentators...
Unless things have changed, when admitted as an attorney in New York State one swears an oath (or affirms) to uphold both the State and Federal Constitutions. I assume other states have similar requirements.
Any lawyer who took that oath seriously (joking aside, I know I did), and believed that the U.S. Constitution was being violated by treatment of a particular detainee (or more generally by the whole process) would, I think, be fulfilling that oath by doing pro bono work.
I believe similar reasoning (duty to uphold the U.S. Constitution) has been referred to by some JAG or former JAG lawyers critical of certain elements of the process.
On that note, are military lawyers assigned (by the government) to defend detainees “traitors”? Or is it, “just following orders” excuses one defending a detainee, but a civilian upholding the Constitution is a “traitor”?!
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March 11, 2010, 10:00 amKen Arromdee says:
You’re acting as though “evidence” and “proof” are the same thing. They’re not. That someone goes out of their way to support a bad guy (or accused bad guy), who has sympathizers, is evidence that makes it more likely he sympathizes with them. This should be noncontroversial. If I say that having your fingerprints on a murder weapon is evidence that you committed murder, it’s not really on point to say that I’m assuming a conclusion. Obviously you can come up with scenarios where your prints are on the weapon and you’re innocent, and I haven’t ruled out those scenarios, but that doesn’t make it not evidence.
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March 11, 2010, 10:10 amAnderson says:
You’re acting as though “evidence” and “proof” are the same thing.
Nope. (Though evidence is, by definition, probative.)
That someone goes out of their way to support a bad guy (or accused bad guy), who has sympathizers, is evidence that makes it more likely he sympathizes with them. This should be noncontroversial.
Nope. You’re mistaken, in the present context. Part of your error derives from your eliding “representing a (potentially) bad guy in court” to “supporting a bad guy (or accused bad guy).” Representing someone in court is NOT “supporting” that person.
You have had that explained to you many times in this thread, and you do not appear to have grasped it yet. Attorneys who represent murderers, rapists, KKK members, Nazis, torture lawyers, whoever, do NOT thereby “support” those clients.
Even on the civil side, I have some clients of whom I take a dim view and who I believe deserve to lose. But I represent them, so I stand in their place in court and I argue for them the best I possibly can, because I am a professional and that is what I am pledged to do.
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March 11, 2010, 10:23 amAnderson says:
Oh, and someone said that the lawyers for these accused terrorists need to speak up and explain themselves? Well, one of them has confessed to everything:
Maddow: Lt. Col. David Frakt is a JAG officer in the U.S. Air Force Reserve and a law professor in California. Professor Frakt, welcome back to the program.
Frakt: Happy to be here, Rachel.
Maddow: Is it true that you’re a terrorist sympathizer?
Frakt: Yes, Rachel. That’s why, in 2008, I volunteered to represent detainees at Guantánamo. The chance to actually be a U.S. government-paid spokesperson for al-Qaida under the guise of “promoting fairness, justice and the rule of law” was just too delicious an opportunity to pass up. I figured the military commissions at Guantánamo would be the perfect soapbox for me to espouse my terrorist ideology.
As Col. Frakt goes on to admit, however, the experience was disappointing from his terror-supporting perspective.
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March 11, 2010, 10:26 amKen Arromdee says:
Bleh: Some terrorists also tend to be anti-gay, pro-religion, anti-civil liberties, anti-Clinton, etc, etc... So now it becomes clear to me that ‘rightists’ must also sympathize with terrorists.
The difference is that
1) There are a number of actual cases of leftists expressing sympathy with terrorists because of those shared positions. Heck, it’s trendy. Rightists doing so is much rarer.
2) Some of the right-wing-like positions of terrorists come with details that right-wingers hate. For instance, while they are pro-religion, the fact that the religion is Islam repels the right more than the fact that it’s religion at all attracts them.
3) The left-wing-like positions of terrorists are far more directly associated with their terrorism than their right-wing-like positions (except the religion, and that falls under #2). You don’t see anyone sending out suicide bombers in order to get us to stop gay marriage.
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March 11, 2010, 10:26 amSarcastro says:
[You are assuming that defending someone in court is evidence of support for them. Furthermore, you argue that without rebutting evidence, the evidence is dispositive.
Your comparison to fingerprints on a murder weapon overstates the situation immensely. A better analogy would be owning a gun. Sure, it makes it marginally more likely you’ll shoot someone, but it’s hardly evidence you want to.
Plus the fact that you’re talking about lawyer’s attitudes, not actions. Until we punish future crime, the analogy to evidence of a crime breaks down there too.]
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March 11, 2010, 10:32 amAlanmt says:
Ken, at best the idea that a pro bono defense attorney sympathizes with a client’s criminal acts or ideology is a presumption, and a rebuttable one at that. This is the weakest form of evidence there is, and the most to be distrusted.
In this case, it is not a reasonable presumption, because it is pretty clear that, setting aside ambition and the desire to work on new, unique and controversial legal issues that are highly publicized (which, even if not altruistic, is certainly not evidence of Al Qaeda sympathies), it is clear that the impetus for the provision of the pro bono services had to do with the attorneys’ belief in the application of American principles of justice, including due process, to everyone, and that they viewed the Guantanamo situation as a dangerous and unAmerican exercise of executive power.
You don’t have to agree that they were right. But their pro-America motivations were pretty transparent.
That’s why I don’t get your continued insistence that there ought to be further scrutiny of their motives.
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March 11, 2010, 10:33 amKen Arromdee says:
That’s a semantic problem. If you don’t like my use of the word “support”, replace it. For an attorney to do it, whatever word you use, to people suspected of unusual and politically charged types of crimes, is evidence of sympathy. The fact that you can point to attorneys who do it and don’t sympathize with them doesn’t mean this is false, it just means that the evidence isn’t definitive and can be contradicted by other evidence.
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March 11, 2010, 10:34 amSarcastro says:
[Why? Because you say so? We’ve given you lots of other possible motivations. So many, in fact, that to call representing someone evidence of any particular motivation seems a stretch.
At some point the additional likelihood of sympathy becomes so small as to not be probative at all. Then it’s not evidence, it’s a waste of time
FRE 403, buddy.]
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March 11, 2010, 10:48 amAnderson says:
semantics, plural n. — the branch of linguistics and logic concerned with meaning.
Given that Mr. Arromdee thinks X means Y, and most everyone else thinks X does not mean Y, I agree that this is indeed a “semantic problem.”
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March 11, 2010, 11:12 amElliot says:
Of course that’s all you see. That’s because this is a political issue. That’s what we do. Watch a congressional hearing. See any speculation, hatchet men, or partisans? Watch Ann Coulter, James Carville, Richard Durbin, Ron Paul, Bernie Sanders, or Jon Kyl.
Does anyone think lawyers should get better treatment than anyone else? In this case, Cheney won. The term “Al-Queda-7″ has won the day and trumps any counter argument. That term is what will stick in the minds of the public. Think this is a court of law or a siminar?
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March 11, 2010, 11:28 amzuch says:
Prof. Kerr: From the nature of his ‘arguments’ here, I’m suspecting that Shipwreckedcrew’s major vantage point in courtrooms has been ... well, ‘dockside’.
Sorry, couldn’t resist. ;-)
Cheers,
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March 11, 2010, 11:34 amzuch says:
The executive is clearly “subservient” to Congress on “war-making” (despite recent history), as Congress has plenary power to declare war.
Do you really think that “separation of powers” means it’s some kind of ‘free-for-all’ where everyone gets to do their own thing and ignore the other branches when they want? Why bother writing a Constitution if this is the case?
Why is this true of supposed “war-making” powers and not others? Where do you find this ‘exception’ in the Constitution (which was the question Leo Marvin asked)?
Cheers,
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March 11, 2010, 11:43 amzuch says:
Lt. Col. Frakt needs to be careful. The RW slime machine is known not only to be sarcasm-impaired, but also to lift quotes out of context in order to paint false pictures regularly.
Cheers,
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March 11, 2010, 11:55 amzuch says:
Well, not suicide bombers. Eric Rudolph wasn’t that brave.
Cheers,
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March 11, 2010, 11:58 amdoodahman says:
Man, what a lot of horseshit on this thread. Do any of you realize that the vast majority of Guantanamo detainees were nothing close to being terrorists? Did that little tidbit get through any of your noggins? And is not that little fact the key foundation for why we need due process and lawyers to enforce it? And then, why such lawyers should not be chilled or otherwise intimidated from performing their Consitutional function? It’s no goddamn wonder why the exercrable Cheneys want to punish lawyers defending detainees– they put the lie to the accusations against them and thus completely destroy the rationales the Cheney types use for their extra-constitutional exercises of power. Justifications for such detention become laughable when 80–80% of the detainees aren’t the “worst of the worst” but in fact innocent people caught up in a big game.
My god, if this is the quality of thinking among law school grads, no wonder this country is going down the shitter.
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March 11, 2010, 12:27 pmAnderson says:
My god, if this is the quality of thinking among law school grads ...
Can’t say you’re wrong there.
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March 11, 2010, 12:54 pmBrian B says:
–Elliot, if the American public doesn’t believe in the rule of law, then we have bigger problems than Liz Cheney.–
Perhaps it’s the rule of lawyers not the rule of law we don’t believe in.
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March 11, 2010, 1:08 pmChris Travers says:
It’s called the suspension clause, and Congress has to invoke it :-)
What’s troublesome here also is that Congress didn’t declare war. Congress didn’t even provide an authorization to use force against a specific enemy. Rather they gave the executive a blank check to engage in military activity against unnamed enemies. If that’s an invocation of the suspension clause, then we are in real trouble.
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March 11, 2010, 1:14 pmChris Travers says:
I think you are making an error of category here. Let’s accept the following points:
1) There is a difference between accusation and trial. Without trial there is no way of validating accusation. So if someone is accused of, say, rape, that in no way is sufficient to result in a long prison sentence.
2) Access to the courts is important because it tries (pardon the pun) whether the accusations are valid. In the absence of a right to trial for those who are accused of being sworn enemies of the US, then anyone can be detained indefinitely for any real reason as long as the magic words are uttered.
Now, let’s agree on some more points:
1) Enemy combatants in a discrete military conflict can be held for the duration of that conflict. So until fighting stops in Afghanistan, those captured on the battlefield can be held.
2) Those who have committed serious crimes against our country can also be put on trial.
Now, let’s ask the questions that have come before the court:
1) If a US citizen is captured on the battlefield, what are the options in detention?
2) If a foreign citizen is, say, turned in to a US embassy in, say, Bosnia, can that person be detained indefinitely as an enemy combatant?
3) If a US citizen is detained domestically in connection with alleged terrorist activity, what are the detention options?
4) If a legal resident alien of this country is detained domestically in connection with alleged terrorist activity, what are the detention options?
I personally think the courts, while I don’t always agree with them at times, have attempted to address these questions reasonably.
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March 11, 2010, 1:29 pmJohn says:
I have to agree with you there, thank you doodahman for such a shining (or is steaming a better adjective) example of such.
1)The lawyers in question were NOT the sole legal representatives for the detainees. They all had JAG lawyers to represent them.
2)Vast majority? Those who got to Gitmo were mostly terrorists (witness how many once released when BACK to the battlefield).
3)Eric Holder, withheld his OWN involvment in Padillia case, where he wasn’t the main lawyer but filed a brief in support of a position that amazingly enough matches his reasons for Mirandizing the Christmas Day Crotch bomber!
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March 11, 2010, 1:49 pmRoger says:
These are lawyers. They ought to know how to speak up. Or do they only speak up when there is a terrorist to defend?
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March 11, 2010, 1:57 pmGizmo says:
Our godawful corporate media is a big part of the problem here. There is no reason a non-entity like Liz Cheney should be afforded a platform from which to spout her nonsense.
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March 11, 2010, 2:00 pmSteverino says:
The don’t know if the courts are guilty of treason. I don’t know what they’re guilty of. I do know they are guilty.
In order to cooperate with the “Gitmo 7″ bar and create rights for terrorists when none exist, the courts had to pervert the Geneva convention.
One doesn’t have to be an attorney to know the purpose of the Hague convention. The Hague convention exists to limit the burden and suffering of warfare on non-combatants.
The Geneva convention exists to provide better treatment to those who adhere to the Hague convention, when such individuals fall into the hands of their opponents.
The Geneve convention most certainly does not exist to protect individuals regardless of their conduct.
Yet that is how the USSC has seen fit to apply it.
Now, as I understand the Constitution, the President negotiates and signs treaties. The Senate ratifies treaties.
Where does the Constitution say that later on, the USSC gets to tell the Executive and Legislative branches what the hell the document they thought they were negotiating and ratifying actually means?
Because that is what is going on.
Treaties exist to obligate nations to fulfill certain duties to each other. No court should be tolerated if it arrogates itself the right to re-define a nation’s obligations to be the exact opposite of what it’s fellow nations thought was being contracted.
I.E. if other nations, and this nation, thought it was denying the protection of the Geneva convention to those who spit on the Hague convention, by what right does the USSC reverse that and grant Geneva convention protections to those who spit on the Hague convention.
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March 11, 2010, 2:03 pmSarcastro says:
1)The lawyers in question were NOT the sole legal representatives for the detainees. They all had JAG lawyers to represent them.
Totally true, if you say so!!
2)Vast majority? Those who got to Gitmo were mostly terrorists (witness how many once released when BACK to the battlefield).
You mean the 20%? I guess the other 80 are just biding their time! And a group of mostly guilty folks can just be treated as guilty without a trial, I say!
3)Eric Holder, withheld his OWN involvment in Padillia case, where he wasn’t the main lawyer but filed a brief in support of a position that amazingly enough matches his reasons for Mirandizing the Christmas Day Crotch bomber!
Glad you read the news, but the relevance of this re: AQ 7...
I would also like to reiterate Elliots’s argument that Cheney has won, so we should all stop complaining and go home. Because being derided by your own side is a kind of victory
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March 11, 2010, 2:07 pmSarcastro says:
[“The judicial Power of the United States, shall be vested in one supreme Court...” –US Constutition, Article 3.
judicial power means interpreting the laws Congress passes.
Sorry you think they are wrong. But to say the Supreme Court is guilty, cause you think they are wrong bespeaks a hubris Creon would admire.
Not that you don’t have lots of company in the ‘selected not elected’ crowd. Enjoy that, I guess.]
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March 11, 2010, 2:12 pmSocraticsilence says:
“Again, they may not have complete sympathy in the sense of wanting to go to Afghanistan and shoot Americans, but terrorists nowadays tend to be anti-West, anti-Israel, anti-imperialism, pro-Palestinian, anti-Bush, etc. and this leads leftists to sympathize with them. It’s not as diametrically opposed as Jews defending Nazis.”
They also tend to be highly devout, abhor homosexuality and geniunely hold a deep belief in traditional roles for women,and the importance of religion in shaping public policy — does that mean that they are viewed sympathetically by the Religious Right?
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March 11, 2010, 2:16 pmdoodahman says:
Disagree as to your characterization of the detainees as “mostly” terrorists. Out of the total Guantanamo population of 779, 68 percent were initially found to be completely innocent of all charges and decidedly not terrorists, and among the remaining 248 super dangerous terrorist masterminds, 85 percent so far have been found to be completely innocent of all charges and decidedly not terrorists and ordered released. This is not even including the 17 we already knew were innocent for years and falsely classified among this group and subsequently released.
As for recidivism, two points. First, the numbers cited in the news are uncorroborated, unevidenced statements by anonymous gov’t hacks. It was discovered that the number included anyone who, subsequent to their baseless imprisonment and torture spoke out against the detention policy and nothing more. And I got some new for ya: you take an innocent man, beat him, hood him and lock him in a cage for five or seven years, there’s a damn good chance he might take umbrage and want to do in a few good men out of good, ol’ fashioned revenge.
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March 11, 2010, 2:29 pmAnderson says:
Eric Holder, withheld his OWN involvment in Padilla case
...? “Withheld” how? It was a matter of public record.
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March 11, 2010, 2:49 pmSarcastro says:
[Apparently he didn’t mention it when asked during his confirmation. Talk radio is trying to ramp this up, but I’m not feeling it has legs myself. Time will tell]
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March 11, 2010, 3:07 pmMichael B says:
Even the very term, pro bono — short for pro bono publico (literally, for good or for the public good) — is a misnomer and arrogation on the part of the too often self-admiring attorney and legal class.
Whether or not any specific representation of defendants is “for the public good” can be open to question and debate, that the services are rendered free of charge is the only thing that is known, and even that “free” aspect is sometimes diluted.
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March 11, 2010, 3:12 pmAnderson says:
Thanks, Sarcastro. I find it difficult to believe that anyone on the judiciary committee who cared was so clueless as not to know that Holder had signed that brief (and who knows, perhaps even read it). What is opposition research for?
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March 11, 2010, 3:21 pmMichael B says:
“... because he [Adams] agreed to represent the soldiers out of a personal conviction that no person should face a trial without counsel.” Orin Kerr
Provide a citation, Orin.
Indeed and in fact, it was because Adams regarded the accused British soldiers as innocent, and they were in fact found innocent.
Not the same thing in the current cases, most notably and most publically, the recent 9/11 related case that now appears to be headed back to a military tribunal, wherein Holder, Biden and others explicitly indicated, before any trial, “don’t worry, he’s guilty and will be found guilty.”
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March 11, 2010, 3:21 pmzuch says:
No. In fact, one of the things that the Dubya maladministration resisted strongly initially was to even allow them to have lawyers of any kind. Access to lawyers was one of the things being litigated.
Even the “14%” figure is questionable.
And it begs the question: Even if they now have sufficient animus against the U.S. (or whoever) to take up cause against them, were they previously actually combatants? If they were, why did the Dubya maladministration release them?
Cheers,
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March 11, 2010, 3:27 pmMatt Martin says:
doodahman at 3/10 5:45 and 3/11 12:27 makes more sense than all the other commenters on this thread put together.
In particular:
“Just because the gov’t, in collusion with the media, punditry and a host of nincompoops say this is a “war” and those captured (via bounty hunters, or seized far from a battlefield or active military operations) are “prisoners of war” doesn’t make it so.
“Super or extra constitutional powers come into existence (in theory) in a state of war. To the extent that, theoretically, the state of war (like an “insurrection”)exists, it is supposed to be clearly defined and ensconced in legal procedure. Congress declares war. It declares it against a particular, identifiable, and immutable enemy (you can add to the list of countries, but we didn’t declare war against the Nazis– we declare war against Germany). Wars end in treaties, or in surrender of a political entity– all relatively clearly defined limits. Those limits are what makes the granting of extra constitutional powers acceptable and less likely to result in interminable tyranny.
“But this is nothing like that. This “war” has no geographic or temporal bounds. There is no easily identifiable bright line ending point. To conflate a state of war with a campaign to stamp out a criminal tactic (terrorism) is to essentially render null and void constitutional limitations of all types, for all times. Isn’t that the suicide pact that the extra-constitutionalists are always whining about? Haven’t they euthanized the Bill of Rights once and for all?”
I couldn’t agree more.
And as to those here who make the claim that basic due process should be denied to non-US citizens, perhaps you might consider these words: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” All men, by which is meant all human beings. All. Not just members of a polity not even existing when those words were written.
And as for those who insist on conflating “people accused of terrorism by a demonstrably fallible executive” with “terrorists”, fuck you.
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March 11, 2010, 3:27 pmRandomEngineer says:
Sigh. The recividist Yemenis that were recently involved in bad things were released under the Bush administration. The Obama administration subsequently stopped releasing any more Yemenis. If Obama is the savior of civil rights, how come he hasn’t done your math and released all these supposed innocents? I can’t say there are not still some innocents there, but the problem is how to figure that out. But isn’t that the whole difficulty in closing Gitmo? (And yes, I know some are still there because we don’t have a place to release them to that won’t violate their human rights. Ironic.)
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March 11, 2010, 3:44 pmBarry says:
An awe-inspiring — no, a gorge-raising example of Not Understanding America.
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March 11, 2010, 3:47 pmRandomEngineer says:
And your authoritative source for this is what, exactly? Nobody has been waterboarded since 2003. I don’t recall any investigations of beatings. Surely the Red Cross would have been all over this. As far as I know, they don’t get hooded in the camp, only for transport. Maybe you are confusing Gitmo with Abu Graib? There are plenty of Americans in U.S. prisons who claim to be innocent, but that doesn’t make it so, either.
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March 11, 2010, 3:50 pmBarry says:
Please note that the position of the Bush-Cheney cabal has been that anybody they detain is *not* a POW, but a, well, ... ah, ‘terrorist’, in a ..... well, not a war, except as they say it is.
Therefore, they don’t have POW rights, but also don’t get to contest their imprisonment in court. Basically, they are held purely at the will of the executive.
Now, for some people this is a good thing; this group seems to include the majority of Volokh commenters. But to others, call them ‘Americans’, it’s a bad thing.
OTOH, I’d have really, really enjoyed helping to roll up Operation Rescue with mobile waterboarding vans after Scott Roeder was captured (and made a full confession, in particular linking anti-abortion terrorism with Al Qaeda). It’d have been great, and I’ll bet that the right would have learned some lessons after that.
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March 11, 2010, 3:55 pmzuch says:
FWIW, hooding was one “enhanced interrogation” technique used.
Cheers,
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March 11, 2010, 4:04 pmleo marvin says:
Yes, because the common sense meaning of “I guarantee victory” is that it’s a promise indicative of a precontrived sham. It isn’t just a confident prediction. (Everybody knows Super Bowl III was fixed!) The problem with Obama’s conspiracies is that he’s such a blabbermouth. At least Bush knew to keep his mouth shut about 9/11.
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March 11, 2010, 4:06 pmzuch says:
Neither do I. Funny, though, because.....
Cheers,
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March 11, 2010, 4:08 pmMark Field says:
And your authoritative source for this is what, exactly?
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March 11, 2010, 4:09 pmRandomEngineer says:
Fair enough on the hoods. Don’t see beatings on that list. I don’t want to contribute to a further digression on what constitutes torture. But in this discussion, honesty is needed about what went on at Gitmo, and when.
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March 11, 2010, 4:12 pmRandomEngineer says:
And yours to the contrary is, exactly? Maybe we can’t be sure hoods were used, if reports are unreliable. I seem to recall all those news stories about the 108(?) waterboarding incidents in 2003 (which inflate the numbers because it includes merely water being used, but not necessarily waterboarding). If I’m truly wrong about that date, I’ll be happy to concede and retract. But if the baseline is that the evil Cheney-Bush administration is lying to us, that they went beyond even what the evil John Yoo memos said was legal, then I guess we can’t be sure of anything before Jan. 20, 2009, and we have nothing else to discuss. And maybe some AQ types have been secreted to area 51 to use the alien mind probe on them.
Troll away...
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March 11, 2010, 4:20 pmjukeboxgrad says:
ken:
Finding “rightists … expressing sympathy with terrorists” is not rare at all. Let us know how many conservatives criticized Palin for giving moral support to terrorism. And plenty of other examples of “rightists … expressing sympathy with terrorists” can be found via here.
============
elliot:
Rarely do Republicans explicitly admit that they view ‘winning’ (however they define that) as being more important than behaving honorably. So thanks for being so candid.
============
brian:
If you have figured out how to have the rule of law without having lawyers, you should share your bright idea with the rest of us.
============
john:
You are regurgitating a false claim that Stewart Baker made recently. He was forced to retract it.
Wrong.
============
steverino:
As Anderson already explained, GC CA3 covers everyone, “regardless of their conduct.”
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March 11, 2010, 4:29 pmdoodahman says:
Ah, actually, the Red Cross [http://www.washingtonpost.com/wp-dyn/articles/A21262-2004Nov30.html] found this:
“The International Committee of the Red Cross found “cruel, inhumane and degrading” treatment of detainees at the U.S. military prison in Guantanamo Bay, Cuba, during inspections there last summer, and issued a formal report in July that said some interrogation tactics come close to torture, a source who has seen portions of the report said yesterday.
The human rights group decried tactics used on some detainees — including severe temperatures, loud music and other sounds, the sharing of medical information with interrogators, and forced nudity — that it said violate international rules against torture adopted by the United States and other countries.”
Not to mention the fact that most of these detainees were originally held in places like Bagram where unspeakable human rights and Geneva Convention abuses took place. Are you seriously contending that these people, taken from their homes and families and subjected to this treatment, have no reason to feel a grudge? Really? How embarrassing for you to base your argument on “Cognito Ignoramus Ergo Sum.”
Yes, plenty of people in prison insist they are innocent. As we have learned through Project Innocence, many are. But at least they all got trials with some measure of due process. You act like a person handed over by some asshole warlord for a bounty must be guilty, when any civilized person wouldn’t accept that as a logical starting point whatsoever.
You are an example really, of how degenerate, fascist thinking has creeped into the mainstream. Twenty or thirty years ago, nobody would ever talk to you again for saying such stupid shit.
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March 11, 2010, 4:43 pmKen Arromdee says:
It’s a semantic problem because you think that what I said has something to do with whether I think lawyers defending terrorists “support” them. My point is related to the activity, not the terminology; if in fact you’re correct and the word “support” is inaccurate, that makes no difference whatsoever.
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March 11, 2010, 4:44 pmJohn says:
1) As to Palin, refusing to label someone a terrorist is NOT the same thing as sympathizing with them. Lots of people do bad and even evil things, Rudolph included, and are NOT terrorists.
2)Your links supporting your claims about retraction of the Gitmo folks having JAG lawyers don’t support your claim.
3) I was certainly sloppy in calling them terrorists, more correctly they were illegal enemy combatants or certainly enemy combatants.
4) The Geneva Convention does indeed impose conduct restrictions on those it would extend protections to. That is one of the reasons for extending the protections as a reward for behaving in the proscribed manner.
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March 11, 2010, 4:53 pmjukeboxgrad says:
random:
The CIA IG report is here (pdf, 5/7/04). Notice paragraph 261 (p. 108). It appears in a section called “Conclusions:”
(Emphasis added.) Are you really this ignorant about important, basic facts, or you highly dishonest? Or both? Either way, it’s hard to understand why you would expect to be taken seriously.
Speaking of ignorance. The paragraph I just cited (along with other similar statements in that document and other documents) does indeed establish “that they went beyond even what the evil John Yoo memos said was legal.”
On the contrary. We have established, via the OLC memos and the CIA IG report, a minimum understanding of what CIA did, with OLC support. And that minimum unquestionably crosses the line into torture. And there is good reason to believe that CIA went beyond the minimum that has been established. Let me know if they ever find those missing videos. I think they went to the same place as Yoo’s emails.
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March 11, 2010, 5:05 pmjukeboxgrad says:
john:
According to the FBI definition (as found in Code of Federal Regulations, Title 28, section 0.85), “Terrorism includes the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”
Feel free to explain how Rudolph and the other anti-abortion terrorists fail to meet that definition.
And feel free to explain why Michelle Malkin posted an article describing Rudolph as a terrorist.
And then you can explain why Palin’s refusal to call Rudolph a terrorist should be seen as something other than moral support for terrorism.
Baker said this:
You said this:
Feel free to explain why Baker said “the detainees didn’t — by and large — have counsel for their habeas petitions” if “they all had JAG lawyers to represent them.”
Wrong. They were allegedly “illegal enemy combatants or … enemy combatants.” But it’s nice to know that you assume that every statement issued by the government must be true. Because that’s the essence of conservatism, right?
Your brazen willingness to repeat outright falsehoods even after they’ve been shown to be falsehoods is quite spectacular, even for here. And that’s saying a lot.
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March 11, 2010, 5:32 pmjukeboxgrad says:
As I have shown, they didn’t. And to the extent that they did, let us know if you would like to be represented by someone who has a big incentive to make sure you lose: “Gitmo win likely cost Navy lawyer his career.”
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March 11, 2010, 5:36 pmRandomEngineer says:
No, what’s really hard to understand is why I would continue to have a discussion with someone as arrogant and self-righteous as yourself. I’ve heard the number put on the waterboarding sessions debunked in other places (which I’m sorry, I don’t have the time right now to find) that those waterboarding numbers were exaggerated or misinterpreted.
On the one hand, people such as yourself want to cite a government report as authoritative, but on the other hand, some question whether we know the truth about what interrogation methods were used after 2003. I see no point in continuing this, as I’ve fallen down the rabbit hole about torture, which is off topic for this blog post.
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March 11, 2010, 5:56 pmMichael B says:
jukeboxgrad, aka jukebox_sneer, aka jukebox_metasneer, aka Mr. Spittle
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March 11, 2010, 6:04 pmMark Field says:
You’re the one who made the categorical statement that no one had been waterboarded since 2003. You have no way to know that. All you know — all anyone knows — is that nobody admits any after that date.
I simply repeated to you the same demand you made to others: document your claims.
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March 11, 2010, 6:04 pmRandomEngineer says:
And just to follow up on my last (and I think it will be my last), I highlight the fact that your “good reason” is merely your opinion. Just as you assume the worst of missing emails and videos. Missing evidence is not proof, even if assuming the worst of it does fit your worldview. I’d think that would obvious since you just got done scolding me for my ignorance.
If people were culpable of torture as a federal crime, surely the Obama administration would have followed through on prosecuting, and even a few missing videotapes would not have been enough to stand in the way of the overwhelming evidence.
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March 11, 2010, 6:06 pmAnderson says:
If people were culpable of torture as a federal crime, surely the Obama administration would have followed through on prosecuting
What, other than ineffectual dithering, is “sure” about the Obama administration?
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March 11, 2010, 6:12 pmRoger says:
jukeboxgrad, are you trying to equate the AQ-7 lawyers with someone who decline to call Eric Rudolph a terrorist? Rudolph is in prison. Nobody defends him, except maybe some kooky anonymous web site. The AQ-7 lawyers were actively defending the Gitmo prisoners.
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March 11, 2010, 6:17 pmChris Travers says:
What important legal questions does Rudolph’s case still pose?
FWIW I do agree that the executive is entitled to a great degree of deference here. I just don’t think it is a blank check. And I think the lawyers donating time are doing it to ensure that such does not happen.
Same reason why Prof. Kerr donated time defending Lori Drew (I do consider him something of a hero for that btw): regardless of how dispicable an individual is believed to be, if we lose our rule of law, then we lose our liberty. The right and left of this country have both done an admirable job of making Americans timid (it is downright hard to call our nation the “home of the brave” these days). Are we to cease to be the land of the free as well? If that is what must be done to survive as a nation, I say we are still better off looking at alternatives.
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March 11, 2010, 7:06 pmChris Travers says:
That the new boss is same as the old boss?
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March 11, 2010, 7:07 pmleo marvin says:
You’re right. There are important differences between complying with Bush administration requests for assistance in representing accused terrorists, and refusing to call a convicted, imprisoned terrorist a terrorist.
Kooky? Not the first word that comes to mind for suggesting Christian women should petition for Rudolph’s release because he’s better looking than Jews like Bill Ayers and Rahm Emanuel.
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March 11, 2010, 7:35 pmRandomEngineer says:
As to no one has been waterboarded since 2003, I’m merely repeating what I repeatedly heard reported in the mainstream media (i.e. not Fox News). If you have some reputable source to the contrary, please share it. That doesn’t mean it cannot have happened in secret and yet to be exposed, but then I’m not talking about secret conspiracies, I’m talking about news reporting. If I’m wrong, surely the NY Times or WashPost alleging a case of it since then. The burden should not be on me to prove something that has been commonly reported for years.
And one tangent–if “enhanced interrogation techniques” were so clearly illegal, perhaps some House Democrats would not have needed to attempt to attach an amendment to the intelligence funding bill last month. Why declare something illegal which is already illegal? That they attempted to do so (and failed as the leadership pulled the bill off the floor), demonstrates to me the issue is not so black and white.
http://www.politico.com/news/stories/0210/33560.html
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March 11, 2010, 7:50 pmElliot says:
Guess you got me there. Google only has 11,400,000 hits for Al Queda 7.
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March 11, 2010, 7:52 pmElliot says:
Of course winning is more important in politics than behaving honorably. Observation shows that. That goes for both parties. Again, this isn’t a courtroom or seminar.
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March 11, 2010, 7:59 pmJTHC75 says:
Of course there is such a rule. It’s applied all the time in war. Often the guilty get blown to bits by a JDAM or Hellfire. That is what differentiates war from civil proceedings.
Your statement only applies if you assume a priori that the allegedly guilty party is being handled by the civil system — which is the entire issue that is still open to being resolved: which people “apprehended” by U.S. forces get civil trials, and which get military treatment.
I have no problem with blowing up terrorists in the field. The problem is that once we bring them in then some other rules start to apply. I’m okay with giving all of them military tribunals so long as the Supreme Court says they’re fair. But even in that instance they have the right to attorneys. I really don’t know what you’re arguing about. Here, regardless of the logic or the policy behind it, they’re being brought in for a judicial hearing. It’s some pretty sad-sack logic to say that because you disagree with the forum you want to suspend all other rules.
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March 11, 2010, 8:24 pmJTHC75 says:
They shouldn’t have to explain themselves to you. There’s no evidence that they’re terrorist sympathizers apart from the fact that they’ve defended accused terrorists. Sorry, but that’s not enough in my book because there are loads of legitimate and principled reasons to undertake such a defense, and very rarely is it the case that pro bono attorneys do so because they actually approve of the alleged crime.
What’s the worry here, that a bunch of suits from Biglaw are secretly hoping to aid Al Qaeda by infiltrating the DOJ? After openly defending accused terrorists? Yeah, that’s some grand masterplan there. I guess we should be glad they’ll no longer be plying feckless summer associates with gin drinks and korans.
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March 11, 2010, 8:32 pmleo marvin says:
The proper search, “Al Queda 7″ gets about a tenth that many. Yours, without the quotation marks, lists every page that mentions “Al Qaeda” and the number “7.”
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March 11, 2010, 8:33 pmJTHC75 says:
Um, in my experience these are exactly the kinds of cases that draw lots of pro bono support. Unusual crimes or politically charged types of crimes where there’s a high level of public and official derision against the accused? Geez, those are precisely the kinds of cases that civil libertarian-minded pro bono attorneys love to jump into. What better arena to uphold Constitutional principles than in such cases? It’s not like the right to counsel exists because popular people have difficulty finding lawyers.
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March 11, 2010, 8:47 pmElliot says:
“The proper search, “Al Queda 7″ gets about a tenth that many. Yours, without the quotation marks, lists every page that mentions “Al Qaeda” and the number “7.”
Excellent point. Using quotes gives 1,040,000 hits.
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March 11, 2010, 8:53 pmMark Field says:
You’re moving the goalposts. You made a categorical statement that there had been no waterboarding since 2003. I agree that none has been reported. That is not the same as there being none. If you want to modify your claim to say that no waterboarding has been reported since 2003, we agree.
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March 11, 2010, 8:58 pmjukeboxgrad says:
random:
Your statements demonstrate that you are ignorant and/or dishonest. If you would prefer no one to know this about you, then you should refrain from making those statements. However, when you choose to make those statements, you shouldn’t be surprised when someone points out what those statements demonstrate. And pointing out what your statements demonstrate isn’t “arrogant and self-righteous.” It’s simply pointing out what your statements demonstrate.
What you’ve “heard” is wrong.
If you can think of any reason why the CIA IG statement I cited (“one key Al Qa’ida terrorist was subjected to the waterboard at least 183 times”) should not be considered credible, you should let us in on the secret and tell us what it is.
Yes, because we don’t know the whole truth. But we know enough to know that war crimes were committed, and we know enough to know that they were approved at senior levels.
Wrong. It’s not merely my opinion. The 2005 OLC memos (and the CIA IG report) demonstrate that CIA went beyond what they told OLC in 2002. Which contradicts your ignorant statement to the contrary (you denied that “they went beyond even what the evil John Yoo memos said was legal”).
Not necessarily. Obama is on his way to becoming one of our best Republican presidents. Like Clinton.
Yes, how shocking to find the press regurgitating uncorroborated government claims as if they are facts (just like you). That darn liberal media.
Since you understand that it may “have happened in secret” you should explain why you said this: “nobody has been waterboarded since 2003.”
It’s hard for me to decide which attitude is more absurd: ‘the government said so, so it must be true,’ as compared with ‘I saw it on the news, so it must be true.’ You seem to have adopted both of those. And the burden is indeed on you “to prove something” when you make an emphatic, unqualified claim (“nobody has been waterboarded since 2003″).
Because they might want the act to violate more than one law, in order for additional penalties to be imposed. Duh. By your ‘logic,’ we need to conclude that “beatings, electric shock, [and] burns” are also legal, because they were in the same amendment you’re talking about.
And like all the other bogus arguments that are being raised, this has already been addressed.
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March 11, 2010, 9:05 pmjukeboxgrad says:
michael:
A good word to describe your track record.
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roger:
How is Palin refusing to call him a terrorist not a form of moral support for terrorism? And when the people of Murphy NC helped him elude capture for years, how is that not a form of moral support for terrorism?
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elliot:
Are you really that ignorant about how google works? I guess you must be. When you do the search without quote marks (which is what you must be doing to get a number that high), you get every item that mentions Al Qaeda and the number 7 on the same page. Which includes highly relevant items like this: “7/7 ‘mastermind’ is seized in Iraq — Times Online” (from 4/28/07). And this: “7 July 2005 London bombings — Wikipedia, the free encyclopedia.” (I see that leo has also explained this to you.)
Get a clue.
On the other hand, if you think an issue that puts a split between Ken Starr and Liz Cheney is going to help the GOP, good luck.
Yes, and the top ten are mostly Think Progress, Huffington Post, and headlines like this one from US News: ” ‘Al Qaeda 7′ Are the True Patriots, Not Kristol and Cheney.”
Keep up the good work.
I’m glad that you’re saying it over and again. Some people might still be confused about the GOP concept of integrity. As I said, keep up the good work.
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March 11, 2010, 9:06 pmRandomEngineer says:
No, you’re just being unfair and picking nits. If it isn’t obvious to you that is what I meant, I can’t help you. How could I or anyone know to metaphysical certitude such was the case? I’m not a lawyer, and I wasn’t submitting an affidavid. I also wasn’t alone in a hotel with Paula Jones.
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March 11, 2010, 9:14 pmjukeboxgrad says:
It’s not a question of “metaphysical certitude.” It’s a question of not being able to tell the difference between a fact and an uncorroborated, self-serving claim issued by government officials (just like the claim that everyone they detained is a “terrorist”). But failing to make that distinction is the essence of conservatism, right?
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March 11, 2010, 9:29 pmElliot says:
Example of Republican lack of honor and integrity?
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March 11, 2010, 9:46 pmRicardo says:
So then why did a military jury acquit Salim Hamdan of conspiracy and sentence him to five-and-a-half years (including time served) on providing material support to terrorists, allowing him to be released in 2008? The judge and jury in this case made very clear that they considered Hamdan a very minor player. What kind of America-hating radicals are these people?
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March 11, 2010, 10:17 pmjukeboxgrad says:
I didn’t say he’s going to be a typical Republican president. I said I think he might become one of our best Republican presidents. Among other things, that would mean less dishonest than a typical Republican president.
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March 11, 2010, 10:26 pmRandomEngineer says:
One thing that isn’t in question is your arrogance and self-righteousness. It’s unfortunate that you would bring up the “claim that everyone the detained is a ‘terrorist’” when also referring to my post, since the casual reader might infer that I had said that at one point, which I did not. But since you have mischaracterized my reference to “no waterboarding since 2003″ to mock and belittle me for a common casual usage of language, I’m not surprised.
Since you discount both the government and the press as reputable sources for information, I’m not sure where you else you learn what you know about current events.
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March 11, 2010, 10:39 pmElliot says:
“I didn’t say he’s going to be a typical Republican president. I said I think he might become one of our best Republican presidents. Among other things, that would mean less dishonest than a typical Republican president.”
A chicken-hawk president who campaigns as a democrat then acts as a republican. Sounds like winning trumped honor.
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March 11, 2010, 10:41 pmRandomEngineer says:
You miss another obvious construct: that if they omitted “beatings, electric shock, [and] burns” from the new law, it could be construed as superseding previous understandings and implying those actions, by not being explicitly mentioned, were no longer proscribed.
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March 11, 2010, 10:49 pmMark Field says:
That’s the funny thing about me, I tend to hear the actual words people say and accept them at face value.
Kind of my point. One way to avoid this difficulty is to condition your assertions of fact.
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March 11, 2010, 11:32 pmjukeboxgrad says:
random:
“Arrogance and self-righteousness” is a good way to describe the attitude behind your behavior, where you think you can get away with posting statements which demonstrate ignorance and/or dishonesty, without anyone pointing out that you have posted statements which demonstrate ignorance and/or dishonesty.
I suppose there might be more than one random engineer posting here under the name RandomEngineer, because someone using that name said this:
How do those words not imply that all those “being held at Gitmo” are “enemy combatants?” Especially since you said it in the context of defending McCarthy’s McCarthyism, the essence of which is to claim that if you’re at Gitmo, you’re a “terrorist.” By definition.
It’s true that for certain people it’s “common” and “casual” to fail to understand the difference between a fact and an uncorroborated claim by a government official. And it’s helpful to know that you’re part of that group. And no one “mischaracterized” what you said. All we’re doing is actually paying attention to what you actually said. Imagine that! If you want to admit that you should have said something different, you’re free to do so. But you haven’t.
It’s not exactly that I “discount both the government and the press as reputable sources for information.” It’s that I use common sense and critical thinking to separate truth from bullshit. So, for example, when the CIA IG says that KSM was waterboarded 183 times, there is no reason to treat that as an overstatement. On the contrary. Especially when OLC willingly cites that statement and says nothing to contradict it. Maybe you should learn something about the concept of admission against interest.
More baloney. When it comes to ways of assaulting and/or abusing and/or torturing someone, the variety is infinite. There are a few things the amendment mentioned, and lots of things it didn’t mention. Next up, you will argue that rape (to pick an example) “by not being explicitly mentioned, [was] no longer proscribed” (according to your interpretation of the intention of the amendment). Why did they omit rape, and not omit “beatings, electric shock, [and] burns?” Because they were trying to indicate that rape is “no longer proscribed?” Here’s something else they omitted: putting needles under your fingernails. Uh-oh! “No longer proscribed!”
You’re trying really hard to invent meaning that just isn’t there.
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elliot:
To some extent this is true, and that’s why I’m calling him a Republican. What you fail to understand is that this is not a compliment.
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March 11, 2010, 11:53 pmAndrew J. Lazarus says:
I think a champion of the beliefs of Dick Cheney, with his five deferments and then a quickie child to stay out of Vietnam, would be more careful in use of “chicken-hawk”. If quail could shoot back, Cheney wouldn’t hunt them either.
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March 12, 2010, 2:03 ammattski says:
Apologies for the extreme tardiness...
I just want to say that when I think of totalitarian hell-holes the first countries that come to mind are Canada, France & Germany. (Few Gulags are as fearsome as the NHL.)
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March 12, 2010, 7:54 amSarcastro says:
Can I bring up some points, not in summary, but rather to repeat what other people said cause I didn’t read this entertaining thread.
First, liberals are already like this close to terrorists. Add in being hired by Obama, and there’s a presumption of treason already.
Second, the ad is all about transparency, and not at all casting aspersions on people. I mean, it even says so!
Third, the ad is all about conflict of interest concerns. The new treason-full DoJ no doubt got rid of all ethics protocols already.
Fourth, none of this matters because I’ve heard American people are good and scared now, and the ends justify the means.
Finally, I would like to use this thread to re-argue torture stuff, as well as habeas for detainees. Because if I’m right, then the DoJ folks are kinda traitors since they disagree.
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March 12, 2010, 9:59 amJohnR says:
Ah, I must be older than you young sprouts — I remember a time when it was “conservative” to distrust an all-powerful Executive and equally so to disdain an imperialist world-view. I also remember when “the right” was anti-President and anti-imperialist, but perhaps you have forgotten those times since they were so long ago, back in the last century. Reading over these comments, I see that the previous understanding of “conservative” is now inoperative. I suspect that Nixon would be dismayed to see where his resentful paranoia took the country. Unlike Cheney and his ilk, Nixon quite clearly had the best interests of the United States in mind, where they did not conflict with his long-standing grudges. Cheney, by contrast, is pure, unadulterated “L’Etat, c’est moi!” Addington, Libby, Yoo , Bybee et al are no more and no less than the same sorts of functionaries we saw in Lenin’s troupe and Hitler’s entourage. Ideology is merely a decoration; power is the real goal.
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March 12, 2010, 12:05 pmRoger says:
Right. They don’t. I don’t care whether they do or not. The complaint was against the DoJ refusing to explain itself.
I don’t know why jukeboxgrad keeps misquoting Palin. Even if Palin were a terrorist herself, it still would justify the DoJ’s stonewalling.
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March 12, 2010, 12:14 pmMichael B says:
And a day later, from Orin: nada, nil, zil, nihil
And Ricardo, in my last graph I was obviously referring to the Khalid Sheikh Mohammed case. Further and in general, I was noting Orin Kerr’s lack of historical support for John Adams’ motives in taking the Boston Massacre case; a note from Adams’ diary entry:
“The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.”
And if you review the history further, prior to the commencement of the trial and prior to Adams taking on the case, he had been given evidence that convinced him that the captain and the soldiers were in fact innocent — and that was why he took it on, not out of some abstract principle first and foremost.
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March 12, 2010, 3:42 pmMichael B says:
And, btw, my whole underlying point is that transparency and ensuing discussions are good things. The whole “McCarthyism” theme, the subject of one of the original threads herein, was particularly absurd, was risible. Finally (Ricardo) your comment is a non sequitur, it doesn’t apply at all to what I had previously commented upon.
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March 12, 2010, 4:00 pmMichael B says:
A relevant Andrew McCarthy article:
The Gitmo Volunteers: Detained terrorists received more legal help than American prisoners do. Why?
Overtly talking about “McCarthyism” or depicting a desire for transparency in govt. as somehow indicating a crypto-McCarthyite interest serves to deflect from the high and holy office attorneys too often imagine themselves holding.
And in general, remember this, from my original comment:
Even the very term, pro bono — short for pro bono publico (literally, for good or for the public good) — is a misnomer and arrogation on the part of the too often self-admiring attorney and legal class.
Whether or not any specific representation of defendants is “for the public good” can be open to question and debate, that the services are rendered free of charge is the only thing that is known, and even that “free” aspect is sometimes diluted.
Excepting it isn’t “sometimes,” it’s virtually all the time: tax write offs, publicity, etc.
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March 12, 2010, 4:50 pmOrin Kerr says:
Orin Kerr: “... because he [Adams] agreed to represent the soldiers out of a personal conviction that no person should face a trial without counsel.”
Michael B, at comment 250+: “Provide a citation, Orin”
Michael B, at comment 300+: “And a day later, from Orin: nada, nil, zil, nihil”
Michael B, sorry, I had stopped reading the thread along time ago, so I didn’t see your “challenge.” But this is the standard account generally made in histories of Adams and the Boston Massacre. For example, just from googling around, there’s this account:
Based on the highly partisan nature of Michael B’s past comments, I assume he will not be satisfied by this or any account sort of a seance in which we revive the spirit of John Adams and directly ask him the question. But my understanding is the generally accepted historical account widely found in the history books — that’s where I got it from, at least. (I think I first read this in David McCullough’s Adams biography, FWIW).
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March 12, 2010, 5:00 pmOrin Kerr says:
Michael B,
Here’s what Pulitzer Prize wining historican David McCullough writes in his celebrated biography of John Adams, at page 66:
I look forward to your response, Michael B. I assume you will come up with some excuse, but then maybe you will surprise me and concede, in light of the evidence, that this is in fact a widely held view of Adams’ decision.
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March 12, 2010, 5:12 pmMichael B says:
Of course I would concede, Orin, if such was the case, and perhaps it is, though I don’t have the bio and a citation is still warranted. Does McCullough provide one? I provided a direct quote from Adams’ diary entry, McCullough provides what may or may not have a firm foundation. And my “highly partisan” comments, meaning I disagree with someone who is much more judicious? I indulge hyperbole and respond in kind, but “highly partisan”? Provide an example, please.
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March 12, 2010, 5:22 pmOrin Kerr says:
Michael B, I was wondering what your excuse would be. I see you are going with the “I don’t have it with me and can’t accept it unless I read it myself and check the sources myself” excuse. Good luck, Michael B.
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March 12, 2010, 5:54 pmOrin Kerr says:
Oh, and as for the partisan point, Michael B, just go here and start reading. I clicked on a few examples at random, and they were all knee jerk defenses of conservatives in which you show disdain for anyone who dares criticize them. For example, here’s you defending Karl Rove and attacking his critics, here’s you defending Sarah Palin and attacking her critics, etc. I haven’t collected all the links, but I’d be interested in knowing if you have ever written a comment that criticized conservatives or defended liberals. Perhaps you could show us some?
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March 12, 2010, 6:04 pmzuch says:
... which indicates that Adams (at some point) was convinced of the merit of their case ... which is one reason we think it just that everyone should be afforded a competent defence. If we only gave such defences to those actually innocent, we might save ourselves money by the simple expedient of foregoing even the bother of a trial (at which point no lawyers would be necessary for either the innocent or the guilty). But nowhere does your quote indicate that Adams would have thought differently absent this evidence of innocence (nor does it indicate at which point Adams actually became aware of the justness of their defence, whether on taking up the case or later on examining the evidence.
Cheers,
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March 12, 2010, 6:23 pmMichael B says:
“Michael B, I was wondering what your excuse would be. I see you are going with the “I don’t have it with me and can’t accept it unless I read it myself and check the sources myself” excuse. Good luck, Michael B.” Orin Kerr
You provided a depiction by McCullough, an admirable historian, I agree, but it remains a depiction. I simply asked for a citation, for a source — and you depict that request as “an excuse”. Here’s another depiction and narrative, provided by yourself: you, the very sine qua non of “judiciousness” and me, a mere “partisan”. It’s a nice narrative.
In terms of depictions, another example relevant to the Boston Massacre serves to further depict how historians can vary in terms of their interpretations. Some historians (primarily British) believe it to have been a setup by the American (colonial) side; others (primarily American) believe and depict it to be no such thing, believe it to have been an essentially spontaneous act. Who’s right? I suspect the Americans, but I do not know.
Further, the one volume I had handy, “A Few Bloody Noses,” seems to concur with the view I presented, though it too is a depiction and does not provide citation material.
So many depictions, and narratives. More tomorrow, perhaps.
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March 12, 2010, 6:42 pmElliot says:
Why be careful? I’d say the definition of a Chicken-Hawk as developed over the last eight years is, “one who did not serve in the military, yet is actively making decisions to wage war.” That makes Obama a Chicken-Hawk.
Do you disagree that he fits the definition of a Chicken-Hawk? Perhaps you have a different definition? Does it matter if one is a Chicken-Hawk? Did it matter prior to Jan 20, 2009?
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March 12, 2010, 6:54 pmElliot says:
So, a democrat who puts winning above honor is then classified as a republican?
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March 12, 2010, 6:57 pmTurgid Jacobian says:
It appears the “membership list” on DSA site mentioned above is actually just the list of membership in the Congressional Progressive Caucus. (The CPC website was listed as the reference).
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March 12, 2010, 6:58 pmOrin Kerr says:
Michael,
Your shtick seems to be to ask for citations, and then if no one provides them, you declare victory; if someone provides them, indicating you are wrong, you announce you are not convinced by those citations and need more citations, and then if no one provides them, you declare victory, etc. As best I can tell, it’s just a game of burden of proof: You say you are right until someone convinces you you are wrong, but then you will never say you are convinced you are wrong.
As for your partisanship, do you actually disagree? Please give examples from your hundreds of comments in which you agreed with liberal Democrats and/or disagreed with conservative Republicans. I will wait for your examples, and I will check back to see when you have provided them. As you would put it, “examples please . . . nada, zilch, nothing...”
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March 12, 2010, 7:00 pmChris Travers says: