I posted a few days ago about about why I thought Andrew McCarthy’s position about the DOJ lawyers who had represented Gitmo detainees was ridiculous. I checked back in to see what McCarthy has written since. McCarthy hasn’t respond to my post, as far as I know, but he has written more about his views on treason and terrorism. What I found was frightening.
Perhaps the most amazing contribution is this post from yesterday, in which McCarthy suggests that those on the political left are basically in favor of Al Qaeda. To be fair, McCarthy acknowledges that the view of liberals and the views of Al Qaeda are not actually identical. Rather, the views of liberals and the views of radical Islam are “substantially aligned” because they share an “anti-American, anti-Western, anti-capitalist, anti-individual liberty, pro-totalitarian, pro-collectivist” worldview. As between supporting the United States of America and the radical Islamist agenda, McCarthy opines, those on the left are going to support the radical Islamist agenda against the United States.
McCarthy goes on to assess the patriotism of two DOJ lawyers in particular, Neal Katyal and Jennifer Daskal. After giving it some serious thought, McCarthy announces that Katyal is an example of a “pro-American” lawyer. Even though Katyal has represented a detainee — a “mark against him” — Katyal is okay because he has agreed with McCarthy on some issues and once co-wrote an op-ed with American Jack Goldsmith. In contrast, McCarthy announces that Daskal is a “left-wing extremist.” Daskal criticized the Bush Administration’s anti-terrorism policies so much that her positions indicate a person who “as between the United States and the Islamists” will be “with the Islamists”. (For the record, I know both Katyal and Daskal socially. I’ve never noticed any anti-Americanism from either of them.)
Reading over McCarthy’s post, I’m kind of curious if he thinks I’m basically a traitor, too. After all, I’ve disagreed with McCarthy many times. And I think his position here is ridiculous. Given that McCarthy’s test for patriotism appears to be how much you agree with the positions of Andrew C. McCarthy, I’m kind of curious where he thinks the line is between “pro-American” and terrorist sympathizer.
Mark Field says:
I guess it would be plucking low hanging fruit to suggest that McCarthy’s authoritarian intolerance of dissent “substantially aligns” him with Al Qaeda.
So I won’t. Unless I just did. Oops.
March 15, 2010, 9:57 pmFloridan says:
Someone actually pays MCarthy to write stuff like that?
March 15, 2010, 10:06 pmDissenting Reason says:
Andrew McCarthy is a McCarthyist.
March 15, 2010, 10:06 pmMark N. says:
I thought the main defining factor of liberals, from a conservative perspective, was that they were atheist, anti-traditionalist libertines, supporting rampant gay orgies and trying to ban God from the public sphere. That sounds sort of like the opposite of Islamism to me…
March 15, 2010, 10:08 pmJuan Inukshuk says:
Orin Kerr SAYS he’s against terrorism
[cue omnious music]
But Orin Kerr is a known associate of Jennifer Daskal.
Orin Kerr.
Wrong on terrorism.
Wrong on Jennifer Daskal.
Wrong for America.
(Paid for by Citizens for McCarthyist Smears)
March 15, 2010, 10:12 pmjuris imprudent says:
Who is Andrew McCarthy and why does anyone give a rat’s ass about his opinion?
Seriously.
March 15, 2010, 10:12 pmDenver says:
McCarthy is shameless and there is no defense of his vile claims. The worst aspect is that NRO and others give him a platform. He purports to be a conservative but is morphing into a true totalitarian. Apparently the concept of government or prosecutorial over reach is completely foreign to him. Plus he obviously does not have the courage of his convictions as he refuses to defend himself from reasoned critique like that of Orin.
March 15, 2010, 10:13 pmleo marvin says:
If the question is just “am I pro-U.S.” the answer is unequivocally “yes.” As between the U.S. and radical Islam, well of course that’s another story.
March 15, 2010, 10:14 pmsteve s says:
Orin: Send $20 to the address to follow in your email and I will destroy the pictures we have of you wearing a turban and reading Milestones.
March 15, 2010, 10:17 pmSandy MacHoots says:
What I found was frightening.
You’re either extraordinarily cowardly or (more likely) you’re play-acting, like the lefties who go around pretending to be terrified of evangelical Christians. You’ve also apparently deliberately misquoted him by adding the “Islamist” in front of “worldview.”
[OK Comments: Misquote corrected, my mistake. Oh, and no play-acting here.]
March 15, 2010, 10:17 pmChaon says:
Why does Orin Kerr hate Victory Freedom?
March 15, 2010, 10:19 pmAnonsters says:
Well, you live by the Second Amendment, you die by the Second Amendment. ;)
March 15, 2010, 10:30 pmJim N. says:
The line between “pro-American” and terrorist sympathizer is easy to determine. One who has a name that can be spelled using alternative vowels, and whose parents chose the letter I over the letter e is clearly a terrorist sympathizer.
March 15, 2010, 10:35 pmorca says:
When will the so-called moderate Republicans stand up and denounce the extremists in their midst like McCarthy?
March 15, 2010, 10:39 pmbailey says:
Actually, McCarthy and Deborah Burlingame give some pretty specific examples of things done by the non-terror loving noble pro bono lawyers that might give rise to some skepticism about their motivations. Why not address them? Reading some of the comments here, one would think that John Adams actually defended the British during the Revolutionary War. Just think back to the “anti-war” protests run by International Answer-were they a peace group or just supporting the other side. I would think the latter. Why should I feel differently about the lawyers?
March 15, 2010, 10:43 pmOrin Kerr says:
Bailey,
As best I recall, McCarthy and Burlingame never accuse any of the lawyers hired by DOJ of any of this misconduct. Rather, they group all people who represented Gitmo detainees into an entity McCarthy calls “the Gitmo Bar,” and then they say that the fact that someone in that group did this means that the group as a whole did this. I don’t quite know how to respond to it given that there is no actual accusation of wrongdoing by any of the people we’re discussing.
March 15, 2010, 10:47 pmAndrew says:
Part of the problem here is that the word “Islamist” is kind of vague, and definitions vary. For some, it means elimination of western military, economic, political, social, and cultural influences from the Muslim world. But for others, it merely means support for revitalization of the Muslim community. And others define it as an Islamic militant, anti-democratic movement.
If McCarthy is making an accusation that someone supports Islamic militants against the United States, then that’s an extremely serious charge that requires extremely serious proof. It would basically be a charge of treason.
But if McCarthy is making an accusation that someone cares more about revitalization of the Muslim community than they care about the American community, then it’s not such a serious charge.
I haven’t read much of what McCarthy has written, but if he’s been ambiguous about what he means, he needs to become less so. And he needs to understand that sounding like Joe McCarthy is not a good way to win supporters.
March 15, 2010, 10:49 pmresh says:
“I’m kind of curious if he thinks I’m basically a traitor, too.”
No worry. We got your back. You’ve got street cred. And who the hell is Andrew McCarthy, anyway?
Still, one more time, lest we forget:
March 15, 2010, 10:51 pmFirst They Came For The Communists…
Then They Came For Me…
leo marvin says:
Isn’t that what Orin, Anderson, Adler and EV have been doing?
March 15, 2010, 10:51 pmleo marvin says:
McCarthy at NRO:
Is he under the impression he didn’t just tell Muslims “their belief system is incorrigible”?
March 15, 2010, 10:59 pmProsecutorial Indiscretion says:
When will the so-called moderate Republicans stand up and denounce the extremists in their midst like McCarthy?
Yes, and when will so-called moderate Orin Kerr post something on his group blog to denounce extremists like McCarthy? His continued silence is plainly acquiescence with these scary views.
While McCarthy goes too far in his denunciations, the overwrought rhetoric from the hard right has distracted from the key issue here: it is just plain nuts to have these people setting detainee policy. How would people react if someone who put in hundreds of pro-bono hours (essentially donating hundreds of thousands if not millions of dollars worth of value) representing accused child molesters were appointed head of CEOS?
March 15, 2010, 11:00 pmhumblelawstudent says:
Professor Kerr,
As the Burlingame and Joscelyn article point out, a number of individuals of the Gitmo bar engaged in misconduct. One of the broader points of McCarthy and others was to discover who was taking part in the policy-making of the DOJ and see if any of them were some of the individuals that did engage in such misconduct.
Part of the outcry against McCarthy, Cheney, et al. was “how dare they impugn those integrity of those of the Gitmo bar.” McCarthy, Cheney, and Burlingame are pointing out that they are right to raise questions because a number of the Gitmo bar have committed misconduct, so it is not automatically beyond the pale to question and investigate the attorneys’ actions.
Now, that hardly means that all or even most of the Gitmo bar have engaged in misconduct but likewise it hardly means their actions are sacrosanct and beyond reproach.
More broadly speaking, policy differences over interrogation are being played out in the legal arena and the Gitmo bar is trying to use the law to shield any criticisms of the enactment of their preferences. Conservatives are trying to call them on it and point out that because they use law to enact their policies doesn’t mean they can’t and shouldn’t be criticized for the policy effects of their legal arguments.
March 15, 2010, 11:01 pmPand Raul says:
Ok Orin,
You certainly have mastered the art of straw man sarcasm. I actually read the back and forth. Instead of actually addressing his arguments, you take other statements out of context and make fun of them with sarcasm. He has a point about Pro Bono. Giving away your services for free says something. It either says that you want to help the people or want to use the case to change the law in some specific way. In the first case, your helping the person says that you think highly of that person (because you could rep. someone else for free). In the second case, you aren’t really being all that ethical of a lawyer because you are not primarily interested in your client’s interests, but in your interests in establishing new law. So bottom line, we should ask why people feel the need to give Pro Bono services to people who have tried to kill Americans. If A, then we should be able to examine what type of people they like enough to give free legal service. If B, we should question their ethics.
March 15, 2010, 11:02 pmSteve says:
Isn’t that what Orin, Anderson, Adler and EV have been doing?
Yes, and when will so-called moderate Orin Kerr post something on his group blog to denounce extremists like McCarthy? His continued silence is plainly acquiescence with these scary views.
I believe Orca was subtly mocking the persistent cries for “so-called moderate Islam” to denounce extremists like al-Qaeda.
March 15, 2010, 11:04 pmOrin Kerr says:
Humble Law Student:
That is false. The outcry was based on McCarthy’s view that representing Gitmo detainees was an act of treason against the United States — a capital offense. If you can show me examples of the outcry based on a view that representing Gitmo detainees puts one above all criticism, even criminal misconduct, I would be very eager to see the examples you have in mind.
March 15, 2010, 11:05 pmMahan Atma says:
Prof. Kerr,
Where have you been for the last 8-9 years? Guess what: A substantial portion of the population honestly believes liberals are literally aligned with terrorists. Even so-called “educated” people like McCarthy. You’re just realizing this now??
March 15, 2010, 11:07 pmPand Raul says:
Resh,
No one wants to get the Communists and put them in jail. We just don’t want them make policy or be in a position of power where they can put us in jail. Why is it that there is some idiot who always takes criticism as some type of treat to take away a liberty. Unless somone says, the government should outlaw that, you shouldn’t assume that criticism of your position is the same thing as trying to make your position illegal.
March 15, 2010, 11:08 pmRicardo says:
He prosecuted the original WTC criminal case back in the 1990s. Since then, though, he appears to have simply made a career out of being a political hack.
I didn’t see anything “specific.” He accuses Jennifer Daskal of being a left-wing extremist — classic smear campaign language. Otherwise, he includes two quotes that seem to be out of context and includes vague charges about her (to McCarthy) unreasonable legal arguments made on behalf of a detainee. Since Kerr knows Daskal personally, perhaps he can comment on the charge of “left-wing extremism.”
March 15, 2010, 11:08 pmPand Raul says:
Orin,
Did he say that they should be tried for treason? If so, back it up.
March 15, 2010, 11:10 pmleo marvin says:
Thanks.
Orca, apologies for missing the joke.
March 15, 2010, 11:12 pmOrin Kerr says:
Pand Raul,
He said they are guilty of treason — see the first article I responded to. I haven’t seen him formally urge their indictment for treason based on that guilt, but then I haven’t followed his remarks closely.
March 15, 2010, 11:14 pmRicardo says:
Well, first of all, the so-called “al Qaeda seven” (originally mentioned in the Cheney-Kristol-Burlingame ad) included several attorneys who did not, in fact, defend any Gitmo detainees. So anyone who links some of these attorneys to the attorneys of Gitmo detainees has simply not done their research on the issue.
The names of the seven attorneys that Holder originally made reference to in his letter have now been revealed. As has been pointed out, it seems to have taken Fox News only a few hours to figure out who they were. Now that the names are public, anyone who wants to make specific misconduct allegations against any of them is free to do so provided there is actual evidence (libeling a practicing attorney is generally not a smart move). Since there are no credible allegations that have surfaced yet, I am inclined to consider the matter closed. Instead, McCarthy insists on dwelling on the matter and impugning the patriotism and motives of the attorneys. It’s worth pointing out what is missing from this: any factual allegation of misconduct.
March 15, 2010, 11:16 pmhumblelawstudent says:
Too easy, please see the CCR’s defense of Lynne Stewart. The CCR is the main organization coordinating the efforts of the Gitmo bar, and Lynne Stewart is a cause celebre for them and many other lefties. Granted, she isn’t part of the Gitmo bar, but she represented a different terrorist.
March 15, 2010, 11:22 pmgab says:
Pand Raul writes,
If we knew they were guilty already, why bother with trials?
March 15, 2010, 11:23 pmOrin Kerr says:
Humble,
I don’t understand your response. Could you take me though the argument?
March 15, 2010, 11:24 pmhumblelawstudent says:
Sorry, the editing function messed up my post.
First off, I understand that Lynne Stewart was not part of the Gitmo bar. That said, many in the Gitmo bar lionized her, despite her blatant illegal actions to help a terrorist. What organization spearheaded her defense and lionizes her? The CCR, which coincidently, is the main organization that coordinates the efforts of the Gitmo bar.
March 15, 2010, 11:30 pmRicardo says:
In other words, you can’t give an example of one of the actual attorneys we are discussing being defended on the grounds that “their actions are sacrosanct and beyond reproach.” Thanks for clarifying.
March 15, 2010, 11:30 pmLAawGuy5000 says:
This feels like one of those debates you’ve lost simply because having the debate at all legitimizes an illegitimate point of view. I think the last time I felt this way was arguing against John Yoo’s interpretation of the President’s inherent Commander in Chief power under Article II, a position I have yet to hear a serious academic defend. Nonetheless, I guess I will take the bait:
I have known many people in academia, private sector, military, and government who were appalled by the legal positions taken by the Bush Administration regarding detainees. Certainly, many of them were liberals who were not big fans of the president, but not one of them was anti-American. In fact, I think they were so pro-American that they wanted to view their country as a good, moral place that respected the rule of law. Some tended to be more republican or libertarian, like Prof. Richard Epstein. No where did I come across anyone with political sympathy for Al-Quadea, the Taliban, or Islamic extremists of any sort. The very idea is absurd. Any sympathy for detainees was motivated by either a sincere belief in their innocence or a sincere belief that they deserved a form of due process.
Marine Colonel Dwight Sullivan, who was Chief Defense Counsel for the Office of Military Commissions, is a true patriot who fought very hard for the rule of law and worked with a lot of the pro bono lawyers from private law firms. He believed that the detainees deserved a day in civilian court or at least the Court Martial process under the UCMJ. McCarthy’s argument that the defense bar had the same resources as the prosecution is ridiculous, because the prosecution had the military commissions handed down by the Executive branch. What most of these pro-bono lawyers were doing was arguing against the system imposed upon the detainees on constitutional grounds, a fight they eventually won. Not that had they lost it would prove they were anti-american, but Rasul, Hamdan, Hamdi, and Boumediene are now law-of-the-land. If those cases are “unamerican” then so are 5 Justices of the Supreme Court or any government official who follows that ruling. It is perfectly fine to believe they are wrongly decided, reasonable people disagree, but it is absurd to say that they are the result of unamerican or traitorous activity.
Joe Margulies, who argued the Rasul case and wrote the book Guantanamo and the Abuse of Presidential Power, is not only an excellent lawyer he passionately cares for the balance of power and rule of law. He always emphasized that Bush, Cheney, et al. were not evil or venal, they simply viewed 9/11 as an intelligence failure and believed that keeping detainees for interrogation, and possible later reintegration in order to cross-reference intelligence with that gained from new detainees, was necessary for increasing intelligence to dismantle Al-Quada and prevent the next attack. Ultimately, this entailed indefinite detention and torture. Of course, in my opinion there has been little evidence that this has worked and no evidence that was worth the cost in American credibility, civil liberties, rule of law and balance of powers. But the point is that I always respected the fact that someone who was on the front lines of this debate resisted the temptation to demonize the other side, and look at good-faith held beliefs.
McCarthy’s positions have no legitimacy and it is a pure McCarthyite model. The DOJ is keeping secrets (it is not). Members of the DOJ are traitors (they are not). If the DOJ has nothing to hide, why are they so defensive (it is a result of these McCarthyite attacks)? It is an old formula and it is appalling. The Al-Queda Seven? It is indefensible. We can disagree without calling each other fascists, traitors, or Al-Queda sympathizers.
March 15, 2010, 11:31 pmMahan Atma says:
I’ve represented both a murderer and a rapist pro bono. And I guarantee you, I didn’t do so to make new law.
According to your logic then, I did so only because “I think highly of those persons.”
Are you really that unimaginative?
March 15, 2010, 11:37 pmOrin Kerr says:
humblelawstudent,
I still don’t follow, but thanks for the response.
March 15, 2010, 11:39 pmMark Field says:
FWIW, here’s the CCR page I found on Lynne Stewart. I also did a search for her on their website, the results of which are here.
March 15, 2010, 11:40 pmAndrew says:
Orin, is your only evidence for that the following sentence? McCarthy: “It has nothing to do with assisting the enemy in lawsuits against the American people during wartime.” I really do think it was misleading for you to play with that quotation in your previous blog post, by using an ellipsis like this: “assist[ed] the enemy . . . against the American people during wartime.”
When making serious charges, the more context the better. That’s one of the things that distinguishes cogent discussion from propaganda. You provided the full quotation much later in your blog post, but that’s no excuse, IMO.
March 15, 2010, 11:45 pmCornellian says:
I care about what Andrew McCarthy thinks about this issue approximately as much as I care what Jenny McCarthy thinks about this issue.
I have to wonder if Mr. McCarthy has read the Declaration of Independence lately (or ever). Real conservatives support a limited government, not a system of lettres de cachet under which the executive can round up anyone, anywhere and detain them forever without charges or trial based on nothing more than a willingness to say the magic words “enemy combatant.” If we had wanted a King instead of a President we could have stayed with Britain.
March 15, 2010, 11:47 pmRicardo says:
On the “Marxist” Center for Constitutional Rights, according to Wikipedia, this Marxist organization did indeed coordinate both the cases of Rasul v. Bush and Boumediene v. Bush. Yet one assistant Solicitor General under the Bush Administration, Pratik Shah, also helped represent some of the detainees in the Boumediene case. If any affiliation at all with CCR is enough to discredit someone and render them of questionable fitness for government employment, what was the Bush Administration doing by hiring Ms. Shah?
This is where mindless guilt-by-association leads. McCarthy seems to relish the idea that he will be accused of McCarthyism by his opponents, given his gratuitous use of “Marxist” and “left-wing extremist.” I should say I’m not particularly frightened by him. It reflects very poorly on any conservative who wishes to defend such a mediocre partisan hack, though.
March 15, 2010, 11:48 pmOrin Kerr says:
Andrew, just read McCarthy’s posts that I linked to above: There’s not a lot of subtlety or refined meaning in there. (And can you elaborate on what you think I did that was misleading?)
March 15, 2010, 11:49 pmkazinksi says:
I would like to pose the question I saw over at The Corner, does anybody doubt there would be pretty much the exact same reaction on the left if John Ashcroft had hired nine lawyers that had defended white supemicists?
I don’t think anybody should doubt that we would see TV spots with the scary music and all the scary language that was in the Liz Cheney ad.
March 15, 2010, 11:50 pmdrunkdriver says:
I’m encouraged by the fact that so many people with opposing views on this area of law, are united in scorn for McCarthy. I was opposed to the Supreme Court’s decisions in this area and disagreed with what the pro bono lawyers did, but like virtually everyone else, consider his rantings transparently ridiculous.
March 15, 2010, 11:54 pmBartman says:
I kinda liked Andrew McCarthy in Pretty in Pink, but by the time St. Elmo’s Fire came around, he had become totally formulaic.
March 15, 2010, 11:58 pmLAawGuy5000 says:
A bunch of White Supremacists who were held without trial? I don’t think that would be a problem. Moreover, let’s say you are right (though I reject the comparison), it doesn’t make the Al-Queda 7 ad any more justifiable. I don’t think it is good enough to defend this as politics as usual or “the other side does it too.”
March 15, 2010, 11:58 pmAndrew says:
Sure, you started off your previous blog post as follows:
I do not believe that was a proper use of an ellipsis. You tailored the quote to support your thesis. Much later in your blog post, you gave the full quote:
By replacing the words “in lawsuits” with an ellipsis, you deliberately distorted what McCarthy said, so that you could more convincingly accuse him of labelling others as traitors. If that is your best evidence to support your thesis, then I would have to conclude that your thesis is no good, i.e. that McCarthy did not accuse anyone of treason. On this slender reed, you made the accusation even stronger in this thread:
Pretty serious stuff.
March 15, 2010, 11:58 pmDave Hardy says:
I’m getting jealous. I’ve represented a couple of bloodthirsty killers in my time, even got one of their convictions reversed, and nobody denounced me. Nobody gave a hoot one way or the other.
March 16, 2010, 12:02 amOrin Kerr says:
Andrew,
I strongly disagree with your characterization. First, I don’t think it’s a misrepresentation with the ellipsis; Second, I gave the whole quote elsewhere in the post; third, earlier in McCarthy’s post, he makes the same point without the ellipsis. Again, just read his posts: There is nothing subtle about them.
Finally, if McCarthy thinks I am misrepresenting his position, he knows how to contact me: I would of course be delighted to clarify his position. But I haven’t heard from him yet.
March 16, 2010, 12:03 ammike says:
I agree with Andrew. That is some pretty unethical editing.
March 16, 2010, 12:04 amleo marvin says:
Yes, I doubt it. If there had been nine lawyers on the ACLU team that defended the white supremicist KKK in Skokie, I doubt there’d have been a peep from the left if a Republican DOJ hired all nine of them.
March 16, 2010, 12:05 amLAawGuy5000 says:
All you have to do is read what McCarthy wrote. He pretty much accuses pro bono lawyers of treason for defending Guantanamo detainees. You are being willfully ignorant. Do you think McCarthy does not come close to accusing these attorneys of treason? Why are you arguing about an ellipsis and not the point of the article?
March 16, 2010, 12:06 amLAawGuy5000 says:
I agree with Leo. But I must add that the idea of Ashcroft hiring defense attorneys is pretty far fetched!
March 16, 2010, 12:08 amAndrew says:
If McCarthy did what you say (and I don’t agree or disagree about that), then there was no need to tailor a quote in the way Orin did, in order to prove the point.
March 16, 2010, 12:10 amOrin Kerr says:
Andrew,
Reading over your comment, I think you are being intentionally misleading.* McCarthy’s accusation is that the Gitmo lawyers are Al Qaeda sympathizers trying to hurt the United States in wartime. That’s the definition of treason. Why is the removal of the phrase “in lawsuits” misleading? That’s the entire argument I describe: Their lawyering is an act of treason. So, for example, a conspirator who drives the getaway car is a conspirator in driving the getaway car: That doesn’t mean that it’s misleading to call that person a conspirator.
** I don’t actually know you’re being intentionally misleading, but it seems in this thread that everyone has to say that everything they disagree with is intentionally misleading, so I figured I would go along.
March 16, 2010, 12:13 amOrin Kerr says:
Umm, If you don’t take a position on whether my quote misrepresented McCarthy’s argument, why are you accusing me of “deliberately distorting” McCarthy’s argument? Or are you suggesting that I accurately described the argument, just that I used an ellipsis in doing so? I find your criticism very difficult to follow.
March 16, 2010, 12:15 amleo marvin says:
Andrew,
This is from McCarthy’s post at the Times:
What do you think he’s talking about?
March 16, 2010, 12:15 amAndrew says:
Orin, I don’t take a position on whether McCarthy did what you say he did, in the course of other things he may have said.
I do believe that your quote misrepresented the sentence that you were quoting. I want you to be as honest and straightforward and persuasive as possible, Orin. For your sake, for our sakes, and for the sake of whoever you’re talking about. Okay?
March 16, 2010, 12:18 amPorkchop says:
Some folks might have given a hoot, but I’ve always felt that if you are going to denounce a lawyer, you should avoid the ones packing heat. Maybe others think so, too. I’m just sayin’, Dave . . . :-)
March 16, 2010, 12:19 amAndrew says:
Why did you remove it, Orin?
March 16, 2010, 12:22 amOrin Kerr says:
Andrew,
If I recall correctly, the main reason I used elipses in that post several days ago was because it seemed redundant. Obviously, if you’re accusing a lawyer of engaging in treason for how he acted as a lawyer, the “in lawsuits” part is redundant. If I recall correctly, I thought of just quoting the same point from elsewhere in the post, too, but I figured it was the same point and I was accurately making McCarthy’s argument.
Now it’s time for my question: Why are you so interested in trying to make the (very weak) case that I was somehow being misleading? What’s your angle, Andrew?
March 16, 2010, 12:29 amSteve says:
I would like to pose the question I saw over at The Corner, does anybody doubt there would be pretty much the exact same reaction on the left if John Ashcroft had hired nine lawyers that had defended white supemicists?
But there was, in fact, no witch-hunt by the left to determine whether the Ashcroft DOJ had hired any lawyers who represented white supremacists in private practice. There was no demand by a Democratic Senator for the identity of any DOJ employees who had represented such clients, and no Democratic interest groups digging to find out. Heck, for all we know, the Ashcroft DOJ really did have nine such lawyers, or even more. So the attempt to draw an equivalence breaks down at a pretty early stage.
It’s also worth noting that while white supremacists of course deserve defense lawyers like anyone else, there’s little dispute that they are disgusting people irrespective of whether they’re guilty of a crime. For the detainees at Guantanamo, the question of whether they’re disgusting people is very much in dispute. Some of them have turned out to be utterly innocent of any wrongdoing whatsoever, and yet to people like Andrew McCarthy and Liz Cheney, a stigma still attaches to representing those people.
March 16, 2010, 12:30 amAndrew says:
No angle. I think McCarthy’s sentence sounds much, much different with the deleted words included, and does not sound redundant in the least. You wouldn’t be the first person to overzealously tailor a quote in order to spruce up an argument; it’s a very tempting thing for all writers to do, myself included.
I think your explanation is as weak as you apparently think mine is. So let’s call it a draw, shall we? :-)
March 16, 2010, 12:37 amCornellian says:
Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime.
So anyone in custody is ispo facto the “enemy?” Even the ones released by the Bush administration? I guess McCarthy thinks Korematsu really was a threat to national security, notwithstanding our long overdue apology to the guy. And if some prison doctor visited one of these guys in custody and gave the guy some antibiotics for an infection, McCarthy thinks that doctor would be “indicted for coming to the enemy’s aid during wartime?”
March 16, 2010, 12:44 amTTC says:
It’s misleading, because McCarthy argues, inter alia, that ‘Gitmo Bar’ members have committed acts that are apart from ethical legal advocacy. E.g. providing detainees photographs of covert CIA agents, giving them sketches of the lay out of Camp Gitmo, helping them concoct phony allegations of abuse,and violating court orders in providing certain information to their clients that undermines debriefing efforts.
FWIW, the ‘Gitmo Bar’ is an appellation like mob lawyer. It would fairly apply to Layne Stewert, just like mob lawyer would apply to the guy that reps the local Armenian MediCal fraud ring, despite not having repped the classic Italian American ‘Mob’
March 16, 2010, 12:51 amRicardo says:
According to McCarthy, lawyers were “assisting the enemy in lawsuits against the American people during wartime.”
He also implies they were “coming to the enemy’s aid during wartime,” that they “demand[ed] immunity from the ordinary duties of citizenship” [the duty of citizenship here being to not put forth any legal theory Andrew C. McCarthy personally disagrees with], that they were “volunteering their services to those trying to kill Americans” and that they did all this “knowing that this litigation would be harmful to the war effort.”
No, Orin Kerr’s quote was not the least bit misleading. Instead, one has to wonder why Andrew is focusing on a single case of ellipses when there are many quotes, such as the ones I have offered above, that make exactly the same point.
March 16, 2010, 12:54 amOrin Kerr says:
TTC,
If I understand the timeline, McCarthy accused the Gitmo lawyers of treason before the allegations of misconduct by some of the lawyers who represented Gitmo detainees were published. Given that, I’m not sure why you think McCarthy had the allegations in mind when he accused the Gitmo lawyers as a whole of treason. To be sure, when the allegations were made, McCarthy picked them up, but that was only to try to bolster a claim he had already made. (At least that’s my understanding of the timeline.)
March 16, 2010, 12:57 amRoger says:
If you are so curious about McCarthy’s opinion of you, why don’t you just ask him?
March 16, 2010, 1:01 amTTC says:
As to Jenifer Daskell, just knowing that she was a senior muckity muck at Human Rights Watch is enough at first glance to give one serious pause that she was given her current position at Justice.
March 16, 2010, 1:02 amRicardo says:
No, in fact, McCarthy has made no allegations of illegal behavior by Jonathan Cedarbaum, Eric Columbus, Karl Thompson, Joseph Guerra, Tali Farhadian, Beth Brinkmann, Tony West, Neal Katyal or Jennifer Daskal. Instead, his most recent post is filled with ad hominem attacks on Jennifer Daskal by calling her a “left wing extremist” and accusing her of “condemn[ing] the United States.” He hasn’t made any specific allegation of illegality against any of them because he knows there is no evidence. And he continues in the dishonest implication that the earlier careers of the first seven of these lawyers are not being properly disclosed and are somehow shrouded in mystery. Earlier, I pointed to a news article about Tony West from 2009 that specifically mentioned his decision to defend John Walker Lindh.
March 16, 2010, 1:04 amOrin Kerr says:
TTC:
If you feel that way, maybe you shouldn’t have voted for Obama.
March 16, 2010, 1:06 amyankee says:
Does he have a list of 205 known terrorists in the State Department too?
March 16, 2010, 1:09 amTTC says:
Huh? I think you have the wrong guy.
“Ricardo says:
TTC: It’s misleading, because McCarthy argues, inter alia, that ‘Gitmo Bar’ members have committed acts that are apart from ethical legal advocacy.
No, in fact, McCarthy has made no allegations of illegal behavior by Jonathan Cedarbaum, Eric Columbus, Karl Thompson, Joseph Guerra, Tali Farhadian, Beth Brinkmann, Tony West, Neal Katyal or Jennifer Daskal. Instead, his most recent post is filled with ad hominem attacks on Jennifer Daskal by calling her a “left wing extremist” and accusing her of “condemn[ing] the United States.” He hasn’t made any specific allegation of illegality against any of them because he knows there is no evidence. And he continues in the dishonest implication that the earlier careers of the first seven of these lawyers are not being properly disclosed and are somehow shrouded in mystery. Earlier, I pointed to a news article about Tony West from 2009 that specifically mentioned his decision to defend John Walker Lindh.
Quote”
It was in a post where he was talking about an WSJ editorial outlining Gitmo Bar abuses. Different lawyers from the Al Qaeda 7.
Also, you shouldn’t ignore that much of the commentary about the Al Qaeda 7 was made while Holder was still dissembling about their identity.
March 16, 2010, 1:27 amhippo says:
Foreign policy and making war are executive powers, to be checked by
Congress.
The judicial system shouldn’t be involved in these area, they are “non justiciable”.
The Gitmo bar conducts “lawfare” in order to thwart the foreign policy and
the warmaking capability of the U.S.
Opposing your country’s foreign policy doesn’t make you a traitor or unpatriotic.
March 16, 2010, 1:27 amBut it is a political act and should be carried out in the political sphere. These
political acts are open to criticism. That’s all that the original ad and McCarthy
are doing.
Orin Kerr says:
I was joking, TTC. (I think it was pretty obvious that you voted against Obama based on your comments.)
March 16, 2010, 1:30 amStrict says:
I agree that omitting “in lawsuits” could be slightly misleading, but really, what else do lawyers do?
McCarthy’s comments are much more misleading:
1. McCarthy says that it’s a good and proud American tradition to defend “the accused,” but it’s bad to defend “the enemy.” But he doesn’t explain how these defendants are not the “accused.” They are indeed the accused – they are accused of being the enemy [and aside from that status, some are accused of specific acts].
2. McCarthy says that it’s a good and proud tradition to “defend” unpopular people, but it’s bad to “assist[] the enemy in lawsuits.” He doesn’t explain how these prisoners do not fall into the unpopular category. They are extremely unpopular.
3. McCarthy does not explain the difference between “defending” someone and “assisting” them in their legal defense. Certainly filing a habeas suit is part of a legal defense strategy. He says it like “defending” and “assisting” are starkly different things lawyers do, but I don’t see the contrast. Defense sounds noble and fairly harmless; “assisting in lawsuits against the American people” sounds aggressive and dangerous.
4. McCarthy says that these lawyers are assisting terrorists is doing things (yes, lawsuits) against the American people. He does not explain how a habeas suit is a suit against the American people, rather than a suit against an unlawful detention. A habeas suit is not a suit against the American people, nor does it ask relief from the American people.
5. McCarthy brings up wartime. Why? Is he suggesting that he would have no objection to lawyers assisting these prisoners if it was peacetime? Of course not. He’s bringing it up to suggest that these lawyers are hurting America’s war efforts. “In wartime” is otherwise meaningless – considering that it’s always wartime.” The “in wartime” exception will engulf the rule.
March 16, 2010, 1:31 amorca says:
Perhaps my little joke was a bit obscure…back when embarrassing crackpots like Andrew McCarty were allowed to soil government offices his ilk were constantly saying, “Where are the moderate Muslims who condemn terrorism?” even though there were hundreds if not thousands of moderate Muslims leaders condemning terrorism.
March 16, 2010, 1:36 amleo marvin says:
McCarthy in the Wall Street Journal
Kennedy’s part of the liberal bloc?
March 16, 2010, 1:45 amRicardo says:
The posts that the rest of us are talking about are the ones linked to above. If you want to change the subject and start discussing a completely different McCarthy post that you have not provided a link to or provided any quotes from, go ahead and do so but please be explicit in what you are doing.
Indeed, McCarthy himself ironically cautions against treating all lawyers for detainees and accused terrorists “as if they were a monolith. Clearly, they are not.” In the articles that the rest of us are discussing, McCarthy makes the very clear implication that DOJ attorney Daskal is an anti-American, leftist, terrorist sympathizer. That’s a serious charge that requires serious evidence — if the evidence is lacking, it is a tremendous discredit to McCarthy and his apologists.
Again, the most recent blog post the rest of us are discussing that is linked to at the top was published on March 14 while the earlier commentary in NYTimes was published March 9. The seven detainee lawyers were first identified by Fox News on March 3.
March 16, 2010, 1:46 amStrict says:
“The Gitmo bar conducts “lawfare” in order to thwart the foreign policy and the warmaking capability of the U.S.”
Hippo, “warmaking” is an interesting word choice.
All this legal stuff is no impediment at all to the US’s warmaking capabilities. US forces can always kill instead of capture [or alternatively, they can relinquish custody of the prisoners into the hands of the local or otherwise governing authorities]. Those who are killed have no recourse. Only those who surrender [true jihadists and suicidal maniacs don't surrender] and are taken to American soil [or quasi-American soil in the case of Guantanamo] have even a remote shot at legal recourse.
March 16, 2010, 1:49 amcynical joe says:
Apart from all the umbrage and hurt feelings about who is or isn’t a terrorist supporter, isn’t it crazy/unethical to include lawyers who previously represented Gitmo detainees (innocent or guilty) in making policy about how detainee cases should be handled going forward? Now I don’t know if thats what happened or is happening, but isn’t that the central point of investigation? All the sturm und drang about the Cheney ad leads us away from that.
March 16, 2010, 2:04 amjukeboxgrad says:
Andrew, you said this:
The person who needs to stop being ambiguous is you. You said this:
In that statement, you seem to be taking the position that “McCarthy did not accuse anyone of treason.” And you also said this (responding to Kerr saying “he said they are guilty of treason”):
I take that to mean ‘it’s pretty serious that you are falsely accusing McCarthy of accusing someone of treason.’ But I notice you also said this:
So are you finally going to tell us your position? I think it boils down to this:
A) McCarthy did not accuse anyone of treason
B) McCarthy did indeed make accusations of treason
Which is it? And I encourage you to take into account the key sentence that leo mentioned here, and which can be found in context here: “members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime.”
March 16, 2010, 2:04 amAndrew says:
Sometimes yes, sometimes no.
March 16, 2010, 2:05 amRicardo says:
No. The nine DOJ lawyers would be under an ethical obligation, at least in some situations I think, to recuse themselves from cases that directly involve former clients. As a matter of fact, though, some of these lawyers’ involvement was only to file amicus briefs in particular cases and I’m not sure that creates an attorney-client relationship.
Aside from the instance of direct involvement in a particular detainee’s case, there’s nothing wrong with any of these attorneys setting general policy. First, the views of these attorneys have largely been accepted by the courts so the views they previously advocated have become the law of the land. Even McCarthy acknowledges that Katyal has a constructive role to play in setting detainee policy. Obama won the election and even promised to close down Gitmo as part of his campaign — he gets to hire people to implement policies he has publicly advocated. That’s what the President does. People who disagree are free to vote against him in 2012.
By way of analogy, Prof. Kerr has, I believe, helped defend Lori Drew pro bono. If his legal position on the computer crime statute is ultimately vindicated by the courts, would it be in the least bit unethical for a future administration to hire Kerr to help set computer crime policy in the DOJ? I don’t see how it could possibly be so unless someone wants to make an implication that taking on a particular case pro bono indicates sympathy or bias towards the client. It’s that very implication that is discreditable.
March 16, 2010, 2:14 amAndrew says:
I’ve got better things to do than pick through everything Andy McCarthy has ever written, to find out if somewhere he has accused someone of “treason.” If Orin wants to offer a sentence or two that he thinks is the best evidence, then I’d be glad to consider it. I do not think that the sentence with the two words “in lawsuits” was an accusation of treason at all, but merely a strongly-worded statement of fact. There were many lawyers who assisted the enemy in lawsuits against the American people during wartime, just as there were many lawyers who have assisted drug dealers in lawsuits against the American people during the war on drugs.
Okay, as to this sentence by McCarthy: “members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime.” As a factual matter, that’s pretty much true. If some non-lawyer donated money, or services to the enemy, they would likely be indicted. Again, it’s a strongly-worded statement of fact, and is certainly not how I would put it myself, but I don’t see an accusation of treason there. Sorry. Has he affirmatively said that lawyers should be indicted merely for representing detainees?
I really don’t want to be in the position of judging this thing. It’s time-consuming, and you can see in my first comment in this thread that I already criticized McCarthy somewhat.
March 16, 2010, 2:15 amgwinje says:
Ha! I wish I could frame how I felt when I read that and hang it on my wall (the first one–the other two were just gravy).
March 16, 2010, 2:17 amleo marvin says:
No, my bad. You were clear enough. Anyway, I’m glad my thickness gave me an excuse to call attention to the admirable contributions by the VC bloggers.
March 16, 2010, 2:18 amStrict says:
Andrew, your fence-sitting is remarkable. Also, I don’t think treason is what you think it is. If a non-lawyer such as a prison guard gives a prisoner food, wouldn’t that be treason in your formulation? Wouldn’t the soldier on the battlefield who doesn’t kill but instead captures [and then takes into custody, protects, feeds, shelters, and clothes] the prisoner in the first place also be guilty of treason under your meaning?
March 16, 2010, 2:27 amAndrew says:
I said, “If some non-lawyer donated money, or services to the enemy, they would likely be indicted.” That’s the general principle. There are a few exceptions, which is why I used the word “likely.” McCarthy should learn to be equally careful with words.
March 16, 2010, 2:32 amcynical joe says:
I think I understand your legal point, but it seems kind of inside baseball to me (I realize that this is a legal blog). I guess I mean the broader appearance of fairness and the way the DOJ does business. It seems under those conditions the leadership of the DOJ should not have included the lawyers in future detainee policy, (and who knows, maybe they haven’t) or should have nipped in the bud public speculation of that event by assurance that it wasn’t the case.
March 16, 2010, 2:37 amStrict says:
It’s sad to see the right wing [e.g. Ann Coulter] accusing their political enemies of treason. Treason charges are the fundamental tool of oppressive governments. Stalin’s Great Purge focused on treason. Castro’s purges. [e.g. Huber Matos]. Saddam’s purges [e.g. 1979]. Treason was Hitler’s main public justification for the Night of the Long Knives.
James Madison recognized the potential for abuse and politicization of treason charges in the Federalist 43:
1788
March 16, 2010, 2:43 amJAB says:
I usually agree with OK, but tend to be with Andrew here. I left OK’s posts thinking that McCarthy had literally accused the lawyers of treason, in the sense of the criminal offense. But it sounds like McCarthy just said that they had assisted the enemy during wartime, which is literally true, even though I’m ok with it, and wouldn’t call that treason.
Orin, do you think that it is literally false to say that at least some of the lawyers who represented Gitmo detainees were literally aiding enemies of the US during wartime? (If not, which element do you dispute? “Aiding,” “enemies,” or “during wartime”?)
Not trying to be snarky or facetious here; I could definitely have just missed something in this somewhat long and tedious comment thread…
March 16, 2010, 2:43 amJAB says:
http://corner.nationalreview.com/post/?q=MjU1YjI3MzM2Y2Y2MzJmOTcyNGYxZmJjZWJmYjI3ZTE=
Even though I disagree with McCarthy overall, I’d say that at least this story is very troubling.
March 16, 2010, 2:47 amTTC says:
Most of the questionable acts by the Gitmo bar occurred well before this current series of posts. For example, the Gitmo lawyers made the news last year when an governmental investigation was launched in Aug 09 into their stalking of CIA agents.
I just wanted to avoid an Oren/Orin thing.
Well, if only certain posts by McCarthy are allowed for discussion here, no matter how on point they are, then… It was a Corner Post over at NRO from the other day, about the WSJ editorial IIRC monday’s. You’ll have to suffer without a citation or footnote as I’m off the clock.
March 16, 2010, 2:55 amStrict says:
Andrew: ““If some non-lawyer donated money, or services to the enemy, they would likely be indicted.” That’s the general principle. There are a few exceptions, which is why I used the word “likely.” ”
Your general rule doesn’t look like a general rule to me. It looks like the “exception” applies to everyone who deals with the prisoners.
Accusing lawyers of treason is a slippery slope, and we saw it play out in India last month when the foremost defense attorney for prisoners accused of treason and terrorism was murdered…
March 16, 2010, 2:55 amjeannebodine says:
I think some posters may be referring to the WSJ article “Gitmo’s Indefensible Lawyers” (which may be blocked by subscription only service). McCarthy refers to this in several articles and posts on NR.
March 16, 2010, 3:02 amAndrew says:
Strict, treason is an extremely serious charge, and it should never be made lightly. I am very much against such false charges and accusations, and hope that the perpetrators will be fully prosecuted for slander or libel, as the case may be. But please also keep in mind that false accusations of treason are not the only kind of false accusations that are bad. False accusations of slander or libel can also be harmful, for example.
March 16, 2010, 3:03 amStrict says:
“(If not, which element do you dispute? “Aiding,” “enemies,” or “during wartime”?)”
Why not all three? Did the Founders consider rendering legal aid to a fighter who has been disarmed, captured, and imprisoned, to be a form of aid within the meaning of the Treason Clause?
Where does it end? If providing legal services to an imprisoned enemy is “adhering to the enemy” and thus treason, wouldn’t any lawyer representing a criminal defendant accused of treason also be in the same boat as his client? Wouldn’t adhering to a treasonous client also be treasonous?
Under your meaning, John Brown’s lawyers committed treason when they provided legal aid to John Brown, whom himself was accused of treason [and thus was an "enemy" of the United States and of the Commonwealth of Virginia]. Further, since his lawyers were court appointed, the court itself committed treason. And so forth…
March 16, 2010, 3:07 amhieronymous says:
Has the actual U.S. Attorney for the Southern District of New York during McCarthy’s term of service, Mary Jo White, chimed in on his views? I can’t believe she’d endorse him.
March 16, 2010, 3:09 amPatrick says:
It’s not really a complicated legal point. Katyal (as an example) thought that the way the Bush administration was handling detainee policy was wrong and unconstitutional. The Supreme Court subsequently agreed with him on many points. After that, an election was held and a candidate who publicly espoused views similar to Katyal’s was elected, and his administration chose Katyal to help implement those views. Is he now to be disqualified from setting future detainee policy because he recognized that the previous policy was wrong and did something about it? Even if we remove the constitutional issue entirely, once Obama won he was at liberty to make changes to detainee policy, and if he thought that Neal Katyal’s views would be valuable in shaping that policy then the fact that he previously made a (successful) attempt to shape the law shouldn’t prevent him from serving.
March 16, 2010, 3:11 amOrin Kerr says:
Andrew writes:
False charges of misrepresentation can be harmful, too, Andrew. I would ask you to just read the few paragraphs of McCarthy’s posts. It should only take about 45 seconds, and I suspect you’ll understand what the fuss is about.
JAB: Two thoughts. First, as I’ve said before, the real target of McCarthy’s ire should be the judges, not the lawyers who made the arguments that the judges found persuasive. Second, aiding the enemy in wartime is a term that means intent to assist the enemy in hurting the United States. I think it’s completely ludicrous to suggest that the hundreds or even thousands of attorneys who were representing Gitmo detainees had an intent to hurt the United States. They were not “aiding,” even assuming that they thought the individuals were guilty. As I understand McCarthy, though, his view is that the people who agreed to represent detainees really did do so out of a wish to hurt the United States. I think it’s just totally nutty, to be honest.
March 16, 2010, 3:16 amRicardo says:
I said no such thing. I said please be explicit that you are shifting discussion from the specific case of the nine DOJ attorneys that McCarthy himself was discussing in the two above linked posts and to a completely different set of lawyers. The article is not “on point” at all as it discusses a completely different set of attorneys. Indeed, McCarthy made absolutely no mention of any criminal misconduct by the lawyers in the piece that prompted the discussion over his claiming they were “assisting the enemy.” Bringing in an entirely different piece written after the fact discussing a completely different set of attorneys seems to me to be muddying the waters, whether deliberate or not.
McCarthy himself asks people to avoid treating all detainee and accused terrorist lawyers as a “monolith.” So let’s go ahead and follow his advice and not pretend that Lynne Stewart, the nine DOJ lawyers, the lawyers of Shearman & Sterling, the unnamed lawyers that McCarthy accuses of having passed intelligence onto Gitmo detainees and anyone else who may have some involvement or association with CCR or any of the detainees all belong to some amorphous “al Qaeda bar.”
McCarthy is a classic slime artist. He creates a inflammatory terms like “al Qaeda bar” and “Gitmo bar” and then, after being called on being so dishonest, admits there are actually crucial differences between all of the above but still insists on playing guilt-by-association and using the same inflammatory language. He’s a coward. He wants to slime people while refusing to take responsibility for sliming them by hiding behind [im]plausible denial.
March 16, 2010, 3:24 amcynical joe says:
I would’ve preferred that the DOJ come to the conclusion, “It does appear awkward that Lawyers who were advocates of Guantanamo detainees are now involved in policy formulation of Government handling of detainees” I’m sure that there are lots of lawyers that share Mr. Katyal’s legal and political opinions that the DOJ could have handed off the work to, so the legal result would’ve been the same, but moderates would’ve been reassured. I’m troubled by the attitude that moderation can’t be brooked because there was an election and ‘we’ won. When every decision demands political purity, then eventually all you’re left with is political purists.
March 16, 2010, 3:28 amPatrick says:
I’m not sure why “moderation” precludes someone who has publicly taken a position on a policy issue from working on that issue for the government once an administration is elected that agrees with his position. If your preferred outcome is “the legal result would have been the same” then why does it matter who worked on it? If not, then it’s really just a policy disagreement that should be taken up in the political sphere on its merits, regardless of which lawyers are working on it and what they did before they were asked to serve.
Edit: Note that there is a concession just in the statement about having taken a position on a policy issue. It’s not necessarily true that this can be inferred from a lawyer’s previous representation of a given client, but since I chose Katyal for my example I think it’s fair on the basis of his public statements.
March 16, 2010, 3:38 amjukeboxgrad says:
andrew:
Imagine that I wrote the following words: “Andrew, a member of profession Y, has done X regarding our enemy. Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime.”
Are you claiming that the most parsimonious interpretation of those words is something other than ‘x=coming to the enemy’s aid during wartime?’ Or are you claiming that “coming to the enemy’s aid during wartime” is not the very definition of treason? Because I can’t think of any other possibilities.
For someone who made a statement criticizing ambiguity, you are being spectacularly ambiguous.
And if I am a nurse and decide to visit Gitmo to provide free medical services to prisoners who are ill, should I “be indicted for coming to the enemy’s aid during wartime?”
After all, I donated “services to the enemy,” so I “would likely be indicted,” right? And what about the DoD defense lawyers? They “would likely be indicted,” too, right? After all, they offered “services to the enemy,” right?
(Your statement which now says “if some non-lawyer donated money” originally said “if someone donated money.” And in any event, I don’t understand why lawyers have a free pass for treason.)
Feel free to explain how this is not an example of Cheney himself accusing Obama himself of treason.
March 16, 2010, 3:44 amRicardo says:
Neal Katyal occupies the rather high office of Principal Deputy Solicitor General of the United States. Here’s a partial list of his qualifications according to Wikipedia: Law professor at Georgetown University, National Security Adviser in the U.S. Justice Department during the Clinton Administration, lead counsel in Hamdan v. Rumsfeld and one of the lead attorneys in the Supreme Court case Grutter v. Bollinger. Additionally, “He was named “Lawyer of the Year” by Lawyers USA for 2006, Runner Up for “Lawyer of the Year” by National Law Journal, one of the top 50 Litigators in the nation by the American Lawyer Magazine, one of the 30 best living Supreme Court advocates by Washingtonian Magazine, one of the 90 Greatest Lawyers over the Last 30 Years by Legal Times, and was awarded the 2004 Pro Bono Award by the National Law Journal.”
Part of the job of someone in the office of Solicitor General is to argue cases before the Supreme Court. It seems to me that your assumption that there are lots of lawyers out there with Katyal’s qualifications, courtroom experience, and previous experience in government is a bit dubious.
March 16, 2010, 3:50 amJohn says:
How would you characterize folks who advocate for the release of a known IED maker from a known terrorist family who happened to leave Mrs. Speer and her two children without their husband and father?
March 16, 2010, 3:53 amRicardo says:
It’s called the “fog of war” for a reason. I have no idea whether a 15-year-old Canadian named Omar Khadr killed an American on the battlefield in Afghanistan several years ago and neither do you. That’s why we have a process in place to determine these kinds of things.
A majority of Canadian citizens seem to support his release from Guantanamo and repatriation to Canada. I would ask whether or not you think most Canadians are left-wing extremists but then you probably wouldn’t take it as a rhetorical question.
March 16, 2010, 4:04 amcynical joe says:
The reason it matters is because if its a different set of lawyers, then political moderates can say, ‘the DOJ is attempting to be fair in the assessment of future detainee policy by letting that policy be determined by lawyers less individually involved then DOJ members that were advocates for detainees. It gives the DOJ room to move to the political center. All things being equal I’d suggest the less overt politicization of the DOJ the better.
March 16, 2010, 4:06 amJohn says:
There’s no fog on the video where Omar is making IED’s and planting them. Nor was there anybody else alive to throw a hand grenade that killed SFC Speer.
And while you misstate the polling in Canada it is irrelevant. Khadr killed an American soldier while not in uniform and he is captured on video making IED’s.
So again I ask, how would you characterize folks who demand repatriation to Canada of a known terrorist, murderer and IED maker?
March 16, 2010, 4:15 amRicardo says:
After all, only a left-wing extremist would ever accuse the government of changing a report to falsely implicate Khadr. Oops, that’s actually Lt. Cmdr. William Kuebler, military lawyer for Omar Khadr. Is his allegation correct? I have no idea. But according to you, the military is apparently infested with left-wing extremists who would assert the innocence of Khadr.
March 16, 2010, 4:26 amSupremacy Claus says:
The lawyers are not guilty of treason. They and the Supreme Court are guilty of lawyer rent seeking. Once there has been a bunch of bogus procedure, and the generation of lawyer make work sinecures, everyone is satisfied, even if the client is executed.
Treason implies a sincere belief in a cause. That dignifies these lawyers too much. They are just land pirates running their con, and nothing more, jacking the taxpayer for fees.
When there is a major terror attack here, their conduct will be second guessed. If the public decides to scapegoat them and their land pirate profession, it will still be well deserved.
I blame the judges. The lawyers will ask for the moon on behalf of the unpopular defendant. Any actual privilege is the fault of the judge. There should be pitiless accountability of the judges after the major terror attack.
March 16, 2010, 4:29 amCornellian says:
There should be pitiless accountability of the judges after the major terror attack.
But, apparently, no accountability for the executive branch.
March 16, 2010, 4:40 amleo marvin says:
Other than that, how do you like the legal system?
March 16, 2010, 4:59 amSupremacy Claus says:
I love our legal system, and wish it were more adequate. I love the lawyer and wish he were more competent.
This is not a conspiracy theory. This is a criminal cult enterprise theory. All law school grads have been acculturated into its beliefs, the central one being, seek the rent. So there is no moral difference between the executive branch prosecutor, the defense attorney, the judge. They play the same game, and carry the same silent value. You may test this idea by offering the lawyer a little money to switch sides. They can all do it with zest and relish for the intellectual challenge. Offer Andrew McCarthy the defense job. I bet he takes it.
March 16, 2010, 5:33 amAndrew says:
More than 45 seconds, unfortunately. McCarthy has a lot of opinions that I disagree with, and even the ones I agree with he argues in a way that is more inflammatory than I would. But I do not think he has generally accused the “Gitmo Bar” of unlawful activity, much less treason. And he’s even said that some of them are qualified to work at DOJ.
He writes: “The fact that we don’t forbid lawyers from doing this hardly means Americans have to approve of it.” So he acknowledges that there’s no illegality in what the “Gitmo Bar” has done, much less treason.
McCarthy also writes that some lawyers have been “assisting the enemy in lawsuits against the American people during wartime.” It’s technically correct that some detainees’ lawyers have assisted in lawsuits in which the United States has been a named defendant.
He writes: “many of us have been arguing for disclosure and political accountability not for disqualification.” So, the “Gitmo Bar” is not necessarily disqualified from working at DOJ, according to McCarthy.
Regarding Jennifer Daskal, he says she’s a “left wing extremist” which seems tame by contemporary standards. McCarthy criticizes her a lot for campaigning for the UN Human Rights Committee to take certain positions. If this was political activity by Daskal rather than work in a lawsuit, then it’s fair game to cite that for whether she ought to be at DOJ. McCarthy also knocks legal work she did for Omar Khadr, and distinguishes Katyal’s work for Hamdan on the ground that Hamdan was charged with war crimes whereas Khadr was not (maybe Khadr was merely a POW or detainee or whatever).
It’s certainly questionable whether it’s proper to make Daskal’s work for Khadr a factor in whether DOJ should reconsider her employment at DOJ. But McCarthy did not accuse Daskal of illegal activity, much less treason. McCarthy only said that she took a case for someone who didn’t deserve or have a legal right to her legal services. Even if McCarthy is wrong about that, that is not his only gripe about Daskal (there’s also the political campaigning).
Incidentally, Khadr has spent over seven years at Gitmo, he was born in Canada in 1986, and he was accused of throwing a grenade that killed a US medic in Afghanistan. He is one of five Guantanamo detainees whom U.S. Attorney General Eric Holder said last year would be prosecuted through military commissions instead of civilian courts. Khadr’s case will probably be the first full military commission trial under President Obama. According to my understanding, Khadr was represented by military lawyers obligated to zealously defend his interests, and some of those military lawyers sought or accepted the assistance of civilian counsel.[*] I do not believe that McCarthy accused Daskal of any illegality, including treason. However, McCarthy may be wrong to hold Daskal’s representation of Khadr against her.
March 16, 2010, 5:35 amRicardo says:
On McCarthy’s criticism of Daskal’s HRW work, it seems to be more of the same thin gruel. The HRW report with her name on it seems to me boilerplate liberalism of the kind that comes out of Amnesty and HRW about prison conditions in the U.S. (including rape, something that decent people on both sides agree is beyond the pale), the death penalty, treatment of juveniles, the Gitmo detainee issue, the failure of local police to provide prompt consular access to foreign citizens arrested within the U.S. and other such issues.
You don’t have to agree with everything in the report to say it is not representative of “left-wing extremism.” It doesn’t ask the Human Rights Committee (which I agree is thoroughly disreputable at this point) to “condemn” the U.S.
Another example of McCarthy’s dishonest tendency is the line where he describes Daskal’s criticism of U.S. “for our purported infliction of torture.” McCarthy had this to say about waterboarding in an earlier article:
In other words, Daskal is a reasonable mind according to McCarthy when it comes to the question of torture. I’m glad we cleared that one up. So then why did the accusation appear in a laundry list of statements made by Daskal to support the accusation that she is a “left-wing extremist”?
March 16, 2010, 6:23 amNick says:
When Andrew McCarthy was, quote,
But Andrew McCarthy himself actually said, quote,
And he said this in the post that Orin links to above.
Orin, at least, has read what Andrew McCarthy himself says. Other people apparently haven’t taken that step.
March 16, 2010, 6:35 amjukeboxgrad says:
Andrew, I appreciate your creative work in arguing that McCarthy’s accusations of treason are something other than accusations of treason. But your work is far from done.
After all, what about those who “undermine our military’s ability to keep dangerous enemy combatants off the battlefield in a time of war?” Is this another non-accusation of non-treason?
And what about those who give “aid and comfort — to the enemy?” Also a non-accusation of non-treason?
After all, you said “treason is an extremely serious charge, and it should never be made lightly.” So can’t you take a few moments to convince us that these non-accusations of non-treason are being made non-lightly?
March 16, 2010, 8:15 amkrs says:
I read McCarthy’s post, and while I don’t find it persuasive or particularly coherent, I’m not sure what the fuss is about.
As far as I can tell, McCarthy thinks that there are 2 kinds of lawyers who defend Guantanamo detainees. There are the those who do it in good faith in service of due process and the rule of law, and there are those who do it because they’re rooting for the enemies of the United States and are really out to help the terrorists.
It’s not terribly complicated or sophisticated, and it’s probably similar to many people’s opinions of criminal defense lawyers: some are out to keep the government honest and protect the rights of their clients and others will do or say anything to put killers and thieves back on the streets.
That’s what I take away from McCarthy’s discussion of Katyal and Daskal.
In McCarthy’s view, Katyal isn’t rooting for the terrorists. It disturbs McCarthy a bit that Katyal spun the facts (in McCarthy’s view) in the course of defending Hamdan, and it also disturbs him that Katyal did such a great job of defending Hamdan (i.e., Hamdan is entitled to constitutionally adequate counsel, not necessarily to a top-flight advocate like Katyal), but on balance, Katyal is acting in good faith and coming from the right place:
But then McCarthy looks at Daskal and concludes that she’s rooting for the terrorists and that her motivation for defending Guantanamo detainees was more along the lines of Ward Churchill and Noam Chomsky than Neal Katyal. I have no idea if McCarthy is talking out of his rear end on this or there’s some basis for it–I’d never heard of Jennifer Daskal before, and given McCarthy’s overheated tone I tend to doubt that he’s thought very carefully about it.
He paints with an extremely broad brush, but once you get past the idea that not everyone sees Gitmo defense lawyers as latter-day Atticus Finches, I’m not sure what the fuss is about. Or as juris imprudent says: “Who is Andrew McCarthy and why does anyone give a rat’s ass about his opinion?”
March 16, 2010, 8:18 amRex Rodent says:
Just wondering if any law schools in the USA are teaching Shiria Law. Are we heading in that direction yet? It won’t be long before we are.
March 16, 2010, 8:22 ampublic_defender says:
Given that Bush and Cheney’s misadventure in Iraq, needless bluster, clueless military strategy, and pro-torture policies strengthened both the Iranian regime and Al Qaida, were Bush and Cheney traitors? Since McCarthy supported the policies that strengthened the Iranian hardliners and Al Qaida, is he a traitor? I guess that makes the National Review and WSJ editorial page just a couple of Al Qaida mouthpieces. Shame on them!
On a serious note, I see no contradiction in arguing that the people Bush/Cheney claimed were terrorists be treated according to law in court and the position that the Justice Department should be taking. First, we should remember that the WMD incident shows that Bush/Cheney sometimes got their facts wrong, so we don’t know that many of the people at Gitmo really were terrorists. They could have just been unlucky saps sold to the US military by greedy or vengeful neighbors. Second, the Justice Department has always held the position that the DOJ wins when justice is done. Top-notch arguments on both sides help makes sure that the suspects get whatever justice is coming to them.
It’s also telling that those on the Right seem to fear strong arguments. If Bush/Cheney were so clearly correct, they would have nothing to fear from top-notch lawyers. The right wing attacks on lawyers for terrorism suspects shows both fear and weakness.
The best prosecutors are happy to see strong defense lawyers on the other side. The best prosecutors get their ducks in a row and play by the rules. When they do that, they know their isn’t much we on the defense side can do.
On the other hand, weak and dishonest prosecutors fear strong counsel. And that’s where McCarthy and other Bush/Cheney apologists find themselves.
March 16, 2010, 8:28 amkrs says:
Also, I don’t know where McCarthy got “Gitmo Bar” from, but I think several of the lawyers who defended Guantanamo detainees jokingly referred to themselves as the “Guantanamo Bay Bar Association,” sort of out of a sense of camaraderie and also an ironic reference to the fact that these detainees didn’t generally have lawyers available to them unless enterprising US lawyers took it upon themselves to fight through the red tape and find these people.
And one more thing–in case it’s not clear from my post above, I generally agree with Prof. Kerr’s view of Guantanamo pro bono lawyers: “just lawyers doing what lawyers do, presumably for the same weird mix of reasons that lawyers take on other pro bono cases,”–my post above is just me trying to explain what I think McCarthy is trying to say.
March 16, 2010, 8:28 amjukeboxgrad says:
john:
How would you characterize folks who advocate for a leading Al Qaeda fundraiser? Would ‘secretary of Homeland Security’ be a good way to characterize them? (Link, link.)
March 16, 2010, 8:45 amRicardo says:
I think you have to read his original post first (the short opinion piece in NYTimes) to get the full context. He started out saying things like the detainee lawyers “demand immunity from the ordinary duties of citizenship.” To accuse someone of ignoring the duties of citizenship in wartime is a pretty serious charge. It’s certainly more loaded than “I think this person’s policy ideas and legal positions are stupid” and amounts to questioning your opponent’s patriotism. And note he did absolutely nothing to only apply this charge to some lawyers — the clear implication was that it applied to everyone who ever signed on to defend a wartime detainee, including the nine DOJ attorneys.
Now, he tries to appear slightly more reasonable by distinguishing between “good” and “bad” detainee lawyers. The problem is that he does nothing to substantiate his allegations against the “bad” lawyer Katyal. It’s simply ad hominem. I’ve waited for anyone to provide evidence that she is, in fact, a “left-wing extremist” and haven’t seen any. It’s McCarthy and not Katyal who comes out of this looking worse.
March 16, 2010, 9:02 amJust Dropping By says:
Yes, but James Madison was a well-known associate of people who had, only a few years earlier, engaged in violent acts of treason, and he made those comments while engaged in an organized “lawfare” campaign against the established American government. His biases are clear and unequivocal.
March 16, 2010, 9:07 amA. Cooper says:
It seems to me that this post by McCarthy makes it clear that his beef really isn’t with Gitmo representation at all. His problem is with certain elements of “the Left”, and whether someone is a member of the “Gitmo Bar” is not determinative or even indicative of whether you’re worth his ire.
March 16, 2010, 9:22 amMark says:
Well, if I was ever going to hate America, it will be on the day that people like Andrew McCarthy actually have a say in how it is run.
March 16, 2010, 9:33 ammetro11 says:
Andrew McCarthy prosecuted the terrorist who bombed the World Trade Center in 1993. He won his case. He’s worked in the trenches with these issues much more than Professor Kerr. Professor Kerr should engage his arguments without the snark.
March 16, 2010, 10:00 ammetro11 says:
Andrew McCarthy prosecuted Sheik Omar Abdel Rahman and the eleven other terrorists who bombed the World Trade Center in 1993. He won his case. He’s worked in the trenches with these issues much more than Professor Kerr. Professor Kerr should engage his arguments without the snark.
See here:
http://www.defenddemocracy.org/index.php?option=com_content&task=view&id=23928&Itemid=326
And here:
http://en.wikipedia.org/wiki/Andrew_C._McCarthy
March 16, 2010, 10:07 amKen Arromdee says:
Well, I’m under that impression, just from reading the quote that you quoted. He’s saying “we shouldn’t tell them their belief system is incorrigible, because some of them are trying to reform it.”
March 16, 2010, 10:22 amdavod says:
As I recall, McCarthy’s argument is that the pro bono work at GITMO of some lawyers, viewed in light of their other associations, is a continuance of their anti-American bias.
You can argue about the temerity of McCarthy suggesting, or not, that some lawyers who do pro bono work for those in Gauntanamo commit treason but you may want to read this WSJ article – GITMOS indefensible Lawyers – before continuing. If any of the GITMO lawyers now working in the DOJ were part of these incidents they should be removed (McCarthy summarizes some of the latter day John Adams’s zealous client representation):
The Gitmo Bar — in gross violation of the conditions of access to the enemy combatants — provided al Qaeda detainees with a propaganda brochure that instructed them on how falsely to claim that they had been tortured and abused. As the Gitmo commander put it, “The very nature of this document gives tremendous moral support to those who would strike out against our country…. It is not a factual report. Instead it is filled with second and third hand accounts, photos of protests that were staged, inflammatory photos from Iraq and provocative story captions.”
The Gitmo Bar fomented a detainee hunger strike that disrupted security at the camp and set the stage for fabricated reports that the detainees were being tortured and force-fed.
The Gitmo Bar provided the detainees with virulently anti-American rhetoric that compared military physicians to Nazi Josef Mengele, labeled DOJ lawyers “desk torturers,” and informed the detainees about the Abu Ghraib abuses and the potential for framing President Bush as a war criminal.
The Gitmo Bar provided the enemy combatant terrorists with a hand-drawn map of the detention camp’s lay-out, including guard towers.
The Gitno Bar incited the detainees against the military guards.
The Gtimo Bar posted photos of Guantanamo security badges on the Internet in a transparent effort to identify U.S. security personnel.
The Gitmo Bar facilitated enemy combatants in communicating messages and interviews to their confederates and the outside world.
The Gitmo Bar provided a detainee with a list identifying all the other detainees in custody.
The Gitmo Bar provided the detainees with news accounts about the war in Iraq and Afghanistan, including reports that U.S. forces were sustaining devastating casualities from IED attacks. (Again, it was a court-ordered condition of the lawyers’ access to these war prisoners that they not be given information relating to military operations, intelligence, arrests, political news and current events, and the names of U.S. government personnel.)
The Gitmo Bar provided KSM and the 9/11 plotters — i.e., the murderers of 3000 Americans — with photographs of covert CIA officers in an effort to identify them as interrogators. (Leftist lawyers are attempting to have these interrogators indicted for torture and war crimes.)
The Gitmo Bar brags about its role in the release of enemy combatants who have returned to the jihad against American troops and the American people.
PS. I wonder if any of these lawyers took information out of Guantanamo to give to family and friends, al la Lynne Stewart.
March 16, 2010, 10:41 amStrict says:
“Andrew McCarthy prosecuted Sheik Omar Abdel Rahman and the eleven other terrorists who bombed the World Trade Center in 1993. He won his case.”
And look at the wonders that did for the World Trade Center! oh wait…
[And besides, the prosecutors in that case had audio AND video of the defendants committing the crimes of which they were accused. It was truly a slam dunk case.]
[It's also kind of strange to suggest that its improper for defense attorneys for accused terrorists to have any role in formulating detention policies, but that prosecutors of such terrorists should have a say on policies because they've 'been in the trenches.']
March 16, 2010, 11:26 amDavid M. Nieporent says:
I’ll tell you how I’d characterize someone who claimed that these folks “demand repatriation” when the quote he himself provided actually says repatriation OR alternatively, to transfer him to US federal court for prosecution: a liar.
In any case, how do you know Khadr did any of those things?
March 16, 2010, 11:42 amKen Arromdee says:
Did he literally mean that they were committing treason in a Constitutional sense, or was it rhetoric meant to imply “they’re doing something which greatly harms the interests of the country”?
Edit: I don’t see the word “treason” in either linked article, so I suppose the answer is neither.
March 16, 2010, 11:43 amStrict says:
Davod,
Lol.
1. Isn’t the government’s whole argument that the detainees at Gitmo are already the most dangerous, anti-American elements? They supposedly don’t need any inflaming. The lawyers showing them anti-American “propaganda” would have no effect – unless you are suggesting that the prisoners are not anti-American already.
2. I’m not sure what all this talk of “pro bono” has to do with anything. You say it like it makes the lawyers’ conduct worse. Are you suggesting that if the lawyers charged a fee, it wouldn’t be treasonous or as treasonous?
3. How are prisoners held in a maximum security facility in a highly militarized zone of Cuba a flight risk? Your “the lawyers are trying to help them escape!” argument is absurd.
March 16, 2010, 11:43 amStrict says:
Ken,
It’s possible he meant it like “hint hint, some prosecutor should file charges against them.”
If they weren’t lawyers, they’d be indicted for treason, so why have an exception for lawyers? They aren’t above the law, treat them like how non-lawyers would be treated [hint hint indict them].
March 16, 2010, 11:49 amPLR says:
Way back at the sixth post:
The Corner preaches to the ignorant, the sociopathic and the credulous. Agreed that the rest of us need pay no attention.
March 16, 2010, 11:51 amnarciso says:
No, the point is that the lawyers were abetting the detainees, coaching them to produce the most sympathetic testimony, inciting them to riot, hence 82 of these gentlemen have returned to the battlefield. McCarthy’s experience in these cases, cautions him against
March 16, 2010, 11:52 amrepeating these tactics without considerable loss of classified information to the enemy
improvidently granted says:
Orin, I’m curious — was what Justice Jackson wrote in Johnson v. Eisentrager also “frightening,” in your view?
“The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort, and bring aid and comfort to the enemy.”
If so, then McCarthy is in illustrious company.
March 16, 2010, 12:24 pmArthur Kirkland says:
Some would say Mr. McCarthy provided aid and comfort to enemies of the United States by facilitating the prosecution of terrorists in mere criminal courts (instead of in military tribunals), and that by refraining from advising that they be waterboarded to generate actionable intelligence he was failing to protect the American people from their enemies.
Those people would be nuts, but there is a lot of that going around. I guess some people have been frightened beyond their wits.
March 16, 2010, 12:30 pmArthur Kirkland says:
A quick trip to the Corner indicates that Mr. McCarthy has set aside his crusade against detainees and their lawyers long enough to address the other great danger confronting our Nation . . . and consequently has become an authority on congressional procedure as it relates to consideration of health care reform.
His service to his Nation seems boundless.
March 16, 2010, 12:34 pmStrict says:
Improvidently,
There are some salient differences between then and now.
1. There is a decent argument that Guantanamo is sovereign American territory.
2. In Eisentrager, the “prisoners were formally accused of violating the laws of war and fully informed of particulars of these charges…We consider here only the lawful power of the commission to try the petitioner for the offense charged.” In contrast, the Guantanamo prisoners have not been formally charged. In Eisentrager, the Supreme Court was looking at whether the military commission had the legal authority to try the prisoners on specific charges – it said yes, the commission has the right, so no habeas relief. The prisoners in Guantanamo are in an entirely different situation, and their requests for habeas relief lie on different legal grounds.
March 16, 2010, 12:44 pmElliot says:
Looks like Liz Cheney struck gold with this one.
March 16, 2010, 12:53 pmmetro11 says:
arthur kirkland:
your post: “Some would say Mr. McCarthy provided aid and comfort to enemies of the United States by facilitating the prosecution of terrorists in mere criminal courts…”
that’s silly. mccarthy prosecuted the WTC bombers in the 1990′s – long before the supreme court decision – and later congressional legislation – that gave rise to use of military tribunals during the GW Bush Administration.
March 16, 2010, 12:59 pmEMB says:
Yes… I’m curious though, is this guy actually related to Joseph McCarthy or does he just happen to have the same name and similar views of patriotism?
March 16, 2010, 1:02 pmneimoller says:
neal katyal probably got a pass so andy mccarthy could prove he wasn’t racist against the browns. so is the statement about corrigible muslims.
well, they came for the lawyers only now…
March 16, 2010, 1:05 pmRandomEngineer says:
A big issue which gets lost because of Andrew McCarthy’s polemics and the pro bono presentation of detainees by the “Gitmo Bar” is their status as “enemy combatants”. Would this whole debate on “treason” be any different if either the past or present administration changed their status to “prisoner of war”? (Setting aside the contentious issue about whether they actually qualify as such by their conduct.) That would seem to trigger a cascade of events. First, those held would be nominally enemies of the United States. I’m left to wonder (though it is hypothetical) would the Gitmo Bar or others challenge their detention. I’m sometimes confused whether disagreement is on their detention, or whether they are charged with particular war crimes to be decided by a military commission. (This might vary amongst the detainees, naturally.)
So is the heart of the Gitmo Bar’s motivation that many/most of those held should not be, period? Or is it procedural, that they are entitled to be detained, but not under the authority claimed because of a greater danger to civil rights law? (Or to be fair, a combination.) I’m curious what standards people think should apply, since some have argued that some Gitmo detainees don’t belong there period (the “goat herder” issue).
March 16, 2010, 1:15 pmneimoller says:
what have mitch mcconnell and john boehner said about the cheney attacks on the “al qaeda 7″ and the followups by folks like mccarthy? why havent they stood up to condemn this behavior by their fellow republicans?
March 16, 2010, 1:18 pmMark Field says:
Under the GC, POWs have the right to challenge their status and thus their detention.
March 16, 2010, 1:30 pmdoodahman says:
1. that “82 returned to the battlefield” is baseless disinformation used to inflame doofi such as yourself. But some people are fooled all of the time, right?
2. What’s classified about waterboarding, sleep deprivation, exposure to cold, vicious dogs and desecration of the Qran? You use that phrase like it has actual real world application to a dude in a cage in Cuba. Could you possibly be that gullible to believe a line a crap like that? Hee larious.
3. Are you that much of a coward that you’re willing to engage in witch hunt tactics against men and women who everybody damn well knows don’t sympathize with terrorist aims because of some inflated, grossly exaggerated idea of risk? History is full of such people and they are a great source of shame.
March 16, 2010, 1:32 pmElliot says:
I certainly don’t speak for either McConnell or Boehner, but I suspect they are quiet because they consider the issue is to their electoral advantage. If the electorate is left with the general impression the Obama administration is soft on terrorists, that will aid them in November.
Add this to the Xmas bomber, the KSM New York trial venue, and plans to close Guantanamo, and candidates will have a good base to bash the dems in the election.
March 16, 2010, 1:33 pmleo marvin says:
Sure, if you think Joe McCarthy “struck gold.” If you think the Phelpsians “struck gold.”
March 16, 2010, 1:38 pmleo marvin says:
… mere blocks from the 9/11 site!
(The time travel problem is no obstacle to McCarthy, as his friends at PowerLine helpfully point out in the paragraph that begins “But it was never obvious”.)
March 16, 2010, 1:55 pmElliot says:
It’s hard to measure these things since we really can’t get a good handle on much any single tactical move influences an election. I say Cheney did well becase she is capitalizing on 1)the public’s general distrust of lawyers, and 2)their support of harsh measures against Islamist terrorists.
It differs from McCarthyism in that this is a single event that will be gone from the headlines relatively soon, while McCarthyism dragged out until it discredited itself. Cheney’s a quick strike.
It differs from Phelps campaign because Phelps’ ideas have no public support. Phelps is not building on attitudes that are already widely held.
But, now I have a question. Have there been high profile democrats who have come to the DOJ and AQ7 defense on this? I don’t know. Anybody have better info?
March 16, 2010, 1:56 pmKen Arromdee says:
Who someone chooses to defend isn’t absolute proof of their sympathies, it’s evidence, and as such can be countered by more evidence. If they are known to belong to the ACLU, that is indeed more evidence.
A better analogy would be “if there were lawyers who defended the KKK, and we didn’t know much about them other than that, and the Republicans hired them, would there be complaints from the left?” Of course there would be.
March 16, 2010, 2:05 pmKen Arromdee says:
That has the implication that if he doesn’t do so, he can’t. Which isn’t true. Nobody has the ability to correct every misstatement about themselves on the Internet, and sometimes even trying to correct a lie can just spread the lie further.
March 16, 2010, 2:08 pmKen Arromdee says:
I think it’s obvious what he meant. McCarthy didn’t accuse anyone of treason in the statement that Oren quoted, and he has no opinion on whether McCarthy did it in some other statement that Oren hasn’t bothered to quote yet.
March 16, 2010, 2:17 pmbpbatista says:
George Orwell famously said that British pacifists were objectively pro-Nazi.
Likewise with the Gitmo Bar: They are objectively pro-al Qaeda.
March 16, 2010, 2:19 pmRoger the Shrubber says:
Greatest attempted distinction, ever.
Tip for future debates: you actually would sound LESS crazy if you described your beliefs as a “conspiracy theory.”
March 16, 2010, 2:21 pmJohn says:
Actually Orin, Andy specfically SAYS that the “Gitmo bar” is NOT a monolith, and specifically cites two lawyers who are part of that bar, one of which he feels safe having in the DOJ and the other he says frightens him. Which is why he calls for DISCLOSURE of those who have such ties. In no way does he claim that such ties IN GENERAL are disqualifying, but in the specific they can be.
March 16, 2010, 2:48 pmNobody Really says:
No, membership in the federalist society was enough.
March 16, 2010, 2:53 pmRandomEngineer says:
Yes, of course, but under what standard? One of the arguments I’ve read (not necessarily here), is that because administrations have used a more difficult classification, there is a higher burden upon them to prove it.
Is a challenge exclusively through a system under the executive sufficient? Or would we perhaps be breaking new ground, because no previous POW has ever mounted a serious challenge to his detention, when considered to be within the jurisdiction of federal courts? (I’m guessing WWII German POW’s held within the U.S. never mounted a serious attempt, but I don’t know.)
I think this is at the heart of the McCarthy v. Gitmo Bar controversy, and I’m trying to separate out one issue to simplify the question. McCarthy believes that everyone at Gitmo deserves to be there, and I assume that belief would be unchanged were they classified POW, though he’d object they don’t qualify. I’m unsure what any of the Gitmo Bar think about that, because they have the illegitimacy of the “enemy combatant” standards and theshold for detention to argue first.
March 16, 2010, 2:53 pmNobody Really says:
Capturing and gaining intelligence is a key part of warmaking.
March 16, 2010, 2:55 pmsecond history says:
It differs from McCarthyism in that this is a single event that will be gone from the headlines relatively soon, while McCarthyism dragged out until it discredited itself. Cheney’s a quick strike.
Do you really believe this won’t be in a 30-second political commercial this fall?
March 16, 2010, 2:58 pmmetro11 says:
well – for those who wish to compare Andrew McCarthy to Joseph McCarthy – and thereby attempt ad hominem attacks without engaging in substantive argument – it is worth noting that many historians believe Joseph McCarthy was right:
http://www.amazon.com/Blacklisted-History-Senator-McCarthy-Americas/dp/1400081068/ref=sr_1_3?ie=UTF8&s=books&qid=1268765942&sr=1-3&tag=thevolocons0d-20
March 16, 2010, 3:00 pmCJColucci says:
I knew that Tailgunner Joe had had a daughter, but I never realized he had had a son, too.
March 16, 2010, 3:01 pmdoodahman says:
Many “historians” think the Holocaust didn’t happen, too. Not to mention the fact that being a socialist during the Depression was relatively mainstream. On the other hand, membership in a fascist Bund has never been brought up as a reason to be blacklisted.
March 16, 2010, 3:08 pmmetro11 says:
doodahman: no. historians now think joseph mccarthy was right because of historical papers – like the verona papers – released by the soviet union. again – please engage in substantive argument. comparing your opponents to holocaust deniers does not = engaging in substantive argument.
March 16, 2010, 3:14 pmdoodahman says:
I’d say if a person defends a witch hunt against people who are simply doing their constitutionally sanctioned and required duty on behalf of a vilified group, it isn’t absolute proof that he is a fascist, but it is evidence that he is. If he excuses torture, that’s even more evidence.
March 16, 2010, 3:16 pmmetro11 says:
doodahman:
and it’s interesting you should throw about claims of holocaust denial. i would imagine that it is far more likely that the terrorist clients of the Gitmo Bar actually do – literally – deny the holocaust.
so certainly you will join those who criticize the Gitmo Bar?
March 16, 2010, 3:18 pmJohn says:
http://corner.nationalreview.com/archives/?q=MjAxMDAz
“Here is where the Obama administration’s stonewalling on the Gitmo lawyers is truly infuriating. Why should Americans not know all these facts? If there was transparency, most people would find Daskal’s role at DOJ frightening. On the scale of lawyers as ideologues, she seems to be about where CCR is. On the other hand, I sleep better at night knowing Neal Katyal is at DOJ. I don’t agree with him about many things, and he’d never be Deputy Solicitor General in a conservative administration. But President Obama won the election, and he has the right to fill the slots with progressive lawyers. Katyal is a progressive lawyer who doesn’t think we should be using military commissions to try terrorists. I disagree, but so what? That’s what a the policy debate is about, and our side doesn’t hold people ineligible because we disagree with them on policy. Meantime, Katyal accepts that terrorists are a major threat to the United States and that we have to have a system for detaining them even if we can’t convict them of crimes. He’s right — and one wishes more people in the Obama Justice Department saw it that way.”
March 16, 2010, 3:21 pmdoodahman says:
Uh, considering this “article” is less than a day old, and given its source– the WSJ and a couple of rightwing cranks– I’d wait until factchecking has a chance to do its magic. The WSJ has been the launching pad of numerous bits of disinformation since the start of the GWOT and to quote blindly from it, as an authoritative source, is at best fraught with peril. Let’s see how the article’s claims stand up to scrutiny.
March 16, 2010, 3:27 pmJohn says:
So exactly how would you classify the motivations of a lawyer who smuggled in photos of CIA agents to show to detainees at Gitmo? Or who violated various court orders on what information they could provide their clients? Or carry out to ascociates of their clients?
March 16, 2010, 3:29 pmRPT says:
Where do you put Prescott Bush?
March 16, 2010, 3:31 pmdavod says:
“Capturing and gaining intelligence is a key part of warmaking.”
Sorry. New rules – being struck down by mysterious bolt from sky is now preferred to capturing ratbags for intelligence purposes. I Cannot find the link but recently read an analysis that showed military/CIA requests to capture for intelligence purposes were being denied in favor of the predator bolt from the sky.
March 16, 2010, 3:32 pmdoodahman says:
Well, that’s typical. You probably base a lot of positions on what you imagine about people. That’s why we have due process, because your imagination isn’t worth spit. Glad to know your heart bleeds for those imprisoned by Nazis without due process; too bad you haven’t incorporated the lesson from that woeful event into your value system.
March 16, 2010, 3:32 pmJohn says:
http://online.wsj.com/article/SB10001424052748704131404575117611125872740.html
I am at a loss for how anyone can defend the actions of the lawyers mentioned in this article. Or how their actions cannot be called anti-American.
March 16, 2010, 3:36 pmJohn says:
So you don’t have anything to disprove these claims, you just engage in some ad hominem attacks.
March 16, 2010, 3:39 pmCJColucci says:
it is worth noting that many historians believe Joseph McCarthy was right
Right about what? That there were spies in our government? Hell, I’ll go out on a limb and say there are spies in our government now. In fact, I’d be astounded if there were six consecutive weeks in the last century in which we have not had spies in our government. But unlike, say, Richard Nixon, who actually exposed a genuine spy, McCarthy recklessly slung around ever-changing numbers of never-to-be-identified spies.
March 16, 2010, 3:40 pmRPT says:
This actually occurred? Who, when and what? Details please.
March 16, 2010, 3:43 pmMark Field says:
I can’t recall offhand.
The relevant GC weren’t enacted until 1949, so they didn’t have that opportunity.
March 16, 2010, 3:43 pmdoodahman says:
What does that have to do with the price of tea in China? If certain individual attorneys violate court orders, they are subject to prosecution and their motives, I would suspect, don’t enter into it until sentencing, if at all.
I don’t get people like you. If there has been a transgression, then the lawyer perps are to be put on trial with full due process rights. What does that have to do with tarring attorneys who have not been accused (let alone proven guilty) of such misconduct? That’s the issue here. You’re just trying to shift the frame of the debate to an irrelevancy because your origional position is intellectually bankrupt. Nobody says that law breaking lawyers shouldn’t be punished. It’s about punishing lawyers that are just doing their damn jobs.
Actually, I really do get people like you. You, at a very fundamental level, don’t get the basic ideas behind due process and the falsity of such mob- based “reasoning” like guilt by association. You simply want to put people into boxes, judge and punish them accordingly not based on evidence or objective facts, but because, deep down, you just don’t like what they are doing. And if you can’t prove they committed a crime or impropriety, you then magically come to know their “motives” and try to hang them for that.
Pathetic. Really pathetic.
March 16, 2010, 3:44 pmSarcastro says:
[It's becoming increasingly clear that those who defend McCarthy on this site think liberals are traitors (or close thereto) to begin with.]
March 16, 2010, 3:44 pmdoodahman says:
I’m saying the sources are suspect and the allegations are unsubstantiated. Not to mention the fact that what you and McCarthy and Cheney are all about is an ad hominem based attack on lawyers just doing their job. So take your own advice, bud. You want to vilify people because of what you assume to be their motives, even if their actions are not only within the law, but highly sanctioned under the Constitution.
March 16, 2010, 3:50 pmKirk Parker says:
Dave Hardy,
You should have defended some eeevil gun owners. That would have done the trick…
orca,
If (arguendo) there are “hundreds if not thousands” of moderate Muslim leaders condemning terrorism, rather than just a handful, the press is certainly doing a wonderful job of ignoring them.
(Just to clarify: anyone saying “Yes, but…” is not really condemning something, so don’t bring up that likes of Ibrahim Hooper.)
March 16, 2010, 3:51 pmJohn says:
http://online.wsj.com/article/SB10001424052748704131404575117611125872740.html
March 16, 2010, 3:56 pmAndrew says:
I was addressing things that Andrew McCarthy said, not things that Marc Thiessen or Dick Cheney said.
March 16, 2010, 4:02 pmJohn says:
http://online.wsj.com/article/SB10001424052748704131404575117613313731980.html
“The Keep America Safe ad did not call for anyone to be fired or suggest that representing America’s enemies rendered lawyers ineligible to serve in the Justice Department. Instead, it made the common-sense point that when attorneys volunteer to participate in cases, particularly where there is no requirement of representation by counsel, that choice likely reflects their policy preferences.
The American people are obviously entitled to know what lawyers are making national security policy, what positions they have previously taken, and whether those positions conflict with their current duties. As it was with the Second Amendment, so it is with terrorism. Critics from the left and right will draw competing inferences, but it is specious to suggest that the information is irrelevant.”
March 16, 2010, 4:03 pmJohn says:
So how is a request for information on what those who are forming policy did in the past an ad hominem attack? And pro-bono work in habeas cases is NOT “highly sanctioned” under the constitution.
March 16, 2010, 4:06 pmbpbatista says:
RPT: I don’t know where I put Prescott Bush.
Where do YOU put Joe Kennedy?
March 16, 2010, 4:07 pmmetro11 says:
doodahman: funny. you give the Gitmo detainees more of the benefit of the doubt than you do the commentators here!
March 16, 2010, 4:12 pmdoodahman says:
I’m not “comparing your opponents” to Holocaust Deniers. I just said that there are so called “historians” which will say anything regardless of its accuracy. So, the Verona papers show that those accused by McCarthy were in Soviet thrall? Really? Why do I highly doubt that to be the case……
March 16, 2010, 4:13 pmdoodahman says:
The commentators here aren’t in cages, taken from their lives and their families, under color of authority granted by me and the rest of us as citizens of this gov’t. I give them the benefit of the doubt that is ensconced in the Constitution– innocent until proven guilty through a rationale and justice seeking due process. These people were in almost every instance simply handed over based on untested allegations. They were not captured in battle, bearing arms. Certainly not the 90% or so who ended up being released because there not only wasn’t a provable case, but no case whatsoever. That little fact seems to escape a lot of you people.
Besides which, the doubt I give isn’t for them, for fuck’s sake. It’s for the lawyers who represent them. And there you go, like these other so called Americans, conflating the accused with their attorneys. Just a voracious, unprincipled hunger to accuse, to punish, to vilify that is so out of control that even laywers who not only are not terrorists but are important functionaries in our Constitutional system are not spared your vile mud slinging.
Try to be less confused. If not that, then less vicious. If not that, then more silent.
March 16, 2010, 4:18 pmJohn says:
The sources aren’t suspect and you provide NO support to make that claim other than ad hominem. And yes, some people’s actions, as documented ARE not within the letter of the law (or do you consider violating court orders to be SOP for lawyers?). And again, I have every right to know who is making policy for the US and what their background is.
March 16, 2010, 4:21 pmJohn says:
The Constitution doesn’t require ENEMY COMBATANTS to be considered innocent until proven guilty!
March 16, 2010, 4:23 pmRPT says:
Both are bad. Do you agree?
March 16, 2010, 4:25 pmMichael B says:
Debra Burlingame and Thomas Joscelyn are highly relevant, in fact are probative here.
March 16, 2010, 4:30 pmRPT says:
Thanks. That is helpful. It appears that the Paul Weiss litigation was settled, and that no other lawyers are named. It appears to me that the fundamental divide between the positions taken by the different sides of this debate are as follows: Some (Cheney, McCarthy, perhaps you) presume that if the detainees are in Guantanamo in the first place then they are terrorists and entitled to less or no rights. There is a factual problem with this presumption, as demonstrated by the Seton Hall and other studies. Others believe that there are actually innocent non-terrorists who are part of the population and that the factual and legal guilt of each person there must be proven rather than presumed. This is the Paul Weiss, “Al Qaeda 7″, et al position. Is this a fair statement of the issue? If not, why not?
March 16, 2010, 4:33 pmSarcastro says:
Whatever, you ENEMY COMBATANT. Ha! No due process for you!
If you ask me, those who disagree with your interpretation of the Constitution (and this includes the SCOTUS) are all terrorists.
March 16, 2010, 4:33 pmdoodahman says:
Whaaaaaaa? First, McCarthy, Cheney and the rest have done a lot more than just “request information”. They have cast aspersions on the loyalty and the underlying motives of lawyers accused of no wrongdoing. Maybe you missed the reference to “McCarthyism.” Or maybe you don’t quite understand how guilt by association works. I don’t think those names were sought so the Federalist Society could give them a plaque.
Second, the case law proceeding from the Sixth Amendment guarantees representation by counsel– if one cannot afford it, one is to be provided free of charge. Did you think that was just an entitlement program like welfare? Do you think the provide public defenders in Texas because of all the bleeding hearts out there?
For those captured in an active war zone, ya’ll don’t want to give them protection under the Geneva Convention. For those captured far away from a battlefield, based on unsubstantiated accusastions by persons of unknown veracity, you don’t want to give them a process for proving their guilt before punishment.
Dudes, that’s fascism. There’s certain bright lines that separate Constitutionalists from fascists, and attacking defense lawyers as disloyal terrorist sympathizers, and pretending that due process is some kind of luxury option like corinthian leather seats– that’s way over the line. You need to get back on the right team and defend the Constitution, its processes and its functionaries, or you yourself become enemy combatants to this sacred, blood purchased system of ours.
March 16, 2010, 4:38 pmRPT says:
Is Joscelyn a lawyer? His background is pretty sparse outside of a number of right groups and affiliations. That is, does he have actual experience and expertise?
March 16, 2010, 4:42 pmdoodahman says:
Not according to Dick “Unvarnished Advice” Cheney, you don’t. Let’s just see how well those stories hold up under scrutiny.
March 16, 2010, 4:42 pmRPT says:
John:
The B&J WSJ article is not really “documentation”, as differentiated from partisan commentary. Is there some nonpartisan source which can be consulted?
March 16, 2010, 4:43 pmMark Field says:
You mean as opposed to the stellar job the media generally do?
March 16, 2010, 4:52 pmRandomEngineer says:
Or, they are exercising their First Amendment rights. I seem to recall Moveon.org doing a “General Betray-us” ad casting aspersions on a certain army general, to name but one counter-example. It’s politics, not bean-bag.
March 16, 2010, 5:07 pmSarcastro says:
Ahh, First Amendment AND politics is not bean-bag. The two arguments that keep anyone from criticizing what you say!
March 16, 2010, 5:12 pmyankee says:
If by “many historians” you mean one journalist with a bachelor’s degree in English and “graduate work” in economics, then yes, many historians think Joseph McCarthy was right.
Do you really think Joseph McCarthy had a list of 205 known communists in the State Department?
March 16, 2010, 5:14 pmJohn says:
Again, all you present is ad hominem. Cheney NEVER argued such a thing (and you don’t understand the issue if you make some bogus claim about meetings he had and his not disclosing what was said in those meetings).
March 16, 2010, 5:23 pmyankee says:
I’ll say! I doubt there’s been any time since World War II when American troops were not engaged in active hostilities somewhere. All the more true in the future if you consider the unwinnable “war” on terror to be a real war. There’s about as much hope of eradicating terrorism as there is of eradicating drugs or poverty: none. It’s very convenient for the government, since war has always been the #1 excuse for expansion of government power.
March 16, 2010, 5:24 pmbailey says:
Lawyers advocating for the enemy in time of war is so unprecedented that they have to pull poor John Adams from the grave to support their position. Of course, that defense wasn’t during wartime and Adams wasn’t advocating for redcoats during the Revolutionary War. Talk about grasping for straws in support of one’s position.
March 16, 2010, 5:27 pmJohn says:
No, they have sought information on who these lawyers ARE, and in fact have been refused such information, and then given incomplete information (apparently there are now 10 lawyers who worked for al Qaeda detainees). And other than cast aspersions on the people who requested the information, YOU have shown no reason WHY this information needs to be hidden.
2nd, ENEMY COMBATANTS don’t get lawyers under the 6th admendment, that is from CRIMMINAL prosesuctions.
And Dude, cleary YOU have no concept of what Fascism is (other than actions by people you don’t like). Sorry, but while Obama does get to appoint who he wants to posts in his administration, he doesn’t get to do it in the dark. Information about the people making policy is ESSENTIAL to a DEMOCRACY.
March 16, 2010, 5:30 pmRandomEngineer says:
True. (I didn’t know much about it until looked it up just now.) So that makes me wonder, did those German POW’s have an even broader claim potentially to challenge their detention? The 1929 Geneva Convention gave them no right to challenge their detention. It’s dicey to apply current Supreme Court precedent backwards, but from the recent Gitmo rulings (especially for a non-lawyer), that defect would likely have been unconstitutional, right? At the very least, they would have been entitled to a habeus hearing. Imagine the mischief that would have caused if some anti-war group had attempted such a strategy. What would the public have thought?
Of course, Roosevelt rounded up Japanese-American citizens, so my hypothetical seems unlikely, and it’s doubtful any federal judge would have entertained such a POW habeus petition. We’ve come along way, baby!
March 16, 2010, 5:31 pmJohn says:
doodahman says:
“For those captured in an active war zone, ya’ll don’t want to give them protection under the Geneva Convention. For those captured far away from a battlefield, based on unsubstantiated accusastions by persons of unknown veracity, you don’t want to give them a process for proving their guilt before punishment.”
Because they do not meet the requirements for such protection they DO NOT QUALIFY for such protections.
March 16, 2010, 5:33 pmJohn says:
So lacking any contradictory evidence, you just ignore information you don’t like?
March 16, 2010, 5:36 pmRandomEngineer says:
How do those arguments keep anyone from criticizing what “you” say? I was merely pointing out that the subject about which doodahman is apparently indignant (questioning a fellow American’s loyalty) is not unprecedented. You know, more of that First Amendment stuff.
Unless I’m confused about who you think is claiming immunity from criticism. It certainly sounds to me like doodahman would prefer McCarthy and Cheney be silent.
Or maybe I’m again missing the sarcasm. Been known to happen.
March 16, 2010, 5:40 pmmetro11 says:
yankee:
1. i think former British Prime Minister Tony Blair was right:
“[islamic extremism is] something more akin to revolutionary Communism in its early and most militant phase…”
see here:
http://americanfuture.net/?p=2542
2. and, as to joseph mccarthy… “In 1995, when Venona [Soviet intelligence] transcripts were declassified, it was learned that regardless of the specific number, McCarthy consistently underestimated the extent of Soviet espionage.”
http://www.fact-index.com/j/jo/joseph_mccarthy.html
(emphasis added)
March 16, 2010, 5:42 pmJohn says:
No, no one is assuming that all the folks in Gitmo are terrorists, they are assumed to be ENEMY COMBATANTS, which is WHY they are detained. And yes, they are required to prove they ARE being held in error to be released. And clearly you didn’t read the article very thuroughly if you think this is the Paul Weiss view. And just because DOJ settled doesn’t meant Paul Weiss and others didn’t do anything WRONG (yes, even if it WAS the Bush DOJ).
March 16, 2010, 5:43 pmRPT says:
That was when the R’s liked General Petraeus. How things have changed.
March 16, 2010, 5:50 pmsecond history says:
metro11 says:
doodahman: no. historians now think joseph mccarthy was right because of historical papers — like the verona papers — released by the soviet union. again — please engage in substantive argument. comparing your opponents to holocaust deniers does not = engaging in substantive argument.
The Venona Papers were not released by the USSR. Venona was a US/UK intelligence program (the US portion overseen by Army Intelligence) involving cryptanalysis of messages sent by Soviet Intelligence.
The accuracy of the link between code names and specific individuals is still a matter of dispute. For example:
Hardly “proof” when the identity of someone was either a Czech politician, a senior American official, or a British diplomat. Quite a choice.
McCarthy believed that Gen. George Marshall was guilty of treason, accusing him of being part of “a conspiracy so immense and an infamy so black as to dwarf any previous venture in the history of man.”
Hardly the type of man you want to hitch your star to.
March 16, 2010, 5:53 pmRPT says:
Give me a break; I actually have a job. I do tend to discount information from unreliable partisan sources, and I can’t think of two sources more unreliable—and provably dishonest over many years—than Cheney and Kristol, whose combined record is well below .500
March 16, 2010, 5:53 pmMichael B says:
“[It’s becoming increasingly clear that those who defend McCarthy on this site think liberals are traitors (or close thereto) to begin with.]“ Sarcastro
This is a discussion worth having; it is worth exploring, it is worth probing inquiries, for it calls us to question ourselves in addition to others, those others being the attorneys hired by Eric Holder as, again, D. Burlingame and T. Joscelyn forcibly articulate.
It’s becoming increasingly clear that those who attempt to foreclose such a discussion on this site think others are traitors (or close thereto) to begin with; traitors of a different kind, but nonetheless, the evidence is prominent in this thread and elsewhere.
March 16, 2010, 5:56 pmRandomEngineer says:
How have things changed? If any R’s of any national standing have turned on him, I haven’t noticed.
March 16, 2010, 5:57 pmmetro11 says:
second history:
nonetheless, wouldn’t you agree that:
“…when [the] Venona transcripts were declassified, it was learned that … McCarthy consistently underestimated the extent of Soviet espionage…”?
http://www.fact-index.com/j/jo/joseph_mccarthy.html
(emphasis added)
March 16, 2010, 6:01 pmKirk Parker says:
Mark Field (#208),
Touche! Although the same media does manage to find the aforementioned Mr. Hooper instead of the more moderate/non-weasely “leaders”, so that has to count for at least some intentionality on their part, does it not?
March 16, 2010, 6:01 pmTed says:
I guess I’m ok with this dichotomy if “help the people” encompasses everything that “change the law” does not, like advocate constitutional protections for those who need them most.
LAawGuy5000 wins the thread at the 38th post.
But, sadly, is disqualified for failing to acknowledge victory.
And what he meant was, “If some non-lawyer [militant] donated money [to buy weapons], or [provided] services
to[by taking up arms with] the enemy, they would likely be indicted [for treason].” I wish people would just say what they mean the first time.I like it. Instead of Esq., we should append our names with “L.P.” I can see it: “Allow me to introduce Mr. Ted, Land Pirate.”
Thanks all, I’m here all night…
March 16, 2010, 6:02 pmPeter Bepler says:
Professor Kerr, I do suggest dialing down the rhetoric a bit. Andrew McCarthy is not a nutcase. You have every right to disagree emphatically with him, and he with you (although so far he has not, has he?). I suggest your response kicking off this thread, were you not a Conspirator, would be fairly close to the line for blockability, no? Surely you can understand the point of view of a prosecutor of terrorists on the efforts of the bar on behalf of the Gitmo detainees, much of which is in my view in the great tradition of affording the unpopular or despised a vigorous defense, but some of which may have gone beyond that?
March 16, 2010, 6:43 pmHerb Spencer says:
Most moderate GOPers, like me, pay little heed to McCarthy, if we’ve ever heard of him, so “what’s to denounce?” But, to answer your question in the spirit in which it was asked, maybe about the same time the so-called moderate Muslims stand up and denounce the extremists in their midst like the Taliban and Al Qaeda, or about the same time that our so-called Attorney General stands up and prosecutes the criminals in his party’s midst like ACORN.
March 16, 2010, 6:46 pmMark Field says:
I think that in practice the risks of this are less than they seem in theory. Most German soldiers were captured in uniform on a battlefield by US soldiers. That sort of capture doesn’t, at least in my opinion, require much in the way of validation beyond the events themselves. I don’t expect the captured Germans would have done so, nor do I expect the courts would have required a full-blown habeas hearing for each one.
The Gitmo detainees differed because the self-validating conditions I mentioned weren’t present for most of them: they weren’t captured by US forces; they weren’t on a battlefield; and they weren’t in uniform. However, if they’d been given POW status from the beginning, I think that a much less protective hearing would have been accepted by all.
March 16, 2010, 7:45 pmMark Field says:
You want me to give credit to the media? Well, if I have to, ok, they get a small amount.
March 16, 2010, 7:47 pmJohn says:
Look I provided the entire quote in context and word for word. Calling me a liar simply reflects the fact that you had no argument so you resorted to ad hominem. No biggie here.
BTW, your logic is not sound. AB does not equal A+B with A being the preferred outcome.
March 16, 2010, 7:49 pmsecond history says:
metro11 says:
second history:
nonetheless, wouldn’t you agree that:
“…when [the] Venona transcripts were declassified, it was learned that … McCarthy consistently underestimated the extent of Soviet espionage…”?
McCarthy’s wild charges weren’t aimed at getting to the bottom of Soviet espionage, but at ruthlessly scoring political punches against perceived enemies (using wild, unprovable exaggerations was a technique that got him elected in the first place, see also here). They weren’t based on facts, as confirmed by historian John Earl Haynes: “after reviewing evidence from Venona and other sources, Haynes concluded that, of 159 people identified on lists used or referenced by McCarthy, evidence was substantial that nine had aided Soviet espionage efforts.”
McCarthy had no special knowledge of Venona,but simply made accusations that were historically determined to be true. The same could not be said of his investigation of the Army, which again was a wild swing of the bat, hitting nothing but ruining reputations in the meantime.
McCarthy was an unprincipled thug, who slurred the reputations of the greatest leaders of WW II (Marshall and Eisenhower, for whom McCarthy had “altered the “twenty years of treason” catchphrase he had coined for the preceding Democratic administrations and began referring to “twenty-one years of treason” to include Eisenhower’s first year in office).”
If you want to see McCarthy in action, see the documentary Point of Order,and you will see the bullying and inflammatory tactics he used to destroy political opponents. The documentary, solely made from the live broadcast of the hearings, fortunately allowed the American public to see what McCarthy was really like, and led to his downfall.
March 16, 2010, 8:23 pmdavod says:
“The documentary, solely made from the live broadcast of the hearings, fortunately allowed the American public to see what McCarthy was really like, and led to his downfall.”
No doubt carefully edited to avoid any extraneous material.
March 16, 2010, 8:34 pmmetro11 says:
second history:
sometimes politics and policy actually jive. the only point i was making above was that joseph mccarthy – although wrong in specific instances – was right in general as to the major infiltration of Soviet spies into the U.S.
similarly, when former prosecutors like Andrew McCarthy criticize lawyers who go from (alleged) terrorist advocates to government attorneys – he should be able to do so without being compared unfairly (on more than one level) to Joseph McCarthy.
March 16, 2010, 8:44 pmSarcastro says:
[Arguing someone shouldn't have said something isn't abridging their freedom of speech at all.
Also, I have no idea what Michael B is saying, though I think it's that he wants the political opposition tried (and presumably killed) as traitors, or at least to consider it.]
March 16, 2010, 9:21 pmneimoller says:
so, till then you won’t mind if we treat republicanism as the same cancer that some believe islam is? because members of both communities are apparently willing to condone the worst, most despicable acts of their cohorts, by your own admission.
acorn became an enemy of all that is good and decent just because our current president had a background as a community organizer. no dispute that there are acorn elements that have lost their way, but in terms of the absolute magnitude of the crimes, as well as the relative severity of the crimes compared to the tremendous good that acorn does for minorities and the poor, the decimation of acorn due to a witchhunt is a net loss. and completely unnecessary given that the criminal elements could’ve been weeded out without the political witchhunt.
March 16, 2010, 9:23 pmDavid M. Nieporent says:
You did, but that just makes you brazen (or dumb) as well as dishonest. You provided the evidence you were lying, and then went ahead and lied.
I’ll go with “dumb” here. There was no “ad hominem” in what I said. “Ad hominem” is not a synonym for “insult,” much as pseudo-intellectuals on the internet think it is. The “argument” was that your statement was a blatant misrepresentation of the facts.
I don’t know what the “preferred outcome” was, or how you determined that. But when someone demands that A or B happen, it is false to say that they demanded that A happen (regardless of what the “preferred outcome” is.) And when someone knowingly says something false, they are a liar.
March 16, 2010, 9:24 pmDaily Pundit » Oh, Dear says:
[...] The Volokh Conspiracy » Blog Archive » Andrew McCarthy Sticks to His Guns (And He May Be Pointing … [...]
March 16, 2010, 9:33 pmElliot says:
Call them Poop-Heads, too.
March 16, 2010, 10:03 pmbyomtov says:
Andrew McCarthy is not a nutcase.
Actually, he is.
Terrorist sympathizers, meanwhile, have assumed positions throughout the Obama administration,
Not to mention this.
Did Obama Write “Dreams from My Father” … Or Did Ayers?
March 16, 2010, 10:25 pmDontKerr says:
Kerr has a tendency of hysterical overreaction to perceived slights. He reacted emotionally to a criticism of some lawyers, and did not tell the truth about what McCarthy said. In fact, McCarthy did not say the “Gitmo bar” lawyers were guilty of treason.
March 16, 2010, 10:32 pmRicardo says:
The key quote you ignore is “None of the attorneys under investigation were identified in the Post report.” How can anyone know the truth of the allegations when the individuals under investigation are not named? Moreover, there is no reason to think that any of the nine DOJ lawyers at the center of controversy (including Daskal and Katyal) were a part of this.
The lawyers Burlingame and Joscelyn do name (who were not involved in allegedly passing along CIA photos to KSM) also do not appear to be among the nine DOJ attorneys. If they did anything wrong, I expect disciplinary proceedings and prosecutions to follow. And if they didn’t do anything wrong, I expect… well, nothing.
March 16, 2010, 10:50 pmdavod says:
byomtov says- March 16, 2010, 10:25 pm: Don’t be silly. Did you even read the articles you linked to?
March 16, 2010, 11:02 pmFat Man says:
That strikes me as being correct.
Yes, Orin, you, and your little dog too, are freaking communists, deal with it and stop whining.
March 16, 2010, 11:09 pmRicardo says:
There’s no argument to engage. He called Daskal a “left-wing extremist” and failed to support it with any evidence that a reasonable person would consider typical of left-wing extremism. She wrote a report that claimed the U.S. engages in torture with some detainees — McCarthy himself says a “reasonable mind” can consider some of what the U.S. has, in fact, done to detainees torture. She criticizes the death penalty — so does the Pope. And he fails to draw any meaningful distinction between the defense of Omar Khadr (which he thinks is bad) and the defense of Hamdan (which, in extremely opaque language he first says is “very bad” and “a mark against” Katyal before then saying it was a “necessary function” and then concluding Katyal isn’t such a bad guy after all).
McCarthy’s attack on Daskal is incoherent and lacks any substantive argument. Moreover, Kerr appears to know Daskal personally and uses his own knowledge of Daskal to conclude McCarthy’s attack is outrageous. So do you have first-hand knowledge of Daskal’s work or any evidence to bear on her supposed left-wing extremism?
March 16, 2010, 11:10 pmrpt says:
John McCain.
March 16, 2010, 11:21 pmJoseph Slater says:
I note that Second History’s epic smackdown of Joe McCarthy went unrebutted on the substance. 159 accusations, 9 of which turned out to be right, plus accusing Ike and Marshall of being communists, but you know, McCarthy was “right in general”? Really? I assume Coulter writes this stuff as a gimmick, but the lack of substantive replay is pretty telling.
And as to this line, Kerr has a tendency of hysterical overreaction to perceived slights, does that win some sort of all time internet prize for clueless self-referencing?
On the other hand, David M. Nieporent is showing why he is one of my favorite posters with whom I disagree on the merits with some regularity (not here, though).
March 16, 2010, 11:23 pmrpt says:
Where’s Little Boy?
March 16, 2010, 11:24 pmjukeboxgrad says:
john:
It’s not a matter of ignoring information we don’t like. It’s matter of ignoring information that comes from a transparently disingenuous source. This applies to you, and it also applies to Burlingame/Joscelyn, because you are all peas in the same rancid pod. You and at least four other commenters have posted at least seven separate comments (here, here, here, here, here, here and here) touting the same article. That article use language like this:
All that language is designed to create the impression that the names were secret. Trouble is, they weren’t. The names of all the attorneys hired by Holder are a matter of public record, and the legal briefs they filed for detainees (or whomever) are also a matter of public record.
Someone so disingenuous does not deserve to be taken seriously (especially when they make a series of accusations devoid of proof), and likewise for the commenters who promote the words of someone so disingenuous.
==============
improvidently granted:
improvidently, I’m curious. Do you always make specious comparisons, or only on the internet? You are channeling the bogus argument that McCarthy makes here:
McCarthy is hoping (probably correctly) that his readers are too ignorant to realize that the facts in Eisentrager are quite different. Eisentrager filed for a writ of habeas corpus after he had already been tried and convicted in an American military commission, where he was defended by U.S.-supplied lawyers. This was explained here:
So SCOTUS in Eisentrager was definitely not saying that “enemy prisoners were not permitted to challenge their detention at all.” It was saying that Eisentrager could not challenge his detention after he had already been provided the benefit of a fair trial, represented by counsel. In other words, despicable hacks like McCarthy are using Eisentrager to argue that modern detainees have no right to any trial or counsel at all, even though that’s not what SCOTUS said in Eisentrager. In Eisentrager, SCOTUS simply said that Eisentrager could not have a second trial.
==============
peter bepler:
I’ve been trying hard to find someone who can explain to me how this statement by McCarthy can be interpreted as something other than either fraud or lunacy. Maybe you’re the right person.
And while you’re at it, you can explain his hackery regarding Eisentrager.
March 17, 2010, 1:34 amjukeboxgrad says:
davod:
Yes, and it’s quite a “propaganda brochure.” Have you seen it? It’s here (pdf). And this is the key statement, which gets to the heart of the matter (p. 2):
Yup, that’s exactly the kind of statement we’d expect to see in a “propaganda brochure.” And it reminds me of a similar statement from another “propaganda brochure:”
Who would make such a statement, giving aid and comfort to our enemies in a time of war? Who are the traitors who wrote those words? Doesn’t the public have a right to know? I think it’s time for the names to be revealed, so here they are: McCain, Inhofe, Sessions, Chambliss, Graham, Thune, Martinez, Wicker, Burr, Vitter, and Collins. Do you recognize that group? They are 100% of the GOP senators on the Armed Services Committee (as of 2008). And they signed a “propaganda brochure” which they gave this title: “Report by the Senate Armed Services Committee on Detainee Treatment.” (See also here.) It’s about time the truth came out, don’t you think?
So I think we can now understand the real sin that Amnesty International committed when they wrote those words (“senior US officials have authorized the use of interrogation techniques that are cruel, inhuman or degrading and can amount to torture”) on 7/31/05. The problem is that they were ahead of their time. It took 11 GOP senators until 11/20/08 to figure out what Amnesty International already knew, years prior. Therefore obviously the fault lies with Amnesty International, and everyone who knew that they were telling the truth, and everyone who dared to repeat that truth. Why? Because obviously America’s survival depends on running away from the truth, as fast as possible, and for as long as possible. If there’s anything we should fear the most, it’s the truth. People who tell the truth are dangerous, especially when they precede 11 GOP senators by 1,208 days.
March 17, 2010, 1:35 amzuch says:
So as to (potentially) allow them to positively identify their torturers? Alors!
I’m curious as to under what theory you think that lawyers should be prohibited from sharing information on their case with their clients.
I can see that if you believe that lawyers shouldn’t be able to represent their clients to the best of their ability (the same way as any other lawyer might in a run-of-the-mill criminal case), you might just as well think that the clients are simply not due the same rights as anyone else … and why not dispense with both lawyers and trials altogether then? If so, out with it.
Cheers,
March 17, 2010, 2:59 amRicardo says:
On the controversy over supplying pictures of CIA officers to detainees: again, McCarthy spins the facts. The original Washington Post article is here.
According to the article, written in August 2009, the only people who are confirmed to be currently under investigation are the military lawyers of three detainees who allegedly passed the photos on. McCarthy, on the other hand, says the people revealing the photographs were “other members of the Gitmo Bar (including at least some military lawyers).” Of course, he wants to draw attention away from the military lawyers — he would be roundly denounced if he went so far as to accuse members of the United States armed forces of treason without all the facts in — and toward civilians in the ACLU and NACDL. As far as we know, however, the only people showing photographs to detainees were members of the armed forces.
Were any laws broken here? It’s tough to know without all the facts, although McCarthy apparently already made up his mind. As we know from the Valerie Plame case, Richard Armitage was never charged with violating the very law McCarthy cites prohibiting the disclosure of the identity of a CIA operative, despite the fact that he admitted he was the one who originally leaked Plame’s status as a CIA officer to Robert Novak. If it’s unclear whether Armitage violated federal law, it seems similarly unclear whether the military lawyers or the civilians who provided them the photographs did, either.
March 17, 2010, 5:48 amKen Arromdee says:
The point of requesting this information is that the information may have some bearing on their motives and their loyalty.
It’s like a conflict of interest. If I suspect that someone has a conflict of interest, am I questioning their loyalty? Well, yes, that’s the whole point of the concept “conflict of interest”.
March 17, 2010, 10:10 amJohn says:
March 17, 2010, 10:11 amRandomEngineer says:
R’s who have turned on Petraeus?
Well then, you’ll have to be a bit more specific on how McCain has turned on him. A quick google of “John McCain General Petraeus” only one thing on the first page of search results: a youtube video of what looks like a MSNBC Rachel Maddow report of John McCain taking issue with Petraeus agreeing with President Obama that it’s okay to meet with a hostile enemy. (Can’t watch the video, but I assume this might have something to do with Iran.) Appending “hostile enemy” to the search didn’t turn up any news sites, mostly blog stuff which were inconclusive in their summary. So I’m it’s unclear how to me how McCain has turned on Petraeus. It certainly hasn’t been widely reported.
March 17, 2010, 10:16 amJohn says:
How do you know? HOLDER, before he was named AG, worked on Padilla’s case AND WAS UNTRUTHFULL ABOUT IT DURING CONFIRMATION. And since the original information on DOJ lawyers was released the number of lawyers reported to be involved in such case has risen to TEN. And you are conflating two different (if overlapping) issues. One issue is what various lawyers who represented detainees at Gitmo did, and what lawyers at DOJ worked on cases for Gitmo detainees (and other enemy combatants and/or terrrorists).
March 17, 2010, 10:24 amJohn says:
I am unsure of what you intend with your comment. Yes, the point of requesting the information is to determine if and to what extent there is a conflict of interest. And Andy specfically details an example of a lawyer with such a background that he is confortable with being in the DOJ and handling policy and one that makes him very uncomfortable.
So are you actually saying that the American public, and the Senators invloved in DOJ oversight have no right to this information?
March 17, 2010, 10:30 amSarcastro says:
If only John had been reading all the threads, he’d know Ken Arromdee is with him about how constant, burdensome and duplicitive oversight of the DoJ is needed! Indeed, he has a rebuttal presumption of disloyalty about all libs!
March 17, 2010, 10:41 amJohn says:
The article you cite, is one where unnamed sources claim 3 military lawyers are being investigated and no one else will comment on anything specific. Its a leak from an unknown source with unknown motives with unknown amounts of additional detail and specifics left out.
March 17, 2010, 10:46 amRicardo says:
How do I know none of the attorneys under investigation were identified in the Post report? Because I read the article and linked to it above. You are free to read it as well. As it turns out, the investigation centers around military lawyers and I’m pretty sure none of the current DOJ attorneys were members of the armed forces when this happened. If any of them were among the attorneys who actually handed the photos over to the military lawyers, there’s simply no evidence one way or the other as no one has been named.
By the way, I see that now you are questioning the credibility of the Washington Post report in the first place. OK then. You do realize that the article is the only real public source of information on the incident, don’t you? If you no longer trust the article, then there isn’t anything to discuss.
I’m not conflating anything. You brought up the article and I responded to the article by first noting there is no evidence of any connection between any of the lawyers in the CIA-photo incident and the lawyers currently working for the DOJ. In other words, it is a completely separate and independent issue from Katyal, Daskal and other other DOJ lawyers. I further offer the observation that it is not at all clear based on information we have available that the military lawyers under investigation ever broke any law. It’s been seven months since the story broke and no charges have been filed against anyone.
March 17, 2010, 10:49 amdavod says:
We should thank those commentators who breathtakingly link Cheney and Andy McCarthy to Senator Joe McCarthy. Anyone who reads the recent record, will see that Senator McCarthy and his committee did yeoman’s work in a very negative environment.
Maybe the linkers are right, but not for the reasons they think.
March 17, 2010, 10:54 amJohn says:
If only YOU knew what my position on oversight of the DOJ actually IS.
March 17, 2010, 11:20 amJohn says:
Ricardo says:
“By the way, I see that now you are questioning the credibility of the Washington Post report in the first place. OK then. You do realize that the article is the only real public source of information on the incident, don’t you?”
No, I am questioning the source of the information. And as I pointed out, the SOURCE isn’t actually public.
March 17, 2010, 11:23 amRicardo says:
Indeed. So until more information is made public (and it’s an ongoing investigation, be prepared to wait) we can’t really pass judgment on any of the accusations contained within the anonymous leak. Thanks for making that point for me. You started out demanding other people disprove the allegations that have been leaked to the press. Now you don’t seem very inclined to hang your hat on them yourself.
March 17, 2010, 11:27 amJohn says:
I see I was not as exact as I should have been, my question should have been “How do you know ONLY 3 LAWYERS are under investigation?”
And yes, you are conflating the two issues as you continue to argue that none of the NAMED DOJ lawyers are named in the article about Gitmo lawyers poor behavoir. And gee as for your claim about no charges being filed, the the New Black Panther Party case, charges were withdrawn, so is it your contention that that fact proves that nothing bad happened in that case?
March 17, 2010, 11:28 amElliot says:
Does anypne think democratic candidates will campaign on the idea that DOJ hired the AQ7, therefore upholding the notion that one cannot presume a lawyer shares his clients views?
Does anyone think republican candidates will campaign on the idea that DOJ hired the AQ7 who previously represented terrorists, and then DOJ refused to say who they hired?
March 17, 2010, 11:51 amJohn says:
Just because YOU claim that a single article is ALL that is publically known about the incidents doesn’t make that the case.
In fact, since suits were filed, there is plenty of information available in the case.
March 17, 2010, 12:02 pmSarcastro says:
Does anyone think the ends justify the means?
Does anyone think that if something works politically, we shouldn’t criticize it?
March 17, 2010, 12:15 pmdoodahman says:
A conflict of interest? Now I know you’re an idiot. A lawyer is supposed to have no interests that CONFLICT with that of their clients. That they may have a conflict with the assumed “interest” (read: the abrogation of due process and obedience to American values) of some douchebag fascist is not an issue.
Seriously, man. Drop the pretense, put on your brown shirt and just goosestep around.
March 17, 2010, 12:19 pmElliot says:
1. Depends on the end and means.
2. No. Do you?
March 17, 2010, 12:31 pmdoodahman says:
Guys:
This WSJ article with the accusations is a huge pile of nothing. Even if true, what is the big deal? The inmates were given news and were given an AI report on detainee abuse. This is something that lawyers cannot do? Since when? Since they set up a bunch of bs rules to govern these guys locked up in cages. To extrapolate a potential breach of an unreasonable protocol with treason, disloyalty or abetting terror is the kind of pure nincompoopery that permeates the fear driven and cowardly response this nation has had to the prospect of terrorism.
As for identifying the interrogators, what the hell are they supposed to do if they can’t figure out who to question and subpoena, if necessary, to prepare their case? What criminal defense lawyers proceeds to trial without knowing who obtained incriminating (and perhaps exonerating?) statements of the accused? The rules stack the deck and the defense attorneys risk their own standing to overcome and perform their sacred duty to provide a ZEALOUS defense in something that would otherwise be a complete sham. They should be honored for going to the wall for their clients, not vilified or slandered by a couple of hacks.
You have a problem with detainees knowing about the world’s disgust at American prisoner policies? Then make the policies conform with American and International law and the norms of civilized behavior. You have a problem with the identification of their interrogators? Then don’t use their statements against them. Simple.
This is not the Soviet Union. No matter how chicken sh*t you may be, the rest of us have no desire to devolve into that kind of state.
March 17, 2010, 12:31 pmSarcastro says:
[Then how is your point about the political efficacy of the AQ7 stuff relevant, Elliot?
March 17, 2010, 12:33 pmdoodahman says:
Yeah, and MoveOn was roundly criticized and forced to back down. Forget that part? Thought so.
And you’re right, it’s not bean bag. You don’t play bean bag with fascists. Frankly, there’s no point in even debating them. Once they get a grip on power, there’s pretty much no getting it loose again until you pry it from their cold dead hands.
I think the saddest part of all this is just the fact that these positions– vilifying defense attorneys, questioning their loyalty, excusing actions taken beyond the law, and the constant, pathetic drawing from the fear well are all fascist principles. That we are debating them in a mainstream context means we have already lost the fight to a large extent. We hav forgotten where that road inexorably leads, and it’s getting to the point where we either remember, as a nation, why we fought fascism to the death, or see people start to lay down in front of the juggernaut with tactics and rhetoric that will make these debates seem like tea parties. Ahem.
March 17, 2010, 1:23 pmjukeboxgrad says:
ken:
And you now have their names (and this was public information all along). Now that you have their names, what does this tell you about “their motives and their loyalty?” Answer: nothing.
No, what you claim was the point of requesting this information was not the actual point of requesting this information. The point of requesting the information was to build a platform for a disingenuous political witch-hunt.
Anyone who had a sincere interest in this information didn’t need to request it. They only needed to do some simple research in public records. This is enough to indicate that “requesting this information” was not done out of a sincere desire to have the information.
We also know the request was not sincere because now that you have the information, you are forced to admit that it indeed tells you nothing about “their motives and their loyalty.” So what was the point of getting the information in the first place? Now that you have it, what are you doing with it? That is, aside from making disreputable, unsubstantiated accusations?
================
john:
I’m actually saying that “the Senators invloved in DOJ oversight have no right” to pretend that information that was actually available to them was not actually available to them. And I’m still waiting for you to explain why you’ve been promoting that pretense, and why you’ve been promoting an article that promotes that pretense.
Since you’re admitting that no one really knows what happened you should explain why McCarthy is acting like he really knows what happened.
I notice that no charges have been filed against you for raping nuns and torturing kittens. Is it your contention that that fact proves that you have not, in fact, been raping nuns and torturing kittens?
Cite?
March 17, 2010, 1:42 pmRicardo says:
Then go ahead and provide the citations instead of unsupported assertions. I have a full-time job and, believe it or not, it doesn’t involve researching this stuff.
If there is indeed publicly available information beyond the Washington Post article, you ought to pass it along to Burlingame and Joscelyn who only cited the Washington Post article in their hit piece (which was the piece you originally cited while demanding that others disprove the allegations contained within it). While you’re at it, go ahead and post a citation here as well. A quick search turned up several pieces such as this, this and this, all of which rely on the Washington Post article as the main underlying source. If you have better sources, go ahead and provide them.
March 17, 2010, 1:43 pmSteverino says:
Frankly, if you lawyers are out to demonstrate that McCarthy is correct, I can’t imagine a comment better than this to illustrate it. Its reasoning is exactly bass-ackwards.
It is precisely because the political branches are accountable to the people that they are responsible for national defense. Not a bunch of unelected, unaccountable black-robed mullahs.
National defense, in case you aren’t aware, is one of the proper roles that we limited-government types actually support. And determining who is and who is not an enemy combatant is part and parcel of the the role of the commander in chief. Precisely because he is not a king, but accountable to the people for effectively defending the people of the United States from its enemies.
By inventing a role for itself, the USSC has harmed the nations ability to defend itself. Aided by these attorneys.
Given the fact that the USSC’s interpretation, and yours, Sarcasto, conflicts with our rights and obligations as negotiated via treaty, then yes, you and they are terrorist sympathizers.
There is no due process for an enemy combatant. The Geneva convention only stipulates due process for accused war criminals. An enemy combatant (I note you don’t make the distinction between lawful and unlawful) is not accused of a crime. He or she is simply removed from the battle in order to aid the detaining power’s chances of victory in a conflict.
Your contempt for that principle is quite instructive.
As was the USSC’s contempt for the purpose of the Geneva convention. Which obviously needs explaining on this thread. The Geneva convention exists to encourage combatants to comply with the Hague convention. And the Hague convention exists to limit the suffering of non-combatants in war.
Not any more, though, thanks to the USSC and our country’s lawyers. This isn’t the first time we’ve fought an enemy that reads through the Hague convention, reasoning that by commiting banned acts they would be gaining an advantage. This is the first time our courts have demonstrated that they were correct.
Of course, in previous conflicts the enemy thought they were going to get a battlefield advantage. This enemy correctly surmised they would get a legal advantage. Courtesy of a compliant bar.
Thanks to the USSC, if you violate the rules of war in an international conflict (i.e. don’t wear a uniform, don’t bear arms openly, don’t respect the laws and customs of war, and most importantly avoid any structure that bears any semblance to an organization “being commanded by a person responsible for his subordinates) you are no longer a person not entitled to the protections of the Geneva convention.
No, by violating the laws and customs of war, and by avoiding all the categories of combatant entitled to the protections of the Geneva convention per article IV, the USSC has rationalized the unlawful combatant has changed the nature of the conflict to one “not of an international nature” in which he is entitled to the protections of both Article III and the Constitution.
I hope you guys are proud of yourselves. Thanks to you and your perverse incentives, any of our enemies would have to be complete idiots to fight in accordance with the laws and customs of war. Our current enemies, in large part due to their victories in our courtrooms, are now gaining a battlefield advantage by violating the laws and customs of war that were previously denied them.
Your pretense of respect for the rule of law has gutted the Geneva/Hague conventions and placed the lives of our soldiers and marines at risk. The insurgents are using women and children as human shields precisely because they know our military can not fire upon them. They also can’t be fired upon if they aren’t carrying weapons. So if they’re out of ammo, they simply drop their weapon, stroll down the road in full view of our troops to a new weapons cache/firing position, and resume the fight.
Go ahead, take a bow boys. This is in great part your handiwork.
Oh, I forgot. You all are above being held accountable for your actions.
One more thing; my reading of the Constitution says that the President negotiates and signs treaties, and the Senate ratifies them. I missed the part where it says that the USSC later gets to redefine them, by saying the language didn’t mean at all what the two political branches thought they meant. Nor what the other nations we negotiated with thought it meant, and what we were committing our nation to do.
No, despite the fact that everyone involved in negotiating the Geneva convention thought that Article III meant a civil war, the USSC has discovered it actually applies to any conflict in which an enemy chooses not to comply with the requirements of Article IV.
Strict, before the legal profession decided to invent rights where none existed for people who’s only connection with this country was fighting against it, we followed the process specified in the Geneva convention to classify people detained by the military.
If you care to read the now-obsolete quant customs of how this nation used to undertake the conduct of war, back in the dark ages when we understood the Constitution to provide for the defense of the citizens of this country against those who would kill them, you may want to read Army Regulation 190-8.
Purely for historical purposes, of course, Strict. Now that we’ve learned from our betters that the Constitution actually exists to prefers those who fight against this country to those who are citizens. Or worse, the knuckle-dragging buffoons who fight for it.
Every other nation on Earth that is a signatory to the Geneva convention leaves it to their military to decide who is and who is not an enemy combatant, and who is and who is not entitled to the protections of the Geneva convention.
You guys will love their backwards reasoning. You know why they do that? Because that’s what the Geneva convention tells them to do.
Isn’t that hilarious?
They aren’t blessed with smart lawyers, like us.
March 17, 2010, 2:59 pmRandomEngineer says:
Not thought so. Did I say I forgot that MoveOn was criticized? That’s your interpretation. It wasn’t relevant to my point, which was that such insults occur across the political spectrum. I wasn’t addressing the propriety of McCarthy’s rhetoric. But thank you for pointing out that MoveOn was criticized for their actions, and I assume you believe they were wrong to do as they did. Just as you abhor McCarthy’s now.
March 17, 2010, 3:00 pmRandomEngineer says:
So if all the things you catalog are fascist principles, what’s the next step to fascism? How close are we to the end. We just had an election, and apparently those holding fascist principles lost. Except that the man at the top of the ticket who won has now embraced many (but not all) of those actions which some claim are beyond the law. It’s also ironic we’re discussing such things at the very moment the House of Representatives is about to use some, um, unusual procedures to pass a wildly unpopular national health care plan.
You have your opinion of the road to fascism, but others have a different view, as highlighted by Jonah Goldberg book Liberal Fascism (I’m sure you strongly disagree with his conclusions). So who knows who is correct. I think it’s safe to say that both sides of the political spectrum sometimes avail themselves to tactics that could be called fascist. Doesn’t mean the Republic is about to fall.
(And I’m left to wonder, have we crossed the event horizon into Godwin’s law, by talking about the ‘F’ word?)
March 17, 2010, 3:13 pmdoodahman says:
Did you say you forgot about the criticism of MoveOn? Um, why no you didn’t, and a more absurd statement one cannot imagine. “Let me be perfectly clear that by analogizing insults to McCarthy againt lawyers doing their consitutional jobs to insults by MoveOn against a general who thrust himself into a political dispute, I have forgotten a point which entirely undermines my position, which is that MoveOn caught a shitstorm ten time worse than McCarthy.”
No, you didn’t say that. You simply raised the MoveOn example in the context of childish debate tactic– i.e., “some organization whom I assume you support said something nasty about some entirely uninvolved person in an entirely different setting, so there!”
Bravo. Stick to engineering and leave rhetoric to those who know how to handle it.
March 17, 2010, 3:17 pmdoodahman says:
Let’s try this again:
Man, you really have no clue as to what you write, do you?
The self evident “point” you tried to make (if by “point” one means a childish debating tactic) is that if MoveOn gets to attack Petraeus, then McCarthy should not be criticized for attacking lawyers who are just doing their constitutionally required duty. I mean, why else bring up MoveOn (oh, I know, because you couldn’t figure how to fit in ACORN).
Did you say you forgot about the criticism of MoveOn? Um, why no you didn’t, and a more absurd statement one cannot imagine.
“Let me be perfectly clear that by analogizing insults to McCarthy for attacking lawyers doing their constitutional jobs to MoveOn attacking a general who thrust himself into a political dispute, I have forgotten a point which entirely undermines my position, which is that MoveOn caught a shitstorm ten time worse than McCarthy, so why should anyone lay off McCarthy because of what MoveOn did. I realize this omission makes my initial position absurd, and that’s why I omitted it. But I didn’t forget it.”
March 17, 2010, 3:26 pmdoodahman says:
Thanks for doubling down on my point. Yes, despite the bs rhetoric, Obama, it would appear, is doing nothing to back away from the fascist policies which flowered under the Bush II administration. It may well be true that elections are for all intents and purposes shams that have no real chance of bringing popular will to bear. This makes the necessity of fighting against fascist concepts worming into the mainstream even more urgent. I also notice you take no issue with the characterization of those policies and positions as fascist. That says a lot. It would appear that you’re just okay with it, as long as the Dems are doing it too. Sad, that.
Jonah Goldberg? Yeah, riiiiiight. I believe the applicable fascist term to Goldberg is the “Big Lie”– and in particular, the rightwing tactic, perfected by Rove and Company, of accusing opponents of exactly what the accusers themselves are doing so as to confuse and neuter the underinformed (another point you unintentionally prove).
As for where the road ends, take your pick: Italy, 1934, Germany 1945? Argentina? Here’s a good way to look at it:
“What no one seemed to notice. . . was the ever widening gap. . .between the government and the people. . . And it became always wider. . . the whole process of its coming into being, was above all diverting, it provided an excuse not to think for people who did not want to think anyway . . . (it) gave us some dreadful, fundamental things to think about . . .and kept us so busy with continuous changes and ‘crises’ and so fascinated . . . by the machinations of the ‘national enemies,’ without and within, that we had no time to think about these dreadful things that were growing, little by little, all around us. . .
Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted,’ that unless one understood what the whole thing was in principle, what all these ‘little measures’. . . must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing. . . .Each act. . . is worse than the last, but only a little worse. You wait for the next and the next. You wait for one great shocking occasion, thinking that others, when such a shock comes, will join you in resisting somehow.
You don’t want to act, or even talk, alone. . . you don’t want to ‘go out of your way to make trouble.’ . . .But the one great shocking occasion, when tens or hundreds or thousands will join with you, never comes. That’s the difficulty. The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays. But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves, when everyone is transformed, no one is transformed. . . .You have accepted things you would not have accepted five years ago, a year ago, things your father. . . could never have imagined.” :
From Milton Mayer, They Thought They Were Free, The Germans, 1938-45 (Chicago: University of Chicago Press, 1955)
So, how high is the corn today? Too goddamn high.
March 17, 2010, 3:36 pmjukeboxgrad says:
steverino:
Really? Then why was Eisentrager given a trial?
There is no such thing as “a person not entitled to the protections of the Geneva convention,” because Common Article 3 protects all persons, including persons who violate the laws of war. “All the persons referred to in Article 3 without distinction are entitled to humane treatment.”
Here’s an idea: deal with the law as it is, not as you wish it was.
Cite?
At the time we gave Eisentrager a trial, GC did not exist. Why did we give him a trial?
March 17, 2010, 3:54 pmdoodahman says:
Random Engineer says: “It is precisely because the political branches are accountable to the people that they are responsible for national defense. Not a bunch of unelected, unaccountable black-robed mullahs. National defense, in case you aren’t aware, is one of the proper roles that we limited-government types actually support. And determining who is and who is not an enemy combatant is part and parcel of the the role of the commander in chief. Precisely because he is not a king, but accountable to the people for effectively defending the people of the United States from its enemies.By inventing a role for itself, the USSC has harmed the nations ability to defend itself. Aided by these attorneys. Given the fact that the USSC’s interpretation, and yours, Sarcasto, conflicts with our rights and obligations as negotiated via treaty, then yes, you and they are terrorist sympathizers.There is no due process for an enemy combatant. The Geneva convention only stipulates due process for accused war criminals. An enemy combatant (I note you don’t make the distinction between lawful and unlawful) is not accused of a crime. He or she is simply removed from the battle in order to aid the detaining power’s chances of victory in a conflict.Your contempt for that principle is quite instructive.As was the USSC’s contempt for the purpose of the Geneva convention. Which obviously needs explaining on this thread. The Geneva convention exists to encourage combatants to comply with the Hague convention. And the Hague convention exists to limit the suffering of non-combatants in war.Not any more, though, thanks to the USSC and our country’s lawyers. This isn’t the first time we’ve fought an enemy that reads through the Hague convention, reasoning that by commiting banned acts they would be gaining an advantage. This is the first time our courts have demonstrated that they were correct. Of course, in previous conflicts the enemy thought they were going to get a battlefield advantage. This enemy correctly surmised they would get a legal advantage. Courtesy of a compliant bar.Thanks to the USSC, if you violate the rules of war in an international conflict (i.e. don’t wear a uniform, don’t bear arms openly, don’t respect the laws and customs of war, and most importantly avoid any structure that bears any semblance to an organization “being commanded by a person responsible for his subordinates) you are no longer a person not entitled to the protections of the Geneva convention.No, by violating the laws and customs of war, and by avoiding all the categories of combatant entitled to the protections of the Geneva convention per article IV, the USSC has rationalized the unlawful combatant has changed the nature of the conflict to one “not of an international nature” in which he is entitled to the protections of both Article III and the Constitution.I hope you guys are proud of yourselves. Thanks to you and your perverse incentives, any of our enemies would have to be complete idiots to fight in accordance with the laws and customs of war. Our current enemies, in large part due to their victories in our courtrooms, are now gaining a battlefield advantage by violating the laws and customs of war that were previously denied them.Your pretense of respect for the rule of law has gutted the Geneva/Hague conventions and placed the lives of our soldiers and marines at risk. The insurgents are using women and children as human shields precisely because they know our military can not fire upon them. They also can’t be fired upon if they aren’t carrying weapons. So if they’re out of ammo, they simply drop their weapon, stroll down the road in full view of our troops to a new weapons cache/firing position, and resume the fight.Go ahead, take a bow boys. This is in great part your handiwork.Oh, I forgot. You all are above being held accountable for your actions.One more thing; my reading of the Constitution says that the President negotiates and signs treaties, and the Senate ratifies them. I missed the part where it says that the USSC later gets to redefine them, by saying the language didn’t mean at all what the two political branches thought they meant. Nor what the other nations we negotiated with thought it meant, and what we were committing our nation to do.No, despite the fact that everyone involved in negotiating the Geneva convention thought that Article III meant a civil war, the USSC has discovered it actually applies to any conflict in which an enemy chooses not to comply with the requirements of Article IV.Strict, before the legal profession decided to invent rights where none existed for people who’s only connection with this country was fighting against it, we followed the process specified in the Geneva convention to classify people detained by the military. If you care to read the now-obsolete quant customs of how this nation used to undertake the conduct of war, back in the dark ages when we understood the Constitution to provide for the defense of the citizens of this country against those who would kill them, you may want to read Army Regulation 190–8.Purely for historical purposes, of course, Strict. Now that we’ve learned from our betters that the Constitution actually exists to prefers those who fight against this country to those who are citizens. Or worse, the knuckle-dragging buffoons who fight for it.Every other nation on Earth that is a signatory to the Geneva convention leaves it to their military to decide who is and who is not an enemy combatant, and who is and who is not entitled to the protections of the Geneva convention.You guys will love their backwards reasoning. You know why they do that? Because that’s what the Geneva convention tells them to do. Isn’t that hilarious?They aren’t blessed with smart lawyers, like us.
Holy mackerel are you full of it. You could have made a blithering idiot out of yourself with a tenth of verbiage.
If a person commits or plans violence when not in the service of a nation at war, whether uniformed or not, they are criminals. Fucking duh. This “unlawful enemy combatant” status is a made up boondoggle created so as to avoid complying with either the Geneva Conventions (no interrogations) or the due process requirements of the Constitution (lawyers, discovery, burden of proof, etc.) An “unlawful enemy combatant” is what civilized people have always identified as “criminals” and yes, they do get rights, and YES, the courts’ job is to enforce them. Sorry you have a problem with the American system. Perhaps you should move to Guatemala.
For the executive (or, more accurately, the nameless, faceless and unaccountable bureaucrats who actually make the determination) to simply make a fiat based declaration that so and so has no rights (because he says so) is completely antithetical to the rule of law. Elections do not trump the law. That is simply mass mob rule. Again, if you have a problem with the rule of law, you have a problem with the American system.
The rest of your ramblings bear no relationship to anything in this world. Terrorists do not use human shields because the presence of civilians does not, in 90% of the cases, prevent firing. In fact, quite the opposite—military forces are absolved from accountability for civilian deaths by asserting, whether falsely or not, the presence of a legitimate enemy.
Of course, in your world, where “unlawful combatants” can be captured, tortured (they have no rights, right?) and held in a cage until they die or go mad—oh, I’ m sure that will cause them to act much more circumspectly when fighting against our troops. Oh, that’s fucking rich, buddy. Real rich.
What I wonder is, why are you so scared that you are willing to make yourself a threat to the American system? Why do you hate America and its principles so much? We did not sink to these levels even when combating the international communist conspiracy where our enemies controlled nearly half the globe and arsenals of nuclear weapons. Surely the threat posed by these “terrorists” cannot compare. One might only conclude that you are simply using their existence and so called threat to accomplish an ulterior objective: the destruction of the American system.
You bear watching buddy. What’s your name and social?
March 17, 2010, 4:02 pmMichael B says:
Power Line weighs in again, Gitmo’s indefensible lawyers: A case study, opening graphs:
Early on in the Bush administration, the enemy combatants detained by the United States at Guantanamo Bay became a cause of the left. In particular, they became a cause of the American bar, which is itself a subset of the institutional left. From the American Bar Association, to the elite law firms, to the American Civil Liberties Union, to the Center for Constitutional Rights and the National Lawyers Guild and others, the advancement of the rights of Islamist terrorists became a celebrated cause.
I saw the phenomenon with my own eyes when I spoke on a panel with Lynne Stewart at the 2003 national convention of the National Lawyers Guild in Minneapolis. I wrote about the experience at the time in “Face to face with Lynne Stewart.”
March 17, 2010, 4:16 pmjukeboxgrad says:
michael:
You’re citing an article which says this: “The piece by Burlingame and Joscelyn is excellent.” What’s “excellent” about pretending that Holder was hiding information that wasn’t hidden?
March 17, 2010, 4:46 pmMichael B says:
jukebox_sneer, aka jukebox-metasneer
Once more – ad nauseam et passim throughout your commentary – you attempt to dismiss the whole on the basis of a part, which part may or may not be debateable.
Here’s another link, from Andrew McCarthy, What’s a Modern John Adams to Do?, opening excerpt:
Why, hire private investigators to take surveillance photos of CIA agents and hand them off to other latter-day Adamses, who then showed them to top members of al-Qaeda — thereby identifying for the terrorists the agency’s interrogators and, potentially, tipping the terrorists off to the locations where the agents’ families live. And while the lawyers are at it, why not call the whole enterprise the “John Adams Project.”
March 17, 2010, 4:52 pmRandomEngineer says:
Whoah! If you are going to engage in debate, perhaps you better be accurate about what you quote and who said it…none of that is mine that appears in your 4:02pm.
March 17, 2010, 5:21 pmFederale says:
Is it McCarthyist to identify Benedict Arnold as a traitor? When you commit treason you are a traitor. When you openly sympathize with those engaged in war against the United States and assist them, that is treasonous. McCarthy said that those on the radical left who give assistance to Al Queda are traitors. He did not say that those who disagree with him are traitors. He said that those who align themselves with enemies are traitors. There is no false allegation here. I noticed that you did not object to the substance of McCarthy’s arguement, which is that many on the radical left support radical Islam based on the enemy of my enemy is my friend theory.
To refute McCarthy you must present evidence that the radical left does not support the war on the United States. Treason is a reality, and we have suffered treason since Benedict Arnold, whether it be those who supported the British in the War of 1812, the Irish immigrants who went over to the Mexican side during the Mexican War, the Cooperheads, or those who spied and fought for the Axis like Tokyo Rose or the German-Americans of Operation Pastorius. The only difference between Tokyo Rose and the attorneys working for Al Queda is…well, nothing. Volunteering as Al Queda lawyers proves you hold treasonous views. First because they all had free Jag lawyers if they were charged with war crimes and did not need a volunteer attorneys. Second, why didn’t these Al Queda lawyers volunteer their services in DC v.Heller? Because they sympathized with Al Queda. If they really wanted to defend someone unpopular they could have volunteered for the defense team of Scott Roeder. Don’t insult me by trying to claim that these volunteer lawyers did not sympathize with their clients.
March 17, 2010, 5:59 pmRandomEngineer says:
Apparently I do, since it took you two posts to reply. And man, you have no clue what I write, do you? You apparently feel free to re-write the point I’m trying to make based on your arbitrary inferernce, as if you alone are entitled to set the parameters of debate. Nowhere did I say that McCarthy should not be criticized for attacking lawyers. That is your inference, I did not say it. My point remains that both MoveOn and McCarthy are exercising their First Amendment rights, and both were questioning the loyalty of another American. Make of that what you will, but how the magnitude of the backlash against MoveOn is relevant to it, I still don’t know, since I’ve never said criticizing McCarthy now is wrong. If it makes you feel any better, I think McCarthy was wrong in using his treason rhetoric, just as MoveOn was wrong attacking Petraeus (something I concede I did not write before). So if you are assuming that I excuse McCarthy but not MoveOn, you are wrong. I have my doubts about whether everyone here is that consistent. I do wonder whether people are only indignant about a person’s loyalty being questioned when they are on “your” side of the issue–but that’s politics as usual. That point I say explicitly, but I make no assumptions about your stand on that, doodahman. I said what I did to make people stop and think.
It’s interesting that you characterize Petraeus’ actions as inserting himself into a political dispute, while the Gitmo lawyers are just doing their constitutional duty. That’s a very odd construct, since as long as an officer serves in the military, he has a constitutional duty to obey the lawful orders of his commander in chief, and you conveniently ignore that in your description. It was political because both parties had politicized the war. In contrast to Petraeus’ obligation, the Gitmo lawyers have no constitutional duty to take those cases pro bono. I think it’s been established here that Gitmo detainees have a right of access to counsel, not a Miranda right to have a lawyer provided. One might say the Gitmo lawyers have a civic or moral duty to act, which I could agree with.
And finally, that you would use silly insults (characterizing my debating technique as childish and ridiculing my apparent profession-engineer), when you have inferred things that I have not written or simply disagree with my opinion, shows the quality of your intellect.
March 17, 2010, 6:25 pmRandomEngineer says:
I took no obvious note of them, because there is nothing new under the sun. What you characterize as fascist rhetoric is not much different than the political sparring published in the early years under the Constitution. Actually, maybe even tame in comparison of the insults those guys hurled at each other. People were apparently betraying the Revolution, selling out to Britain or France left and right, depending on your point of view. That’s not to say what’s happening with some public discourse today is a good thing. It’s certainly not. But it’s not new.
March 17, 2010, 6:39 pmdavod says:
I find it hard to read continuous blocks f text. Any chance of using paragraphs.
March 17, 2010, 6:47 pmleo marvin says:
True, but it begs the question of whether the people you’re describing are fascists.
Also true. Those tactics are popular with fascists, and their use by the likes of McCarthy, Cheney, and commenters here like Steverino:
are reprehensible. But doing reprehensible things fascists do doesn’t make someone a fascist. It’s the same false equivalence Jonah Goldberg takes to even more absurd extremes. While yours isn’t as ridiculous as Goldberg’s, whatever the right description is for people who do what McCarthy, Cheney and Steverino are doing, they’re not fascists. Calling them fascists is as wrong as what they’re doing to the detainees’ lawyers.
March 17, 2010, 7:14 pmbyomtov says:
davod,
byomtov says– March 16, 2010, 10:25 pm: Don’t be silly. Did you even read the articles you linked to?
Yes. I did. And I repeat, Andrew McCarthy is a nutcase.
March 17, 2010, 10:00 pmSteverino says:
One thing at a time.
Where do I get the idea that article III applies to strictly internal conflicts? From the International Red Cross, that’s where.
http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions
You have to be real creative to argue, and a real dullard to accept the argument, that an conflict is “not of an international character” because one of the combatant forces doesn’t fight for any recognized nation. But that’s how the USSC deemed fit to contort General Article III intended to apply to internal conflicts.
Of course, next I expect you to argue that the ICRC doesn’t know what it’s talking about. Which essentially confirms the accusation of hubris I’m charging the American bar association with.
Please, continue to disgrace yourself, jukeboxgrad. If you’re an attorney you’ll fit right in. Continue this line of argument and confirm you are guilty of hubris.
Next. Why was Eisentragger granted a trial. Because he was he had been maltreated during his trial as a war criminal.
No one; not me, and as far as I can tell not Andy McCarthy is arguing that when one is charged with a war crime one should not receive due process.
But that isn’t what’s under discussion. The issue is whether or not one is entitled to a civilian court and an attorney to dispute one’s classification as an enemy combatant.
The answer is emphatically now. Thank you, thank you, jukeboxgrad, for bringing up Eisentrager:
And yes, it is an established fact that there are categories of individuals who are not entitled to the protection of the Geneva convention.
From AR 180-8, section 1-6 Tribunals:
Point being that Congress, apparently, thought that there were categories of combatants who were not entitled to the protection of the Geneva convention when they ratified the damn thing. Congress, in case you don’t know, is empowered by the Constitution to regulate the land and naval forces.
Kindly point out where the courts are empowered by the Constitution to over-rule Congress when it comes down to the meaning of the treaties it ratifies.
Please.
March 17, 2010, 10:39 pmSteverino says:
Frankly, I expected no less. And I’ll wear it as a badge of honor to be called reprehensible. If that’s what it is to take seriously the centuries long campaign to reduce the suffering of civilian populations caught between two warring armies, advanced by treaties like the Geneva convention that reward those who fight according to the law of war. And denying protection to those who don’t. Just as they denied their victims the protection of the law of wars.
I guess you sophisticates no longer take such issues seriously. So I’ll leave it to you “non-reprehensible” types to evaluate the perfidy of combatants based upon your evaluation of the justice of their cause.
“You slaughtered school children in cold blood, you bastards!! Oh, my mistake, you’re Chechen. And after all, they were only Russian school children. Forgive me for questioning you.”
Somehow, I don’t think the unwilling human shields, or Taliban targets in Kandahar or Kabul would see things quite the same way.
And when it comes down to whose moral compass I trust, I’ll side with the Afghan caught in the middle every time.
March 17, 2010, 11:01 pmSarcastro says:
Wait, so now you want us to get out of Afghanistan like most of the Afghan people want?
Certainly we shouldn’t listen to anyone who tries for due process for anyone Steverino doesn’t like, or we are siding with terrorists and hate Russian children.
Glad you will keep on with the struggle for freedom by calling me and SCOTUS traitors, though!
March 17, 2010, 11:19 pmSteverino says:
Here’s your highly undeserved “you’re welcome.”
I was afraid to be unkind; it might interfere with your self-arousal. And I could be sued.
March 18, 2010, 12:10 amleo marvin says:
I just hope it doesn’t tarnish your badge that I never called you reprehensible. What with your concern about being unkind and all, I’d hate to ruin a nice moment by quibbling over facts.
March 18, 2010, 12:48 amAndrew J. Lazarus says:
“Common Article 3 establishes fundamental rules from which no derogation is permitted.” (Emphasis added.) What does “no” mean in Steverino-land?
March 18, 2010, 1:04 amSteverino says:
Don’t worry. You didn’t introduce any. So I can hardly imagine you’d be accused of quibbling over something you never had a passing relationship with.
I’d say you’re safe.
March 18, 2010, 1:13 amSteverino says:
302.Andrew J. Lazarus says:
“Common Article 3 establishes fundamental rules from which no derogation is permitted.” (Emphasis added.) What does “no” mean in Steverino-land?
It means you’re SOL, son.
March 18, 2010, 1:56 amleo marvin says:
So facts (like the fact that I never called you reprehensible) that contradict your narrative simply don’t exist in Steverino-land? How convenient.
March 18, 2010, 2:10 amjukeboxgrad says:
michael:
Burlingame/Joscelyn make a bunch of unsubstantiated claims. They expect me to simply trust that the claims are true, even though they present no evidence. But why should I take any of their claims seriously when they also repeatedly present an obvious falsehood? And why should anyone take any of your claims seriously when you promote an article that promotes an obvious falsehood? Then again, maybe you are simply trying to be consistent with your track record.
What’s “debateable” about the fact that the information they claim was hidden was never hidden?
Ricardo already demonstrated the hackery in that article. Please keep up. Here’s an idea: read the thread before you post.
By the way, if you are a CIA torturer, when did your face become classified information? If I take a picture of you walking down the street, have I violated Title 18, United States Code, Section 793? Because according to McCarthy, that statute outlaws “taking and using photographs ‘of anything connected with the national defense.’ ” If you are a CIA torturer, then your face is “connected with the national defense,” right? And why stop there. Obama is CINC, which means that his face is also “connected with the national defense,” which means that everyone who has photographed him has violated Title 18, United States Code, Section 793. At least according to McCarthy.
If you are a CIA torturer, and I take a picture of you while you are walking down the street, and then I ask one of your torture victims if he has ever seen the person in the picture, what classified information has been disclosed? The shape of your eyebrows, or your chin? Have you yourself been committing an unauthorized disclosure of classified information by walking down the street while not wearing a mask?
If I have reason to believe that a crime was committed, why shouldn’t I try to identify the person who committed the crime?
March 18, 2010, 7:59 amjukeboxgrad says:
federale:
If they “did not need a volunteer attorneys” then you should explain why the Bush DoD asked private firms to help the military defense lawyers. And are you claiming that it was the patriotic duty of these private firms to decline to do what the Bush DoD asked them to do?
And most of them were not “charged with war crimes” or with anything else, and they did not have “free Jag lawyers.”
March 18, 2010, 8:00 amjukeboxgrad says:
random:
Your writing is ambiguous, so I’m not sure what you’re trying to say. But you seem to be saying CA 3 applies only to “strictly internal conflicts.” Trouble is, that claim is not supported by the text you cited, which used “internal armed conflicts” as an example. I think you are not noticing the word “include.”
Naturally. Now all you have to do is explain why some “dullard” at the Geneva Academy of International Humanitarian Law and Human Rights wrote this:
And there are obviously dullards everywhere, because some “dullard” at ICRC wrote that “non-international armed conflicts” are defined as “between governmental forces and non-governmental armed groups.”
But why should we accept a documented statement from the ICRC when instead we can accept an unsubstantiated assertion from some random engineer on the internet?
Oh, the irony. The one who is arguing “that the ICRC doesn’t know what it’s talking about” is you.
This is what’s called begging the question. The point of the Eisentrager case is that we understood that we had a duty to charge him with a crime if we intended to hold him (and if we didn’t intend to classify him as a POW). The radical Bush/Cheney innovation, defended by the likes of McCarthy and you, is that the president can simply declare any person to be an illegal combatant, and then hold that person indefinitely while not declaring them a POW, and while not charging them with a crime.
How conveniently circular. According to McCarthy, the president may imprison any person indefinitely, with no due process, simply by declaring that the person is an illegal combatant, while refraining from charging that person with war crimes (or with any crime).
No, that’s not “the issue,” although it’s convenient for you to rewrite history in that manner. The problem at the start is not that prisoners were being deprived access to “a civilian court.” It’s that they were being deprived access to any due process at all.
Those words were written about Eisentrager, and they established that since he had already been given a fair trial by military commission, he indeed did not have access to our civilian courts. It is highly disingenuous for you and McCarthy to argue that this becomes a reason to deprive prisoners of any due process at all. Because Eisentrager does not support that concept.
It is indeed an established fact that there are categories of individuals who are not entitled to the POW protection of the Geneva convention. Trouble is, “prisoner of war status” is not the only “protection of the Geneva convention” (although many people like to pretend that it is). CA3 is not about POWs. It’s about everyone.
Congress indeed thought that there were categories of combatants who were not entitled to the POW protection of the Geneva convention when they ratified the damn thing. Trouble is, GC is not just about POWs. Some portions of it are, but not all portions of it are.
March 18, 2010, 8:01 amAndrew J. Lazarus says:
OK, Steverino, we’ll go with the two sentence version. It couldn’t be clearer that the very passage you quote implies universal applicability of CA3. So take your witty SOL comments, and stuff them up your toosh, OK?
March 18, 2010, 10:32 amdoodahman says:
Here’s some facts about Gitmo some of you douchebags need to keep in mind:
Guest Post by Lawrence Wilkerson: Some Truths About Guantanamo Bay
http://digg.com/submit?phase=2&url=http://www.thewashingtonnote.com/archives/2009/03/some_truths_abo/&title=Guest Post by Lawrence Wilkerson: Some Truths About Guantanamo Bay&topic=political_opinion” target=”_blank”>
Lawrence B. Wilkerson was chief of staff to Secretary of State Colin Powell and is chairman of the New America Foundation/U.S.-Cuba 21st Century Policy Initiative.
There are several dimensions to the debate over the U.S. prison facilities at Guantanamo Bay, Cuba that the media have largely missed and, thus, of which the American people are almost completely unaware. For that matter, few within the government who were not directly involved are aware either.
The first of these is the utter incompetence of the battlefield vetting in Afghanistan during the early stages of the U.S. operations there. Simply stated, no meaningful attempt at discrimination was made in-country by competent officials, civilian or military, as to who we were transporting to Cuba for detention and interrogation.
This was a factor of having too few troops in the combat zone, of the troops and civilians who were there having too few people trained and skilled in such vetting, and of the incredible pressure coming down from Secretary of Defense Donald Rumsfeld and others to “just get the bastards to the interrogators”.
It did not help that poor U.S. policies such as bounty-hunting, a weak understanding of cultural tendencies, and an utter disregard for the fundamentals of jurisprudence prevailed as well (no blame in the latter realm should accrue to combat soldiers as this it not their bailiwick anyway).
The second dimension that is largely unreported is that several in the U.S. leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.
But to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror and these leaders already had black marks enough: the dead in a field in Pennsylvania, in the ashes of the Pentagon, and in the ruins of the World Trade Towers. They were not about to admit to their further errors at Guantanamo Bay. Better to claim that everyone there was a hardcore terrorist, was of enduring intelligence value, and would return to jihad if released. I am very sorry to say that I believe there were uniformed military who aided and abetted these falsehoods, even at the highest levels of our armed forces.
The third basically unknown dimension is how hard Secretary of State Colin Powell and his deputy Richard Armitage labored to ameliorate the GITMO situation from almost day one.
For example, Ambassador Pierre Prosper, the U.S. envoy for war crimes issues, was under a barrage of questions and directions almost daily from Powell or Armitage to repatriate every detainee who could be repatriated.
This was quite a few of them, including Uighurs from China and, incredulously, citizens of the United Kingdom (“incredulously” because few doubted the capacity of the UK to detain and manage terrorists). Standing resolutely in Ambassador Prosper’s path was Secretary of Defense Rumsfeld who would have none of it. Rumsfeld was staunchly backed by the Vice President of the United States, Richard Cheney. Moreover, the fact that among the detainees was a 13 year-old boy and a man over 90, did not seem to faze either man, initially at least.
The fourth unknown is the ad hoc intelligence philosophy that was developed to justify keeping many of these people, called the mosaic philosophy. Simply stated, this philosophy held that it did not matter if a detainee were innocent. Indeed, because he lived in Afghanistan and was captured on or near the battle area, he must know something of importance (this general philosophy, in an even cruder form, prevailed in Iraq as well, helping to produce the nightmare at Abu Ghraib). All that was necessary was to extract everything possible from him and others like him, assemble it all in a computer program, and then look for cross-connections and serendipitous incidentals–in short, to have sufficient information about a village, a region, or a group of individuals, that dots could be connected and terrorists or their plots could be identified.
Thus, as many people as possible had to be kept in detention for as long as possible to allow this philosophy of intelligence gathering to work. The detainees’ innocence was inconsequential. After all, they were ignorant peasants for the most part and mostly Muslim to boot.
Another unknown, a part of the fabric of the foregoing four, was the sheer incompetence involved in cataloging and maintaining the pertinent factors surrounding the detainees that might be relevant in any eventual legal proceedings, whether in an established court system or even in a kangaroo court that pretended to at least a few of the essentials, such as evidence.
Simply stated, even for those two dozen or so of the detainees who might well be hardcore terrorists, there was virtually no chain of custody, no disciplined handling of evidence, and no attention to the details that almost any court system would demand. Falling back on “sources and methods” and “intelligence secrets” became the Bush administration’s modus operandi to camouflage this grievous failing.
But their ultimate cover was that the struggle in which they were involved was war and in war those detained could be kept for the duration. And this war, by their own pronouncements, had no end. For political purposes, they knew it certainly had no end within their allotted four to eight years. Moreover, its not having an end, properly exploited, would help ensure their eight rather than four years in office.
In addition, it has never come to my attention in any persuasive way–from classified information or otherwise–that any intelligence of significance was gained from any of the detainees at Guantanamo Bay other than from the handful of undisputed ring leaders and their companions, clearly no more than a dozen or two of the detainees, and even their alleged contribution of hard, actionable intelligence is intensely disputed in the relevant communities such as intelligence and law enforcement.
This is perhaps the most astounding truth of all, carefully masked by men such as Donald Rumsfeld and Richard Cheney in their loud rhetoric–continuing even now in the case of Cheney–about future attacks thwarted, resurgent terrorists, the indisputable need for torture and harsh interrogation and for secret prisons and places such as GITMO.
Lastly, there is the now prevalent supposition, recently reinforced by the new team in the White House, that closing down our prison facilities at Guantanamo Bay would take some time and development of a highly complex plan. Because of the unfortunate political realities now involved–Cheney’s recent strident and almost unparalleled remarks about the dangers of pampering terrorists, and the vulnerability of the Democrats in general on any national security issue–this may have some truth to it.
But in terms of the physical and safe shutdown of the prison facilities it is nonsense. As early as 2004 and certainly in 2005, administration leaders such as Deputy Secretary of Defense Gordon England, and John Bellinger, Legal Advisor to National Security Advisor Condoleezza Rice and, later, to that same individual as Secretary of State, and others were calling for the facilities to be shut down. No one will ever convince me that as astute a man as Gordon England would have made such a call if he did not have a plan for answering it. And if there is not such a plan, is not its absence simply another reason to condemn this most incompetent of administrations? After all, President Bush himself said he would like to close GITMO.
Recently, in an attempt to mask some of these failings and to exacerbate and make even more difficult the challenge to the new Obama administration, former Vice President Cheney gave an interview from his home in McLean, Virginia. The interview was almost mystifying in its twisted logic and terrifying in its fear-mongering.
As to twisted logic: “Cheney said at least 61 of the inmates who were released from Guantanamo (sic) during the Bush administration…have gone back into the business of being terrorists.” So, the fact that the Bush administration was so incompetent that it released 61 terrorists, is a valid criticism of the Obama administration? Or was this supposed to be an indication of what percentage of the still-detained men would likely turn to terrorism if released in future? Or was this a revelation that men kept in detention such as those at GITMO–even innocent men–would become terrorists if released because of the harsh treatment meted out to them at GITMO? Seven years in jail as an innocent man might do that for me. Hard to tell.
As for the fear-mongering: “When we get people who are more interested in reading the rights to an Al Qaeda (sic) terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry,” Cheney said. Who in the Obama administration has insisted on reading any al-Qa’ida terrorist his rights? More to the point, who in that administration is not interested in protecting the United States–a clear implication of Cheney’s remarks.
But far worse is the unmistakable stoking of the 20 million listeners of Rush Limbaugh, half of whom we could label, judiciously, as half-baked nuts. Such remarks as those of the former vice president’s are like waving a red flag in front of an incensed bull. And Cheney of course knows that.
Cheney went on to say in his McLean interview that “Protecting the country’s security is a tough, mean, dirty, nasty business. These are evil people and we are not going to win this fight by turning the other cheek.” I have to agree but the other way around. Cheney and his like are the evil people and we certainly are not going to prevail in the struggle with radical religion if we listen to people such as he.
When–and if–the truths about the detainees at Guantanamo Bay will be revealed in the way they should be, or Congress will step up and shoulder some of the blame, or the new Obama administration will have the courage to follow through substantially on its campaign promises with respect to GITMO, torture and the like, remains indeed to be seen.
On that revelation and those actions rests much of the credibility of our nation’s return to sobriety and our truest values. In fact, on such positive developments may ultimately rest our entire future as a free people. For there shall inevitably be future terrorist attacks. Al-Qa’ida has been hurt, badly, largely by our military actions in Afghanistan and our careful and devastating moves to stymie its financial support networks.
But al-Qa’ida will be back. Iraq, GITMO, Abu Ghraib, heavily-biased U.S. support for Israel, and a host of other strategic errors have insured al-Qa’ida’s resilience, staying power and motivation. How we deal with the future attacks of this organization and its cohorts could well seal our fate, for good or bad. Osama bin Laden and his brain trust, Aman al-Zawahiri, are counting on us to produce the bad. With people such as Cheney assisting them, they are far more likely to succeed.
– Lawrence Wilkerson
March 18, 2010, 11:53 amdoodahman says:
The more you write, the more of an idiot you appear. I posted twice because the editing function on this site does not work properly.
Second, the point you now allege to make is idiotic from the get go. McCarthy has a first amendment right? No shit sherlock. And since none of us are the gov’t, which is the only entity restrained by the first amendment, how the fuck is that relevant?
More to the point, how is any of this relevant? McCarthy is an a-hole, doing what a-holes do– attack people on the basis of bogus analysis, rumor and guilt by association. He’s being called out for it, by private individuals. What this has to do with MoveOn or the first amendment, is this: bupkis. And here you are, five posts down the road, fixating on it.
You are so far out of your league in this discussion it’s embarrassing for you and you still don’t get it.
March 18, 2010, 11:59 amdoodahman says:
If it looks like a duck, quacks like a duck, and goosesteps like a duck, it’s duck. People who argue that gov’t action outside established law, who urge not only the exercise of extra-constitutional power but also vilify and accuse of disloyalty those who oppose such exercise, are fucking fascists, buddy. They might not be for chucking folks into the gas chambers YET, but that’s where that road inexorably leads.
I prefer strangling them in the cradle before it’s a life or death struggle. Don’t you? Just re-watched the great war movie, “Battleground” last night. There’s a scene where the Holy Joe gives a brief talk on why it’s necessary for those men to stand and fight at Bastogne:
“Now it’s nearly Christmas… and here we are in beautiful Bastogne enjoying the winter sports. And the $64 question is: “Was this trip necessary?” I’ll try to answer that. But my sermons, like everything else in the army… depend on the situation and the terrain. So I assure you this is going to be a quickie. Was this trip necessary? Let’s look at the facts. Nobody wanted this war but the Nazis. A great many people tried to deal with them, and a lot of them are dead. Millions have died… for no other reason except that the Nazis wanted them dead. So, in the final showdown, there was nothing left to do except fight. There’s a great lesson in this. Those of us who’ve learned it the hard way aren’t going to forget it. We must never again let any force dedicated to a super-race… or a super-idea, or super-anything… become strong enough to impose itself upon a free world. We must be smart enough and tough enough in the beginning… to put out the fire before it starts spreading. My answer to the sixty-four dollar question is yes, this trip was necessary. As the years go by, a lot of people are going to forget. But you won’t. And don’t ever let anybody tell you you were a sucker to fight in the war against fascism. And now, Jerry permitting, let us pray. Almighty God…”
It doesn’t matter whether the “super” anything is the notion that we are execeptional to the point where the rule of law and respect for human and civil rights can be waived because of hyped and exaggerated fear. You coddle these SOBs if you want. But if they get their way, if these ideas of theirs become the mainstream (as free market fetishism has already), watch out. Think of what will have to be sacrificed to put that genie back in the bottle.
March 18, 2010, 12:11 pmRandomEngineer says:
1. You appear incapable of responding to points of view with which you disagree without resorting to personal insults and name calling (both against me and McCarthy). I continue to try to be courteous.
March 18, 2010, 1:11 pm2. You are the one who fixated on the size of the backlash against MoveOn “Betray-us” ad, which I never brought into the discussion. My point was that MoveOn had done it, period, and that questioning someone’s loyalty, or the outrage at doing so, was in many cases political, not principled.
3. You are also now fixating on my First Amendment comment, in another attempt at ridicule.
4. You attributed words to me that I did not write (but you inferred), and then ridiculed them.
doodahman says:
Well boo fucking hoo. Grab a hanky and weep weep weep for yourself. Here’s a clue: this ain’t about you. Nobody cares about how you feel about the quality of my responses, and that means me first of all. Who said you deserved courtesy? You’ve spent how many hours arguing in defense of a person who’s attacked the national loyalty of persons simply based on the most scrurilous of bases: guilt by association. And now you want a time out to be treated nice. Get over yourself. You countenance without pity or empathy the prospect that men be kept forever locked in a cage on the basis of untested allegations, and that their legal defenders be questioned for their loyalty, but you want to be treated nice. That’s rich. Mighty fucking rich.
March 18, 2010, 1:58 pmMichael B says:
“Either way, that’s not finally the position of this letter. As Ben Wittes has written in his book, Law and the Long War, it’s certainly morally consistent to always come down on the side of civil liberties and human rights.” Kenneth Anderson, from the more recent thread
Excepting, the concerns are not mutually exclusive.
It is true, as emphasized below and as previously noted, that
Also that
Iow, this one-sided sense of righteous might be curtailed.
March 18, 2010, 3:51 pmMichael B says:
S/b: Iow, this presumptively one-sided and incurious sense of righteousness might be curtailed.
No one is gathering around, with pitchforks and torches, demanding anyone be subjected to some onerous McCarthyite pogrom. Asking questions, most basically, most fundamentally, for purposes of a transparent governmental policy and ensuing public discussion/debate, is in no sense tantamount to “McCarthyism” – indeed, to the contrary and decidedly to the contrary.
And this, also from K.A.’s piece:
“To start with, many merely express satisfaction that I, and the other letter writers, have come round to understand that this whole ‘war on terror’ stuff is a bad, if not wicked, policy, and a fantasy to boot.”
The intimated “wicked,” juicy stuff, very juicy indeed.
Then where was the so often self-admiring Left, Left/Dems and coopted “liberal” crowd when the Patriot Act was recently again passed and approved by the current Congress/administration?
Dissent: no longer so “patriotic,” eh?
March 18, 2010, 4:06 pmMichael B says:
For clarification, the “wicked” ref. directly above: I do realize that was not K.A.’s consideration, even to the contrary. But it does serve to underscore the sentiments expressed by so very many among the previously alluded to self-admiring – and eager to demonize – class.
March 18, 2010, 4:19 pmRandomEngineer says:
You are a piece of work–like I said, your disagreement with my point of view apparently gives you license to be rude in the extreme. I don’t deserve courtesy because I disagree with you?
You attributed things to me I have not said, then get angry when I call you on it. You’re most recent falsehoods:
1. “you’ve spent how many hours arguing in defense of a person who’s attacked the national loyalty of persons…” I HAVE NOT DEFENDED MCCARTHY on the question debated here! I’ve agreed he’s wrong to do so.
2. “You countenance without pity or empathy the prospect that men be kept forever locked in a cage on the basis of untested allegations, and that their legal defenders be questioned for their loyalty…“ On the bold, I point out what I posted previously, that McCarthy was wrong. But you have worked yourself up into a such a lather that either you (a) did not read what I wrote, or (b) willfully ignored it.
March 18, 2010, 4:30 pmMichael B says:
Because of the inciting nature of the topic and the critical importance of the still larger discussion, I’ll allow myself another clarification: in referencing “K.A.’s piece,” etc., I was not seeking to attribute any of the excerpted views to K.A. personally; rather, the excerpts were invoked to reflect upon the subject at hand. Apologies.
“But the AQ7 lawyers in the DOJ do not have very much to do (i.e., anything at all to do) with Andy’s largest-bore claim that the gap between “Islam” and “Islamism” is much more a convenient and comforting Western political fiction than reality.” K.A.
Yes, this is broadly true, certainly, and if that was in fact Andrew McCarthy’s charge then I’d agree he overstepped a certain boundary. Nonetheless, that wider topic and problematic is nonetheless itself one that is reflected in, e.g., the Geert Wilders set of topics, which is not entirely unrelated to the current topic.
March 18, 2010, 5:07 pmleo marvin says:
At four weeks, human embryos look like tadpoles. That doesn’t mean they turn into frogs.
A defining attribute of fascism is totalitarianism. As offensive as I find what these people advocate, they’re doing it inside a constitutional republican polity, and I haven’t heard any calls for cout d’etat. As long as they accept the finality of the rule of law, even if they vilify the people and the laws they don’t like, they’re not fascists.
Either you know something about their plans which I don’t, or you don’t understand the meaning of “inexorably.”
No. That’s the sort of “end justify the means” thinking fascists use. That doesn’t make you a fascist, does it?
If you’re right and that happens, we’ll be in for ugly times. But if we have any principles worth defending, they include that we only punish people for what they’ve done, not for what they believe or we think they may eventually do.
March 18, 2010, 7:54 pmjukeboxgrad says:
doodahman:
Thanks for posting that excellent article. The link you provided goes through digg.com. A direct link is here.
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michael:
Where? Complaining vociferously (example, example). You have a unique talent for making statements that are totally divorced from reality. Keep up the good work.
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leo:
Except that it’s not terribly hard to find people dropping all sorts of hints about how the people might “violently revolt” if congress passes a bill they don’t like. And this phenomenon should not be glossed over when we also notice a member of congress talking about how people need to be “armed and dangerous.”
March 18, 2010, 10:54 pmleo marvin says:
I agree. And my concern over what Rich discusses in that article is why we should respect the rhetorical limits we hold our opponents to, not just for moral, but for tactical reasons. What some of these people advocate is so wrong and troubling on its face, it’s irresponsibly foolish to give them excuses to change the subject by our own rhetorical excesses.
March 19, 2010, 12:10 amjukeboxgrad says:
Leo, well said. No disagreement here.
March 19, 2010, 12:26 amSteverino says:
You know, if you really thought you had the better argument you wouldn’t have to misstate what others are saying.
The most aggregious misrepresentation is this:
I may have been ambiguous, but McCarthy hasn’t been.
Detainees are entitled to only the amount of due process required by the convention. You may disagree with that, but it is patently false to say that McCarthy is advocating no due process.
Frankly, since I referenced AR 190-8 in two posts, I don’t see how you can say I was being especially ambigous. But that is the amount of due process that any detainee is entitled to receive.
So, if you want to say the amount of due process I believe, or Andrew McCarthy is advocating, is inadequate then that would be an honest statement. To say that he, or I, are in favor of no due process is just flatly untrue. And, frankly, the latter would be in keeping with the entire nature of the smear campaign.
Second, try to get this straight: I am arguing in support of Congress’ authority to establish tribunals as well as regulations concerning determination of a detainees status. After all, the Constitution states that Congress has the power:
As CINC, the President has only the authority to faithfully execute those laws.
If you care at all about accuracy, then address my actual argument. The President may not imprison people indefinitely based upon a simple declaration. Nor was that ever the proposal. However, the President as CINC may be empowered by Congress to imprison people for an indefinite period based upon the finding of a competant tribunal, acting in accordance with the regulations Congress imposes in keeping with Congress’ interpretation of the Geneva convention.
Turning to the Convention itself, kindly show me where, in Article III of all four Geneva conventions it states that detainees must be released or must be classified as POWs.
At least try to be consistent. If you are going to say this is a conflict not of an international nature, then only article III applies. If so, we are under no obligation to assign any detainee POW status.
POWs are discussed under other articles. As far as the other articles are concerned, the Convention states “The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.”
POW status is provided for by those other provisions. Which we are not bound to apply in the circumstance of a conflict of a non-international nature. Of which, I am told by the USSC and you, this is one. So, POW status may be a possibility. But only by special agreement between the parties to the conflict.
It is a matter of negotiation. Again, not a matter to be decided by fiat by an over-reaching court.
Back to the issue of detention; If Article III applies to this conflict, as I read it, then detainees can not be convicted or sentenced other than by a regularly constituted court.
But where do you get the idea that they can not be detained for security reasons? Preventive detention exists in every country on earth. It is specifically authorized in the Geneva conventions.
Is there anything in the laws and customs of war that you can point to that outlaws our ability to detain belligerants?
Or is it the Sixth Amendment? If so, then you are coming close to addressing my actual argument. Not your strawman.
That it is the political branches that have the Constitutional authority to negotiate and ratify treaties. Treaties create obligations among nation. So it is the political branches that best understand what they are obligating the nation to do. It is their decision.
Rightfully so, as they are accountable to the people.
If they understand that persons detained under the Laws of War have certain rights, but less rights than provided by the Constitution to those it protects, it is because they only intended to obligate the US to provide the rights and protections required by those treaties.
Not Constitutional rights.
March 19, 2010, 2:26 amjukeboxgrad says:
steverino:
My only misstatement was addressing you as randomengineer instead of steverino. My mistake. I apologize to both of you.
And speaking of misstatements, maybe you can help us find the part of your latest comment where you address your misstatements about the term “not of an international character.” You accused others of arguing “that the ICRC doesn’t know what it’s talking about.” I demonstrated here that the one who is arguing “that the ICRC doesn’t know what it’s talking about” is you.
When are you going to address this? What you are doing is jumping from one disingenuous argument to another.
Really? Then please explain this:
What is the meaning of “due process” if I am not “at all” entitled to file claims which “challenge [my] detention?”
And he said the same thing here:
And pay attention to what he said here (7/6/04):
Which part of that sentence, or that article, admits to any concept of due process? It’s not there. He simply declares that the detainees may be “held until the conclusion of hostilities.” Not ‘held because they have been accorded due process.’ And not ‘held because they have been judged before a competent tribunal.’ Those concepts are not there.
Please examine McCarthy’s article of 7/6/04 and show me where he does any “advocating” for anything remotely resembling “due process.” He doesn’t. He takes the position that any such “advocating” means that you are “America’s al-Jazeera.”
In his more recent articles, he grudgingly acknowledges that our prisoners have been granted a right to a CSRT. What he doesn’t mention is that Bush had to be pushed to do this by “the Gitmo bar.”
The “proposal” was to use military commissions that amounted to “kangaroo courts.” Don’t take my word for it; ask that prominent liberal William Safire.
Describing Bush’s original concept of military commissions as “a competant tribunal” has roughly as much credibility as saying “we have found the weapons of mass destruction.”
If the president has unlimited power to impose “preventive detention,” then why did we give Eisentrager a complete military trial, including defense counsel?
March 19, 2010, 9:03 amMichael B says:
jukebox_sneer, aka jukebox_metasneer, aka Mr. Spittle,
You’re projecting.
March 19, 2010, 6:17 pmMichael B says:
Iow, i wasn’t suggesting there was no commentary whatsoever. I was suggesting the commentary against Obama’s Patriot Act was massively muted compared to the never-ending protests, hate-filled rants, hyperbole, demonizations, conclusory accusations, presumptive and one-sided arguments, etc., etc. directed against GWB’s Patriot Act signing.
March 19, 2010, 6:31 pmjukeboxgrad says:
Really? Prove it. Show us your examples of who exactly responded to Bush’s Patriot Act with “hate-filled rants, hyperbole, demonizations, conclusory accusations, presumptive and one-sided arguments” and then supported Obama’s Patriot Act.
When challenged to show support for your claims, your track record is to present baloney. Let’s see what your baloney looks like this time around.
March 19, 2010, 7:12 pmMichael B says:
jukeboxgrad, wise and venerable one, preeminent in modesty and modest formulations (I mock not, nor [now to the audience in feigned sotto voce], nor do I indulge any mean paraleipsis),
Wise and venerable one, one need only compare the two here at Volokh, the number of posts and comments applied to GWB’s Patriot Act as compared to Obama’s signing of his Patriot Act.
March 21, 2010, 5:20 pmMichael B says:
Btw, oh wise, venerable and modest one,
It isn’t only the stark contrast between protests contra the Bush administration vs. protests contra the Obama administration, it’s the additional fact that Obama as campaigner promised to overhaul the Act.
March 21, 2010, 6:42 pmjukeboxgrad says:
“The two” what?
When are you going to show us a single example of someone who responded to Bush’s Patriot Act with “hate-filled rants, hyperbole, demonizations, conclusory accusations, presumptive and one-sided arguments” and then supported Obama’s Patriot Act?
March 21, 2010, 9:30 pmMichael B says:
The “two” referred to, Bush’s vs. Obama’s Patriot Act signing.
And “us”? Another arrogation, you have a habit of doing that. I went to a single site, Daily Kos, and found examples of everything alluded to. You can do your own searches. Or are you contentedly and resolutely incurious?
And no comment upon Obama’s promises, in the link provided? More incuriousity.
March 23, 2010, 7:23 pmjukeboxgrad says:
You found an example of someone who responded to Bush’s Patriot Act with “hate-filled rants, hyperbole, demonizations, conclusory accusations, presumptive and one-sided arguments” and then supported Obama’s Patriot Act? Then why are you hiding it?
March 23, 2010, 10:33 pmMichael B says:
jukebox_sneer, aka jukebox_metasneer,
Not hiding a thing and I didn’t find a single comment, I found several. I just don’t do any fetching for you; if you’re so contentedly incurious about the subject matter, that’s your issue, not mine.
Next you’ll be telling be John Yoo wasn’t subjected to hate-filled vitriol, then asking me to prove that as well.
Do your own fetching. Besides, are you under the impression I take your political persona and praxis seriously?
March 25, 2010, 6:16 pmjukeboxgrad says:
It’s not that I’m “contentedly incurious about the subject matter.” It’s that what you claim is easy to find is not easy to find.
You’re following your normal practice of making wacky claims that are either backed by no proof or phony proof.
Nice job trying to disingenuously pretend that I asked you something other than what I asked you. I didn’t ask you to show an example of someone responding to Bush’s Patriot Act with “hate-filled rants, hyperbole, demonizations, conclusory accusations, presumptive and one-sided arguments.” I asked you to show an example of someone responding to Bush’s Patriot Act with “hate-filled rants, hyperbole, demonizations, conclusory accusations, presumptive and one-sided arguments,” and then turning around and supporting Obama’s Patriot Act.
Can you find such a person? I guess not.
March 25, 2010, 8:36 pmMichael B says:
No, I told you to go fetch your own bone, fido.
March 25, 2010, 9:23 pmjukeboxgrad says:
Don’t you think you could have a bit more consideration for my feelings? I feel kind of slighted that you said “Fuck you, Arthur,” while the best you can do for me is “fetch your own bone, fido.” That’s sort of pale, by comparison. It’s downright limp. What’s he got that I don’t have? Where did I go wrong?
March 25, 2010, 10:59 pmleo marvin says:
New from Michael B’s Internet Maxims: “Burdens of proof violate the 13th Amendment.”
March 25, 2010, 11:01 pmMichael B says:
jukebox,
I’m curious, could you point me to, say, three comments of yours here at VC that are simple comments applied to any controversial subject you’re addressing? I.e. without the carefully calibrated quantity of venom and stench and “fuck you” attitude and presumption in general that seems to, variously, pervade each and every one of your comments?
Three comments of your own, on any controversial subject, three that are not interwoven or interspliced with some degree of bile and guile in that vein.
Two quick examples of my own, to give you an approximation of what I’m referring to, 1) applied to Vietnam, 2) applied to indeterminacy vis-a-vis homosexuality. I could give you scores of other examples, but I’m curious if you can, or will, link to three such examples of your own.
March 28, 2010, 5:31 pmjukeboxgrad says:
I could, but I won’t. To coin a phrase: “fetch your own bone, fido.”
March 29, 2010, 12:48 amMichael B says:
Thought so. In lieu of support for your otherwise barren assertion, more of that “fuck you” attitude and presumption you line and limn your commentary with.
March 29, 2010, 5:34 pmjukeboxgrad says:
The one with proven expertise in the art of the “barren assertion” is you.
March 29, 2010, 9:33 pmMichael B says:
Not barren at all. That you remain incurious enough, as well as apathetic enough, to avoid doing the research, that’s your issue, not mine.
Btw, you’re also witless, the “bone” you previously referred to, they’re your own comments, your own bones. That’s why I already had “fetched” my own “bones,” i.e. my own comments, as in here and here.
April 1, 2010, 6:19 pm