Month: June 2008

Packer Says, “Iraq 4-Evah!”

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by publius One can only hope that the Obama campaign will completely ignore George Packer’s political advice on Iraq: Obama has shown, with his speech on race, that he has a talent for candor. One can imagine him speaking more honestly on Iraq. If pressed on his timetable for withdrawal, he could say, “That was … Read more

Coopt the Vote

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by Eric Martin Earlier this spring, John McCain voiced his opposition to a bi-partisan bill (introduced by Jim Webb) that sought to vastly expand educational assistance, and other benefits, for our veterans and active duty military personnel.  Webb’s bill represented a long overdue means for this country to share in the sacrifice, ever-so-slightly, and to … Read more

Open Thread: Assignments

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by publius Some nasty little stomach bug cut into my weekend blogging. So while I recover, I thought I’d try the whole “assignments” thread that all the kids are doin’ these days. In case you haven’t seen these before, just let us know what you’d like us to write about. Or just gossip — open … Read more

McCain, Russia, And The G-8

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by hilzoy

Matt Corley of ThinkProgress caught this bit from the end of a Reuters article. Quoting one of McCain’s advisors:

“He also dismissed McCain’s comment last October on Russia and the G-8 as “a holdover from an earlier period,” adding: “It doesn’t reflect where he is right now.””

Matt also noted that McCain didn’t just say he wanted to kick Russia out of the G-8 in October; he said it at the end of last March in his last major foreign policy speech. As I have noted earlier, Fareed Zakaria called this “the most radical idea put forward by a major candidate for the presidency in 25 years.” So: what’s the big deal, and why does it matter if no one knows what McCain’s position on it is?

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Heller’s Indictment of Originalism

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by publius

Ok – let’s talk Heller. The question in Heller was not “individual” versus “collective” right, but whether the individual right must relate in some way to militia service. The Court said no, in a 5-4 party-line vote. I’m not crazy about the result, but I don’t care that much about guns. The reasoning, however, is far more troubling. Scalia’s opinion is blatant results-oriented analysis dressed up as rigid historical analysis. The idea that this result is compelled by the history is, frankly, absurd.

There are a million things about Heller on the Internets, so I’m limiting myself to this one point – the Heller opinion is an indictment of originalism. In particular, it shows the gaping weaknesses of a methodology that says our constitutional rights should turn on the ability of non-historian judges and law clerks to sift through cherry-picked snippets of early American history. Stuart kings should be less relevant than the realities of 21st century urban violence on this particular issue.

To begin, let me emphasize that history shouldn’t be irrelevant to constitutional analysis. It can be a valuable tool when the historical record is fairly clear. For instance, let’s say Congress decided to put images of our troops on quarters (25 cent pieces), and someone sued saying the Constitution prohibits “quartering” of troops. History there clearly illustrates that the text doesn’t refer to coins. Similarly, the “domestic tranquility” clause isn’t a basis for a federal domestic abuse statute. So yes, history can be relevant and even dispositive.

But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations. At this point, courts lack the institutional competence to decide which side’s cherry-picked history citations are more accurate. Judges aren’t historians. They haven’t been trained that way. They have no idea whether the subset of materials being presented is representative and sufficient and so on. Thus, when it’s close, courts need to move on to other interpretative methods.

In Heller, the opinion itself illustrates how unclear the record is. Both sides present historical examples that, taken alone, support their point well. But the evidence doesn’t compel a conclusion either way – particularly from institutionally incompetent judges. It can retroactively justify the decision, but it’s not determining the outcome.

Even if you’re not persuaded by Stevens’ dissent, he at least notes several powerful challenges to Scalia’s historical analysis. Just off the top of my head – (1) the original draft of the Second Amendment was more military-related; (2) several state constitutions explicitly mention self-defense, unlike the federal one. And there are many others. Again, I don’t want to get into a historical debate because it’s silly. The point is that Stevens provided several examples that, at minimum, complicate Scalia’s overly-rosy historical record (which of course neatly held up to a 5-4 vote).

But moving beyond Heller, the extensive use of history in complicated situations has at least two other major problems: (1) it’s anti-democratic; and (2) it’s completely divorced from real-world considerations. More on each below the fold:

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Returning To The Battlefield: Abdullah Salih al Ajmi

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by hilzoy

Bill Roggio has a story today called “Released Guantanamo detainee behind March suicide truck bombing at Combat Outpost Inman in Mosul”. The bombing itself is a few months old, and got some press at the time. From the Boston Globe:

“Pentagon officials yesterday said Ajmi, who was among more than 500 former Guantanamo inmates who have been released or transferred to other countries, was a dramatic reminder of the danger in releasing those who are avowed terrorists – even to US allies who promise to ensure they will not pose a future threat.”

Several months ago, I hadn’t just read the Seton Hall report on released detainees. But now that I have, I recognized the story. It’s a bit more complicated than those Pentagon officials make it sound.

“While Justice Scalia is clearly wrong about the number of detainee recidivists, his larger point seems to be that the Government, not the courts, should be trusted with separating the sheep from the goats. However, one of the greatest ironies of the whole recidivism debate is that not a single detainee has been released as a result of habeas corpus. All recidivists have been released by the Department of Defense, which has never explained why it released such individuals to “return to waging war” against us. Any assessment of the relative strengths of judicial and political processes should be made with full awareness of the story of ISN 220 [Ajmi], who “returned to the fight” not as the result of any judicial ruling but rather because of a decision made by the political appointees at the Department of Defense who released him despite the objections of the military. (…)

The Combat Status Review Tribunal (CSRT) declared ISN 220 to be an enemy combatant. See Appendix 2. The Tribunal held that he was a “fighter for” the Taliban who engaged in “hostilities” against either the United States or its coalition partners. The Tribunal based its first finding that ISN 220 was a Taliban fighter on two incidents. First, he went AWOL from the Kuwaiti military so that he could travel to Afghanistan to participate in the Jihad. Second, the Taliban issued ISN 220 an AK-47, ammunition, and hand grenades. With respect to the latter finding, the Tribunal considered allegations of five events to conclude that ISN 220 engaged in hostilities: he admitted that he fought with the Taliban in the Bagram area of Afghanistan; the Taliban placed him in a defensive position to block the Northern alliance; he spent eight months on the front line at the Aiubi Center in Afghanistan; he participated in two or three fire fights against the Northern Alliance; and he retreated to the Tora Bora region, and was later captured while attempting to escape to Pakistan.

Less than a year after ISN 220’s CSRT, on May 11, 2005, the Administrative Review Board of the Department of Defense affirmed the CSRT assessments and decided that ISN 220 should be further detained. See Appendix 3. Even with the extraordinary redaction of the Review Board’s report, ample evidence apparently existed for these assessments and the recommendation for continued detention. Specifically, a Government memorandum prepared for the ARB identified three factors that favored continued detention for ISN 220: (1) he is a Taliban Fighter; (2) he participated in military operations against the coalition; and (3) he is committed to Jihad. Moreover, the ARB primarily relied upon two factual bases for its conclusion that ISN 220 was committed to Jihad:

1. [ISN 220] went AWOL [from the Kuwaiti military] because he wanted to participate in the jihad in Afghanistan but could not get leave from the military.

2. In Aug 2004, [ISN 220] wanted to make sure that when the case goes before the Tribunal, they know that he is a Jihadist, an enemy combatant, and that he will kill as many Americans as he possibly can. (Emphasis added). (…)

While the documents which have been released strongly suggest that ISN 220 should still be detained, there are no available records indicating why he was released or who is responsible for the release. The only thing that can be said with assurance is that, Justice Scalia to the contrary notwithstanding, no federal judge is responsible. Perhaps if the process were more transparent, such a grave mistake would not have been made.”

So: Ajmi was captured on a battlefield. He said he was there because he wanted to join the jihad. He also said that if released, he would kill as many Americans as possible. That means that the government had plenty of evidence that he was an enemy combatant, as alleged. And this evidence wasn’t somehow suspect; it was his very own statements.

All that habeas motions give a detainee is the right to ask: is the government holding me for a good reason? If the answer is ‘yes’, then the detainee goes back to jail. (That’s why there’s no problem with allowing Osama bin Laden habeas rights: there’s more than enough evidence to hold him either as an enemy combatant or on any number of straightforward criminal charges, like murder.) In Ajmi’s case, the military seems to have had excellent reasons for thinking that Ajmi was an enemy combatant. Had he been allowed to file a habeas motion, he would probably have been sent back to jail.

The only reason why he might have been released is if all the evidence against him was produced under torture. That seems unlikely, given that some of the evidence that he was an enemy combatant was his having been captured at Tora Bora. But even if that were true, it would indicate not a problem with our legal system, but with this administration’s use of torture, which defied not only basic moral norms, but also the requirements the government should have followed if it wanted to convict actual terrorists in a court of law.

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VitameataSurgeamin!, Part I

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by Eric Martin The answer to all your problems is in this little bottle! The Surge is being treated as a panacea of sorts in GOP circles, imbibed in large doses as treatment for various and sundry maladies – providing pep to sagging electoral prospects, as a balm to assuage a restive population chafing under … Read more

Making Eye Babies

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by hilzoy The DoJ Inspector General’s report (pdf) on politicizing hiring at DoJ, which I wrote about here, mentioned one Esther Slater McDonald, and claimed that she had violated DoJ policy and federal law by taking people’s political affiliation into account in hiring decisions. She’s the one who did Google searches on candidates, circled things … Read more

Heller

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by publius Scotusblog reports that it’s out. And the Court did affirm Heller, thus finding an individual right in the Second Amendment. This part was expected — the key will be how broadly they read it, and whether it jeopardizes federal gun legislation. The opinion was also 5-4 along political lines. More on that after … Read more

Kennedy v. Lousiana, Take Two

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by publius

It happens from time to time, but my initial post on Kennedy v. Louisiana was wrong. I disagree with the decision. That said, I think it’s a plausible decision – and it certainly doesn’t justify the hyperventilating cries of illegitimacy from conservatives that seem to accompany every decision that they disagree with (more on that in my next post).

But it’s a bad opinion. It’s not merely that the methodology is shaky. Even assuming you accept the methodology, the Court’s result doesn’t seem consistent with that methodology.

To back up, constitutional law decisions always have two key parts: (1) the result; and (2) the reasoning (i.e., the methodology or doctrine or framework). For instance, imagine the Supreme Court said (a) Gitmo detainees have habeas rights; (b) because Publius says they do and he’s infallible. That’s the correct result, but the reasoning is a wee shaky. More to the point, the methodology adopted will lead to bad things, even if we like the result it produced in this particular case.

It’s easy to lose sight of it in political debates, but constitutional law is often a battle of competing methodologies. And if you want to be cynical, certain Justices favor certain methodologies because they generally produce results they like. Originalist methodology, for instance, was heavily motivated by hostility to the Warren Court. True, originalism sometimes produces results conservatives don’t like, but those are the operating costs of adopting politically favorable methodologies.

So with the result/reasoning distinction in mind, we can better understand the problem with Kennedy. It’s not only that the methodology itself has some serious problems. It’s that the methodology suggests a different result. It gets a bit denser below the fold.

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With A Broomstick

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by hilzoy I read this report last week, but it has taken me a while to blog it. It’s too awful. It’s by Physicians for Human Rights. They found and interviewed eleven detainees, held in Guantanamo, Iraq, and Afghanistan, about their treatment. They then gave them medical exams to see whether their various claims about … Read more

Kennedy v. Louisiana

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by publius The Court today held that imposing the death penalty for child rape was unconstitutional. I haven’t read the opinion yet, so this post is subject to change. But as grotesquely heinous as child rape is, I think it’s the right call. I’ll talk about doctrine in more detail later, but I think death … Read more

“Unless A Soldier Has A Personal Fortune …”

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by hilzoy From the Army Times, via VetVoice: “His lifelong dream of becoming a soldier had, in the end, come to this for Isaac Stevens: 28, penniless, in a wheelchair, fending off the sexual advances of another man in a homeless shelter. Stevens’ descent from Army private first class in 3rd Infantry Division began in … Read more

Politicizing the Department Of Justice

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by hilzoy

When I first saw this story, about how “Justice Department officials improperly used political and ideological factors to screen applicants for the agency’s prestigious honors and summer intern programs”, I didn’t immediately flag its importance. I suspect that this was because of the phrase “the agency’s prestigious honors and summer intern programs”, which suggested small, unimportant programs, a sort of DoJ analog to the Congressional Page program. It was only when I sat down to read the DOJ Inspector General’s report (pdf) that the story is based on that I realized that I was wrong.

According to the report (p. 3), “The Attorney General’s Honors Program is the exclusive means by which the Department hires recent law school graduates and judicial law clerks who do not have prior legal experience.” That is: it’s not some minor program; it’s one of the main ways in which DoJ lawyers get hired. Their appointments are permanent. Moreover, the people who are hired under this program are career, not political, appointees, which means that it is against the law to take politics into account when hiring them. But according to the report, for two of the five years it covers, political considerations were huge:

“The documentary evidence and witness interviews also support the conclusion that two members of the 2006 Screening Committee, Esther Slater McDonald and Michael Elston, took political or ideological affiliations into account in deselecting candidates in violation of Department policy and federal law. For example, the evidence showed that McDonald wrote disparaging statements about candidates’ liberal and Democratic Party affiliations on the applications she reviewed and that she voted to deselect candidates on that basis.

We also found that Elston, the head of the 2006 Committee, failed to take appropriate action when he learned that McDonald was routinely deselecting candidates on the basis of what she perceived to be the candidates’ liberal affiliations. The evidence also showed that Elston himself deselected some candidates – and allowed the deselection of others – based on impermissible considerations.” (p. 99)

Or, to quote the member of the screening committee whom the IG found to have acted in good faith:

“I’m still kind of reeling from the résumés that you . . .showed me . . . people from Harvard, Yale, Stanford who were deselected. There were a lot of them. And I am shocked and very disappointed about that. . . . I didn’t know that this was going on. I thought that this was being conducted in good faith. I was conducting my reviews in good faith and making my recommendations based on merits and what I thought were the people [who] were going to be the most qualified candidates for the Department. And I’m sickened by this. And I’m not happy that I’m associated with this.” (p. 75)

If you read the whole report, or even just the part that focusses on 2006 (the worst year), it is sickening. You can see some of the data from the report here; it’s really worth looking at. (Percentages of identifiably liberal vs. identifiably conservative candidates who were rejected, etc.) Some other highlights below the fold.

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Still More Lobbyists …

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by hilzoy TPM cites Roll Call: “For almost two years former Homeland Security Secretary Tom Ridge failed to register a nearly half-million-dollar lobbying contract that he had with the government of Albania. Ridge filed a registration statement on behalf of the country earlier this month after being contacted by the Department of Justice. … Ridge’s … Read more

Returned To The Battlefield

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by hilzoy In his dissent in Boumedienne (pdf), Justice Scalia wrote: “At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.” When I read this, I wondered about the word ‘returned’, since it seems to assume that these detainees were enemy combatants when they were captured. But I didn’t … Read more

Nomination – Worst Op-Ed of 2008

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by publius I should probably give up reading Richard Cohen columns. But I honestly don’t understand how he could make such two utterly inconsistent points in the same column. First, he tries to absolve himself from the McCain Crush by pointing out that McCain has flip-flopped a lot: But, for the record, let’s recapitulate: McCain … Read more

Jindal Has Company

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by publius When I heard that Bobby Jindal had written (non-ironically) about exorcising a demon, I thought it would pretty much sink his VP chances. Turns out — America agrees with him. From the Post, I saw that Pew released a comprehensive survey on Americans’ religious views. And, as you might expect, America remains extremely … Read more

You Rang? (Ambinder On Hume)

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by hilzoy Publius asks: what on earth does Marc Ambinder mean when he writes: “Let’s put aside our Humean selves and ask: is Black right? Regrettably, despite being a philosopher and all, I have absolutely no idea. I do know a few things that he couldn’t possibly mean, though. For starters, Ambinder couldn’t be referring … Read more

Philosophers Needed

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by publius Unsurprisingly, Marc Ambinder defended (or perhaps “contextualized”) Charlie Black’s terrorism comments — you know, bold truth-telling and all. But I didn’t quite understand this: Let’s put aside our Humean selves and ask: is Black right? When existential worries predominate, will voters flock to the security blanket provided by a guy with decades of … Read more

The Election Made Simple

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by hilzoy Via Kevin Drum, Fortune‘s interviews with the two candidates for President: “What do you see as the gravest long-term threat to the U.S. economy? Obama: If we don’t get a handle on our energy policy, it is possible that the kinds of trends we’ve seen over the last year will just continue. Demand … Read more

George Carlin, RIP

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by publius George Carlin was one of my favorite comics, so I was very saddened to see the news this morning.  So I thought I’d post one of my favorite all-time Carlin bits.  It’s him talking about the first Gulf War where he says that "we like war."  It’s great — and fittingly appropriate.

Bigger Wars and A Smaller Recovery

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by Eric Martin A key facet of the argument that we (and/or Israel) should do everything in our power (read: military strikes) to prevent the Iranians from acquiring a nuclear weapon rests on the fact that Iran is, supposedly, undeterrable.  That is, that Iran’s leadership is driven by religious zealotry to such an extent that, … Read more

Two Minutes A Week

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by hilzoy From the NYT: “According to data compiled by Andrew Tyndall, a television consultant who monitors the three network evening newscasts, coverage of Iraq has been “massively scaled back this year.” Almost halfway into 2008, the three newscasts have shown 181 weekday minutes of Iraq coverage, compared with 1,157 minutes for all of 2007. … Read more

Those Lobbyists Again…

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by hilzoy Newsweek: “One of John McCain’s most celebrated achievements in recent years was his crusade to block a Pentagon contract with Boeing for a new fleet of midair refueling tankers. Incensed over what he denounced as a taxpayer “rip-off,” McCain launched a Senate probe that uncovered cozy relations between top Air Force officials and … Read more

Some Thoughts on Executive Privilege

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by publius I’m certainly no expert on executive privilege. But in thinking about when the privilege should apply, it’s important to distinguish between two different types of communications: (1) intra-advisors’ communications; and (2) communications with (or among) agency officials. The claim for executive privilege is much weaker in the latter, which of course is the … Read more

News Of The Weird

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by hilzoy Two stories from the Department of Huh??! First, the quote of the day: “”With the exception of the cross-burning episode. … I believe John Freshwater is teaching the values of the parents in the Mount Vernon school district,” he said.” Yep: just that one little exception … — When I first read that, … Read more

Bleccchh

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by hilzoy So: Obama supports the hateful FISA thing. You can read his full statement here. Excerpts: “Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of … Read more

Telecom Immunity Passes

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by hilzoy From the Washington Post: “The House today overwhelmingly approved a sweeping new surveillance law that effectively would shield telecommunications companies from privacy lawsuits for cooperating with the Bush administration’s warrantless wiretapping program. Ending a year-long battle with President Bush, the House approved, 293 to 129, a re-write of the 1978 Foreign Intelligence Surveillance … Read more

Very Helpful In the Short Term

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by hilzoy John McCain: “Tomorrow, I’ll call for lifting the federal moratorium for states that choose to permit exploration. I think that this, and perhaps providing additional incentives for states to permit exploration off their coasts, would be very helpful in the short term in resolving our energy crisis.” The radical environmentalist Wall Street Journal: … Read more

Steny’s Bold “Ignore the Rubes” Strategy

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by publius

To follow up on Hilzoy’s post, the part of the FISA “compromise” I find most infuriating is that the Democrats are quite literally insulting our intelligence in describing what they did. Their press releases and statements on telecom immunity assume that we’re morons. If you want to grant immunity, then do it and have the guts to say you’re doing it. But don’t lie about what you did. This whole “treat them like rubes” strategy is unacceptable.

To illustrate — the telcos are getting immunity and everyone knows it. They literally only have to show that the Bush administration sent them a letter. That’s it. Show the letter, and you’re immune — no discovery, no nuthin’. (As I’ve said, I don’t care that much about punishing telcos, I care about generating information through discovery).

However, instead of just admitting that they caved, the Dem leaders are pretending like they’ve instituted tough new standards by requiring a district court to make the final decision. Thus, they’re essentially doing two things: (1) lying about what they’re doing, and (2) shifting blame to a politically unaccountable branch of government.

When I say “lying,” what I mean is that Democratic leaders are dressing up the district court “review” as something it’s not. Via Laura Rozen, here’s how Rockefeller’s committee described the rubber stamping:

A district court hearing a case against a provider will decide whether the Attorney General’s certification attesting that the liability protection standard has been met and is supported by substantial evidence. In making that determination, the court will have the opportunity to examine the highly classified letters to the providers that indicated the President had authorized the activity and that it had been determined to be lawful. The plaintiffs and defendants will have the opportunity to file public briefs on legal issues and the court should include in any public order a description of the legal standards that govern the order.

Sounds pretty scary, eh? Lots of big mean words in there. “Supported by substantial evidence” — tough! Exacting! And you gotta love the whole “opportunity to file public briefs on legal issues.” Yes, I’m sure we can all have a lively legal debate about whether the letter that everyones knows was sent was in fact sent. Should be a very detailed brief.

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FISA: Why It Matters

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by hilzoy Digby’s commenters seem to have been asking her “why the blogosphere is so obsessed with FISA and the civil liberties stuff when it’s clear that both sides are equally corrupt”. I like her answer, but I’m going to give my own. I won’t bother about the “both sides are equally bad” part: it’s … Read more

FISA “Compromise”

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by hilzoy I haven’t written about the rumors that a “compromise” on telecom immunity was in the works, since it was just a rumor, and I wanted to see what, if anything, actually came of it. Now I know: “After more than a year of partisan acrimony over government surveillance powers, Democratic and Republican leaders … Read more

“So Called Quote Habeas Corpus Suits”

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by publius

Marc Ambinder has been spending a lot of time lately defending John McCain. But this post on habeas was too much. Ambinder claims that “on the question of what should be done to the Gitmo detainees, the candidates’ rhetorical differences are greater than their policy differences.” That’s wrong. Really really wrong.

First, and before I get to policy differences, the larger problem is that Ambinder is ignoring the fact that political rhetoric matters. McCain has adopted the worst sort of demagoguery on the habeas case. He claimed the decision was one of the worst in history. He also referred to writs of habeas corpus — one of the oldest civil liberty protections in Anglo-American law — as “so-called, quote, Habeas Corpus suits.”

In doing so, McCain is providing support for the political movement to deny the detainees all legal rights. It doesn’t matter what he privately thinks or what he said years ago. Today, when it matters, he’s siding with the “no rights” crowd — and his actions have consequences. (And for the record, the point of protecting those rights is not to release terrorists but — say it with me people — to determine if these people are terrorists in the first place).

But that aside, Ambinder’s also off on the policy. It’s frustrating to even have to say this, but McCain and Obama have major policy differences on the Gitmo detainees.

First, Ambinder claims the McCain’s gripe is procedural rather than constitutional. That distinction, however, doesn’t make much sense. He writes:

[McCain’s] concern now [] is procedural, rather than constitutional: the detainees’ having access to habeas in our federal courts would create a tangled web of lawsuits, would expose intelligence secrets, and would needlessly draw out these legal proceedings.

Ugh, where to start. It’s true that there’s a difference between rights and remedies. It’s also true that habeas is a procedural remedy to vindicate a pre-existing right (e.g., due process). The problem, though, with Ambinder’s statement is that this particular procedural remedy (habeas) also happens to be a guaranteed constitutional right. Indeed, its purpose is to prevent precisely what Bush is doing. Thus, McCain’s problem with “procedure” is necessarily a constitutional problem. And the fact that constitutional rights are messy is, you know, the point. I mean, I guess the Fourth Amendment would be ok and all if didn’t make police do messy things like get warrants. It just really drags out the process needlessly.

Things get worse in the next part though:

McCain believes that it’s OK for foreign-national detainees to have habeas corpus rights, even if they are somewhat restricted[.]

No he doesn’t. I mean, he may say that. He may even think that. But he’s acted in a completely different way.

Rights don’t exist if you eliminate all procedures to vindicate those rights. Otherwise, the rights become only words on paper, rather than living breathing liberties that must necessarily be enforced.

In short, actions speak louder than words. And in the world of action, McCain has been a consistent opponent of habeas. In fact, he’s consistently voted to completely strip ALL habeas protections from the Gitmo detainees. For instance, he has (1) supported the DTA; (2) supported the MCA; and (3) filibustered a bill to restore the habeas rights eliminated by the prior two laws. Collectively, these votes completely eliminated habeas remedies and replaced them with kangaroo courts. Maybe Ambinder could take a stab at squaring these actions with McCain’s words and press releases.

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