by Ugh
I'm sure folk have read about the release of Sgt. Bowe Bergdahl from Taliban custody in exchange for transferring five Taliban mutant super-terrorists (worse than Magneto!), formerly held at Gitmo, to Qatar. And likely the assorted related and unrelated right-wing outrage that has accompanied the exchange, most of it predictably misdirected, offensive, and/or irrelevant.
What is of interest is that the Obama Administration is running around openly admitting, it seems to me, that it violated the 30 day notification requirement of the National Defense Authorization Act for Fiscal Year 2014 for transferring folk out of Gitmo. (text of the law is here).
Of course, it would be rather unseemly for the President to run around openly violating duly enacted statutes of the US of A (BURN THE TAPES BARACK!), so there must be an attendant explanation, justification, legal fig leaf, thin reed, etc., lest we worry. And aha! There is! To wit:
delaying the transfer in order to provide the 30-day notice would interfere with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. soldiers. Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.
"Two related functions the Constitution assigns to the President." Neither of which, of course, are specifically listed in the Constitution. Presumably they're referring to the Commander-in-Chief clause and possibly the whole taking care that the laws be faithfully executed thing (query which way the latter cuts in this case), the former having become a handy catchall for Presidents of both parties. Standing against this rather flimsy justification (to put the best light on it), are the specifically listed powers of Congress, which include the power to "make rules concerning captures on land and water" and "make rules for the government and regulation of the land and naval forces." Seems that that is exactly what Congress did with the 30 day requirement (however stupid and counterproductive).
But apparently, the Administration really really had to:
the Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances, in which the transfer would secure the release of a captive U.S. soldier and the Secretary of Defense, acting on behalf of the President, has determined that providing notice as specified in the statute could endanger the soldier’s life.
I would have hoped that there was a better legal justification than those two paragraphs, but it appears not to be on offer. Maybe in a few years we will be allowed to see the OLC memo (although I'm guessing there isn't one). Anyway, not the biggest deal in the world but not ideal either.
I suppose you would have hoped for better legal justification, but what possible basis for such hope would you have?
They’ve reached the point where their legal reasoning doesn’t go much beyond, “The President wants to do this, and there aren’t enough votes in the Senate to convict.” I don’t think they even feel the need for justification any longer. He’s not up for reelection, and won’t be convicted, and Holder won’t appoint any independent counsels or do anything but laugh at Congressional subpoenas and contempt referrals.
What reason does he have to care if the legal arguments are persuasive? There’s nobody he needs to persuade anymore.
Anyway, they seem to have really screwed up this time, being in such a hurry to get it done before word of what was planned could leak, that they didn’t bother with any due diligence. And ended up trading five terrorists for a deserter.
They’ve even lost Mad Magazine!
such a tiny little swirly tempest. lookit it whoosh around the teapot!
Another story that I haven’t really followed, but what about the videos showing Bergdahl in poor physical shape? I’ve seen reference to the WSJ’s article about behind the scenes, but I missed the window and it is now behind the paywall (it may just be behind a registration wall, but that’s enough of a hurdle for me to pass)
In a teapot, maybe – and the policy itself ought to have been entirely defensible.
But I agree with Friedersdorf that it’s another example of this administration’s playing fast and loose with the rule of law (in this respect, at least, they are little better than the previous one):
http://www.theatlantic.com/politics/archive/2014/06/president-obamas-fraught-prisoner-swap/372111/
The need to protect the life of a serviceman is a bad excuse for breaking the law. It is the duty of a military person to die if it is in the public interest. Thus, if the Congress, in it s infinite wisdom, has made it practically impossible to negotiate prisoner exchange with the Taliban, then it is the wish of the Congress that the US servicemen in Taliban custody die. This wish may even have a reasonable basis, because it can be argued that a US prisoner executed by Taliban increases the popular support for the war effort.
In reality, however, Obama has only bad choices. If he gave the advance notice required by the law, the prisoner exchange would fail, the prisoner would likely be executed and the president would be blamed by the same people who now blame him for breaking the law.
Somehow, both of these things ring true to me.
Brett: What reason does he have to care if the legal arguments are persuasive? There’s nobody he needs to persuade anymore.
Lurker (who should comment more often, says me): If he gave the advance notice required by the law, the prisoner exchange would fail, the prisoner would likely be executed and the president would be blamed by the same people who now blame him for breaking the law.
What reason does he have to care if the legal arguments are persuasive? There’s nobody he needs to persuade anymore.
and, after six years of absolutely non-stop, 24/27/365 cynical bullshit whining about “lawlessness”, the GOP has wrung all the sting out of the accusation.
they’ve cried “impeach!” with every exhale for the past 1,960 days. they’ve beclowned themselves.
The unitary executive just ain’t what it used to be.
I’m starting to read stuff now, and this Salon piece gives a different view.
I tend to think people have forgotten that the Taliban was, at one time, the government of Afghanistan and our ‘allies’ when the Soviet Union was there. The Taliban is not Al Qaeda, and as the Salon piece points out, they are a stakeholder in the process, as much as we wish they weren’t.
This is not to say that I’m happy that the Taliban is gaining legitimacy. They first came on to the radar for me when they blew up the Buddhist statues at Bamiyan back in March 2001, which now seems like a prelude to 9/11. But I don’t see any way for Afghanistan to have any kind of semi peace unless the Taliban participate in the process.
Yeah, cleek, it’s been six non-stop years of Democrats crying, “Bullshit!” every time somebody points out Obama breaking the law. We understand: You don’t CARE if he violates the law. You don’t even care if he’s got a good excuse for breaking it anymore.
It’s enough that a conservative points out the criminal act, to justify it. You’re that partisan.
it’s been six non-stop years of Democrats crying, “Bullshit!” every time somebody points out Obama breaking the law.
no, it hasn’t.
it’s been six years of bullshit accusations from cynical political hacks and their cheering section.
you know how we know this? the thing the GOP would love the most would be to impeach and remove Obama from office. but they’ve never attempted it. they’ve been crying “fire” for six years, but have never once even tried to reach for an extinguisher.
It’s enough that a conservative points out the criminal act, to justify it. You’re that partisan.
Yet this doesn’t seem to apply when Rand Paul criticizes drone bombings, for example.
You’re that partisan.
said the pot.
“you know how we know this? the thing the GOP would love the most would be to impeach and remove Obama from office. but they’ve never attempted it. they’ve been crying “fire” for six years, but have never once even tried to reach for an extinguisher.”
This, of course, proves there is a limit to their partisanship, despite your cries to the contrary.
This, of course, proves there is a limit to their partisanship
LOL! seriously: out loud laughing.
the frikkin GOP thinks impeachment is a step too far. L.O.L.
Wow. This thread went down the partisan drain even faster than I thought it would, which is saying something.
Is there anything – ANYTHING – on which we can have a reasoned discussion? Or is it time to pull the plug on ObWi?
just ignore the clown and we might be able to make a start.
Nah. We’ve always been an argumentative bunch. Just look back in the archives.
I really have not much opinion on this. I think Obama stepped on his crank a wee bit, here, in terms of putting on the appearance of knowing what he is doing. But the question of what becomes of Bergdahl is completely, utterly, full-stop up to the Army. Not to me, or Brett, or anyone at all who might wander in here to comment on this thread.
Whether this particular trade was one worth making is for me kind of beside the point. It’s already done and cannot be undone. The Israelis do this kind of asymmetric exchange all the time.
From what I have gathered, the administration did notify Congress, early in the year, that discussions were going on. It did not provide the 30 day notification that the deal had finally been struck, which strikes me as relatively minor, given the need to move quickly at that point.
And consider, just for a moment, the virtually certain reaction had the President failed to act quickly and get the trade done. The screams of outrage at having a deal to get an American serviceman back from captivity fall through would have been far louder than they are this way. No matter if the deal fell through due to a requirement that Congress had attempted to impose. Can you imagine the denunciations for failing to support our boys in uniform? I sure can.
As for Brett’s complaint that the individual concerned may have been a deserter. First, so far there are merely accusations of desertion. Innocent until proven guilty and all that kind of thing. (Note, in passing, that the military apparently approved routine promotions for him while he was in captivity. Not the sort of thing, I would think, one does for someone known to have deserted.)
Second, the military can, and apparently will, be addressing the question of what the individual did or did not do. If he is found guilty of desertion (and I admit that it seems not unlikely from the bits of evidence so far available to the general public), that can be dealt with now that he is available for trial.
ok, ok. i’ll dial it back.
Obama may have broken a very silly law by doing the absolute right thing. and i’m perfectly fine with it. anything beyond that is, IMO, political theater.
slarti, the Israelis not only make these kinds of assymetric trades routinely. They have been known to exchange a thousand Palestinian terrorists for one Israeli. Note also that they are exchanging for terrorists. The Taliban, while noxious in the extreme, are enemy combatants, not terrorists. (And have never been on the list of terrorist organizations.)
cleek: Obama may have broken a very silly law by doing the absolute right thing. and i’m perfectly fine with it.
I almost put in the post that an alternative approach would have been to do something along those lines, “Yes I broke the law and I’d do it again.” But we can’t have that, so we get this half-assed reasoning that doesn’t hold up to scrutiny.
I agree with Slarti, some definite crank stepping here from a purely political perspective.
“the Israelis not only make these kinds of assymetric trades routinely. They have been known to exchange a thousand Palestinian terrorists for one Israeli. Note also that they are exchanging for terrorists.”
I wouldn’t assume that everyone the Israelis claim is a terrorist actually is a terrorist. Many are. As for who gets on the list of terrorist organizations, that’s just politics, I’d much rather live under Hamas rule than Taliban rule, not that I’d want to live under either. But they both kill civilians. So does Israel, for that matter.
As for asymmetry, the Palestinians have no capability of arresting Israeli soldiers or officials with innocent blood on their hands, or Israeli settlers, violent or merely criminal trespassers, or Israelis in general for any reason, or there might be more parity in the numbers exchanged.
As for the post, I guess I should care, but if one is going to go after Obama, I’d rather do it on the basis of the drone policy . There’s also a story in Harpers (not online) about some apparent murders at Gitmo (from before Obama’s time) where there is an apparent coverup. Rule of law doesn’t seem to apply down there. Here’s a link to a paper which goes into detail. (I haven’t read it.)
link to seton hall paper
The need to protect the life of a serviceman is a bad excuse for breaking the law. It is the duty of a military person to die if it is in the public interest.
It’s also the duty of nations at war to return POWs to their homes at the end of hostilities.
And that goes back to something like the Treaty of Westphalia.
And, it’s a law and a principle we are and should be *very* strongly motivated to uphold.
As far as the scope of Obama’s culpability and the worthiness of Bergdahl, what slarti said at 11:42.
It is the duty of a military person to die if it is in the public interest.
I don’t agree with this statement. In certain circumstances it’s true, but as an unqualified statement, it isn’t.
I’m with cleek on this issue. Thanks, cleek.
Letting the executive branch, the branch of government whose job is compelling everyone else to obey the law, to decide which laws applicable to itself are “silly”, and can therefore be violated with impunity, does not strike me as very reasonable. Let’s be clear: People are rotting in prison right now, at the hands of Obama’s Justice department, for violating laws no more silly than this.
What standing does a lawless government have, to demand that others obey the law? Or is all that matters that it has the power to back up that demand, and nobody else has the power to similarly compel it?
“Is there anything – ANYTHING – on which we can have a reasoned discussion? Or is it time to pull the plug on ObWi?”
Posted by: dr ngo
Look at it without the ‘both sides do it’ goggles and be willing to name names, and I think that you’ll find Brett and Marty are 75% of the problem. BTW, almost all of the time when a few people post a large share of the comments, they are the problem, and in the last few threads I’ve monitored, those two were posting a crapload. In both senses 🙂
Slart used to be a major PITA, but he’s improved from what he was a few years ago.
If you want Obsidian Wings to be a garden, you have to weed.
“It is the duty of a military person to die if it is in the public interest. ”
It is the duty of any military person to place herself in harms way when it is in the interest of defending America, its people and treaty partners. It is never their DUTY to die, it is a horrible possibility for bravely putting themselves at risk.
This is a case where I will give the President some slack, not leaving a man behind is in the finest military tradition. What I’ve seen says that they consider military rescue, but deemed it too risky for Bergdahl. The 30 days is just silly.
Time will tell if there was a reason NOT to trade for him. But there isn’t a clear reason not to exchange POW’s at this point.
As an aside, if he did desert there may have been a different reason we wanted him
I tend to think people have forgotten that the Taliban was, at one time, the government of Afghanistan and our ‘allies’ when the Soviet Union was there. The Taliban is not Al Qaeda, and as the Salon piece points out, they are a stakeholder in the process, as much as we wish they weren’t.
This is a very good point to bring up. I’ve seen a lot of cries that you can’t negotiate with terrorists, but those folk seem awfully silent the rest of the time when we’re negotiating with the Taliban. True, we don’t exactly shout our negotiations from the rooftops, but yeah. This is hardly a unique and singular incident.
wj: “From what I have gathered, the administration did notify Congress, early in the year, that discussions were going on. It did not provide the 30 day notification that the deal had finally been struck, which strikes me as relatively minor, given the need to move quickly at that point.
And consider, just for a moment, the virtually certain reaction had the President failed to act quickly and get the trade done. The screams of outrage at having a deal to get an American serviceman back from captivity fall through would have been far louder than they are this way. No matter if the deal fell through due to a requirement that Congress had attempted to impose. Can you imagine the denunciations for failing to support our boys in uniform? I sure can.”
I had a long paragraph written, but it comes down to:
1) Obama notified Congress.
2) This is not the sort of thing which could be done even through a far saner and less traitorous Congress, and which is usually done quietly and quickly (once the time to act comes).
3) The same motherfuckers[1] who are screaming now would be screaming the other way, if and when it turned out that Obama had either refused to negotiate, or that the negotiations broke down.
[1] Harsh, but fair.
What standing does a lawless government have, to demand that others obey the law?
a moot question since the government is not lawless.
if Obama broke a law, there is a procedure to remedy it. so, go ahead: advocate for impeachment. as a wise man once said: please proceed, guv’nor.
(As to the matter of SGT Bergdahl’s eventual fate, Slarti at 11:42 stated it perfectly. The chain of command will deal with this as they deem necessary and appropriate, and will certainly be better equipped to do so than a roiling crowd reaching their conclusions based on partial evidence and assorted anecdotes.)
If you want Obsidian Wings to be a garden, you have to weed.
I don’t want ObWi to be a garden. Gardens can get boring.
Also, it takes a certain amount of manure to make a flourishing garden.
–TP
Cleek, you’re like a friend of the local mob boss, responding to complaints of his criminality with a sneering, “Go ahead and prosecute!”, knowing he’s bought the judge already.
As I say, one of the reasons Obama doesn’t care if he breaks the law, is that he knows he has the votes in the Senate to be acquitted, no matter how guilty he might be. Just as he has an AG who won’t stop stonewalling.
This is corruption, pure and simple. When the shoe is on the other foot, as it will surely be at some point in the future, you’ll complain about it as bitterly as I do now.
But the only way we’ll ever stop our slide into this morass of corrupt government, is if we can bring ourselves to care when OUR side is behaving criminally. Nixon was brought down when Republicans wouldn’t defend him. Will we ever see the day when Democrats won’t defend their own?
wj: “From what I have gathered, the administration did notify Congress, early in the year, that discussions were going on. It did not provide the 30 day notification that the deal had finally been struck, which strikes me as relatively minor, given the need to move quickly at that point.
If that’s the case, I take back my previous comment.
I have serious problems with the current (and previous) administration’s finagling with the law (NSA surveillance; drone assassinations; failure to prosecute torture etc), but there comes a point when it just doesn’t really matter.
Nixon was brought down when Republicans wouldn’t defend him. Will we ever see the day when Democrats won’t defend their own?
…because this is just like what Nixon did.
Totally apert from this specific case, the claim ‘The US do not negotiate with terrorists’ is laughable and has always been. One might even argue that the 7 Barbary Treaties (1795-1836) are nothing but a variant of this. And it seems never to have mattered which party held the WH or Congress as far as this is concerned.
When the shoe is on the other foot, as it will surely be at some point in the future, you’ll complain about it as bitterly as I do now.
Bett, are you saying that you wouldn’t be complaining then, too? Because that seems rather at odds with your previous positions. So maybe I’m misunderstanding….
Cleek, you’re like a friend of the local mob boss, responding to complaints of his criminality with a sneering, “Go ahead and prosecute!”, knowing he’s bought the judge already.
if the case is as clear and obvious as you seem to think it is, any Senator not voting for impeachment, and cowing to such blatant corruption, would be sure to lose his job in the next election.
or, does the conspiracy to commit these high crimes go all the way down to the average voter?
we’ll never know unless the GOP actually tries to make it happen, which they could do by close of business tomorrow given that they control the House.
Will we ever see the day when Democrats won’t defend their own?
clutch those pearls. clutch em good.
Nixon would have been impeached by the current crop of whatever-they-call-themselves for rampant RINOism, ya know, the EPA, commie school lunches, bowing to Mao, refusing Chuck Colson’s proposal to blow up the Brookings, etc, etc.
The janitor who reported the break-in at the Watergate would have death threats (he had em anyway from right-wing filth back then but the zombies have reproduced exponentially since) sicced on him by FOX News viewers, armed Tea Party vermin, and the Redstate commentariat.
Hiding behind Nixon now.
Pathetically desperate.
Look, it’s not about the law anymore, that ship has sailed a long time ago.
“In short, Obama’s global ‘war of terror’ has expanded to roughly 100 countries around the world, winding down the large-scale military invasions and occupations such as those in Afghanistan and Iraq, and increasing the “small-scale” warfare operations of Special Forces, beyond the rule of law, outside Congressional and public oversight, conducting “snatch and grab” operations, training domestic repressive military forces in nations largely run by dictatorships to undertake their own operations on behalf of the ‘Global Godfather.’ ”
novakant, quoting the famous Andrew Gavin Marshall, to sum up the complexities of U.S. foreign policy in a paragraph.
Simplistic is always popular. Maybe if you edit a bit more, you can sell a bumper sticker.
Are you disputing any of the facts in the well-sourced article I linked to?
You can’t, they’re not even trying to hide it anymore, they’re proud of it, the new policy is extremely popular (cf. e.g. “Zero Dark Thirty”) – which was part of my point.
So it’s down to your evaluation of these matters, which – let me go out on a limb here – will likely be very similar to that of the Obama administration.
“Look, it’s not about the law anymore, that ship has sailed a long time ago.”
I agree that Presidents are above the law and it’s a problem, at least for the victims of our foreign policy. Americans in general don’t seem to care. At best it can be a partisan issue, when convenient.
In this case, the one Ugh writes about, Obama broke the law to help free a POW. Unlike torture and our endless hypocrisy about who gets to kill civilians and who doesn’t, it’s a little hard to get worked up about this.
To be fair, some criticisms in this case are aimed at the Taliban for not killing Bergdahl thus burdening the US with the costs for prosecuting him (ideally with a death sentence at the end) and also allowing Obama again to wallow in tyranny. 😉
Are you disputing any of the facts in the well-sourced article I linked to?
“In short”, I don’t believe that the paragraph adequately sums up the 31 articles cited in the footnotes of the polemicist (wanna be pundit) Andrew Gavin Marshall (many of which I’ve read before). I’m pretty sure that each of the articles can be read and judged on their own merits, with much conversation ensuing. Not a good strategy to Cliff Notes them in a blog comment.
I did some westlaw research, and it seems the “make Rules concerning Captures on Land and Water” power is effectively a dead letter here: apparently the majority reading is that such power is limited to captures of property only. See Aaron D. Simowitz, The Original Understanding of the Capture Clause, 59 DePaul L. Rev. 121 (2009) (available at http://lawlib.wlu.edu/CLJC/index.aspx?mainid=49&issuedate=2010-03-12&homepage=no ). The article I just mentioned critiques the majority view and has a lot of good historical to the contrary, but it doesn’t seem to have much traction elsewhere. Jack Goldsmith writing at Lawfare, for example, didn’t even mention the Captures power (http://www.lawfareblog.com/2014/06/the-president-pretty-clearly-disregarded-a-congressional-statute-in-swapping-gtmo-detainees-for-bergdahl/ ).
If you accept the majority view, there’s another interesting point, namely, what’s the source of congress’s power to require notification before Guantanamo detainees are transferred? If congress doesn’t have constitutionally-conferred power to dictate rules of capture of persons, then maybe the notification requirement is void not merely here (where it conflicts with the President’s warfighting powers), but also in all cases, because I don’t see how any of Congress’s other sources of legislative power can support it.
Thanks, Julian. The links didn’t work for me; I’ll look further later. The question you raise is interesting.
As to people who are skeptical of the “unitary executive power” as enunciated under Bush/Cheney: sure, I am too. But the Executive does have certain powers in course of a war – obviously, if every decision were subject to Congressional approval, we would be unable to function in an armed conflict.
I’m pretty sure that each of the articles can be read and judged on their own merits, with much conversation ensuing.
I guess I need to get out more, because I’ve never heard of Andrew Gavin Marshall, and am therefore unable to make any snap judgement about his credibility.
I do know that I am, personally, both curious about and concerned about what is done, in secret, by our government. Especially when arms are concerned.
I also know that you, sapient, appear to be reflexively supportive of Obama to a degree that prevents me from taking your point of view on things like this on faith.
If you would like to explain what you find incorrect or objectionable in Marshall’s piece, I’d be interested. You’ve read many of the articles before, you consider some of them worth discussing on their own merits. Kindly share with the rest of us.
russell, I think that a one-paragraph summary of American foreign policy under Obama is suspect. There are a lot of articles cited in the linked article, many of which are worth of discussion.
But let’s start with the proposition that ” Obama’s global ‘war of terror’ has expanded to roughly 100 countries around the world”.
Just look that up, and let’s discuss what that sentence means. Are we dropping drones in 100 countries? Are we having diplomatic relations with 100 countries?
When someone defends that statement as a “negative” against the Obama administration, I’m all ears.
The claim, in the first paragraph, is that we have Special Ops forces deployed in 70 to 120 countries at any one time.
I would say a common-sense reading of that would not be that he is including diplomatic relations in that count.
Are you saying that is not so?
I’m not defending Marshall’s statement, I’m asking you to defend your claim that it is false.
I would guess that means the NSA is spying in 100 countries.
Notably ours. But we’re not the only ones we’re pissing off by surveillance activities.
From the Nick Turse Salon piece, cited in the Marshall piece:
That’s a pretty specific statement, and unless Turse is plainly lying, it comes from the horse’s mouth.
To slarti’s point, I think military Special Operations is distinct from the NSA.
To get to 100 countries, he has to be counting every country where they are engaged in military-type operations. And every country where we have a base where one of those groups is stationed at between missions. Which is great for inflating the numbers, but detracts somewhat from the accuracy.
your claim that it is false.
I didn’t make that claim.
If I were a good lawyer, I’d stop with that statement.
But instead of lawyering, what I’m saying is that the one-paragraph summary of Obama’s foreign policy that novakant reprinted is simplistic and misleading. I’d be happy to be enlightened that all U.S activities in the 100 countries mentioned, that are allegedly part of the “war on terror”, are a waste of resources.
If you’re an isolationist, that’s a point of view that you should embrace. If not, you should spill the beans on what’s appropriate, and exactly what we’re doing that’s not.
Well, accuse the Obama administration, in those countries, seriatim, folks.
“I think they’re spying” or “I think they’re meddling” is not really enough.
Also for reference, depending on how you count, there are just under 200 countries in the world.
So, per Turse, we have Special Operations forces in about half of them.
That seems like a lot to me. It makes me wonder why they are there, and what they are doing.
Maybe they’re all posted as diplomatic security at embassies. Although that isn’t cited as typical duty for them in any of the articles I’ve read so far, and my general impression is that diplomatic security is mostly private firms.
I don’t know what they’re doing, or why they are there, or if it’s a good idea or not, or if Congress deserves some degree of oversight.
Congress presumably is paying the bill, so they have at least some degree of interest in knowing what’s going on, even if just in broad terms. Do they have even a basic idea of what’s going on?
I don’t know the answers to any of these questions. Do you?
To get to 100 countries, he has to be counting every country where they are engaged in military-type operations. And every country where we have a base where one of those groups is stationed at between missions. Which is great for inflating the numbers, but detracts somewhat from the accuracy.
Thanks, wj.
We know they’re spying on us. We know they’re spying on some other countries. It takes a special kind of apologist to demand that we produce actionable proof of spying in multiple countries in order to merely suggest that we’re doing so.
If you doubt that, I urge you to read what has been released from the Snowden files, or Greenwald’s book, or both. Which I doubt that you will do, sapient, because nanananananananaIcanthearyou.
Spying? &^%$ spying. Of course, we’re spying. Who isn’t spying? I’m spying. Is that what we’re talking about? Intelligence?
russell: I don’t know what they’re doing, or why they are there, or if it’s a good idea or not, or if Congress deserves some degree of oversight.
Really? Let’s just not have a State Department, or a Defense Department, unless russell is doing personal oversight. Or unless he’s gotten on CSPAN and has his finger on the pulse.
Don’t you guys get that some people have jobs doing this stuff, and that you have to spend a hell of a lot of time managing them, if that’s what your personal interest is? My guess is that we all have jobs, that we vote for people, and that they do theirs. I don’t have the freaking time to micromanage the state department. Do you? If so, I wish I had your day job.
Of course we’re spying. Spying on US citizens, here and abroad, has always been completely unobjectionable.
Spying on US citizens, here and abroad
In what way, and to what effect. By the way, I saw on facebook that ..
“Brett, are you saying that you wouldn’t be complaining then, too? Because that seems rather at odds with your previous positions. So maybe I’m misunderstanding….”
My previous position on impeaching Republican Presidents.
“I’m perfectly willing to go after him, indeed I’d be delighted if you started impeachment hearings next Monday. If nothing else, it would keep Congressional Democrats from accomplishing anything on the legislative front, and I think that Bush has committed acts with are perfectly justifiable cause for impeachment. As has every President from Reagan on.
I just don’t think you can do it, given Congressional trust levels that are, incredibly, lower than Bush’s, limited time, and a total lack of bipartisan support.
But, try. Please. Who knows, lightning might strike, you might encounter something that would enrage Republicans enough to make impeachment feasible.”
If not, you should spill the beans on what’s appropriate, and exactly what we’re doing that’s not.
Look sapient, the burden here is not on me. I am not making claims of any kind.
novakant posted an article. You took exception to it, based on your opinion of the author.
I took exception to that.
You came back with:
But let’s start with the proposition that ” Obama’s global ‘war of terror’ has expanded to roughly 100 countries around the world”.
Just look that up, and let’s discuss what that sentence means. Are we dropping drones in 100 countries? Are we having diplomatic relations with 100 countries?
I read some of the articles, and discovered that “diplomatic relations” is probably not what’s going on.
I offered my opinion that Special Ops forces in half the countries of the world seemed like a lot, and that I’d like it if someone other than a very closely held circle of folks in the executive knew what was up.
wj replied with:
To get to 100 countries, he has to be counting every country where they are engaged in military-type operations. And every country where we have a base where one of those groups is stationed at between missions. Which is great for inflating the numbers, but detracts somewhat from the accuracy.
Which is a reasonable and substantive comment.
You reply with:
Really? Let’s just not have a State Department, or a Defense Department, unless russell is doing personal oversight. Or unless he’s gotten on CSPAN and has his finger on the pulse.
Don’t you guys get that some people have jobs doing this stuff, and that you have to spend a hell of a lot of time managing them, if that’s what your personal interest is? My guess is that we all have jobs, that we vote for people, and that they do theirs. I don’t have the freaking time to micromanage the state department. Do you? If so, I wish I had your day job.
Which earns you my very first hearty “fuck off”, in lo these many years of commenting here on ObWi.
Not even the good old RedStaters could get me there. Here on ObWi, not Brett, not McK, not Marty. Not DaveC, not BrickOvenBill, not even whatever the hell the guy’s name was (he had several) with the horse farm.
Just you. You’re a special guy.
Fuck off, sapient. You’re bringing nothing but smart-assed sneering bullshit.
if somebody says something you don’t agree with, you can’t simply discuss it. You can’t even engage the substance. All you bring is snotty punk asshole bullshit.
Who needs that shit? Not me.
Actually, I think I might have told the horse farm guy to fuck off, in which case sapient is #2.
I’d have to go look it up, though, and I have better things to do with my time.
Brett’s comment,
I’ve been saying for some time that I’d support impeaching Bush: It can only distract Democrats from doing anything substantiative, and, after all, I can’t argue that he hasn’t done anything impeachable, even if I tend to disagree with Democrats about the specifics of the charges.
Emmett Kelly has nothing on you.
Thanks, russell.
Not sure what you’re getting at here, except for the weekly cutting me off, and telling me that I’m worse than the worst.
My guess is that the many millions of dollars funding the many people at the State Department and the Department of Defense are not being completely wasted. Some people actually do this stuff for a living, and maybe russell doesn’t know about each and every little thing. Not to say that they’re doing everything right. But just that maybe we need more than one para by novakant, citing one article by some Canadian 26-year-old person who wrote a paper, to object to the entire foreign policy of the United States.
Just my humble opinion.
Respectfully yours,
Sapient
Not sure what you’re getting at here
What I’m getting at is that you present yourself here as a rude supercilious jerk.
What part of that wasn’t clear?
For instance:
Some people actually do this stuff for a living, and maybe russell doesn’t know about each and every little thing.
This reply has nothing whatsoever to do with anything I, or anyone else, has said on this thread. It utterly fails to engage the substance of anything in the piece novakant cites, or any of the questions I had about it.
It’s dismissive, rude, crap.
And you’re right, I’m in the habit of “cutting you off” periodically, because I get fully sick of your rudeness and obnoxious tone.
I won’t do that anymore, I’ll simply reply to your snide bullshit by inviting you to fuck off.
Each and every time, if need be.
If you want to hang out, don’t be an asshole.
But just that maybe we need more than one para by novakant, citing one article by some Canadian 26-year-old person who wrote a paper, to object to the entire foreign policy of the United States
And yes, we do need more than that.
Since you stated that you had likely read some of the articles, I invited you to contribute some of that “more”.
You declined to do so, and instead decided to give me a ration of shit.
So fuck off.
telling me that I’m worse than the worst.
No, he’s telling you that you are not adding anything whatsoever of interest to this discussion. It’s just white noise, it’s not anything that is going to move the conversation forward. That people have to tell you this weekly might be a hint. I agreed with your comment about novakant’s reduction of the issue, but I’m left with the impression that you were furiously googling rather than actually reading anything. I’m generally more sympathetic to your arguments, but I imagine that I feel like McT or Marty feel when Brett starts off and I want to tell you what I’d like them to tell Brett-stop being an argumentative jerk.
Really, you don’t have to do this. Please stop.
And yes, we do need more than that.
Yes, thanks. We do. In fact, that’s what I was saying.
If you want to hang out, don’t be an asshole.
You apparently don’t like me as a person, so good. I actually wanted to meet you once when I was up in Boston. So glad that I backed off from that. How horrifying it would have been to be abused in person.
No, he’s telling you that you are not adding anything whatsoever of interest to this discussion
And doing so with remarkable rudeness.
Perhaps we might close comments on this thread for 24 hours. Just to give everybody a chance to calm down a little.
You apparently don’t like me as a person
I don’t know you as a person, I know you as a commenter on a blog.
If you are concerned about “abuse”, then you should read your own stuff.
I’m not sure why this is unclear to you, but your tone and style of exchange is frequently in really freaking bad form. You are rude.
If you think I’m picking on you, you are wrong. I’m responding to your rudeness.
Formerly I was in the habit of “cutting you off”, as you say. I’m really not interested in doing that, because I’d like to continue participating in the discussion on the thread, so instead, when you make replies to me that are rude, dismissive, apparently deliberately off-point, or otherwise simply bad online manners, I’ll bring it your attention.
If that gets tiresome, don’t reply to things I say.
If someone asks a question, it’s polite to respond to the question. If you don’t know the answer, say “I don’t know”. If what someone says is not on-point to something you said, explain why.
Just drop the snotty tone. Then I can stop “abusing” you, and we’ll all be happy.
Perhaps we might close comments on this thread for 24 hours. Just to give everybody a chance to calm down a little.
No need. I’ll take a break though. Thanks, wj.
Perhaps we might close comments on this thread for 24 hours. Just to give everybody a chance to calm down a little.
Don’t worry about it, I’ll go do something else for a while.
I would assume this is, as he actually said in passing, mostly counting ongoing training missions moreso than “random SOCOM reset sites”. Wikipedia puts it at 120 “annually”. There’s conflicting claims out there, which is hardly surprising given it’s SOCOM. Last year the SOCOM commander threw out the number 75 “on a daily basis” when addressing the Senate Armed Services Committee… and he threw out 100 annually at the end of that same statement. So, um, yeah. Lack of clarity, but Marshall doesn’t appear to be inflating numbers. If inflation is going on, it’s pretty official, and it’s not clear that there is inflation. If open source data is admitting 100 countries, it’s kinda hard for me to feel confident that it’s only the (unspecified) 100…
(If you can deal with something published on TomDispatch, I thought Nick Turse’s commentary on his efforts to answer this question were of more than passing interest.)
Oops, there were supposed to be italics on the first paragraph.
If inflation is going on, it’s pretty official, and it’s not clear that there is inflation.
It occurs to me that, if you are a Pentagon official, you have an incentive to talk about how you are working in as many places as possible. Just to encourage Congress to keep funding high.
Different motivation than those decrying how many places we are active. But perhaps a similar incentive for inflation.
Well, they’re throwing out the same numbers in open-source commentary to journalists, so they’re being consistent, anyway. I’d honestly suspect the number of countries where non-training/diplomatic missions (IOW, what people tend to immediately think of when they hear SOCOM deployments discussed) is probably a bit higher than the difference between the “daily” and “annual” numbers above, but that’s just (poorly informed) speculation.
Hard for me to post much, I’m traveling, but wanted to second Donald:
As for the post, I guess I should care, but if one is going to go after Obama, I’d rather do it on the basis of the drone policy .
I like to think I care pretty strongly about the rule of law, and I don’t think the administration crossed their ts and dotted their is, but of all the things to go after them on? This isn’t a great one.
Getting someone home, even if he is a deserter (and I agree with Slart and others that that will be handled separately) is a noble goal. Noone deserves to rot in a taliban prison for the rest of their life. Or as Gen. Odierno put it:
“It was always a high priority that every soldier deployed to Afghanistan would return home,” Gen. Raymond Odierno, the Army’s top officer, said in a statement Wednesday. “We will never leave a fallen comrade behind.”
http://www.csmonitor.com/USA/2014/0604/Bergdahl-for-Taliban-swap-why-Pentagon-officials-think-it-s-not-a-bad-deal-video
It’s important to note (not that it enters into my calculus on this), he hasn’t been convicted of anything. We have courts and factfinding for a reason, and so does the military.
And I’m not a fan of Gitmo, so anything that gets us closer to closing it is gravy in my book. I view the exchange as win-win.
Politically? I’m surprised this has any legs at all. I also think it is in incredibly poor taste to protest his homecoming:
http://www.csmonitor.com/USA/Latest-News-Wires/2014/0604/Caught-in-the-controversy-Bowe-Bergdahl-s-hometown-cancels-celebration
Ultimately, I think the president probably broke the law, and their arguments as to why the law is invalid are weak at best. And if they felt the law was invalid, they probably should have gone to court at some point prior to this to challange it, rather than just deciding to ignore it.
But overall, this strikes me as the jaywalking of the imperial presidency. Technically a crime, but I’m not going to tackle somebody in the middle of a street and perform a citizen’s arrest.
What strikes me in the Bergdahl case, as with the signing statement issue discussed a while back, is that the POTUS (and other officials) operate in an environment where they are accountable to many different, overlapping, and possibly conflicting laws, responsibilities, and requirements.
On any given day, certainly in the course of any given week or month, there are probably a handful of things that somebody, somewhere in the executive does that violates some law, or procedural rule, or can be construed as malfeasance of some sort.
So, I take Brett’s point that The Rule Of Law Must Be Upheld, but it also seems to me that it’s nigh unto impossible to do so to a degree that would satisfy him.
I generally agree with thompson and others that this is, politically, a poor place for the (R)’s to draw a line in the sand.
Politicking aside, I’d be happy to see the (R)’s focus on something other than finding new and creative ways to try to kick Obama in the shins.
The scary thing is that people are talking about the “30 day notification requirement of the National Defense Authorization Act for Fiscal Year 2014” and not about the provision contained in the same act that permits detaining individuals indefinitely and without charge:
“Meanwhile the troubling NDAA provision first signed into law in 2012, which permits the military to detain individuals indefinitely without trial, remains on the books for 2014. Efforts to quash or reform the provision (especially with regard to the indefinite detention of U.S. citizens) have failed and have been fiercely fought by the administration. Most notably, a lawsuit filed by plaintiffs including journalist Chris Hedges, Noam Chomsky and Daniel Ellsberg against the provision has been aggressively fought at every turn by the president’s attorneys.”
http://www.salon.com/2013/12/27/obama_signs_ndaa_2014_indefinite_detention_remains/
I have a question, for those who object to this action because The Rule Of Law Must Be Upheld. Last time you were driving on a freeway, did you confine yourself to driving no faster than the posted speed limit? (Assuming traffic conditions didn’t make doing so a necessity rather than a choice.)
Also, have you considered that, on a road where everybody else is going well above the posted limit, you should be cited for “obstructing the flow of traffic” if you only drive at the limit? You see, you can actually be ticketed twice for the same action. You can be illegally driving too fast, while simultaneously illegally driving too slow. The majesty of the law is truly awe-inspiring.
Without bothering to go looking, I’d put money on Brett’s having complained that the law, as written, gave him no choice to but to break it, no matter what reasonable course of action he took – presented as evidence of big, incompetent and rights-trampling government putting good citizens into catch-22s, just because.
You’d think he’d be more sympathetic to Obama’s plight, no?
and violence – something about violence
“Last time you were driving on a freeway, did you confine yourself to driving no faster than the posted speed limit?”
You’d probably be better off asking this of somebody whose last ticket wasn’t in 1978.
Since I’m picking on Brett, I’d like to go back to this from Tony P.
I don’t want ObWi to be a garden. Gardens can get boring.
I don’t know what this blog would be without Brett, McKinney and Marty – Sapient, too, but from a different angle.
As frustrated as some of us may get with them, they’re the fuel that the majority of the threads run on. They’re intelligent people (who also happen to be terribly, terribly wrong the vast majority of the time ;^)) disagreeing with almost everyone else here, making their cases with passion in the face of very strong resistance, forcing everyone else to address arguments they otherwise may not have even thought of (who could dream up such crazy logic and wrong-headed premises – again ;^)).
I mean, what the fnck would we do without them? Seriously…
wj:
A couple of things:
did you confine yourself to driving no faster than the posted speed limit?
No, and I was trying to get at a similar thing by comparing it to jaywalking. Of all the heinous crimes the presidency can commit, this is pretty small.
However, I think the simile doesn’t entirely hold true. There is a large difference in my mind between me speeding (or even my friends smoking pot) and the *president* ignoring the will of *congress*.
Again, I don’t think the administration had many options, they would have been crucified politically if they had screwed up the deal. And, a soldier would spend more time as a POW, which I like to think (although am not convinced) was at least as important to their calculus as the politics.
But I get very uneasy when the president ignores laws, because executing the law (starting with the constitution) is pretty much their job.
This falls into the same family as signing statements for me. The president is interpreting the law in a questionable way, in a manner that never gets run through the courts. The major mouthpiece of the people (congress) has pretty much one recourse: impeachment. And that is a huge, disruptive, politically fraught, etc etc ordeal. In short, small breaches by the executive have to be pretty much ignored.
All together, the executive branch deviating from statute (without judicial review) worries me. Even the little deviations, although not enough to call for impeachment. I view it as corrosive to the separation of powers, which is something me speeding isn’t. If I get caught, I get punished, and society functions pretty much the same.
You can be illegally driving too fast, while simultaneously illegally driving too slow. The majesty of the law is truly awe-inspiring.
Man, it almost seems likes we have so many laws, they are conflicting in unpredictable ways. If only there was a political philosophy that wanted to trim down the number of laws, we could solve that problem 😛
“Ultimately, I think the president probably broke the law, and their arguments as to why the law is invalid are weak at best.”
See my post at June 04, 2014 at 06:55 PM for why the president might not have broken the law. Keep in mind that congress is as capable of breaking the law as the president: if that notification requirement was unconstitutional, then the president would have been breaking the law by obeying it.
“And if they felt the law was invalid, they probably should have gone to court at some point prior to this to challange it, rather than just deciding to ignore it.”
Courts are not referees for every dispute between the legislative and executive branches. There are large swaths of cases courts will simply refuse to hear on the grounds that those cases are “political questions” not susceptible to resolution by a court.
The major mouthpiece of the people (congress) has pretty much one recourse: impeachment.
I would add money to that list.
Congress owns the purse.
if that notification requirement was unconstitutional, then the president would have been breaking the law by obeying it. or
Courts are not referees for every dispute between the legislative and executive branches. There are large swaths of cases courts will simply refuse to hear on the grounds that those cases are “political questions” not susceptible to resolution by a court.
is kind of having it both ways
thanks hsh.
Given that prominent Republicans were in quoted as being favour of this deal some months back, the fuss is a little puzzling:
http://www.dailykos.com/story/2014/06/03/1304186/-McCain-was-For-the-Bergdahl-Swap-Before-he-was-Against-It#
I mean, what the fnck would we do without them?
Seconded.
Having gotten into it with sapient, specifically, on this thread, I’d like to emphasize that I have no issue with, or animus toward, sapient, or anybody else here, at anything like a personal level.
FWIW, my argument with sapient upthread is, from my side, purely about commenting style, how arguments are presented, and whether or not that demonstrates good faith and respect for the other party.
And, all of that as perceived by me.
I have zero, zip, nada interest in anyone currently commenting here being “weeded out”.
I’ve been known to wear the “weed” hat myself from time to time. If folks are going to be excluded from the conversation because they annoy other folks now and then, or even often, then we might as well all turn out the lights and find new hobbies.
Peace out.
Congress owns the purse.
Good point.
You’d probably be better off asking this of somebody whose last ticket wasn’t in 1978.
Note, however, that the question wasn’t when you were last charged with breaking the law. It was when you last broke it. Whole different question.
In my state, at least, the Highway Patrol rule of thumb for when to give a ticket is somewhere around 13 MPH above the speed limit. Simply because otherwise they would be ticketing every driver on the road. They try to reserve their efforts for the most egregious problems.
But I suppose that it’s too much to expect the Congress to do likewise. Especially when there is political point scoring and pandering to be done.
“is kind of having it both ways”
Completely wrong. Not all lawbreaking can be addressed by a court. Notwithstanding that fact, it is possible for Congress to be in the wrong here, and for the President to be in the right, for the reasons I’ve raised. If you have a reason for disagreeing I’d love to hear it.
I agree with this, from russell.
A number of years ago, one of our frequent posters requested that we crack down on posting-rules violation for one particular commenter. I responded at the time by saying no, we don’t do that. What we do is apply the rules, when we do, in some roughly fair and consistent way. So if I were to apply that same degree of rule-chasing to e.g. the poster who requested a more rigid interpretation, that poster might find themselves to be banned for their own frequent in-spirit infractions of the rules.
I still think that. We don’t do weeding.
People piss each other off. It’s that way in person, too. If you can’t take that kind of interaction here, you need to think about how to thicken your skin somewhat.
Julian, if there is a constitutional question with a law the courts certainly wouldn’t refuse to hear it. There is *either* a constitutional question *or* the courts will consign it to the political dustbin.
“There is *either* a constitutional question *or* the courts will consign it to the political dustbin. ”
Nah, there’s a large category of constitution questions that the courts simply refuse to address. “Political question”, “standing”, they’ve got a lot of ways of dodging perfectly real constitutional questions.
Like, the House votes on a bill with one language, the Senate votes on the bill with somewhat different langage, and the House and Senate leadership pick one, and “enroll” the bill as having been passed identically by both chambers. That’s a very real constitutional problem the courts won’t touch.
Or, take the 2nd amendment between Miller and Heller. For 69 years, the Supreme court refused certiori, without comment, to every last case that raised the 2nd amendment. You could challenge gun laws as vague, confiscatory, and so forth, and they’d take the case. Mention the 2nd amendment in your pleading, and they would neither take the case, nor tell you why.
That was sure as hell a case of the court refusing real, burning constitutional questions.
“Julian, if there is a constitutional question with a law the courts certainly wouldn’t refuse to hear it. There is *either* a constitutional question *or* the courts will consign it to the political dustbin.”
Well, that’s funny, because I happen to have the Supreme Court right here:
When a court concludes that an issue presents a nonjusticiable political question, it declines to address the merits of that issue. See Gilligan v. Morgan, 413 U.S. 1, 10–12, 93 S.Ct. 2440, 2445–2447, 37 L.Ed.2d 407 (1973); Baker v. Carr, 369 U.S., at 197, 82 S.Ct., at 699; see also Colegrove v. Green, 328 U.S. 549, 552–556, 66 S.Ct. 1198, 1199–1201, 90 L.Ed. 1432 (1946) (plurality opinion). In invoking the political question doctrine, a court acknowledges the possibility that a constitutional provision may not be judicially enforceable.Such a decision is of course very different from determining that specific congressional action does not violate the Constitution. That determination is a decision on the merits that reflects the exercise of judicial review, rather than the abstention from judicial review that would be appropriate in the case of a true political question.
U.S. Dep’t of Commerce v. Montana, 503 U.S. 442, 457-58 (1992).
Me: “If you want Obsidian Wings to be a garden, you have to weed.”
Tony P: “I don’t want ObWi to be a garden. Gardens can get boring.
Also, it takes a certain amount of manure to make a flourishing garden.”
‘A certain amount’ is not ‘a dump truck full’.
Such a decision is of course very different from determining that specific congressional action does not violate the Constitution. That determination is a decision on the merits that reflects the exercise of judicial review, rather than the abstention from judicial review that would be appropriate in the case of a true political question.
So we agree?
Nope. You said
“Julian, if there is a constitutional question with a law the courts certainly wouldn’t refuse to hear it. There is *either* a constitutional question *or* the courts will consign it to the political dustbin.”
The paragraph I quoted explicitly states that in political question cases, a court will “refuse to hear” (to use your words) the case. The paragraph goes on to state that refusal to hear the case has absolutely no connection whatsoever to the underlying constitutionality or unconstitutionality of the policy being challenged. This contradicts you, because you stated that a dismissal on political question grounds means that there is NO constitutional problem with the challenged policy. But you are wrong: dismissal on political question grounds means the court takes absolutely no position on whether there is a constitutional problem with the challenged policy.
ok
If only there was a political philosophy that wanted to trim down the number of laws, we could solve that problem 😛
“The interference of the state power in social relations becomes superfluous in one sphere after another, and then ceases of itself. The government of persons is replaced by the administration of things and the direction of the processes of production. The state is not “abolished,” it withers away.”
Freddy Engels, Part 3, Chapter 2, of Anti-Dühring
also… most of the ‘reporting’ on this has been pretty much… wrong.
http://www.motherjones.com/kevin-drum/2014/06/bowe-bergdahl-then-and-now
http://www.latimes.com/world/afghanistan-pakistan/la-fg-bergdahl-accusations-deaths-20140604-story.html
Not that it ever has. It’s never been really made clear just how much time has to elapse, and how many political rivals and unbelievers must be purged, before the state finally does wither away.
However it has been demonstrated that states founded (at least nominally) by those who believe that the state will and should wither away will grow to be far larger and more intrusive that states which are founded on other principles.
Ironic, isn’t it? And perhaps a warning for those who get too enthused about creating a state on sweeping libertarian principles….
So, I take Brett’s point that The Rule Of Law Must Be Upheld, but it also seems to me that it’s nigh unto impossible to do so to a degree that would satisfy him.
I seriously doubt that it’s the degree that matters. Rather it’s the who, and, to a far lesser extent, the what.
First, let’s be clear: The administration didn’t violate the law inadvertently. This was not a mistake or an oversight. They made a premeditated decision to violate the law.
It is my view that NO premeditated decision on the part of the executive to not comply with the law can be trivial.
Second, it was not an incidental violation, the act goes right to the heart of the purpose of the law. The law was recent, and on point.
Third, while there are arguments that the President has some inherent authority to defy Congress in some areas, (A doctrine I think has been carried too far…) the argument that he has inherent authority to keep Congress in the dark on a subject they’ve enacted a law to make sure they’re informed about, that’s a rather more dubious proposition. Outside of client-attorney privilege and internal discussions, neither of which apply here, it is novel.
The President’s rationale for violating this law was that, if he had complied with it, Congress might have found some way to block the trade. That’s the same reason my five year old gives for not telling me he raided the freezer for some ice cream!
No, I don’t think this was the least bit trivial, the more because it’s part of a pattern of behavior by this President. He just doesn’t think he has to comply with laws. Not the ACA, not immigration laws, not this law.
Not any, so far as I can tell.
Brett, can you think of a president that you liked?
Or, at least, one that you thought observed the law and the proper limits of his office?
Brett, can you think of a president that you liked?
On Brett’s behalf, I nominate William Henry Harrison.
Ironic, isn’t it? And perhaps a warning for those who get too enthused about creating a state on sweeping libertarian principles….
Precisely. The dictatorship of the “capitalistariat” was not all fine wines, roses, and good times. Folks tend to forget this.
A slightly different angle, brought to my attention by Hilzoy (who else?): the released “terrorists” were becoming increasingly awkward to retain at Guantanamo. See this short piece from a legal perspective. I know a lot of people would think we should have hung on to them forever, but that might not have been a viable option – and if it’s not the US is surely better off “trading” them for something, however damaged, then letting them go next year in “free agency.”
IANAL, but I’m a helluva sports fan.
It is my view that NO premeditated decision on the part of the executive to not comply with the law can be trivial.
And a fine view it is, too. And no doubt many people agree with you. I don’t. And maybe some people agree with me. How do we settle that difference of opinion?
Never mind the question of what The Law is, or whether one particular law conflicts with another particular law. Let’s stipulate that we all agree the president broke The Law. Let’s agree that all we’re arguing about is the “trivial” bit.
You say NO instance can be trivial; I say THIS instance is, whereas for example Iran-Contra wasn’t. One argument you could make to me is: if I do not take the failure-to-notify in the Bergdahl case seriously — if I allow it to pass as trivial — then next thing I know another Iran-Contra-level abuse is inevitable. That’s a plausible approach for you to take: try to convince me on the basis of my own self-interest, not your high-minded absolutism. Your pitch is somewhat weakened by the fact that Iran-Contra already happened.
But never mind even that. Suppose I agreed with you that the present case is not “trivial”. What exactly do you propose we should do about it? Give Bergdahl back? Impeach Obama? Vote out any congresscritters who do NOT impeach Obama? Secede from the Union? Or what?
A non-trivial offense requires a non-trivial response. What actual, practical response would you propose?
–TP
What’s not to like about a President who leaves office feet first?
Quick Presidential turnover saves on all of those militia insignias and the constant mustering with the long guns.
Harrison was President for a mere 32 days, so maybe Brett was still on the fence about him when he died, or maybe Harrison couldn’t be troubled to do something Brett disapproved of while the former was in bed with pneumonia, jaundice, and septicemia and and being treated with leeches, Virginia snakeweed, castor oil, and opium, which those in the know now believe is what killed him, not the illness, but this was in the days the Republican Party longs for, when even the President and all government officials had to rely on private quack health care along with the rest of the poor sods in the general public.
Harrison probably would have preferred having the VA delay his doctors’ appointments given the fatal outcome, but you know how the private sector works — always on time and ready to poison you right in your bed for a hefty fee.
Thems were the days. Even then, the people, who know all, said, “Keep your hands offa my Medicare!”
Pardon me, but I’m not quite sure how that “30 day notification” is supposed to work in this case.
Obama did notify Congress some months ago that there were negotiations.
So, upon reaching a deal, he was supposed to say “okay, guys, just hold on”, notify Congress, twiddle his thumbs for 30 days, and THEN do the exchange?
#1: is that how “Upholding the LAW” is supposed to operate in this case?
#2: does anyone, ANYONE, think it would have actually worked?
Some laws aren’t written to make what somebody wants to do “work”, but to assure that what they want to do won’t work. This was one of them. That doesn’t make it any less a law.
Here is what the laws says about notifying Congress (my clarifications in brackets):
(d) Notification- The Secretary of Defense shall notify the appropriate committees of Congress of a determination of the Secretary under subsection (a) or (b) [transferring Gitmo folk] not later than 30 days before the transfer or release of the individual under such subsection. Each notification shall include, at a minimum, the following:
(1) A detailed statement of the basis for the transfer or release.
(2) An explanation of why the transfer or release is in the national security interests of the United States.
(3) A description of any actions taken to mitigate the risks of reengagement by the individual to be transferred or released, including any actions taken to address factors relevant to a prior case of reengagement described in subsection (c)(3).
(4) A copy of any Periodic Review Board findings relating to the individual.
(5) A description of the evaluation conducted pursuant to subsection (c) [regarding the facts to be considered in transferring], including a summary of the assessment required by paragraph (6) of such subsection.
This, it seems, was not done.
Some laws aren’t written to make what somebody wants to do “work”, but to assure that what they want to do won’t work. This was one of them.
I’ll bet the mark-up was a real laugher.
Here’s an article reporting:
After being briefed about a potential swap of five prisoners for Bergdahl in late 2011, Congress passed a law, which Obama signed in early 2012, requiring the White House to give them 30 days’ notice of any transfers from Guantanamo.
To add some detail to Brett’s 7:11pm, the entire point of the 30 day notice requirement was so that Congress, or some subset of the members thereof, could intervene and attempt to scuttle any proposed transfer of prisoners out of Gitmo. So, it’s a bit rich for the administration to argue “that the notification requirement should be construed not to apply to this unique set of circumstances.”
What are you suggesting that we do about this atrocious scofflaw, Ugh?
Brett? He’s harmless.
You could try not making excuses for the violations, for a start. And stop regarding calling him a scofflaw a joke.
He actually IS a scofflaw.
Brett? He’s harmless.
As far as we know.
Well, an excellent case could be made that ALL politicians are scofflaws. Which doesn’t excuse them. But does suggest that simple failure to follow the law isn’t at the root of the great outrage that seems to attend some case, but not others.
Case in point: has any President, in the past half century and more, asked Congress for a Declaration of War before sending US troops into battle, as required by the Constitution? In a word, no. (But some get cheered on, and others get excoriated — actually, all of them get both, albeit by different factions.)
“That simple failure” happens to be just the latest simple failure. The latest in a long string, both committed and threatened.
“Case in point: has any President, in the past half century and more, asked Congress for a Declaration of War before sending US troops into battle, as required by the Constitution?”
Personally, I’d call this a declaration of war, though I’d be happier if they had used the ‘magic words’.
“Well, an excellent case could be made that ALL politicians are scofflaws.”
My pappy and my third grade teacher told us we too lived in a country where anyone can grow up and become a scofflaw if one applied oneself.
Maybe politicians are at heart Libertarians and believe there are too many laws against which they must scoff if anything is to get done.
The free market of politics shall not be regulated.
I do love the trotting out of Oliver North to point out borderline scofflawlessness by Obama.
It’s priceless.
Gunfire worthy.
Brett, you may have missed them or you may be ignoring them, but there are two outstanding questions for you:
1. Russell’s question: which president, if any, ever met your standard for abiding by The Law; and
2. My question: assuming we grant that Obama broke The Law, what do you propose we do (not say; do) about it?
–TP
though I’d be happier if they had used the ‘magic words’.
Ha ha. That’s funny. From the very article you cite: “President Bush said that as Commander-in-chief he did not need Congressional authorization to use military force against Iraq and that his request for a Congressional joint resolution was merely a courtesy to Congress.”
According to Bush Congress couldn’t even give him a blank check. Now that’s humiliation.
1. Obviously Nixon is out, though most of what Democrats complain about was bluster, (He was the one that got the IRS audit.) he did have subordinates break laws. I’m unaware of any criminality on Ford’s part. Carter was a dweeb, but being a dweeb isn’t a crime. Reagan had Iran-Contra, so he’s out. Bush the Elder ran on being the third term of Reagan, and then devoted himself to undoing Reagan’s accomplishments, including reining back BATF abuses. (You can blame Ruby Ridge on Bush the elder, to a great extent Waco, too.) The Clintons were a crime wave by themselves, their first act on taking office was to kill off their own pending indictments. Bush the Younger’s crimes are mostly of the “didn’t implement Democratic policies” sort, which, contrary to the opinion of Democrats, isn’t a crime. And he did get that authorization, even if he claimed not to need it. And Obama appears to be under the impression that following the law is completely optional.
Guess I’d have to say that Ford was the best of the lot, though he should have prosecuted Nixon, letting him go established a bad precedent subsequent Presidents have taken advantage of.
2. The hell of it is, there isn’t much you can do, short of impeachment, and there’s no point in impeaching the guy so long as we know the Senate won’t convict him regardless of the charges or evidence. I think that, were Democrats to take his violations of the law seriously, the courts might stop hiding behind “standing”, and actually let the legal process work. But that’s not going to happen given that his crimes are mostly intended to help Democratic prospects, by pushing the damage from the ACA past the next election, and giving illegals citizenship so they can vote Democratic.
Really, all we can do is be clear that he’s a criminal, resolve not to let it happen again, and hope that, if he cancels the 2016 elections, one of the Secret Service puts a bullet through his brain.
careful there. the software isn’t ready for you yet.
and no, Obama is no more a criminal than anyone else is. Guantanamo is an inherited legal nightmare, getting people out of there is the right thing to do. and getting our people back is the other right thing to do. Congress can suck it or file the papers.
I hope that last paragraph was posted in jest.
if he cancels the 2016 elections
don’t take the brown acid.
No need to cancel the 2016 elections if Hillary is a shoe in.
“Really, all we can do is be clear that he’s a criminal, resolve not to let it happen again, and hope that, if he cancels the 2016 elections, one of the Secret Service puts a bullet through his brain.”
Posted by: Brett Bellmore
It’s not just the assholity, it’s also the dumbfuck assholity. At least have some respect for us in not posting really stupid stuff.
(and Slart, go ahead and ban me; I’ve been banned before from ObsidianBrettWingts, and after this last thing, consider it an honor)
Brett: “Bush the Younger’s crimes are mostly of the “didn’t implement Democratic policies” sort, which, contrary to the opinion of Democrats, isn’t a crime. And he did get that authorization, even if he claimed not to need it.”
Bush ran a massive warrantless wiretapping program for years, and did so entirely without congressional authorization. Did/do you not consider that a massive ongoing crime?
looks like the comment trap is active again…
“Bush ran a massive warrantless wiretapping program for years, and did so entirely without congressional authorization. Did/do you not consider that a massive ongoing crime?”
Hence the “mostly”. Bush the younger committed a lot of crimes. Those crimes were not, mostly, what Democrats were complaining about at the time, and they are mostly what Democrats are complicit in continuing and expanding, since.
Yep cleek, just emptied it. I think it was the bullet to the brain comment. Which, I would like to note, is skirting close to one of those posting rules and if a second front pager feels the same, this is your warning. You may think it is cute to try and provoke, but it’s getting really tiresome.
and I should make clear, I’m not talking to cleek…
Bush the Younger’s crimes are mostly of the “didn’t implement Democratic policies” sort,
Brett, you can’t be serious. Bush II’s major crime was authorizing the use of torture**. Which is a major crime under US law — a far more serious crime than anything any of the rest of them, including Nixon, ever did. (I say “more serious” based on the penalties specified by law for torture, as opposed to something like breaking and entering or burglary.)
** I will grant, if you like, that torture could arguably be classed as “didn’t implement Democratic policies” 😉
if a second front pager feels the same
Seconded.
No calls for assassinations, please.
Thank you.
Thirded, belatedly.
Barry, consider this my Officially Disapproving face. But we permit some leeway when actual dumbfucks appear.
I also want to note that my wife’s cousin, a Deputy Director in the FBI, may take a dim view of even oblique wishes of this kind.
I would recommend contrition and retraction, subject to the concurrence of the remainder of ObWi staff.
Just to give Brett an inkling of what this guy does, I recommend an in-depth read of NSI, which (digressively) is a nested initialization involving government coordination of suspicious activity reporting.
I vividly recall responding to a suggested 3rd Bush term with derisive laughter. I’m not sure that Brett’s comments in this regard are less silly in premise.
I’m free for the moment and I’ll chime back in:
This, it seems, was not done.
Agreed, and that’s my problem. The law seems clearcut and addressing exactly this type of situation. I don’t understand the administration’s claim of ” unique set of circumstances”. Bergdahl is pretty much the set of circumstances described in the law.
cleek:
Guantanamo is an inherited legal nightmare, getting people out of there is the right thing to do. and getting our people back is the other right thing to do. Congress can suck it or file the papers.
I agree. I agree. I agree. And I agree as a practical matter: That pretty much sums up congress’ options on the matter. Russell suggested the purse, which is normally a good option, but I’m sure there is a way around that as well. Omani representatives come to Gitmo to take possession of the prisoners so there is no cost to the US for the transfer, maybe?
But I don’t like the executive ignoring or reinterpreting laws as a matter of convenience, even for a good outcome (and this was a good outcome, in my book).
Like I said, as the imperial presidency goes, this is the jaywalking equivalent, and I’m not going to get too worked up. But it worries me that we’ve pretty much accepted congress is defunct, their laws are stupid, and the executive should do what it has to when it has to, even if I like the outcome.
Because at some point (probably far sooner for me than most here), the outcome will be undesirable, and it becomes more difficult to rally support for “equal justice under law” when we keep brushing the law aside when inconvenient.
And Julian: I didn’t have a chance to reply to you, and I apologize. I don’t feel I completely understand your contention, which seems to have two parts. (1) the law was unconstitutional because it isn’t derived from the enumerated powers and (2) this is a political question and therefore wouldn’t be touched by the courts.
I disagree on both counts (I’ll elaborate in a second) but would be curious to hear more from you.
(1) This seems like a necessary and proper aspect of the “offenses to the laws of nations” which congress has previously interpreted quite broadly. The treatment of prisoners of war and the method of their exchange would seem to be included in that, to me. I’d be curious why you think differently.
(2) Some questions are political and the courts have wisely shied away for determining these. But I see nothing to indicate this is a political question (in all fairness, this is largely based on the wiki summary of baker v carr en.wikipedia.org/wiki/Baker_v._Carr ). I don’t see how this enters into any of those categories, but would be interested to see why you think it does. Or alternatively, enlighten me as to why you think it is a political question for other reasons.
IANAL, let alone a constitutional one. So I’d be very curious to learn if there is a flaw in my understanding.
The text of Baker v Carr is here, for anybody interested:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=369&invol=186
And the strongest support I can find that this would be a political question would be this:
It was stated in Hamilton v. Kentucky Distilleries & W. Co., 251 U.S. 146, 161 , that the war power includes the power `to remedy the evils which have arisen from its rise and progress’ and continues during that emergency.
Which could support the president’s absolute authority in this matter, but this is in a block of text discussing the end of hostilities specifically and the surrounding text is studded with qualifiers:
The question in a particular case may not seriously implicate considerations of finality – e. g., a public program of importance [369 U.S. 186, 214] (rent control) yet not central to the emergency effort. 39 Further, clearly definable criteria for decision may be available. In such case the political question barrier falls away: “[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. . . .
And preceding, in another section:
Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.
(Emphasis added)
I’ll keep reading and perhaps learn something, but this doesn’t strike me as strong support for considering the administration’s actions a political question. The opinion seems to point to itself as an arbiter of such disagreements: whether or not congress overstepped its bounds either from its enumerated powers or infringed on the executives powers.
A constitutional scholar has an interesting article in Slate.
The Secret Service?
That smells unconstitutional. Not to mention regulation run amok.
Would the President get a trigger alert? Will the deed go down in Dallas … again .. since Texas remains a severe low-pressure zone of impending violence against liberals and government?
Besides, what, the Republican and Libertarian militias and NRA are too busy waving their weaponry around at Chili’s and Chipotle to fend off threats from nachos-bearing waitstaff and scaring the latter’s customers half to death to do the job themselves?
They want the government to do their dirty work for them?
And still not pay taxes for services rendered?
Also, software to detect sarcasm?
Maybe conservatives should be outfitted with the software programs when they appear on the Daily Show or Colbert, so they can crack a smile at the appropriate times, instead of staring walleyed and all earnest into the camera when fun is being poked their way.
It would be interesting to aim that software at conservative talk radio, Limbaugh, Wayne LaPierre, Ted Nugent, the open carry sh*theads in Texas, and watch them deny any sarcasm at all for the thinly veiled and completely earnest death threats they have been issuing for the past 35 years against all whom they disagree with, with the silent approval of the Republican Party.
Aim the sarcasm detector at me and watch the needle bury in the danger zone.
“(1) This seems like a necessary and proper aspect of the “offenses to the laws of nations” which congress has previously interpreted quite broadly. The treatment of prisoners of war and the method of their exchange would seem to be included in that, to me. I’d be curious why you think differently.”
The relevant sentence in the constitution gives Congress power “[t]o define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” This means Congress has power to outlaw and punish conduct that it deems criminal (whether under maritime law or under international law).
But prisoners of war are not (necessarily) criminals. Prisoners of war are held for the duration of hostilities because of their status as enemy combatants. In a war against China, for example, the U.S. could, I think, capture and hold a PRC low-level grunt cook who never did anything worse than make bad dumplings in a military kitchen.
POWs are released back to their nation at the conclusion of hostilities precisely because being a POW is not a crime.
So in my unresearched opinion, congress’s power to define international and maritime crimes gives them zero power over handling POWs. POWs as a category are not criminals, they are war-related things, and the President gets a huge amount of authority over how to conduct war
“2) Some questions are political and the courts have wisely shied away for determining these. But I see nothing to indicate this is a political question (in all fairness, this is largely based on the wiki summary of baker v carr en.wikipedia.org/wiki/Baker_v._Carr ). I don’t see how this enters into any of those categories, but would be interested to see why you think it does. Or alternatively, enlighten me as to why you think it is a political question for other reasons.”
I don’t know much about the political question doctrine, but my impression is that it is not limited to the categories you see on that wikipedia page. The political question doctrine seems to me to come up when the only directly interested parties are political actors, and it comes up because courts really hate refereeing purely political things.
The 30-day-notice requirement is, IIRC, in a statute that prescribes no remedy for the violation of the requirement. The statute creates no rights or liabilities for private citizens. So this is purely a dispute between the legislative and executive branch over how best to conduct prisoner swaps. That just doesn’t sound like something courts are going to want to be involved with. And if that doesn’t fit into one of the preexisting political question categories, I would bet a decent amount of money that the Supreme Court would happily just make a new one up.
A constitutional scholar has an interesting article in Slate.
Well, that is a better argument than has been on offer from the administration. Still pretty much completely unconvincing, but at least less so.
It’s a challenge when Slate has to provide the least bad argument for the administration……
Also, the power of the purse was mentioned. It should be noted that another statute provides that no funds can be spent to move prisoners from Gitmo unless the move satisfies the 30 day notice requirement.
Still pretty much completely unconvincing
I disagree. In any case, Julian is right, I think, about the political question doctrine. I don’t see how the courts would in any way rule on this. A discussion of the political question doctrine is here. Not an authoritative piece, but it does discuss, briefly, the history of the doctrine, and notes that it was in the 1960’s that the nonjudiciability of political questions started to become more limited. I think that most of the cases that limited the doctrine had to do with various government attempts to infringe individual rights, such as, in the case of Baker v. Carr, voting rights.
I sincerely doubt that the court would want to diminish the authority of the Executive to make wartime prisoner exchanges (especially one that saves the life of an American citizen, in exchange for returning arguably soon-to-be illegally held foreign citizens).
Could fit the political question doctrine, I don’t have the energy to form an opinion presently.
I sincerely doubt that the court would want to diminish the authority of the Executive to make wartime prisoner exchanges
Could be, could also be that since Congress has spoken specifically on the question the Court would be quite comfortable ruling for the legislature, if it was going to rule anyway.
ruling for the legislature
What would that mean? There are no damages. There is no possibility of an injunction. There’s no provision for punishment of the President, other than impeachment. That’s another argument for the proposition that it’s a political question.
As I said, if it was going to rule anyway.
Also, the power of the purse was mentioned. It should be noted that another statute provides that no funds can be spent to move prisoners from Gitmo unless the move satisfies the 30 day notice requirement.
So what if we just open the damn door?
I do wonder what would have happened if, back in January 2009, Obama had simply ordered all prisoners at Gitmo transferred to some high security facility in the United States and then closed the facility in Cuba. IIRC, it was only after he publicly announced his intention to close Gitmo in a year including the possibility of bringing the prisoners there that Congress started passing laws with veto-proof majorities telling him he couldn’t do so (could be wrong about that though).
I also wonder WTF we’re still doing holding on to the base at Guantanamo Bay at all. But I suppose the same could be said for a great many of our other military installations that populate the globe.
I do wonder what would have happened if, back in January 2009, Obama had simply ordered all prisoners at Gitmo transferred to some high security facility in the United States and then closed the facility in Cuba
He signed an executive order calling for GTMO to be closed within a year.
Congress wouldn’t pay for it. May 20, 2009, the Senate voted 90 to 6 against an appropriation allocated, specifically, to pay for closing GTMO.
No money, no closure.
GTMO is still there because nobody in Congress was or is willing to be the guy who voted to “set terrorists free”, and/or bring them into the US to stand trial.
A lot of them can’t be tried effectively in civilian court anyway. Because, torture.
And that’s why GTMO is still there, and will likely be there until the last guy dies.
IIRC the objection to closing GITMO stemmed from the question if who gets to host the prisoners.
Yes, 90-6, that’s what I’m thinking of. But I dont think, before that, there was anything keeping him from transporting the prisoners to the US (or elsewhere).
And there is no money for him to do what he did with Bergdahl either without 30 days notice, supposedly.
Apparently there’s no more remedy for him spending money he’s barred by statute from spending, than there is for him taking actions he’s barred by law from taking. He’s just above the law, period.
Suppose a private individual proposed to pay for moving the prisoners. Is there anything in the law that would prevent him from chartering a plane and routing it (with appropriate flight plans and clearance to land and take off, of course) to Gitmo and then elsewhere?
I suspect that, even if there isn’t a single individual willing to do so, getting at least those who are NOT terrorists moved would be something that a KickStarter campaign could fund.
And there is no money for him to do what he did with Bergdahl either without 30 days notice, supposedly.
Just for curiosity, ugh: how does the accounting work here? Are we talking about gas money for the planes and helicopters involved, or what?
–TP
“Suppose a private individual proposed to pay for moving the prisoners. Is there anything in the law that would prevent him from chartering a plane and routing it (with appropriate flight plans and clearance to land and take off, of course) to Gitmo and then elsewhere?”
31 U.S. Code § 1342 would seem to prohibit this. Essentially, if Congress has prohibited the government from spending money to do something, it is illegal for the government to accept the voluntary provision of services to accomplish it, too.
Just for curiosity, ugh: how does the accounting work here? Are we talking about gas money for the planes and helicopters involved, or what?
My recollection is that Congress says “no funds will be spent on X,” and if the executive does X anyway, then by definition funds have been spent on X, especially considering the Anti-Deficiency Act, a portion of which Brett cites above.
So the government can’t accept someone else paying for the government’s expenses to do it. But if the non-terrorists are released within Gitmo? That costs nothing. The government can’t transport them out. But if a private individual flys in, it costs the government nothing to just watch while they board the plane and depart. (Ditto with a boat, of course.)
There may be other constraints. But that would seem to get around the letter of that particular restriction.
Emily Bazelon makes some good points.
There may be other constraints. But that would seem to get around the letter of that particular restriction.
Possibly not:
(Emphasis added.)
I’m really not sure how to parse this, but at first blush I’m reading this as a prohibition to release or transfer detainees into US territory, and only US territory. That’s Section 1034. Sec. 1035 is the one that describes how foreign transfers can be effected following reporting. If 1034 really is just addressing US-territory releases, then the operative question is whether in the context of this statute GTMO counts as a US possession. If it does, then releasing them in GTMO and doing nothing while private individuals flew them away would be nixed. If it doesn’t, it seems like it would not run afoul this statute, at least.
Of course, if 1034 is only addressing US releases, then this is all an irrelevant aside anyway, because there’s no explicit prohibition to expend funds to transfer detainees to a foreign state…
(And interestingly, Sec. 1028 of the 2013 Authorization, which Sec. 1035 of the current one repeals, did have an explicit denial of funds to release detainees outside the defined notification process (which was only 10 days then, but still), as well as having the same prohibitions in 1034 in the section proceeding it (Sec. 1027, ofc). It does kinda look like the power of the purse might not apply after all.)
If memory serves, Gitmo is still technically Cuban territory, albeit occupied by the US pursuant to an existing 99 year lease (dating from before the Cuban Revolution). As such, I would take it to not count as US territory. For a parallel case, consider the Canal Zone in Panama during the time that the US administered it. It is pretty clear that the Canal Zone, at least, was not US territory — witness the fact that persons born there did not automatically become US citizens by reason of being born on US territory.
No doubt the lawyers could go on at length on the subject. But to a mildly informed non-lawyer, it seems like a pretty close parallel legal status.
Julian:
A couple of things.
But prisoners of war are not (necessarily) criminals. Prisoners of war are held for the duration of hostilities because of their status as enemy combatants.
My understanding is that most of the detainees at Gitmo are not POWs, and are not considered POWs in a legal sense. My understanding (which is poor), is that the US largely contends that they are unlawful combatants and therefore are not covered by international laws of war.
Although the case is history is complex and I haven’t kept up on it…that may have changed, or may have changed for these prisoners specifically.
I’m not trying to argue that this is a good thing, certainly, but it is my understanding of the state of the law.
I don’t know much about the political question doctrine, but my impression is that it is not limited to the categories you see on that wikipedia page.
Granted, and I would be surprised if it was. However, in reading Baker v Carr (which I linked previously), which as I understand is the current case law on the subject, I found little to support the contention that this is a political question. Indeed, a section I highlighted seemed to say otherwise.
If you had a link to a source which laid out a definition of political question which clearly included this situation, I’d be interested to read it.
As an aside, the discussion on the purse is quite interesting and I am following it, although I have nothing to add.
A constitutional scholar has an interesting article in Slate.
It’s interesting, but I remain unconvinced. He has two major arguments. Constitutionally, he rests on the disavowed torture memo, which I am wholly unconvinced by.
That’s not to say there isn’t a constitutional question as to whether or not congress could pass that law to begin with. There certainly is, but I definitely don’t see it as clearly going in the favor of the executive.
On statute, he cites the Hostage act: ““use such means, not amounting to acts of war and not otherwise prohibited by law, as he may think necessary and proper to obtain or effectuate the release”
[emphasis added]
Which seems to not really support the case that the president can ignore a law passed by congress.
As an aside, I’ll note the author’s tagline: “Peter M. Shane teaches constitutional law at Ohio State University and is author of Madison’s Nightmare: How Executive Power Threatens American Democracy.”
There may be a constitutional question as to whether Congress can pass such a law, but I personally regard such questions as foreclosed insofar as application to the President who voluntarily signed it.
The time to argue a law is unconstitutional is BEFORE you put your signature on it.
If the detainees are POWs, then a command-in-chief has authority to order them released.
If the detainees are considered to be civilian criminals, a President can pardon them.
If the detainees are neither, then they are being unconstitutionally detained, and congressional efforts to keep them detained are unconstitutional and should be ignored.
thompson, the thing about Constitutional law, and other case law, is that there isn’t an identical case to point to. Cases are decided on their own particular facts. As the court said in Baker v. Carr: “Much confusion results from the capacity of the “political question” label to obscure the need for case-by-case inquiry.”
Baker v. Carr, was a case involving gerrymandering, where the issue was denial of equal protection of the laws. It is not at all similar to the case of prisoner exchange with a foreign country during a war. For one thing, as noted in that opinion,
In other words, there were people injured in that their right to equal protection of the laws were violated. Who is injured in this prisoner exchange matter? You may say that Congress’s power to legislate is injured, if you want to, but the court is not going to champion Congress’s beef against the President, since Congress can do so through impeachment.
The Court in Baker v. Carr specifically distinguishes the controversy in that case with one involving co-equal branches of government:
sapient,
Thank you for the response. I’m aware the decision in Baker often calls for case-by-case decision regarding use of the “political question” doctrine. I am also aware that cases are normally decided on their own merits and that this exchange is not identical to previous SCOTUS decisions.
However, the fact that a similar case has yet to be decided is not an argument that this is political question.
I cited and linked Baker because it seems to be the defining case for modern “political question” doctrine. Importantly, Baker gives several examples of previous cases and explains why they are or are not political questions, and describes the “characteristics” that identify political questions.
The quote you provided is an important one, but it refers back to the characteristics defined in the document:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
To my reading, the current case seems to lack all of those characteristics. Maybe embarrassment? But that seems quite weak.
It might be there are other characteristics that make this a political question. However, the body which makes that determination is, as it has been, the supreme court.
Should the issue be raised with the court, they could very well decide it falls into that category. But returning to the quote in Baker:
Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.
I can’t think of any way of reading that statement that doesn’t say the court is indicating its responsibility to interpret the authority of the legislative and executive branches when they conflict.
Indeed, they further say: The courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority.
To me, if you wish to argue non-justiciability of this case, a far more likely option is mootness, although even that is not absolute (“capable of repetition, yet evading review”).
As always, IANAL.
Well, no need to argue it anymore, because it won’t be brought before a court. There’s no remedy that a court can award, since no one was harmed. Any theoretical discussion of doctrines that don’t apply to a case that will never be brought is kind of like angels on the head of a pin.
sapient:
The theoretical discussion of policies of policies that don’t apply began as part of an explanation why the courts *couldn’t* weigh in on the constitutionality of the executive action as well as the congressional law. It’s an important question in its own right.
The president apparently broke the law. The justification I’ve heard for this is: it’s a stupid law, so who cares AND/OR the law was unconstitutional.
The second, I would contend, is not true. The justicability of the law is part of that discussion.
Which leaves us with the first: It’s stupid, so who cares.
Bear in mind, this was a law passed with bipartisan support about a year ago. This isn’t some quaint leftover from some backward time.
The willful ignoring of laws by the executive is concerning and corrosive to effective representative governance.
This is not an abstract discussion to me. If the executive is not bound by the laws congress passes, and doesn’t even face political backlash for doing so, that is a very dangerous precedent.
is kind of like angels on the head of a pin.
I personally am interested in the law, especially as it relates to the powers and limits of the presidency. I believe it to be a crucial aspect of our democracy, and am therefore interested in such discussions. Others are not, and that is ok. So if you don’t wish to discuss it, don’t discuss it.
If memory serves, Gitmo is still technically Cuban territory, albeit occupied by the US pursuant to an existing 99 year lease (dating from before the Cuban Revolution). As such, I would take it to not count as US territory.
Yes, but Boumediene v. Bush explicitly rejected this argument WRT declarations of GTMO exterritoriality; the court held that de jure sovereignty not withstanding, the US exercises sovereignty there by means of their continuous uncontested control. On re-reading that, I’m much less willing to believe the court would agree that GTMO is not a US territory – they seem to feel that long-standing de facto exercise of sovereignty is enough.
(In a somewhat grimly amusing sense, but for Boumediene v. Bush, this current discussion would probably be irrelevant, because before the Court struck down the section containing it, the MCA had held forth that “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.“. That was 2006 and a different President was in office, though. Oh, how times do change!)
(Of course, IANAL. IASWSBRFTLOMANRB – I Am Someone Who Should Be Reviewing For Their LSAT On Monday And Not Reading Blogs.)
thompson, I’m obviously interested too, in that I did discuss it. You don’t accept the real principle behind the Baker case, and that’s fine – you wish it stood for the fact that since Obama “broke a law” he should be held to answer for it.
There are a lot of problems with the law, if we were going to take the time just to talk about that. First, it does infringe on what has long been considered to be an Executive prerogative. Second, it was passed merely to frustrate the possibility that the current President would take action to remedy a past president’s action to circumvent the rights of prisoners to have access to the courts by building Guantanamo, a legal no-man’s land. Third, the President’s actions infringed no one’s rights; in fact, they restored freedom to a number of people. Fourth, you disapprove, therefore you have a remedy at the ballot box. Fifth, lots of Congresspeople disapprove, therefore they have a remedy with hearings and possible impeachment.
There are lots, and lots of actions available to people who are angry (apparently for the first time in history) that an American POW was exchanged for prisoners (whose incarceration was based on sketchy grounds anyway). Going to court is not one of them.
NomVide:
Oh, how times do change!
Sadly, it doesn’t seem like times have changed very much. Gitmo is still full of prisoners who are there indefinitely, at least some of who it seems like did very little to deserve being there.
Of course, IANAL. IASWSBRFTLOMANRB – I Am Someone Who Should Be Reviewing For Their LSAT On Monday And Not Reading Blogs.
Perhaps reading caselaw and arguing the finer points of constitutional law is reviewing? 🙂 Best of luck on the LSATs, if your posts here are any indication you should have no problem!
I personally am interested in the law, especially as it relates to the powers and limits of the presidency
Oh, and I’m interested in the law too, so much so that I went to law school and passed the bar. My interest isn’t limited to hating a President, and being “concerned” that he broke a law that was meant to infringe on his legitimate executive powers (one of which is to make a prisoner exchange to bring an American POW back home).
Yes, break a leg, Nombrilisme Vide!
If the detainees are POWs, then a command-in-chief has authority to order them released.
If the detainees are considered to be civilian criminals, a President can pardon them.
If the detainees are neither, then they are being unconstitutionally detained, and congressional efforts to keep them detained are unconstitutional and should be ignored.
In a sane world, detainees would be considered a mix of your first and second categories. Reading legal guidance regarding why they should be considered neither is painful. However, what is truly painful is reading legal guidance that describes quite clearly why large swathes of the Taliban would be at most lawful enemy combatants, and then proceeds to deem any and all such individuals unlawful enemy combatants. Our firm and persistent insistence that there is a magical third category where we can choose to place anyone and everyone we capture who we want who is not a uniformed soldier of a nation we have formal diplomatic ties with remains a disgrace.
NV, thanks for that.
It occurs to me to wonder, however. If “continuous uncontested control” is the standard, what else did we have with respect to the Canal Zone? Unless there is something else, it would seem that anyone born there could apply for a US passport on the grounds of having been born on US territory. And maybe any children of such persons, on ground of having a (unrecognized) US citizen parent. What a delightful tangle, to be sure.
And good luck on the LSAT!
sapient:
You don’t accept the real principle behind the Baker case, and that’s fine – you wish it stood for the fact that since Obama “broke a law” he should be held to answer for it.
No. That is incorrect and a gross misreading of what I have posted.
I don’t “wish” anything about Baker. I refer to it as a guide regarding the applicability of the political question doctrine, which Julian brought up and you also suggested would be the case.
There are a lot of problems with the law
I would agree there are problems with the law, and further agree there are a lot of problems with Gitmo.
However, my unhappiness with the law as it stands, and the detention of persons at Gitmo, does not give the president carte blanche to to violate the law.
If the law is bad, it should be changed, and I do exercise my voting rights to advocate for that change. In the meantime, the president has a responsibility to ensure “Laws be faithfully executed”.
If the argument is that since this is an unconstitutional law, I would again contend that it is dangerous for the executive to simply assert that without judicial review.
If the argument is that it is a bad, and therefore good to ignore, I would contend that that is a dangerous precedent. Sadly, one of many, spanning administrations.
To answer your points specifically:
(1) This to me is an argument about constitutionality, and there is a lot of previous posts about that. Not that the conversation couldn’t continue, but would be helpful to me if they were responsive to those posts.
(2) It was likely passed for many reasons, which are all largely irrelevant to the applicability of the law. It passed through both houses of congress and was signed into law by the president. As an aside, I’m somewhat amused by the concept of the president signing a law purely to frustrate his own efforts.
(3) I’m not contending that his actions infringed on anybody’s rights. I’m contending his actions *broke the law*.
(4) A remedy I use.
(5) Yes, that’s true. But would you agree a failure to impeach does not imply that no wrongdoing was done?
NomVide:
Our firm and persistent insistence that there is a magical third category where we can choose to place anyone and everyone we capture who we want who is not a uniformed soldier of a nation we have formal diplomatic ties with remains a disgrace.
Agreed!
sapient:
Oh, and I’m interested in the law too, so much so that I went to law school and passed the bar.
That’s great you went to law school and I certainly appreciate the perspective of your training as it relates to the discussion.
But this?
My interest isn’t limited to hating a President
I don’t appreciate. It’s a characterization of both me and my posts on this issue.
heh. It’s a mis-characterization.
If the argument is that since this is an unconstitutional law, I would again contend that it is dangerous for the executive to simply assert that without judicial review.
Unfortunately for you, there won’t be any judicial review because no one will bring a suit, so we’ll never have a conclusive determination of the law’s constitutionality. There is no case or controversy, in that no one’s rights are adversely affected. As you mentioned, it’s moot. It’s a dispute between two co-equal branches of government as to who has the power in this instance, which Baker v. Carr indicates constitutes a political question, which won’t be litigated.
Anyone who brought a court case would be laughed at, so none will be brought. It doesn’t seem right to you. Sorry.
And, no, no wrongdoing was done. The president signed the law, with a signing statement. Maybe that’s not ideal, but it’s the most efficient way for him to recognize the will of Congress, while reserving his right to ignore them if necessary, within the bounds of his Executive authority. Objectively, his action wasn’t wrong, and subjectively, it wasn’t wrong. The kid came home, and will be treated as a U.S. citizen. The Taliban prisoners will go away. Wrongdoing? Nope, nobody was wronged.
Reading legal guidance regarding why they should be considered neither is painful.
Reading legal guidance on much of the GWOT tactics is painful.
To be clear, in case I wasn’t when I brought up the issue of prisoner status, I don’t agree the laws supporting the detentions at Gitmo. But our system of laws is an important one, and I am loathe to support the president ignoring the laws he is charged to execute.
sapient:
It’s a dispute between two co-equal branches of government as to who has the power in this instance, which Baker v. Carr indicates constitutes a political question, which won’t be litigated.
You keep saying this, but your one quote from Baker does not support this contention. Indeed, Baker seems to contradict that point. I have quoted Baker multiple times and will do so again:
Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.
Further:
As you mentioned, it’s moot.
I also mentioned there are exceptions to mootness, in that there is potential for repetition.
And, no, no wrongdoing was done.
Here, I’m using wrongdoing in the sense that the president broke the law. A good outcome, an outcome I support, doesn’t change that.
Well, we’ll find out whether you’re correct when the court hears the case.
“There may be a constitutional question as to whether Congress can pass such a law, but I personally regard such questions as foreclosed insofar as application to the President who voluntarily signed it.
The time to argue a law is unconstitutional is BEFORE you put your signature on it.”
1. I believe that’s exactly what Obama did, in his signing statement. Happy now?
2. Your personal views happen to be wrong here. The President is quite free to sign a bill into law and later, should s/he challenge some provision of the law, attack its unconstitutionality. If you think this is untrue, offer some evidence.
Yes, he’s quite free to be an asshole. But, should he be?
The law was quite direct. If he didn’t like it, he shouldn’t have signed it. Wouldn’t matter, because it passed by a sufficient margin to overcome his veto, but there’s no good reason for a President to sign a law, and then state they won’t follow it.
He didn’t have to sign it, after all. But he did. I don’t care to listen to his excuses over why he doesn’t have to comply with laws he signed.
I don’t care to listen to his excuses over why he doesn’t have to comply with laws he signed.
Turn off the TV then.
So, I’m not seeing much of a basis for applying the political question doctrine to this case. Mootness, lack of standing I can see, depending on the circumstances.
Ugh:
Yeah, I’d agree with that. I don’t really get standing in this case. Could congress sue for misallocation of funds? Would they have standing in that regard?
I did some googling last night, but came up dry. I can’t really find a similar case beyond Iran-Contra, which seems to be more differences than similarities.
So if it poses no problems whatsoever for Obama to release prisoners from Guantanamo – why doesn’t he free at least those cleared for release years ago. That would be half of all the current prisoners.
I am generally very wary of the abuse of presidential privilege, but Guantanamo is such cruel travesty of the law as well as a place of constant human rights violations that the benefits of presidential intervention would outweigh the detriments and while it should be shut down immediately, releasing the cleared prisoners would be a good start.
” why doesn’t he free at least those cleared for release years ago. That would be half of all the current prisoners.”
I’m thinking that would require him to care.
So if it poses no problems whatsoever for Obama to release prisoners from Guantanamo – why doesn’t he free at least those cleared for release years ago. That would be half of all the current prisoners.
Because it is not just congresscritters that have to consider political fallout independent of legality of an act. There is a lot the president could and should do legally that he does not because it would damage him politically. Unfortunately remedies for gross injustices committed (or expected to be committed) often fall into this category. Cf. extremly sparse use of presidential pardons (or commutations) by the current administration.
That’s basically what his critics will tell you: Given a choice between the politically expedient, and the right or even legal thing to do, he goes with politically expedient every time.
But that’s not a forced choice, that’s a matter of character. A politician may have to consider political fallout, he doesn’t have to regard it as the only thing that matters.
Politicians tend to follow Bismarck in deeds, if not words*:
“If I am to go through life with certain given principles, it seems to me as if I had to pass through a narrow forest track, holding a long pole in my mouth”
*i.e., few are honest about the fact
The reason that prisoners cleared for release have not been released is that it is against the law for the prisoners to be released to U.S. soil and no one else will take them. Although, arguably, an exchange of prisoners is within the authority of the Commander in Chief, accepting immigrants contrary to law is not.
Obama has a legitimate argument for ignoring Congress’s requirement in the case of the prisoner exchange; he wouldn’t in order to let people into the United States without Congressional authority.
novakant has indicated in the past that he isn’t a U.S. citizen. Perhaps he should lobby his own government to accept the prisoners into his country.
“accepting immigrants contrary to law is not.”
Doesn’t seem to be stopping him when it comes to illegal immigrants from points south.
“A politician may have to consider political fallout, he doesn’t have to regard it as the only thing that matters.”
And thus we gather here heading in opposite directions on the narrow track of the Internet, the long poles held in our mouths clacking against each other in fruitless joust.
If your disapproval about political fallout’s overwhelming influence and Obama’s exclusive attention to it is true, Brett, than Democratic politicians currently running away from and trying to dodge your lot’s extremely long pole regarding, say, Obamacare, should do the right politically risky thing and tell you to eff yourselves in this Fall’s political campaigns, instead of running away from the issue.
If political fallout is not to be paid attention to, than stop letting your lot’s heads explode over every political point that offends that extremely long pole you’ve got jammed in your mouths and elsewhere and which sends unprecedented amounts of radioactive political outrage/fallout into the atmosphere and which seems to have no half-life.
If political fallout should be ignored, then the BLM needs to get back in there and disperse armed f*ckalls by any and all means who drive across the country expressly to murder government officials who dare to enforce the law.
Political fallout? What do you call showing up at public meetings armed to the teeth and issuing thinly veiled death threats if Obamacare and every other proposed political change is not immediately reversed?
And by the way, it was ignored, but it won’t be for much longer, as people are effing sick of it, and I don’t mean in a non-violent way.
Ignore political fallout? Like what? The NRA’s political advertising budget? Every murderous word out of Wayne LaPierre’s stinking anti-American mouth? Every murderous word out of Grover Norquist’s filthy, stinking, anti-American mouth?
Ignore political fallout? How about liberal, statist citizens show up at Libertarian and Republican fetes and dining establishments and wave weaponry around while we order (and, I mean “Order, mein Freund”)* drinks for ourselves on the house and various other accommodations to our outrage?
Should Obama ignore the political fallout of the Secret Service having him (secretly, no doubt …. yet another government secret Libertarians and the far Right will approve of and will cover-up should the deed go down) in their gun sights?
It seems this is one thing he is ignoring, since your house isn’t surrounded.
*Hartmut will rightly point out that the German “Mein Freund” refers to “my boyfriend”, which, come to think of it, would probably be even more threatening and fallout-causing at your average right-wing feedbag joint.
Addendum: Rates of illegal immigration from Mexico fell from approximately 7.0 million in 2007 to app. 6.1 million in 2011 during the first years of the Obama Administration.
http://en.wikipedia.org/wiki/Immigration_to_the_United_States
Perhaps not up to your standards, but it does help when political fallout is more fact than bullsh*t. Less distance to fall.
“accepting immigrants contrary to law is not.”
Doesn’t seem to be stopping him when it comes to illegal immigrants from points south.
That would be why the numbers of those turned around at, or just inside, the border are at an all time high. Rather than accepting these immigrants contrary to law. Right?
Brett, if you want to condemn Obama for not deporting more of those who have been in the country for years, feel free. But at least recognize the cases where he is doing exactly as you wish.
Hartmut:
*i.e., few are honest about the fact
That is part of my problem, although it seems a petty one.
I used to watch the WH press briefings religiously. It was painful, and eventually I couldn’t do it. The contorted justifications for how action X didn’t contradict previous stance Y were horrendous.
At some point, I like it when politicians take it on the chin: I have these principals, but damn, reality (political or otherwise) is a harsh mistress.
As a complete aside, Harmut, I’m in Regensburg (Bayern) for a few days, mostly for work. I don’t know if you know much about the area, and I’m certainly not trying to use you as a travel agent, but I’ve been trying to get off the tourist path as much as possible with broken german. If you had suggestions, they would be welcome.
Obama has a legitimate argument for ignoring Congress’s requirement in the case of the prisoner exchange
Perhaps, in order to make his authority on this matter clear, he should declare that all Gitmo detainees are POWs as codified under the Geneva conventions.
Their current status, according to my IANAL understanding, is largely defined by the executive and not the legislature. Reclassifying them would seem to solve a lot of problems regarding their treatment, as treaties are very highly regarded in constitutional law (again, IANAL).
thompson, that’s an interesting approach. But I’m not clear how it gets square with the acknowledged fact that many of them are not, and never were, combatants of any kind. They just got swept up because someone that they were fueding with grabbed the opportunity to get theAmericans to take them out of circulation. Can you declare a non-combatant a POW?
Can you declare a non-combatant a POW?
I don’t see why not. You can declare them some vague category of person not defined by international or national law.
It’s seems it would be far easier to say we scooped them up as part of the GWOT, therefore they are POWs.
While not ideal, as many of them were not participants in any actual hostilities, it would at least provide a legal framework under which to handle the detainees.
As opposed to the current framework of dark pits and lost keys.
Practically, POW status is only for lawful combatants, and the Taliban may not qualify, depending on uniform, international nature of the conflict, etc (my understanding is that Afghanistan is not an international conflict, its a civil war where international partners happen to be “helping out”). Although my understanding is these laws do not need to be interpreted strictly, wikipedia gives examples where combatants were treated as POWs even though they may not have been lawful combatants (frex, confederates during the US Civil War).
As an aside, it saddens me that I’m pointing back to the rending of our nation over slavery as an example of how to treat people.
However, even if we couldn’t classify them as “lawful” combatants, we could certainly treat them as unlawful. Which would at the very least bring them under some legal framework.
Rather than our current: they are not lawful, nor unlawful combatants, therefore international nor national laws apply.
The sticking point for me, and why I brought it up, is that their definition seems to lack any legislative element (but I could be wrong). My understanding is their “third option” status is purely due to executive contention.
And could therefore be changed by the executive.
thompson, I have not even ever been in that area of the country afaict. Bavaria is our Texas (politically speaking) and I have always been a strong supporter of them seceding for good (even before I heard that they once wanted to sell us to the Russians because they were unwilling to pay the half-penny surcharge on postage stamps used to support Westberlin) 😉
As far as the language goes, in the city it should not be too difficult. Outside it may be another matter since the Bavarian dialect, esp. in rural areas, is not even easily understood by other Germans and people with a working knowledge of English tend to be concentrated in cities too.
And avoid this restaurant 😉
http://www.youtube.com/watch?v=LdPMSd7xA7U
wj:
Sorry, I’m not sure I answered your question.
Yes, I believe non-combatants can be POWs and are afforded protections similar to lawful combatant POWs.
Frex:
http://en.wikipedia.org/wiki/Geneva_Conventions#Common_Article_3_relating_to_Non-International_Armed_Conflict
and:
http://en.wikipedia.org/wiki/Prisoner_of_war#Qualifications
Which is part of the reason I believe the current and past administrations have tried so hard to muddy detainee status as some other category. We can’t break the law if the law doesn’t cover the category of detainee we have.
It’s atrocious.
Bavaria is our Texas (politically speaking)
🙂 I’ve noticed. When a libertarian american is firmly to the left of people he meets in Europe…Ich war überrascht.
You should visit sometime, however. People are friendly and the Donau is beautiful. And while I don’t understand European geography to the extent I should, I imagine it is far closer for you than me.
Which is part of the reason I believe the current and past administrations have tried so hard to muddy detainee status as some other category. We can’t break the law if the law doesn’t cover the category of detainee we have.
One of the first things Obama did in office was to issue an order to close Guantanamo (which didn’t happen because of Congressional action) but also to treat prisoners there in accordance with Article 3 of the Geneva conventions. The “Obama is just another Bush” mantra is a lie. Nice try though.
Rather than our current: they are not lawful, nor unlawful combatants, therefore international nor national laws apply.
We’re actually declaring them unlawful combatants, and then asserting that neither international nor national laws apply, mostly. We do, as sapient points out, hold that our particular vision of Common Article III protections apply (and nothing more*). In the past, sapient and I have gone at each others’ throats as to whether that vision is a reasonable one, so I’ll leave it at that. However, back on point. The current AG held out in Congressional testimony that one need not have engaged in any combat to merit UEC status, nor to have been physically captured on the battlefield to have been “captured on the battlefield”, so there is an argument to be made that by the administration’s standards there would be no need for them to be “real” combatants to declare them POWs. However, as POW is a well-defined and regular category not crafted explicitly with the intention of including such individuals (unlike UEC**), it might not stick. Also, the sticking point politically would be the necessity of declaring them lawful combatants (even if only implicitly) IOT deem them POWs, which is so unpalatable that it could never happen. IMO.
*Which is interesting, given that we’ve conceded that our conflict with the Taliban was an armed conflict of international character, and that American policy is to abide by the laws of war even against non-contracting states.
**Unlawful enemy combatant is an American legal concept. Though Geneva refers to and defines characteristics of lawful combatants, unlawful combatants are not mentioned nor discuss, excepting certain categories not named as such (e.g., mercenaries). To the best of my knowledge, the current definition in force is the one from the MCA of 2006:
Note that there is good-faith reason to dispute that, even after the substantial improvements afforded by the MCA of 2009, any of the detainees we’ve declared UECs have been before a competent tribunal in the terms of the Convention.
Note that there is good-faith reason to dispute that, even after the substantial improvements afforded by the MCA of 2009, any of the detainees we’ve declared UECs have been before a competent tribunal in the terms of the Convention.
No doubt that the mess that Bush created, called Guantanamo, isn’t a model of justice even now. Blaming Obama for this, while spending this entire thread calling into question Obama’s fidelity to the law because he did a prisoner swap? Ha ha.
Obama could have pushed much more strongly to close Guantanamo Bay, but at the end of the day he’s a politician and knows that the majority of Americans and the majority of Democrats oppose the closure – so he didn’t.
A politician following polls is rather unsurprising, the fact that a majority of Americans have no respect for the law and human rights anymore is sad.
My hope is that Obama will push for closure sometime towards the end of his term, as he seems to be worried about his legacy.
A politician following polls is rather unsurprising, the fact that a majority of Americans have no respect for the law and human rights anymore is sad.
It would be helpful to link to the polls. Most people I know think that Guantanamo is a travesty. Also the polls in your country might be helpful. They might explain why we can’t send prisoners there.
My hope is that Obama will push for closure sometime towards the end of his term, as he seems to be worried about his legacy.
My belief is that Obama can’t “push” the Republicans in Congress, or the conservative Democrats who act like Republicans on certain issues. If Obama could “push” things, a lot of stuff would be different. Instead, when Obama uses arguable legitimate Executive authority to do things that are just, we get folks like Ugh and thompson being “concerned” and “interested in the law” and all that faux b.s., criticizing Obama for acting.
Is it because he’s the first black President? Is it because people are cynical beyond belief? Hard to know. But “pushing” isn’t going to work.
“we get folks like Ugh and thompson being “concerned” and “interested in the law” and all that faux b.s., criticizing Obama for acting.”
Sapient, at some point in your life maybe you’ll come to the realization that not everyone believes in the Obamacentric universe. Some people can criticize his actions on a particular issue because, you know, they genuinely disagree with what he’s done and not because he is Obama. Sure, there are also people who despise him no matter what–most of them are called “Republicans”. Some are on the far left. And no, I’m not one of them. I get disgusted by nearly all mainstream politicians at one point or another, reacting the way thompson does when I hear them speak, but am currently a bit more pleased with Obama than usual on a few issues. Not that this matters, except that I think people like me probably can’t exist in your model of the universe.
I’m curious to see how you’ll treat the next President if he or she is a Democrat. Is Obama a special case or do all Democrats in the WH deserve this sort of fanatical commitment?
sapient: folks like Ugh and thompson being “concerned” and “interested in the law” and all that faux b.s., criticizing Obama for acting.
Is it because he’s the first black President?
You got me. If he was the second black President I would have let it slide.
Is Obama a special case or do all Democrats in the WH deserve this sort of fanatical commitment?
I don’t really see how it’s fanatical to tell the truth about the fact that Obama has done what he can with the options he’s had regarding Gitmo, rather than saying things like thompson did: “Which is part of the reason I believe the current and past administrations have tried so hard to muddy detainee status as some other category.”
Obama never tried to muddy anything. Why would he say that?
And, yes, I also told the truth about Al Gore, who was also lied about, and John Kerry, who was swiftboated. And, remember, people voted for Nader because Al Gore was fat or unfunny or whatever it was, at the time, they objected to, and George W. Bush took office? Telling the truth about what people do, and what options they have, makes it easier for people to figure out the issues, and the candidates who deserve to be elected.
The “concerned” people and the “disappointed” people might be less so if they’d focus on the truth.
Sapient, you seem incapable of distinguishing between serious criticisms of Democrats and partisan hackery–everything seems to look like partisan hackery to you. Yes, much of the criticism of Democrats that reaches the mainstream press is wrong or even absurd. It doesn’t follow that every criticism of an act by a Democrat is stupid or made in bad faith. You don’t seem to understand this.
“He’s done what he can” is a debunked though popular myth – quite the opposite, Obama is in favour of indefinite detention without trial and has pushed hard to enshrine it into law.
It doesn’t follow that every criticism of an act by a Democrat is stupid or made in bad faith.
However, if you would just focus for a moment, the example I cited did seem to fall into that category.
pushed hard to enshrine it into law.
There he is, pushing again.
NomVide:
Thanks for the well-written and educational response.
Also, the sticking point politically would be the necessity of declaring them lawful combatants (even if only implicitly) IOT deem them POWs, which is so unpalatable that it could never happen. IMO.
Yeah, I get that its a sticking point politically, but my point is that definition seems that it would be firmly within the realm of of executive authority. The MCA in Section 6 specifically grants the president authority to determine the authority and applicability of Geneva:
As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.
http://www.gpo.gov/fdsys/pkg/PLAW-109publ366/html/PLAW-109publ366.htm
My understanding, (again, IANAL), is that the MCA grants the president pretty broad authority in defining the status of prisoners.
Which is why I’m unconvinced that Obama is completely unable to alter the status of the detainees to bring them under international treaty obligations.
sapient:
I don’t really see how it’s fanatical to tell the truth about the fact that Obama has done what he can with the options he’s had regarding Gitmo.
As I’ve explained above, I feel the current administration has not done all that it can do. Perhaps you disagree on with me on that, a concept that I assure you doesn’t personally offend and/or enrage me.
If that’s the case, I would be interested to hearing your arguments, or even simply additional information that would further illuminate the situation.
NomVide, for example, provided information about what defines the detainee status in current law. Important and relevant information.
Alternatively, perhaps its not simply a legal question, but also a political one. Obama, like all presidents, also exists in a political world, and must make decisions about where to spend his political capital. I would again be interested in thoughtful perspectives on that.
But as I said previously, crap like this isn’t interesting to me:
Is it because he’s the first black President? Is it because people are cynical beyond belief?
It’s offensive and tiring.
My understanding, (again, IANAL), is that the MCA grants the president pretty broad authority in defining the status of prisoners.
Well, the link you provided to the MCA indicates various definitions that are applied to prisoners. Are you suggesting that the MCA allows the president to make stuff up? Why don’t you specify what you think (without concerningly breaking the law, of course) Obama could do?
Which is why I’m unconvinced that Obama is completely unable to alter the status of the detainees to bring them under international treaty obligations.
Could you describe how detainees are currently not being treated in accordance with international treaty obligations? You already got it wrong about the applicability of Article III of the Geneva Conventions.
sapient,
The answer to every one of those questions is contained in my previous posts.
Perhaps they are unclear, I’m not always the best writer. I’m normally happy to clarify what I said and what I was trying to say.
But your questions are loaded with snark, as have previous ones. While I’ve tried to be polite, I’m really tired of dealing with it. So, I’m out.
If in the future, you are interested in having a discussion with me, I’d appreciate it if you left the snark out.
The answer to every one of those questions is contained in my previous posts.
Really?
Perhaps they are unclear
Yes.
geez, has it already been a week? Here’s your weekly intervention Sapient, stop being a prat please.
An interesting take on the Bergdahl situation, by Bergdahl, senior.
Apologies if someone already linked to this.
There is still an enormous amount that we don’t know, of course. But the more that I read on this whole situation, the more I am getting déjà vu.
The echos may prove to be false. But the term SwiftBoat keeps popping up in my mind. Hopefully, the military will conduct their investigation and make the results public. Not that it will change some minds, regardless of how it falls out….
That he could humanize his son’s captors speaks volumes about his character.
“We pray for him. He recently lost a son to a CIA missile drone strike. The fact that he didn’t kill Bowe right then is incredible. So we pray for him.”
That he could humanize his son’s captors speaks volumes about his character.
Yes, I thought that was remarkable also. He seems like a pretty thoughtful guy.
Some more on Bowe’s situation, from the Chicago Tribune, and also from the NYT.
The Bergdahls are the political infighting chew toy du jour. I hope this all blows over ASAP so they can all just get on with their lives.
The Bergdahls are the political infighting chew toy du jour. I hope this all blows over ASAP so they can all just get on with their lives.
I’d agree. They deserve their joy and their peace. Like I referenced earlier, the pushback against a welcome home celebration in his hometown is in remarkably poor taste, and deeply saddening. And this, from the NYT you linked, is just disgusting:
Late Saturday, the F.B.I. said the Bergdahl family in Idaho had received threats.
I hope this all blows over ASAP so they can all just get on with their lives.
Me too, but do you think that’s likely? There will surely be Congressional hearings on the concern Congress feels about Obama “breaking the law” in order to bring Bergdahl home. My guess is that it will not end for quite some time.
… the pushback against a welcome home celebration in his hometown is in remarkably poor taste, and deeply saddening.
We might also call it “ill-considered”.
But to call it ill-considered would imply that the yahoos doing the pushback are capable of well-considered … well, anything.
It’s not bloody likely that those yahoos are generally pro-Obama but are “concerned” about his “ill-considered” action in re Bergdahl. But anybody who says that the legal parsing of Obama’s position does NOT embolden them just a little bit is fooling himself.
I am NOT saying that we should refrain from that parsing. I just want to point out that we live in the same country as the yahoos, and anybody who finds fault with Obama had better denounce the yahoos in the same breath if he wants my respect.
And by “denounce”, I mean denounce. I mean call them out as rabid scum. Any politician, pundit, or blog commenter who is not willing to risk their wrath by calling them rabid scum is invited to kiss my ass before telling me about Obama’s horrible violation of the 30-day notification business. If Senator Huckleberry J. Butchmeup wants to prattle prettily about impeachment, let’s hear him say it loud and proud: “These are f#$%ing mole people. They are a bigger danger to the republic than the Kenyan usurper in the White House.”
–TP
Me too, but do you think that’s likely?
No.
Thanks so much, Tony P.
Don’t want to taint you with my “partisan hackery”, but where I’m coming from is this: I live in a state that is just on the verge of overcoming the yahoos. (Actually, I live in a country like that, but the battleground is here.)
I’m happy to scratch my chin and wonder whether the standing prohibition, or whether the political question prohibition, or whether the case and controversy prohibition, would apply to bar someone who tries to challenge the President’s action here. What fun as a private dinner party game! (The public result is: what he did is okay, and won’t be challenged in court.)
But assisting the yahoos in making this the new Benghazi (Bergdahli , as I saw someone elsewhere call it)? Nope. I’m not doing that.
Furthermore, Guantanamo is a mess that Obama has tried to deal with. He’s been stymied. It’s ridiculous to equate him with Bush. I’m particularly “concerned” about the integrity of those who accuse him of overreaching by violating the 30-day-notice statute, then suggest that he should add free-for-all definitions to the U.S. Code, in order to change the status of prisoners in Guantanamo.
And others who invite my dismay are the people who think that Obama should just “push”. Yeah, that’s the ticket.
Oh, and liberal japonicus: I did a quick review of my comments, expecting to be embarrassed by my assh(()lery, and guess what? I stand by everything I said. I’m saying this to you, someone whom I respect very much as a prickly friend.
You realize that when you say ‘I stand by my assh(()lery’, you are admitting that you are being an asshole? Is this an essential part of your stand? Is it something that is absolutely necessary is setting out your point? I don’t think so and people are pointing out it is not. Doesn’t that make you pause just for a second?
I’m outside the country, trying to keep up with things and looking for discussion. Heaping servings of snark seem to be an attempt to make the other person mad enough to write something in anger and then we are off to the races. It really is tiresome and it detracts from any points you are trying to make. It’s obviously something that doesn’t seem to bother you at all, but it bothers me and russell and thompson at least. If that doesn’t give pause, I’m sure that there is nothing anyone can say, so basically, trying to have any discussion with you is a waste of time and I’d urge everyone to keep that in mind.
an ObWi without snark is no ObWi i know of.
Perhaps, but people saying they stand by their assholery doesn’t seem very ObWi-ish either
all snark aside, Lance Mannion hit a homer on Bergdahl:
http://lancemannion.typepad.com/lance_mannion/2014/06/saving-sergeant-bergdahl.html
Memo to Sapient: Your snark lacks the humorous deftness that characterizes truly great snark. The line between great snark and assholery is a fine one. Compare, for example, the pathetically sad efforts of a Tom Wolf vs. those of Ambrose Bierce or Mark Twain.
It’s nothing that cannot be overcome with a bit of hard work. Carry on!
FWIW, my thoughts.
Snark is fine. There will never be a shortage of snark on ObWi.
Heated exchange is fine. Hopefully, there will never be a lack of that, either.
Things that I, personally, find to be really bad form are stuff like:
Willful refusal to address points other folks raise
Moving goalposts and/or changing subjects, mostly in service of the above
Mischaracterizing things that other people say so as to misrepresent their argument
Basically, all of the above strikes me as bad faith and dishonesty, and it pushes my buttons. That’s me.
I have no interest in preventing folks from posting here for any of those reasons, I’m just likely to respond to the above with some degree of anger.
Lastly, if you’re going to dish out the snark, you need to accept a certain degree of snark / hostility / being invited to piss up a rope in reply with a degree of grace.
No personal ill will or calumny intended in any of the above. We’re all just electrons on this bus, I’m sure we all understand that our complete and total personhood does not depend on our online interactions.
Over and out.
Obwi is all I am and all I will ever be.
Hillary didn’t get the memo.
http://mobile.politico.com/iphone/story/0614/107645.html
Hillary say Henry Kissinger is a friend of hers. nothing she says can be taken as anything but the rantings of a delusional sociopath.
But cleek, all politicians say that they are friends (dear friends, even) of people that they have barely met.
How close a relationship “friend” means varies a great deal across our various sub-cultures. Not to mention between cultures; Hartmut can doubtless comment on the way that the difference between “Freunde” and “Bekannter” vs their usual translations of “friend” and “acquaintance”. But briefly, a person is likely to have only a couple of “Freunde” in a lifetime. Whereas, even outside politics and Hollywood, “friends” (in English) covers a far less close set of relationships. (Hence Germans’ undeserved reputation for being cold and distant.)
Perhaps, but people saying they stand by their assholery doesn’t seem very ObWi-ish either
Just for the record, that’s not what I said. I said that I stood by my comments. I also said that I took your cue, liberal japonicus, to look back at my comments to see whether they were over-the-top. They really aren’t. The only thing that I saw that anyone could object to, was wondering whether the overwrought “concern” over the legality of the President’s actions was because he was the first black President. Of course, the alternative that I offered was that it is because of jaded cynicism, which is probably where most of my opponents on this issue are coming from.
In any case, back to the substance of the conversation: In the past few years, rather than complaining about policy, people seem to be obsessed with the Constitutional power of the Executive. This is true of blog commenters, but it’s also true of Congress. Rather than making substantive policy, it spends time investigating past Executive actions, and making laws attempting to limit Executive power (such as those regarding Guantanamo). Notice that no legislation has been passed regarding the NSA, no legislation has been passed regarding the military use of drones, Congress hasn’t reconsidered the AUMF, etc. All of these things are within Congressional power.
Prisoner swaps? Not so much. But Congress is now used to thinking more about what the President shouldn’t do, rather than what Congress should do. It’s a tendency that shouldn’t be supported if we want a country that functions well.
In Eastern Germany the word ‘Freunde’ (friends) carried an additional meaning. “Die Freunde” (The Friends) was the official way to refer to the Soviet Union, in particular the Red Army (and even more particular the Red Army crushing popular uprisings in the Eastern Bloc). As a result there was a common joke: ‘Are the Russians our friends or our brothers*?’ Answer: ‘They must be our brothers because one can choose one’s friends’.
*Unsere Brüder (our brothers) was the official term for the other Warsaw Pact countries that were not the Soviet Union.
Tony P:
and anybody who finds fault with Obama had better denounce the yahoos in the same breath if he wants my respect.
Than I suppose I don’t want your respect, not at that cost. I’m happy to criticize Obama, congress, yahoos in general, etc etc etc, when I feel I have something unique and useful to say on the subject that hasn’t been covered by someone else.
But some sort of cosmic balance sheet (Oh, I criticized Obama X much today, I must also criticize whoever Tony P doesn’t like X amount), I’m not interested in.
And by “denounce”, I mean denounce. I mean call them out as rabid scum. Any politician, pundit, or blog commenter who is not willing to risk their wrath by calling them rabid scum is invited to kiss my ass before telling me about Obama’s horrible violation of the 30-day notification business.
No, thank you, to all accounts. I try my best to be temperate and measured in my comments. If you’re looking for ‘rabid scum’ level comments, I’m sorry to disappoint, although I’ve noticed there are plenty of commenters here and elsewhere that would oblige.
The rhetoric is too heated in this country already. I don’t wish to contribute to that, even in a small way. Stylistic choice, I suppose, and don’t think less of you for your more impassioned style.
And if you don’t want to talk about the finer points of the law with me, because it offends you to talk about that and not the yahoos in BFE, than don’t respond to me. It’s that simple, and I assure I’m not offended. Everybody’s looking for something, rarely the same thing.
Me, I came to ObWi because there are often insightful comments. Often informative comments. And occasionally both. I contribute when I have the time and think I have something to say that isn’t being said by someone else.
But anybody who says that the legal parsing of Obama’s position does NOT embolden them just a little bit is fooling himself.
Let “them” be emboldened. I doubt all those “yahoos” are trolling ObWi, just waiting for me to produce a narrow legal argument to bring against Obama. And if they are, I’d rather they see a constructive discussion on the finer points of the law. At least than they can talk about something more productive than commie-kenyan-islam-birth certificates or what have you.
In the meantime, I am interested in the legal parsing. I think it’s important. I think the laws are important, and that the president, Bush or Clinton or Bush again or Obama (or maybe Clinton again) follow those laws. Even the stupid ones I don’t like.
And you’re free to not care about this, and care about something else. But no, I’m not going throw in crap about how I don’t like yahoos and denunciations of “rabid scum” in my fine legal parsing. It’s unproductive and not why I’m here.
In the past few years, rather than complaining about policy, people seem to be obsessed with the Constitutional power of the Executive. This is true of blog commenters […]
Setting aside Congress, because Congress is hardly the only thing you’ve heatedly addressed in this thread and on this subject, if you think this is an “in the past few years” thing, you weren’t paying attention to the eight years before Everything Changed (Again, But This Time With Hope!). And, um, there’s been plenty of complaints about policy accompanying the complaints about policy accompanying complaints about executive authority. The two go hand-in-hand when you’re attacking the Imperial President theory of executive authority. The objectionable part of an Imperial President isn’t just the overreach in claiming more authority than explicitly granted by the Constitution, it’s also how the executive conducts itself when it’s not overreaching. Neither of these are a new thing, nor a new set of objections trotted out for the current executive. If you didn’t notice them before, it’s probably because they were being shouted away from your camp, not at it.
Argh, this is why we proof our comments before we hit “post”. Or possibly why we re-proof them.
Neither of these are a new thing, nor a new set of objections trotted out for the current executive.
The objections there were to Bush (who took office by selection)and his Unitary Executive Theory, encompassing torture, lying our way into a war of occupation, etc., should be a good bit more dramatic than those to Obama, who did a prisoner swap. Just my opinion.
And, thompson, I’ll take snark over priggishness any day of the week.
Anyway,
Hillary didn’t get the memo.
Too bad she didn’t get this one either!
It would have been truly awesome.
And, thompson, I’ll take snark over priggishness any day of the week.
Sapient, you’re not going to get a rise out of me. Because a flame war is boring and a waste of my time.
Because a flame war is boring and a waste of my time.
Not looking for one. Just pointing out my preferences, like everybody else.
Just pointing out my preferences, like everybody else.
Ok, sounds good.
Obwi is all I am and all I will ever be.
No more Dobie? 🙂
sapient: The objections there were to Bush (who took office by selection)and his Unitary Executive Theory, encompassing torture, lying our way into a war of occupation, etc., should be a good bit more dramatic than those to Obama, who did a prisoner swap.
I object! But we must look forward….etc.
Renounce and denounce! Ah, politics at its purist. It is an honored American tradition to browbeat the left, insisting on renouncement and denouncement (cf. J. Edgar Hoover’s FBI, Joe McCarthy, HUAC).
Aeiiiiii, “little hitlers falling from the WTC! But I digress.
I always tell people that I performed my monthly ritual purification at the last cell meeting (as I recall, it was to renounce and denounce Earl Browder). You will notice lefties, due to their abject ineptness when it comes to seizing the reins of government here, have never called on Condi Rice (to take just one example) to renounce and denounce the Bush crime family or personally suffer the pangs of “enhanced interrogation”.
“America firsters” didn’t have to come before some congressional committee after WWII and rat each other out for being Nazi sympathizers.
So it is pretty much the tradition that the right does not renounce and denounce the goons in their closet. For example, Brett will most likely never post here his abject apologies for cavorting with people such at this.
Why would he do so? There’s no percentage in it.
Although I would like him to comment on the stupidity of the Walmart bystander who decide to go full “stand your ground” and wound up involuntarily adding himself to the casualty list.
35 school shootings so far this year!
a banner year for freedom.
But we must look forward….etc.
Eh, when I voted for Obama, I had some thin hope there would be, if not a reckoning, some sort of national dialog about the executive excesses of the Bush years.
There wasn’t, or at least not one that satisfied me. The dialog, as it was, faded. Partisans adamantly for the strong unitary executive suddenly weren’t. And partisans adamantly against the strong unitary executive suddenly were.
Pretty much broke my faith in the two party system. Maybe made me a little cynical.
In my view, the present is a perfectly fine time to talk about the imperial presidency.
To return to my initial comments, the Bergdahl affair is the jaywalking of the imperial presidency, a political loser for the republicans, and an overall good outcome.
But that doesn’t mean I’m happy about the methods, or how blithely the administration ignored statute.
In some attempt to re-engage in a productive discussion, I cited part of the MCA above:
As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.
Which I read as giving the President statutory authority to interpret the GCs and apply them to the detainees. In other words, he could declare the Gitmo (and Bahgram) detainees as POWs worthy of GCIII protections. Or alternatively, GCIV protections.
Regardless, he could bring them under some sort of international agreement, and out of the murky status they have currently.
thompson: Eh, when I voted for Obama, I had some thin hope there would be, if not a reckoning, some sort of national dialog about the executive excesses of the Bush years.
Yeah, me too. I even allowed myself to fantasize about war crimes prosecutions of Cheney and his merry gang of torturers. But I knew it was just fantasy.
If the GOP and the maistream commentariat ever agreed with Obama on anything it was that: enforcing the law w.r.t. Cheney et al would be “criminalizing policy differences”. The Peggy Noonans and David Gergens of the world would have apoplectically clutched their pearls and dived for their fainting couches.
I still think it may have been a strategic mistake for Obama to “look forward, not backward”. On the other hand, his decision to do that may have spared us an actual civil war: the don’t-tread-on-me crowd has been murderous enough without the provocation of seeing Cheney in the dock. Happily or unhappily, we can never know how far the Limbaughs and the Coulters would have gone, had Obama tried to abide by — i.e. enforce — The Law.
–TP
In other words, he could declare the Gitmo (and Bahgram) detainees as POWs worthy of GCIII protections.
No, actually, he could declare that detainees have the protections of Article III of the Geneva Conventions. Yes, indeed – and he actually did that. (I guess you didn’t read the link to the Executive Order I provided you, Mr. Manners. At least I read yours).
According to the link you provided, there are various definitions of detainees under the statute, and P.O.W. isn’t one of them.
http://www.alternet.org/story/140556/obama_risks_%27future_guantanamos%27%3A_sen._russ_feingold
http://www.salon.com/2012/07/23/the_obama_gitmo_myth/
I still think it may have been a strategic mistake for Obama to “look forward, not backward”.
A lot of the suddenly unemployed would have loved to have watched those torture hearings on TV.
I think that Obama might have been a bit more assertive about the Executive Overreach failures of the Bush administration had it not been for the fact that he had to use whatever Executive powers he could argue for in order to bring the country out of the 2nd Great Depression.
According to the link you provided, there are various definitions of detainees under the statute, and P.O.W. isn’t one of them.
Really, sapient? That one particular act does not define certain terms does not mean those terms do not have legal meaning. And it’s not like the MCA precluded individuals from having other related characterizations. Where the MCA 2006 leaves* the Executive more than enough wiggle room (honestly, far, FAR too much “wiggle room”) to pursue what thompson suggests – to include sweeping or even ridiculous interpretations of the term POW – is in Sec 6(a)(3):
What he could – and indeed, should – do is establish competent tribunals (in the Geneva sense of the phrase; most pointedly, tribunals that have the authority to make status determinations in accordance with Geneva) and send each and every detainee before them individually to perform a determination WRT “prisoner of war” status. As the Convention, ya know, requires, and as we have never done. It would be mindnumbingly hard for Congress to challenge executive authority to do so, though I have faith that the current Congress would try. I also have faith the current administration would never, ever do this, because admitting that the previous sham determinations that all these detainees lacked POW status would be more egg on America’s face (to somewhat understate this) than they could bear to see. And that’s before we get into possible ramifications of having treated POWs as we’ve treated the detainees over the years.
*And this is assuming that Congress has authority over this area. If we subscribe to a school of thought that has deemed this part of the President’s inherent authority as CiC and/or to interpret how the government shall implement laws and treaty obligations, the degree to which Congress handed the Executive broad discretion here is irrelevant.
It would be mindnumbingly hard for Congress to challenge executive authority to do so, though I have faith that the current Congress would try.
Yes, witness the current thread.
I also have faith the current administration would never, ever do this, because admitting that the previous sham determinations that all these detainees lacked POW status would be more egg on America’s face (to somewhat understate this) than they could bear to see.
I was with you for awhile, Nombrilisme Vide, but as to as this, I’m not.
What’s actually happening is this: This administration has dealt with as many prisoners from Guantanamo as is possible (in other words, sent them elsewhere). There are some problem people who either should be tried in court (in the United States) who can’t be (because of Congress) and people who can’t be placed in any other country.
You show me an example of someone whose status could be changed to “Prisoner of War” whose circumstances could be made better.
By the way, let’s talk for a moment about Chelsea Manning (not to derail the thread – maybe we should start a new thread). These days, we don’t hear about her so much. Maybe because, after having been given a reasonably fair trial with whatever great lawyers she had tending to her, she lost.
What’s happening in Gitmo is that there are some people there who Congress doesn’t want to let go. That’s the reason for the “30-day” rule that people are so concerned about. It’s not human rights, so get a grip on whom you’re arguing with.
” had it not been for the fact that he had to use whatever Executive powers he could argue for in order to bring the country out of the 2nd Great Depression.”
Or, anyway, bring a small part of it out, mostly centered around DC, while leaving the majority of the country mired in it. Labor force participation rates have continued dropping since the recession’s beginning, an ever larger fraction of the population are jobless as time goes by.
Labor force participation rate.
This is not what you usually see during a “recovery”. IMO, we didn’t actually have a recovery, we just hit bottom, and then, without a rebound, continued normal growth rates from the bottom of the recession. Only the economy is bifurcating, part of it in recovery, most of it still in recession.
Oh, also, Nombrilisme Vide, hope you did well on your LSATs and that you go to law school if you want to do that. I loved law school (and I’m saying that with utmost sincerity, from the bottom of my heart). It’s extremely unpopular these days to encourage law school (so, folks, give me another huge slap for doing it here!)
That said, when I entered the practice, I realized that it’s not always possible to persuade judges to see things your way. (And no, I wasn’t snarky, those of you who are judging!) The fact is, sometimes good people don’t win.
I think that maybe some people are persuaded by others (maybe Chelsea Manning by Julian Assange, or Edward Snowden by Glenn Greenwald and Laura Poitras) that they can be heroic, and then can win in court. Not true. Court is as arbitrary as anything on this blog. Judges are usually really good people. But they’re people. Sometimes “polite” (sometimes not). Sometimes right (sometimes not). Sometimes attentive (sometimes not). The law is like anything else.
Sometimes the law is just common sense. Is it right for Congress to interfere with a prisoner swap? Is it even right for Congress to interfere with the Executive power to release prisoners? Think about it. Don’t even look at what might be the relevant articles of the Constitution. Does it make sense?
The founders wanted (IMHO) a Constitution that made sense.
Yes, witness the current thread.
See? I told you you could get the hang of it.
Labor force participation rates always drop during a recession. When, after months of trying, people still haven’t managed to land a job, there is a natural tendency to just stop trying. And then to only try again when things have picked up and the word is out that employers are looking for people to hire. Which, as you say, hasn’t happened yet.
There are two main ways to get that to happen; or at least to get it to happen more quickly:
1) The government spends money (necessarily borrowed) on projects which will need people hired to do them. Some on government payrolls; some with companies getting contracted to do things for the government.
2) Benefits get slashed, so people are forced to look longer and take anything that might be offered without regard to wages paid or anything else. Or starve. Literally.
You can choose for yourself which approach you are more comfortable with.
For the past century, we have generally taken the first approach. Except this time. This time, unlike the last century’s worth to recessions, government payrolls actually got slashed. And government spending on contracts got slashed as well. Amazingly enough, the economy has taken a lot longer to recover. Quelle surprise.
for Thompson:
http://www.vox.com/2014/6/6/5785848/are-bergdahl-style-prisoner-exchanges-the-platinum-coin-of-closing
for the rest of us mortals:
http://www.asser.nl/default.aspx?site_id=9&level1=13337&level2=13382
Or, anyway, bring a small part of it out, mostly centered around DC, while leaving the majority of the country mired in it.
job growth has been fairly steady since 2010.
Labor force participation rates have continued dropping since the recession’s beginning
tell us…. who was President when that happened?
, an ever larger fraction of the population are jobless as time goes by.
but no actual economist knows why that is. but most of them, when interviewed about this, seem to say it probably has a lot to do with Boomers deciding that they’d rather just retire than work.
the shitty economies in the rest of the world hasn’t helped, either.
This is not what you usually see during a “recovery”.
this has not been what you usually see during a recession, either.
we’re in uncharted territory.
hope you did well on your LSATs and that you go to law school if you want to do that.
That is the plan. Besides being, well, *school*, and letting me put off real adulthood (which any past or present professional student recognizes as the bane of all that is good and decent in the world) for three more years (well, four, since I’m holding off a year rather than going with whatever fall ’14 admission I could get at this late date), I think it’ll be something I’ll enjoy doing. Given my background, I’m looking at going somewhere with a good IP/tech law program… although an international law program has more than a little appeal, too. We Shall See.
(I think I did okay on the LSAT. Not “good”, thank you, pacing issues on the games section, but hopefully very far from awful. We’ll see come July.)
Court is as arbitrary as anything on this blog. Judges are usually really good people. But they’re people. Sometimes “polite” (sometimes not). Sometimes right (sometimes not). Sometimes attentive (sometimes not). The law is like anything else.
Trust me, I have no illusions here. Any that I had (which were few enough) on this count didn’t survive my time doing military corrections/paralegal work. I’ve been in court. It’s as full of people as everywhere else.
That’s partially why I’m a bit of a idealist about rule of law, though. You’ve got to push hard for it, and try to reduce the precedents that make it easier for too-human judges to be too human. I want to see our detainees properly determined to be POWs or not because we damn well should have done it a decade ago, and even though doing so might not improve their situation one jot (though it certainly could; if nothing else, they’d have more legal protections than they do now), it’ll make future abuses harder to ram down our collective throat. This is idealism, I know, but you must at least concede it’s idealism tainted with more than a little cynicism…
I’m okay with you, N. V. I respect your experience, your intellect and your idealism. If I snark you in future, it’s all in good fun.
I believe what I’m saying too, though, so giving me that is all that I ask.
Nice, bobbyp.
Labor force participation rates have continued dropping since the recession’s beginning
Labor Force Participation Rate (LFPR) has been declining for working age males since the 70’s.
It has been increasing for working age women.
Recently, it has been increasing for older folks (aged 64-70).
Recession and post recession: It has declined precipitously for black males (I guess they, unlike whites, have found a way to live off the fat of the land).
There are many conflicting reasons put forward for these trends.
Perhaps Brett can provide a cite for his startling analysis. Because it it truly weird.
“Labor force participation rates always drop during a recession.”
So, you’re conceding that we’re still in recession, since it’s still dropping?
“who was President when that happened?”
Obama was President when they continued dropping. If you didn’t notice, we’re now in his second term, Bush hasn’t been President for approaching six years now, and they’re still dropping. At some point, he has to stop forwarding the buck to Bush.
“seem to say it probably has a lot to do with Boomers deciding that they’d rather just retire than work.”
Mainly because they can’t GET any work. The really helps you decide.
“we’re in uncharted territory.”
That, we can agree on. In fact, here’s a chart, to prove it. Notice how, in prior recessions, the recovery was at approximately the same rate as the drop? You might call that a “symmetric” recession.
In the case of THIS recession, the recovery has been much slower than the drop, and by some of the usual measures, such as labor force participation, hasn’t happened at all.
Either this is not the “recession” of years past, but something new, or something major has changed in the way we responded to recessions. Maybe deliberately driving up energy prices in the middle of an economic downturn isn’t a good idea?
“Labor force participation rates always drop during a recession.”
So, you’re conceding that we’re still in recession, since it’s still dropping?
Nice try, but no. I’m not even saying, much less “conceding”, that we are still in a recession.** I’m just saying that labor force participation does not recover until after the recovery is well under way.
We are indeed in unchartered territory. I note two features of this territory. First, as you not, the recovery has been much more gradual than the downturn. Second, for the first time, the government has spent the recession cutting rather than increasing spending. Correlation, for sure. And there is some reason (albeit not, perhaps, convincing to you) to believe there is some causation there.
** “Recession” has a rather tightly defined meaning in economics. Has to do with having a number of quarters in a row where the GDP drops. On that well-established definition, we are no longer in one. Which is, of course, not the same as saying that the economy has returned to anything like robust health. Perhaps we need a new term to label those times when the overall economy is growning, but the bulk of the population is not seeing it in their own lives….
I note the LFPR for Republican House Majority Leaders has fallen off the cliff.
Is this the beginning of a secular trend? I doubt it. It’s most likely Obama’s fault.
sapient:
No, actually, he could declare that detainees have the protections of Article III of the Geneva Conventions. Yes, indeed – and he actually did that. (I guess you didn’t read the link to the Executive Order I provided you
You are correct, and I am familiar with that EO. I didn’t respond at the time because NomVide made the distinction I was going to make, and the conversation had since moved on.
Obama signed an EO that treats them as described under Article III of the GCs. That is not the same as interpreting all of GCIII (or IV) to apply to the detainees. Especially the parts about determination of POW status, which are not covered by Article III.
What I meant by GCIII and GCIV was the 3rd and 4th Geneva conventions, not Article III and Article IV of the GCs. That seems to be the shortening used in wiki, I thought that was clear from context but perhaps not.
I’ve been arguing he has the statutory authority to apply the 3rd Geneva convention (or the 4th): frex assign competent tribunals, etc, etc, as NomVide has described in more detail.
Which is beyond treating them according to Article III, which was a commendable action as it were. I’m not going to argue they are not better off under Obama than Bush, if that’s the point you’re trying to drive home. They are better off, no doubt.
But that’s the past, and in the present their status is still a problem. Bringing them under our treaty obligations would be a step in the right direction.
NomVide:
the Executive more than enough wiggle room (honestly, far, FAR too much “wiggle room”) to pursue what thompson suggests
That is what I’m suggesting. Thanks, its nice to know I’m at least stringing together words in some sort of coherent fashion.
For the rest of it, perhaps I should just second your opinion. On law:
You’ve got to push hard for it, and try to reduce the precedents that make it easier for too-human judges to be too human.
Yep.
On POWs:
I want to see our detainees properly determined to be POWs or not because we damn well should have done it a decade ago, and even though doing so might not improve their situation one jot (though it certainly could; if nothing else, they’d have more legal protections than they do now)
Yep. It’s the more legal protections I’m interested in. Also the laws involving the close of hostilities.
Bobbyp’s link notes some practical difficulties around releasing prisoners, and there are some. But in my personal opinion, they pale in comparison to the moral and ethical problems of keeping them.
At some point, he has to stop forwarding the buck to Bush.
just as soon as “conservatives” admit that they were at the helm when the ship started sinking.
Mainly because they can’t GET any work.
there are jobs. the private sector is essentially where it was pre-recession, and is still growing.
Either this is not the “recession” of years past, but something new, or something major has changed in the way we responded to recessions
both, actually.
and a large part of what has changed has been the govt’s response. the federal government cutting hundreds and hundreds of thousands of jobs and billions in spending during a recession was absolutely stupid. as is playing chicken with the budget and the credit limit at every opportunity, all the while screaming about uncertainty. but, that’s what a GOP-run Congress gets you – screaming fiscal idiocy. and what it gets them is the ability to cause more unemployment, reduce demand, keep their boot on the economy’s neck while complaining that the economy won’t get up and dance for them.