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by Katherine

The early Congressional reaction to the Hamdan decision is not encouraging. And just as the Supreme Court’s holding on the legality of Bush’s military commissions was not the most important part of its decision, a Congressional attempt to authorize those commissions by statute is not the worst possible part of the response.

Lindsey Graham and Mitch McConnell have both discussed an attempt to reverse the Court’s holding that Common Article 3 of the Geneva Conventions apply to the conflict with al Qaeda. Graham said, on today’s Fox News Sunday:

The Geneva Convention aspects of this decision are breathtaking. The question for this country is should Al Qaeda members who do not sign up to the Geneva Convention, who show disdain for it, who butcher our troops, be given the protections of a treaty they’re not part of.

My opinion — no. They should be humanely treated, but the Geneva Convention cannot be used in the war on terrorists to give the terrorists an opportunity to basically come at us hard without any restrictions on how we interrogate and prosecute.

WALLACE: Well, Senator Graham, given the fact that that was exactly what Justice Stevens said in his ruling, talked about Common Article III covering these detainees, what do you do about it?

GRAHAM: Well, Congress has the ability to restrict the application of Common Article III to terrorists….They’re not part of the convention. Should they get the benefit of a bargain they’re not part of? We can treat them humanely. We can apply Geneva Convention concepts.But the Geneva Convention Common Article III is far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should.

Mitch McConnell said similar things on Meet the Press, and Chuck Schumer didn’t disagree:

SEN. McCONNELL:….And second, a very disturbing aspect of the decision was that the Court held Common Article 3 of the Geneva Conventions applicable to American servicemen. And this means that American servicemen potentially could be accused of war crimes. I think Congress is going to want to deal with that as well when it enacts these military commissions, and I think we need to do it soon. And so we’ll be dealing with that in the coming weeks.

SEN. McCONNELL:…I don’t think we’re going to pass something that’s going to have our military servicemen subject to some kind of international rules.

SEN. SCHUMER: Of course not.

MS. MITCHELL: But we are signatories to the Geneva Conventions. Why shouldn’t our servicemen be…

SEN. McCONNELL: But the, but the, but the enemy is not a signatory to the, to the, to the Geneva Conventions, so why should these terrorists be subjected to something they’re not signatories to?

SEN. SCHUMER: The good news, Andrea, is that the Court, particularly Breyer’s decision, said Congress could change the rules. And we have to change the rules. I don’t think there’s disagreement on that.

So we should expect some attempt by Congress to overturn the Court’s holding that Common Article 3 applies to the conflict with al Qaeda. Depending on how exactly they do that, it might get struck down later on by the courts–but it could take years for that issue to reach the Supreme Court, and we might have a very different court by the time it got there.

Then there’s the possibility that Congress will have another go at habeas corpus-stripping legislation. There wasn’t much discussion of that on the Sunday shows, but Graham and Jon Kyl are presumably not happy that a majority of the Supreme Court favored Levin’s interpretation of the Detainee Treatment Act over theirs. Even more worrisome is Arlen Specter’s reaction. Specter, one of a tiny handful of Republicans who opposed the Graham Amendment, introduced a habeas stripping bill of his own * on Thursday, which states in part that "alien enemy combatants detained or prosecuted under this Act may not challenge their detentions in the Federal courts of the United States via the habeas or any other statute."

So it doesn’t look very good. Anyone who wants Hamdan to remain the law of this country is going to have to fight hard to keep it–and Rasul too.

I do not think it’s a hopeless fight. Not at all. Maybe it’s because I’ve participated in two previous such efforts in Congress: in September & October 2004, when the House GOP attempted to legalize extraordinary rendition, and in November of last year, when Senator Graham introduced his bill to end habeas jurisdiction at Guantanamo. Both times, I thought it was hopeless at one point. Both times, I turned out to be wrong.

And we have one advantage now that we lacked then: we know what’s coming, and we probably have some time to prepare.

So. What are we going to do about it? (That’s not a rhetorical question.)

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by hilzoy

Now is the time for all good men and women to come to the aid of their country; and if you happen to be from the US, you could do a lot worse than sending a campaign contribution to Joe Sestak. He’s running against Curt Weldon, who is, in my completely unprofessional opinion, just the sort of lunatic we do not need in Congress. Many of you have probably seen the story about Rep. Curt Weldon’s attempt to discover WMD in Iraq as a campaign stunt (h/t TPMMuckraker):

“A caravan of jeeps and heavy equipment crawls across the Iraqi desert, headed for a secret location on the banks of the Euphrates River.
Their mission: to dig 25 feet down into the riverbed and unearth concrete bunkers filled with chemical weapons produced by Saddam Hussein’s regime and hidden before the outbreak of the Iraq war in 2003.

And who’s that, dressed in a safari jacket and a pith helmet, supervising the dig?

None other than our own U.S. Rep. Curt Weldon (R., Pa.), leading a secret mission to unearth the Holy Grail of the war: the weapons of mass destruction that have eluded every other U.S. search team since our troops invaded three years ago.

Does this sound incredible – or ludicrous? Not to Dave Gaubatz.
Gaubatz said that Weldon intended just such an expedition over the Memorial Day weekend, until Gaubatz put the kibosh on it. (…)

Gaubatz said he first contacted Weldon and Rep. Peter Hoekstra (R., Mich.), head of the House Intelligence Committee, to share his info and get them to prod the Defense Department and intelligence agencies to do the WMD searches in the locales.

Instead, Gaubatz said, Weldon latched onto the idea as a “personal political venture” and discussed a Hoekstra-Weldon trip to Iraq, under the guise of visiting the troops, that would detour to Nasiriyah.

Once there, Gaubatz said, the congressmen planned to persuade the U.S. military commander to lend them the equipment and men to go digging by the Euphrates for the cache Gaubatz believed to be there.

He said that Weldon made it clear he didn’t want word leaked to the Pentagon, to intelligence officials, or to Democratic congressmen.

As Gaubatz told me: “They even worked out how it would go. If there was nothing there, nothing would be said. If the site had been [scavenged], nothing would be said. But, if it was still there, they would bring the press corps out.” (…)

“It was treated as an election issue that would get votes,” he said. “I’ve never been involved in politics, so it was a very big eye-opener to me.” (…)

After the meeting, he said, he called a reporter at the Washington Times and alerted her of the plan. In turn, he said, she called Weldon’s office to get confirmation. That inquiry, Gaubatz said, scuttled the project.”

Curt Weldon is really a piece of work. In fact, it’s amazing how many stories that I had filed away under ‘Congresspeople being bizarre as usual’ turned out to be stories about Weldon. For starters…

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by hilzoy

As both a background to Sebastian’s post on Rawls and a justification of my own views, here’s a short version of Rawls’ arguments on justice. In what follows, I’ll indicate, at some points, which texts I’m drawing on; I’ll refer to A Theory of Justice as TJ, and Political Liberalism as PL.

The Basics: The basic question Rawls sets out to answer is (not coincidentally) one I raised in a previous post, namely: given several different ways of structuring the basic institutions of society (or, as I said in my posts, the rules of the game), how do we decide which is just? Note a few points: (1) He is talking about the rules of the game, not ad hoc interventions. (2) He limits his inquiry to justice within a society, and assumes that the society in question exists in conditions of “moderate scarcity”, meaning that “natural and other resources are not so abundant that schemes of cooperation become superfluous, nor are conditions so harsh that fruitful ventures must inevitably break down” (TJ 127.)

His answer is, basically: a just system is one that would be chosen by people in what he calls the ‘Original Position’. (Trust me: all the off-color jokes involving this phrase have already been made.) In the Original Position, people know all sorts of general facts about the world, including not just science but also economics. However, they do not know any particular facts about themselves: their race, their gender, their specific views about what kind of life they want to lead, their religion and values, and so forth. They do know, however, that they have some view about what sort of life they want to lead; they just don’t know which it is.

They are also assumed to be fully rational, and mutually disinterested. ‘Mutual disinterest’ means that while, for all they know, they may care about all sorts of other people in real life, in the Original Position they are concerned to maximize their own good. Note that the better off I am in real life, the more I can do to help others, so making this assumption in the Original Position enhances my ability to be generous in the real world, if I want.

So the basic idea is: we decide what principles we should use to assess the rules of our society as if we didn’t know who we would be, or even which kind of person we would be — born rich or born poor; black, white, Asian, Native American, or whatever; Catholic, Muslim, atheist, Jain, or an adherent of some other religion; smart or not so smart; male or female; and so on. What we would choose under those conditions determines what rules are just.

According to Rawls, under these conditions people would choose the following principles as criteria by which to assess social institutions:

I. Each person has an equal claim to a fully adequate scheme of basic rights and liberties, which scheme is compatible with the same scheme for all.

II. Social and economic inequalities are to satisfy two conditions: first they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society.

(These are generally referred to as ‘the two principles’.)

So: why does Rawls say these things? I’ll consider first his argument for the Original Position, and then his argument for the two principles.

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by hilzoy

This is the third part of my response to Mona’s post on Libertarians and Democrats at QandO. (First part here; second part here.) As I said before, I am not an expert on libertarianism. I will try to depict it accurately, but I have not done a huge amount of research on the foundations of libertarianism before writing this. If I misrepresent libertarianism, it’s unintentional, and I hope people will correct me.

In Part 2, I argued that justice requires a set of rules governing (among other things) property, rather than ad hoc interventions to create some preferred outcome, that property is a social construct, and that no specific set of rules governing property constitutes a presumptively legitimate baseline, deviations from which require a special justification. All sets of rules are on a par, including the set that defines unrestricted property rights.

In this post, I want (finally!) to get to the question: which set of rules is just? And how does my answer to this question differ from libertarians’? I’m going to get there by deferring the question of justifying my claims; I’ve decided that if I don’t cut to the chase, I may never get to the end of this. (Short version: Rawls.) But first, a few short notes.

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by von

ONCE AGAIN, the time has come for an open thread. And a pretentious one at that.  As y’all know, there is only one way to begin such a thing.  So: Read on, unbeliever.  You need not fail.  (But I repeat myself.)

O.K., fine.  I’ll start.

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by Slartibartfast

That’s about what it’s going to take to fill up your tank with ethanol.*

There has been much discussion about the price of a gallon of gasoline of late.  Some say that oil companies are simply profiting far too much.  Some say that the government is taking too large a cut on taxes.  Some say that we ought to be replacing gasoline with ethanol to the degree possible, and that American corn can relax our death-grip on Middle Eastern oil.

Consider this an open thread to discuss things related to energy.  Me, I’m going to comment a bit more about these things below the fold, because we’re all about providing the extras here at OW.  And because I’ve been thinking about it, which the gentle reader may consider to be an added bonus, depending on the perceived Rightness of my thought processes.

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My small contribution to Modern Art.  It is entitled "Mohammed in Desert"

This was inspired by an article and cartoon I read about at the Volokh Conspiracy.  More below the fold:

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by hilzoy

Time for a break from the NSA story. While doing actual work, I ran across a fascinating study (behind subscription wall) in Evolution and Human Behavior. It’s called ‘Sex differences in response to children’s toys in nonhuman primates (Cercopithecus aethiops sabaeus)’.

Here’s what it’s about: as most parents know, little boys tend to be more interested in toys like trucks, and little girls in toys like dolls. (I was an exception: someone gave me a doll once, and I dissected it.) There is no obvious way to decide whether this is innate or a cultural artifact by watching human children. So why not see whether the same gendered toy preferences exist in, oh, vervet monkeys?

Guess what? They do.

“The percent of contact time with toys typically preferred by boys (a car and a ball) was greater in male vervets (n = 33) than in female vervets (n = 30) ( P < .05), whereas the percent of contact time with toys typically preferred by girls (a doll and a pot) was greater in female vervets than in male vervets ( P < .01). In contrast, contact time with toys preferred equally by boys and girls (a picture book and a stuffed dog) was comparable in male and female vervets. The results suggest that sexually differentiated object preferences arose early in human evolution, prior to the emergence of a distinct hominid lineage."

Discuss.

(Graphs and photos below the fold.)

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by hilzoy

Next week Congress should vote on the Defense Authorization Bill, which contains Lindsay Graham’s amendment stripping Guantanamo detainees of their right to file habeas corpus petitions. The point of habeas petitions is to allow prisoners to ask the government why they are in prison, and to allow a judge to decide whether the government’s answer holds up.

Graham’s amendment, in its last published version, would grant Guantanamo detainees the right to appeal the verdicts reached by their military tribunals. But that’s not a substitute for the right to file habeas petitions. To see why not, consider the latest development in a case I’ve written about before: the case of Abu Bakker Qassim and A’del Abdu al-Hakim. Here’s an article about the case, and here’s an op-ed by al-Hakim’s lawyer.)

This is a case that illustrates why habeas corpus matters. It could not have been brought if Graham’s amendment had been enacted, since the people who brought it have no reason to appeal the decision of their military tribunal. The military tribunal found that they were not enemy combatants; why would they want to appeal that? What they want to know is: since they were cleared months ago, why are they still locked up in Guantanamo?

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by Katherine

(Ninth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042.  Senator Graham’s full floor speech is here.)

"Congress now is looking over the shoulder of what is going on there….

To the human rights activists out there, God bless you. You have helped us in many ways. We are going to make the statements you want us to make about treating people humanely. We are going to have standardized interrogation techniques. Congress is going to provide oversight and we are going to let the courts provide oversight."–Senator Lindsey Graham

Senator Graham may honestly believe this. It isn’t true.

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