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Injunction junction, what's your function?
May 29, 2012 10:39 AM   Subscribe

Late last year Congress passed, and the President signed, the NDAA FY 2012. Many people and organizations protested claiming that some provisions in the NDAA could be interpreted in such a way as to allow for the indefinite detention of American citizens by the military. On January 13th a complaint was filed contesting the provisions. Now, Judge Katherine B. Forest has blocked enforcement of the controversial provisions. The government has filed a motion for reconsideration. posted by AElfwine Evenstar (68 comments total) 12 users marked this as a favorite

 
So the thing the Obama administration didn't want to use was blocked and now they're trying to get the dangerous thing they didn't want to use and claimed they wouldn't ever use back on the menu so it could potentially be used?

Guh?
posted by Slackermagee at 10:52 AM on May 29, 2012 [9 favorites]


Slackermagee, it all makes sense if you just remember that everyone in politics is a goddamn liar, and even the guys on "your" side are a bunch of avaricious sociopaths who shouldn't be trusted to run a goddamn bake sale, let alone the most powerful government in the world.
posted by Scientist at 10:59 AM on May 29, 2012 [21 favorites]


Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation. Thus, concluded the court, “plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment.”
Barack Obama's Department of Justice is arguing in federal court that it has and needs to maintain the ability to indefinitely detain Americans for engaging in free speech. Just ... wanted to put that in white and blue

I could say more, but maybe I won't
posted by crayz at 11:03 AM on May 29, 2012 [25 favorites]


Before the usual suspects show up huffing about Section 1021(e)...

Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

... a reminder of what that actually means:
The Senate... decided to leave unanswered a momentous question about constitutional rights in the war against Al Qaeda: whether government officials have the power to arrest people inside the United States and hold them in military custody indefinitely and without a trial. ...

After a passionate debate over a detainee-related provision in a major defense bill, the lawmakers decided not to make clearer the current law about the rights of Americans suspected of being terrorists. Instead, they voted 99 to 1 to say the bill does not affect “existing law” about people arrested inside the United States.

Because the section includes no exception for suspects arrested domestically, the provision prompted a debate about whether it would change the law by empowering the government, for the first time, to lawfully arrest people inside the United States and hold them indefinitely in military custody, or whether it would change nothing because the government has that power already.
In other words, when someone tells you that the 2012 NDAA does not authorize the detention of Americans, they are conveniently omitting the fact that it very carefully avoids the subject altogether.

As to why it does this, you can use your imagination.
posted by Trurl at 11:03 AM on May 29, 2012 [4 favorites]


This is an irrelevant tangent, but...Lawfare is written by a law professor who doesn't understand what "beg the question" means?
posted by univac at 11:04 AM on May 29, 2012 [1 favorite]


It is an irrelevant tangent
posted by crayz at 11:06 AM on May 29, 2012 [1 favorite]


SEC. 1235. MAN-PORTABLE AIR-DEFENSE SYSTEMS ORIGINATING FROM LIBYA.

(c) COMPREHENSIVE STRATEGY ON THREAT OF MANPADS ORIGI- NATING FROM LIBYA.—

(1) STRATEGY REQUIRED.—The President shall develop and implement, and from time to time update, a comprehensive strategy, pursuant to section 11 of the Department of State Authorities Act of 2006, to reduce and mitigate the threat posed to United States citizens and citizens of allies of the United States from man-portable air-defense systems that were in Libya as of March 19, 2011.
(link added)

Well. At least he's doing something right.
posted by three blind mice at 11:16 AM on May 29, 2012


As to why it does this, you can use your imagination.

I don't really know anything about this one way or the other, but this argumentation seems specious.
posted by shakespeherian at 11:18 AM on May 29, 2012


it all makes sense if you just remember that everyone in politics is a goddamn liar, and even the guys on "your" side are a bunch of avaricious sociopaths who shouldn't be trusted to run a goddamn bake sale, let alone the most powerful government in the world.

I wish I had a car big enough for this to fit on the bumper sticker.
posted by Holy Zarquon's Singing Fish at 11:21 AM on May 29, 2012


As to why it does this, you can use your imagination.

That's just an oversight. Next year's bill will make using your imagination a terrorist act.
posted by Kirth Gerson at 11:24 AM on May 29, 2012 [11 favorites]


But the Government refused to make any such representation.

My take on this at the time was that they basically wanted to provision struck down because they didn't want to pass the bill with that amendment and couldn't really veto the whole thing at the time as would been too hard to get it through congress again without it (and OMG, the prez doesn't support the troops! backlash).

The motion they filed has me reconsidering that conclusion.
posted by VTX at 11:26 AM on May 29, 2012 [2 favorites]


Barack Obama's Department of Justice is arguing in federal court that it has and needs to maintain the ability to indefinitely detain Americans for engaging in free speech.

No, it really isn't. Free speech has always been qualified; you are not allowed to do things like incite riots or reveal classified information willy-nilly. In both those cases, you're not merely expressing your opinion, but you're trying to bring about material change - starting a riot or compromising security in some fashion, in these examples. If free speech were such an absolute it wouldn't be possible for crimes like conspiracy to exist, or for any government data to be kept confidential, ever, which would allow a roaring trade in the publication of private citizens' data held by the government.

It would be nice if we could try arguing less in headlines and clichees and more in terms of the actual boundaries of the complaint and motion for reconsideration. If you're such an absolutist about free speech that you think nuclear launch codes should be printed on the front page of the NYT and that no limitations on speech of any kind can be considered, then please explain how this won't be abused to society's detriment.
posted by anigbrowl at 11:30 AM on May 29, 2012 [2 favorites]


It's probably just 11 dimensional chess. Vote for Obama! He's slightly less likely to be a rightwing authoritarian! Remember all the things he said he was going to do and says he totally tried to do but the mean kids kept him from doing!
posted by DU at 11:31 AM on May 29, 2012 [6 favorites]


But the DOJ brief cited on the Lawfare blog says:
the government wants to be as clear as possible on that matter. As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.
This isn't consistent with the framing that the admin wants to use this authority--based on that, the argument seems to be that the controversial new authority isn't being invoked in this case anyway, and that's why the court should reconsider the ruling.
posted by saulgoodman at 11:32 AM on May 29, 2012


Or we could just keep lazily generalizing and sodomizing our own vast imaginations for the answers to figure out what this means, beyond the simplistic framing all the usual suspects in the media (and on the blue) can be counted on to provide.
posted by saulgoodman at 11:33 AM on May 29, 2012


That's not a framing issue, that's a "wholesale reversal of the government's position at trial" issue. Judge Forrest explicitly based her decision on the "Government’s representations that it could not represent that plaintiffs’ expressive and associational conduct does not bring them within the ambit of the statute."
posted by Holy Zarquon's Singing Fish at 11:37 AM on May 29, 2012 [1 favorite]


It's probably just 11 dimensional chess. Vote for Obama! He's slightly less likely to be a rightwing authoritarian! Remember all the things he said he was going to do and says he totally tried to do but the mean kids kept him from doing!

I'm not sure how any of this is false.

Obama hasn't accomplished anything at all this term! He's made things worse for everybody! Remember how he can force Congress and the Senate to accomplish anything he wants! McCain would've gotten all our troops how and served everyone ice cream sandwiches!
posted by inigo2 at 11:43 AM on May 29, 2012 [2 favorites]


Yes--but all the same, isn't the effect of the brief to say that the government has no intention to invoke the controversial authorities congress established under the current NDAA in this case? So this isn't the administration reversing itself and saying it now does want the power, as many of the comments above and the related commentary linked seems to suggest. Take for example:

Barack Obama's Department of Justice is arguing in federal court that it has and needs to maintain the ability to indefinitely detain Americans for engaging in free speech. Just ... wanted to put that in white and blue

But that's not an accurate characterization of what the brief says, it seems to me.

What it seems to me to be saying is that the DOJ wants the judge to reconsider the motion to block this case from moving forward based on the court's objections to the new rules congress passed in the NDAA because the DOJ is saying on record that the new authority wouldn't apply in this particular case even if it was constitutional, and that it has no intention to invoke the new authority.

That's not even remotely the same thing as the DOJ now claiming the new powers as constitutional and wanting to use them in a reversal of their previous position, as far as I can figure. So what's the piece I'm missing here?
posted by saulgoodman at 11:50 AM on May 29, 2012


oops--that last comment was meant for HZSF
posted by saulgoodman at 11:50 AM on May 29, 2012


McCain would've gotten all our troops...

It's extremely unfortunate that politics seems to be dominated by terrorists1 who label any talk of 3rd parties "unserious", thus leading you to believe I think McCain would have been better.

1I mean this word 100% literally, in the sense of "using fear to effect a political agenda". If your argument is "the other guy is gonna be SO BAD you have to hold your nose and vote for this guy" you are a terrorist. A minor and relatively harmless (on an individual level) terrorist, but a terrorist nonetheless. And don't bother to tell me how unserious that accusation is.
posted by DU at 11:55 AM on May 29, 2012 [1 favorite]


It would be nice if we could try arguing less in headlines and clichees and more in terms of the actual boundaries of the complaint and motion for reconsideration.

Uhh, I am:
This Court is left then, with the following conundrum: plaintiffs have put forward evidence that §1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.
--

This isn't consistent with the framing that the admin wants to use this authority--based on that, the argument seems to be that the controversial new authority isn't being invoked in this case anyway, and that's why the court should reconsider the ruling.

This is such a nonsensical position my brain hurts trying to juggle all the pieces in the air at once. After reconsideration the executive can now say for certain that the vaguely defined powers of indefinite detention they may or may not claim to have will not be used against Americans for engaging in constitutionally protected activities, and therefore the court should reconsider it's injunction against indefinitely detaining Americans for engaging in constitutionally protected activities

We promise not to do it, so you need to let us
posted by crayz at 11:56 AM on May 29, 2012 [2 favorites]


In other words...

Judge Forrest explicitly based her decision on the "Government’s representations that it could not represent that plaintiffs’ expressive and associational conduct does not bring them within the ambit of the statute."

Right, and all they're "reversing" now is their previous position that they couldn't say for sure whether or not this particular case would fall under the scope of the new NDAA provisions--the new brief simply explicitly says it doesn't, and asks the judge to reconsider the current injunction based on that fact.

Crayz--how is that a brain-hurting position? That's just what the brief says, isn't it? Seriously, what am I missing here that isn't of some species of second guessing of intentions and tea leaf reading?
posted by saulgoodman at 12:00 PM on May 29, 2012


We promise not to do it, so you need to let us

I'm pretty sure if they lied to the judge, and went for prosecution under the controversial authority anyway, they know full well that would just be a waste of everyone's time and money. I mean, don't you think there might be legal consequences to lying to a judge in a formal legal filing just to get around an injunction? You really think they're aiming to sabotage their own prosecution and leave any verdict open to immediate reversal as part of a power grab? Maybe that makes sense to someone, but not to me.
posted by saulgoodman at 12:08 PM on May 29, 2012 [1 favorite]


Oops. "You really think they're aiming to sabotage their own prosecution case?" (Since they're the defendants).
posted by saulgoodman at 12:10 PM on May 29, 2012


The fundamental contradiction is that the executive is claiming the authority to indefinitely detain Americans without habeas corpus, without violating their constitutional rights. You can't say "it will only be this type of person" because you will never know who it is or why, and there is no system of accountability if the decision was wrong. There isn't even a real sense of what "wrong" would be in the legal vacuum of an unchecked executive

So any claim that Americans can be detained for any reason is a claim that any American can be detained for any reason. How then can the executive say "no, I won't detain these Americans for these reasons." How could you ever know what the reason was? There is no need for a reason, it just becomes a decision that gets made

If they aren't claiming this authority, then why are they still appealing a decision that they cannot indefinitely detain Americans?
posted by crayz at 12:12 PM on May 29, 2012 [4 favorites]


Alexa O’Brien is an independent journalist who writes for WL Central, regarding WikiLeaks, Guantanamo and other issues, and founded a website to work on America’s corrupted elections, U.S. Day of Rage. Kai Wargalla is a British activist who founded Occupy London and has done extensive work in advocating for WikiLeaks.

Birgitta Jónsdóttir...Birgitta has been an activist and a spokesperson for various groups, such as Wikileaks.


Thanks, Wikileaks.
posted by furiousxgeorge at 12:17 PM on May 29, 2012 [1 favorite]


I'm pretty sure if they lied to the judge, and went for prosecution under the controversial authority anyway, they know full well that would just be a waste of everyone's time and money.

Only if it comes before this particular judge again. "Judges" aren't a collective with a single opinion or interpretation of the law, as nice as that might be. One judge might take offense, another might overlook the reversale out of deference to the executive or agreement with the policy.
posted by Holy Zarquon's Singing Fish at 12:18 PM on May 29, 2012 [2 favorites]


That's not a framing issue, that's a "wholesale reversal of the government's position at trial" issue. Judge Forrest explicitly based her decision on the "Government’s representations that it could not represent that plaintiffs’ expressive and associational conduct does not bring them within the ambit of the statute."

I think the government's problem here is that it's very difficult to formulate a general rule that cannot easily be gamed, and it wants to avoid creating a precedent that might restrict legitimate security policies in the future.

I can see Hedge's position that as a journalist who has contact with members of Hamas, Al Qaeda, or Bob Avakian's Revolutionary Communist Party, he's a bit worried that the government might get the wrong idea about him. From the government standpoint, though, there's an equally important worry about how to preserve security. I presume someone or several someones in the intelligence agencies is/are tasked with keeping n eye on people like Hedges and making sure he's not actually operating as a go-between or providing assistance to the development of terrorist plots. It would be grossly irresponsible not to keep such possibilities in mind; among the most bitter complaints following 9-11 were those about the government's failure to coordinate its intelligence activities and prevent the attack from taking place, despite the seemingly ample opportunities for disrupting AQ's plans.

It's a tricky question: how do you know where journalism and engagement tilt over into conspiracy or espionage? You don't want to abridge the press's ability to do its job, but on the other hand the production of journalistic output is not a guarantor of integrity. There's plenty of history where journalism and spying overlap. Our government has certainly employed journalists as intelligence sources, and in wartime I'm sure it has also employed them in a more active capacity from time to time, so it's entirely reasonable to consider the possibility that other entities would do the same thing. It would be remiss not to consider such a possibility.
posted by anigbrowl at 12:25 PM on May 29, 2012 [1 favorite]


So when this went through Congress, Obama hardly fought it at all (at least, in public), and when he signed it he simply grumbled about it and said his administration wouldn't use the indefinite detention powers--as if that fixed anything.

But now a judge is saying they can't have it at all. If the Obama admin really didn't want this law, couldn't they just let the judge's ruling stand without fighting it in court? Does the administration have a "duty to defend" (I believe there's a legal principle for that) here?
posted by scaryblackdeath at 12:25 PM on May 29, 2012


One judge might take offense, another might overlook the reversale out of deference to the executive or agreement with the policy.

Given the nearly perfect record of federal judges supporting the government's claims that people don't have a right to sue them for rendition and torture, the idea of the executive being afraid of the judiciary as a check on its behavior is laughable.
posted by Trurl at 12:25 PM on May 29, 2012 [1 favorite]


If they aren't claiming this authority, then why are they still appealing a decision that they cannot indefinitely detain Americans?

Because the standing argument would be applicable in other cases, for one thing.
posted by anigbrowl at 12:27 PM on May 29, 2012


How then can the executive say "no, I won't detain these Americans for these reasons." How could you ever know what the reason was? There is no need for a reason, it just becomes a decision that gets made

Thanks for sticking with me here; I'm still sorting this out myself, honestly.

I understand this from the DOJ filing for reconsideration to be expressly qualifying the scope of the new authorities (or in effect, repeating the previous claim that there is no new authority granted in s. 1021, and so, activists and the press don't suddenly have something new to worry about here).

The relevant points for me is that the administration isn't reversing its previous position, which is that no new detention authorities have been created under the NDAA. They're still claiming exactly that. They're basically saying this case is a waste of time because the plaintiffs never had standing to sue for injunction before, and since it's the DOJ's position that nothing has changed, why should they have standing to sue now?

Does the injunction only apply to parts or all of the NDAA?

If it applies to all, then it's obvious why the administration would take that position. All the other parts of the NDAA that don't relate to this issue will be held up in court while this case runs it's course.

Ahh--wait. Now I get it. Why ask the judge to reconsider and uphold this one section if it's a meaningless provision that offers no new authority anyway. That's a good point actually. Sorry it took me so long to work my way down to it. I'm just used to these kinds of things being very poorly represented/misrepresented in the media and in these kinds of discussions. But it's a good point. Why not just let the injunction stand? What difference does it make if it's a meaningless provision anyway?
posted by saulgoodman at 12:27 PM on May 29, 2012


Only if it comes before this particular judge again. "Judges" aren't a collective with a single opinion or interpretation of the law, as nice as that might be. One judge might take offense, another might overlook the reversale out of deference to the executive or agreement with the policy.

Sad but true.
posted by saulgoodman at 12:28 PM on May 29, 2012


keeping n eye on people like Hedges and making sure he's not actually operating as a go-between or providing assistance to the development of terrorist plots

In which case, why would they need to hold him in indefinite military detention, rather than charging and trying him?
posted by junco at 12:31 PM on May 29, 2012 [1 favorite]


Maybe they just don't like the precedent this might set with regard to who has standing to seek injunction against the government when controversial laws like this are challenged?

That's the only plausibly-legitimate reason I can imagine. That may be why the brief is so particular about focusing narrowly on the question of the standing of the plaintiffs. Questions about who has standing when are a pretty big deal, legally, is my impression.
posted by saulgoodman at 12:32 PM on May 29, 2012


Maybe they just don't like the precedent this might set with regard to who has standing to seek injunction against the government when controversial laws like this are challenged?

As Lawfare points out, this has exactly the same problem as Clapper. The government operates a secret program to illegally spy on Americans. Specific Americans say hey, I have a reasonable belief that you may now or in the future spy on me, so I am suing. Government says: you can't prove we're spying on you and we won't let anyone see our secret records of who we are spying on, so you don't have standing

And so somehow, a program that we know exists and is violating the rights of specific Americans, probably millions of specific Americans, continues unabated with the government arguing that none of us have the right to ask a court to stop it

It's a perverse interpretation of the law
posted by crayz at 12:39 PM on May 29, 2012 [4 favorites]


anigbrowl, some of us think that security theatre is a ploy to increase government power and push back the rights of citizens. It appears you do not agree. It also appears that you think security is more important than an open society. If I am incorrect in any of my assumptions please correct them and explain just why you think it is not dangerous to have intelligence agencies monitoring our press and citizenry in direct contradiction to the rights (supposedly)guaranteed in the constitution.
posted by AElfwine Evenstar at 12:44 PM on May 29, 2012 [2 favorites]


In which case, why would they need to hold [a hypothetical spy/terrorist] in indefinite military detention, rather than charging and trying him?

Because you don't necessarily want to tip off your enemies or provide a channel of communication. Espionage is inherently extralegal, and counterespionage often ends up being extrajudicial as a result. Suppose I'm a spy, answerable to you; if I get arrested and charged then you read that information, burn all your code books, and/or take a flight back to Foreignlandia. but if I simply fail to answer your calls, you're likely to hesitate because there might be a perfectly natural explanation and you don't want to tip your hand unnecessarily or abandon your intelligence infrastructure when there might be some perfectly innocent explanation. Or even if you suspect I've been picked up, it may be preferable for you to wonder whether I've been converted into a double agent, or am simply sitting in a cell. The uncertainty means you're that much more likely to communicate with your sponsor about my disappearance, and the timing, vector, or content of such communications may have significant intelligence value to the counter-espionage teams that have picked me up and are hoping for some response to my disappearance.

Intelligence work is more like a game poker or bridge than it is like a game of chess; you're working with limited information about the other side and are trying to make inferences about your opponents' situation based on their betting behavior, while they're trying to do the same with regard to yours.
posted by anigbrowl at 12:56 PM on May 29, 2012


anigbrowl, some of us think that security theatre is a ploy to increase government power and push back the rights of citizens. It appears you do not agree. It also appears that you think security is more important than an open society.

Security and transparency are conflicting imperatives, and the fact is that people want both. A government that can't protect its citizens from attack isn't likely to last long; we can see a proxy for this in voters' eagerness to endorse draconian laws against crime, or adopt them by referendum. I don't know where exactly the boundary should be set, or rather I'm unconvinced that a boundary can be clearly defined. I don't buy the idea of total transparency, which is sometimes predicated on an implicit belief that if government were absolutely transparent, it would be so self-evidently righteous that nobody would want to attack it. Again as a proxy, consider how transparent science is as a discipline, and how religious opponents of scientific theories like evolution continue to attack scientific institutions, education etc.

If I am incorrect in any of my assumptions please correct them and explain just why you think it is not dangerous to have intelligence agencies monitoring our press and citizenry in direct contradiction to the rights (supposedly)guaranteed in the constitution.

I'm not sure that we have a constitutional right not to be monitored. 'Supposedly' is a good choice of words here, since our instinctive belief in a constitutional protection for privacy originates with the assertion that it exists within the penumbra (shadow) of the first amendment, per Griswold v. Connecticut (finding that people have a right to purchase contraception without government interference). This is a rather fragile legal umbrella; I think we'd be better off with a more explicit right to privacy of the sort that exist in the EU charter of fundamental rights.

But either way, the idea that part of government's role is to secure the safety of its citizens has been around since the publication of Hobbes' Leviathan, in which he observes that absent government mankind exists in a perpetual state of 'war of all against all' with the unhappy result that life tends to be 'solitary, poor, nasty, brutish, and short.' Hobbes' argument for a strong central government, notwithstanding the resultant capacity for oppression, was that by pooling a fraction of our individual sovereignties the totality of liberty was increased, since we no longer had to fear our neighbors to the same degree.
posted by anigbrowl at 1:12 PM on May 29, 2012 [1 favorite]


anigbrowl, some of us think that security theatre is a ploy

Forgot to mention that you are equating security and security theater, which is to assume your conclusion.
posted by anigbrowl at 1:14 PM on May 29, 2012


Specific Americans say hey, I have a reasonable belief that you may now or in the future spy on me, so I am suing. Government says: you can't prove we're spying on you and we won't let anyone see our secret records of who we are spying on, so you don't have standing

But what's changed? The filing for injunction assumes the law creates new authority for the US to spy on activists and the press. If the current admin doesn't believe that to be the case, as they've said all along, then how can they take a consistent legal position that allows them to go on record saying they don't believe congress has granted any new detention power under the NDAA, while at the same time, taking the position that activists and the press have standing to sue for injunction because the law now effects them?

The DOJ is in a double bind here, and could be faulted along the same lines for essentially any position it takes: let the injunction stand, and suddenly, the government is from another argumentative angle officially taking a legal position that acknowledges that activists and the press are impacted by the law (which would contradict their previous position).

It's a perverse interpretation of the law

That seems a little much. At least, in light of how law is currently practiced in the US. Thinking about this legal situation seriously, it doesn't seem nearly as straightforward as the more simplistic rhetoric surrounding it. What a spot to be in, for the DOJ!

They either have to let the injunction stand, and in the process, basically affirm as their official legal position that congress has accidentally or deliberately passed a law giving the executive the right to detain activists and members of the press indefinitely, or they have to fight the injunction on the basis that the law grants no such new powers and that defendants have no standing in court consistent with that position--or else they accidentally create a precedent that future executives could use to say the law must apply to activists and journalists, since the administration agrees that they have standing to sue as effected parties.
posted by saulgoodman at 1:19 PM on May 29, 2012 [1 favorite]


Thanks for posting this - I really hope the law gets beat down
posted by rebent at 1:26 PM on May 29, 2012


Espionage is inherently extralegal, and counterespionage often ends up being extrajudicial as a result.

US citizens spying for foreign powers have routinely (perhaps the wrong word) been prosecuted in civilian courts. I can understand the line of reasoning you laid out, but it doesn't seem to be justified -- especially when this apparently wasn't the government's position when the double agents in question were working for the USSR.
posted by junco at 1:26 PM on May 29, 2012


spy on detain activists and the press. sheesh.
posted by saulgoodman at 1:26 PM on May 29, 2012


Forgot to mention that you are equating security and security theater, which is to assume your conclusion.

I am not equating anything. There is no security; all that remains is the theatre which functions to keep the populace afraid and thankful the government is "doing" something about it. When the ones who are supposedly guaranteeing security(ie the government) claim for themselves the power to secretly use the military to indefinitely detain anyone, citizen or no, there is by definition a severe lack of security.
posted by AElfwine Evenstar at 1:45 PM on May 29, 2012 [1 favorite]


The government is useless at best and tyrannical at worst in every action it takes, and that's why we need to make sure the President has the power to spy on and even kill literally anyone on the planet without trial or oversight.
posted by dirigibleman at 1:47 PM on May 29, 2012


What a spot to be in, for the DOJ! They either have to let the injunction stand, and in the process, basically affirm as their official legal position that congress has accidentally or deliberately passed a law giving the executive the right to detain activists and members of the press indefinitely, or they have to fight the injunction on the basis that the law grants no such new powers and that defendants have no standing in court consistent with that position--or else they accidentally create a precedent that future executives could use to say the law must apply to activists and journalists, since the administration agrees that they have standing to sue as effected parties.

Let's consider the hilarious possibility that Congress "accidentally" passed a law saying that the government can imprison American journalists without trial for as long as it likes. [Oopsie!]

Assuming (charitably, I think) that the DOJ is not in favor of such a policy, what exactly is the "spot" you believe it would be placed in by saying so?
posted by Trurl at 1:53 PM on May 29, 2012


US citizens spying for foreign powers have routinely (perhaps the wrong word) been prosecuted in civilian courts. I can understand the line of reasoning you laid out, but it doesn't seem to be justified -- especially when this apparently wasn't the government's position when the double agents in question were working for the USSR.

Indeed, but you're assuming that because some spies have been charged in court, all spies have been dealt with in that manner. There have (I presume) also been spies whom we have left alone (because they are useful as disinformation conduits or decoys), some that we have converted into double agents, some that have been quietly assassinated or spirited away, and still others that we have persuaded to retire. The existence of highly visible outcomes (such as criminal trials) tells us very little about the frequency of such outcomes.

I am not equating anything. There is no security; all that remains is the theatre which functions to keep the populace afraid and thankful the government is "doing" something about it.

'There is no security'? That's an absurd position. You might as well argue that law enforcement has remedial or deterrent function, and that if there were no police or criminal justice system the incidence of crime would remain exactly the same. The failure to prevent some crimes (or acts of terrorism, or of espionage, or...) does not generalize to the conclusion that such incidents are unpreventable.

When the ones who are supposedly guaranteeing security(ie the government) claim for themselves the power to secretly use the military to indefinitely detain anyone, citizen or no, there is by definition a severe lack of security.

OK, so you're arguing the radical transparency position and claiming that there is no basis for covert action by government actors, ever. So, let's say that I'm a spy for Foreignlandia, am plotting some mischief on behalf of that nation. Are you saying that the government must look the other way until after such time as I have done harm to society?
posted by anigbrowl at 2:07 PM on May 29, 2012


Are you saying that the government must look the other way until after such time as I have done harm to society?

We wouldn't want the smoking gun to be a mushroom cloud.
posted by Trurl at 2:18 PM on May 29, 2012 [1 favorite]


Nor would we want counter-espionage to be a gross infringement of our civil rights. See, assuming the worst works both ways. We must avoiding committing a fundamental attribution error.
posted by anigbrowl at 2:27 PM on May 29, 2012


I'll be interested to see how this continues to unfold. The request for reconsideration might just be a little bit of legal CYA to prevent endorsing the idea that the executive has or has ever has claimed the authority to detain activists and the press indefinitely.

Assuming (charitably, I think) that the DOJ is not in favor of such a policy, what exactly is the "spot" you believe it would be placed in by saying so?

Congress could make life hard really fast and furious for the DOJ if it went on record unequivocally saying its official position is that these provisions of law are unconstitutional and null and void--especially considering the DOJ doesn't have nearly that kind of constitutional power.

The DOJ is essentially the personal attorney for the United States government as an entity. It doesn't make laws or even ultimately interpret them--it can only ask the courts to interpret the law, and offer its own non-binding suggestions for how the courts should interpret the law (well, apart from filing charges in court on the US's behalf).

If the DOJ accepts the plaintiffs' argument in this case that the new law congress passed does give the current and future executive branches new detention powers (despite the signing statement from President Obama rejecting that interpretation and denying that the provisions should be read as granting any new detention powers), then in effect, that becomes the official position of the DOJ, too. How so? Well, the only way this suit even makes it to court is on the claim that these plaintiffs (including Chomsky) now have legal standing to sue where previously under the law, according to precedent, they did not, because the new powers granted under the new NDAA have changed the legal situation so that these parties now do have a basis to claim legal standing to sue (under US law, you can't personally challenge a law in court that doesn't directly affect you).

That basically forces the DOJ to shift its legal position and accept the claim that congress meant to grant new detention powers when it adopted the new NDAA. If they did, then whether the executive likes it or not, technically, the DOJ's legal position would be that the law grants the president new detention powers (as evidenced by the fact that people who otherwise wouldn't have standing to sue the US government to challenge those law now do).

Don't you see? If the DOJ allowed the injunction to stand instead, we could still just as easily come here and make outraged posts pointing out how that represents a reversal of the DOJ's previous position, only in that case, the DOJ's new official legal position would clearly be that, yes, indeed, congress did mean to give the executive new powers to detain activists and journalists when it adopted s. 1021 of the NDAA--which also contradicts the President's signing statement.

This is why the practice of law should, in my opinion, be less focused on the letter of the law and more focused on general legal principles and the spirit of the law. It all becomes a big, logically incoherent morass eventually the way we do it now, as one set of legal inferences and deductions leads to another and another until it's clear some of the basic principles that led to the legals conclusions have been violated in the process but its impossible to pinpoint the precise point at which it happened.
posted by saulgoodman at 2:31 PM on May 29, 2012


from above: 'or else they accidentally create a precedent that future executives could use to say'--that is, precedent in the informal, everyday sense, not the technical legal sense, in case that wasn't clear.
posted by saulgoodman at 2:35 PM on May 29, 2012


It's probably just 11 dimensional chess. Vote for Obama! He's slightly less likely to be a rightwing authoritarian! Remember all the things he said he was going to do and says he totally tried to do but the mean kids kept him from doing!
posted by DU


I know this is not going to happen but I can't help asking: could you please not do this in the first 15 comments of every single thread about Obama that gets posted to the site?
posted by Aizkolari at 2:38 PM on May 29, 2012 [2 favorites]


Congress could make life hard really fast and furious for the DOJ

No doubt it would want to, but I don't what mechanism it could use. Punitive funding cuts?

In any case, if we've reached the point where the DOJ is silently acquiescing in fear as Congress effectively revokes the First Amendment, we are well and truly fucked.
posted by Trurl at 2:52 PM on May 29, 2012


You could make an argument that we've always been well and truly fucked then. FDR's administration in WW2 would have seemed draconian by today's standards, what with amss internments and so on. Preemptive detention for military considerations is inherently problematic.
posted by anigbrowl at 3:38 PM on May 29, 2012


'There is no security'? That's an absurd position. You might as well argue that law enforcement has remedial or deterrent function, and that if there were no police or criminal justice system the incidence of crime would remain exactly the same. The failure to prevent some crimes (or acts of terrorism, or of espionage, or...) does not generalize to the conclusion that such incidents are unpreventable.

How can there be security if I could potentially be secretly be yanked off the streets by the military if they don't like what I'm doing. That is antithetical to not only the idea of security but also the idea of a free and open society. Your analogy is not very apt as law enforcement and the justice system are for the most part transparent and in the open..ie not secret. Secret military prisons and trials not so much. Besides the fact that real security does not exist, consider for a moment that the whole justification for this power is specifically a lack of security. "The country is not secure enough," they say. "We need more power," the say. We've all heard this before.

OK, so you're arguing the radical transparency position and claiming that there is no basis for covert action by government actors, ever. So, let's say that I'm a spy for Foreignlandia, am plotting some mischief on behalf of that nation. Are you saying that the government must look the other way until after such time as I have done harm to society?

In matters of law and order transparency is a prerequisite for any society endeavoring to be free and open. Foreign spies should be arrested and tried in courts of law as they always have been. Why must our government resort to secret prisons and trials to deals with spies. You are shifting the argument though. Nice rhetorical flourish, but not very substantial when examined closely. No one is claiming that the government cannot or should not engage in espionage against foreign governments. What we are claiming is that no government should have the power to indefinitely detain or secretly try someone outside of the normal channels that constitute the rule of law. You have yet to make a convincing argument for why this should be the case, or why it is necessary for the government to assume these powers.
posted by AElfwine Evenstar at 5:28 PM on May 29, 2012 [1 favorite]


You could make an argument that we've always been well and truly fucked then.

You have read history, haven't you? You know, the account of how powerful individuals and institutions have for the most part enslaved mankind. And how any freedoms we do enjoy are of a very recent origin and have had to be persistently fought for, maintained, and guarded against any usurpers foreign and especially domestic.
posted by AElfwine Evenstar at 5:31 PM on May 29, 2012 [1 favorite]


How can there be security if I could potentially be secretly be yanked off the streets by the military if they don't like what I'm doing.

How can I have peace of mind when I might be struck dead by a meteorite at any moment? Oh wait, there's this thing called probability. Since I am not personally in contact with any publicly-professed violent extremists (it's possible I know some secretive extremists whose extremism I am unaware of), the probability of me being suspected of extremism is very low, like the low, low probability of getting hit by a meteorite.

If I were a glovetrotting reporter like chris Hedges, often in contact with people who are members of Al Qaeda or other proscribed organizations, then I'd have a more serious problem because there would be an honest-to-goodness conflict between my desire to report on the state of the world and the government's desire to impede the activities of various violent extremists. So, I would be forced to choose between the wide-ranging scope of my journalistic inquiries and the defensibility of my information-sharing activities. This is what they call an 'occupational hazard.'

Besides the fact that real security does not exist

That's not a fact, that's a headline. You're arguing that perfect security is impossible, therefore there is no security at all, which is just asinine. There are gradations of imperfect security.

No one is claiming that the government cannot or should not engage in espionage against foreign governments. What we are claiming is that no government should have the power to indefinitely detain or secretly try someone outside of the normal channels that constitute the rule of law. You have yet to make a convincing argument for why this should be the case, or why it is necessary for the government to assume these powers.

They're inherent to the practice of espionage, for reasons I have already explained and which you have not bothered to address.

You know, the account of how powerful individuals and institutions have for the most part enslaved mankind. And how any freedoms we do enjoy are of a very recent origin and have had to be persistently fought for, maintained, and guarded against any usurpers foreign and especially domestic.

Maybe you could define your terms at this point, as opposed to handwaving.
posted by anigbrowl at 6:53 PM on May 29, 2012 [1 favorite]


So you think the NDAA as written is just fine and dandy?
posted by AElfwine Evenstar at 9:27 PM on May 29, 2012


No doubt it would want to, but I don't what mechanism it could use. Punitive funding cuts?

Endless congressional hearings into issues like the recent Fast and Furious fiasco, for one thing. Congress has the power to keep Holder and any other top officials who might have ambitions of finding the time to actually do their jobs from ever finding the time to do their jobs, if it gets peeved enough. Also, yes, congress actually gets to set the DOJ's budget, so funding cuts probably wouldn't be off the table; they're not off the table now, with Fast and Furious as one pretext for what are ultimately political considerations.
posted by saulgoodman at 9:53 PM on May 29, 2012 [1 favorite]


I'm not going to commit a criminal act. Maybe you should arrest me just in case. It's okay to do that now.

Don't call my lawyer. He'll call you. Don't tell him where I am. You may have to arrest him next. He may want you to explain why, but just tell him well, because, that's why.

I understand that you won't really do this, but I'm just saying....
posted by mule98J at 11:01 PM on May 29, 2012


How can I have peace of mind when I might be struck dead by a meteorite at any moment? Oh wait, there's this thing called probability. Since I am not personally in contact with any publicly-professed violent extremists

Rank the following in terms of probability:

-Being indefinitely detained
-Being killed in a drone attack
-Dying in a car accident
-Dying in a terrorist attack
-Dying from being denied healthcare insurance
-Dying from cancer
-Dying from AIDS

Now consider how much taxpayer money is spent on each. Appealing to probability proves exactly the opposite of what you want it to - it's pretty obvious that the actual probabilities aren't of significant concern to legislators. And such arguments deteriorate into, as Trurl rightly notes, "we don't want the smoking gun to be a mushroom cloud!"
posted by mek at 11:13 PM on May 29, 2012 [3 favorites]


So, I would be forced to choose between the wide-ranging scope of my journalistic inquiries and the defensibility of my information-sharing activities. This is what they call an 'occupational hazard.'

You're being detained without trial, remember? You won't have an opportunity to defend your activities - regardless of their scope.

So you're going to have to rely on not being falsely accused - as were so many of our guests in Guantanamo. In this, having white skin will be an advantage. But still, you will have no legal safeguard should you piss off someone with the power to put your name on The List.

Best not to piss them off. Of course, a press afraid to anger the government is not useful for anything but propaganda.

But I doubt the government will have any complaints about that.
posted by Trurl at 5:54 AM on May 30, 2012 [3 favorites]


Birgitta Jónsdóttir...Birgitta has been an activist and a spokesperson for various groups, such as Wikileaks.

Jónsdóttir just wrote a piece about Bradley Manning in the Guardian: Bradley Manning, America's martyr for open government
posted by homunculus at 10:55 AM on May 30, 2012 [2 favorites]






What they've done is to tacitly overturn Boumediene by looking on while the DC Circuit basically ignores the decision, and then denying all petitions to review the circuit court's rulings. Since DC is the only court that can hear appeals from Guantanamo detainees, there's no recourse in these cases if the Supremes don't want to bother with you.
posted by Holy Zarquon's Singing Fish at 12:51 PM on June 11, 2012




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