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Hasta La Vista, Habeas Corpus
October 19, 2006 7:48 AM Subscribe

The Beginning of the End of America.(YouTube, Keith Olbermann)
posted by Malor (289 comments total) 9 users marked this as a favorite

The Web 2.0 NY Times editorial single link post.
posted by srboisvert at 7:54 AM on October 19, 2006

srboisvert writes "The Web 2.0 NY Times editorial single link post."

Right, have you watched it, or are you just here to complain?
posted by orthogonality at 7:56 AM on October 19, 2006 [1 favorite has favorites]

I saw it "live" last night, and it was excellent.
posted by Eyebeams at 7:58 AM on October 19, 2006

srboisvert - you actually pay for the editoral content at the Times?

Although the FPP itself is crap and lacks insight (I've done the same), it is still relevant.

It's ashame Malor didn't wrap it in some background about the bill and it's consequences for Americans and the world.
posted by Funmonkey1 at 7:59 AM on October 19, 2006

Thank god for Keith Olbermann.
posted by empath at 7:59 AM on October 19, 2006

Colbert, Olbermann and Stewart. C'mon people - we need one more for our generation's Mount Rushmore.
posted by KevinSkomsvold at 8:02 AM on October 19, 2006

It is done.
posted by hal9k at 8:02 AM on October 19, 2006

Is Olberman actually making a difference? That's what i'd love to know. I read somewhere is ratings are up, but what does that really mean in the grand scheme of things. America stills seems to be fucking up.
posted by chunking express at 8:02 AM on October 19, 2006

I didn't think it needed any wrapping. It stands just fine all by itself.

Anything I'd add would only be a distraction.
posted by Malor at 8:04 AM on October 19, 2006 [2 favorites has favorites]

I've got side bets on the days before Oldermann is found dead in a hotel room with a bullet through the head and a suicide note not in his handwriting.
posted by gcbv at 8:04 AM on October 19, 2006 [2 favorites has favorites]

Tags: someofusarereallyfucked

I think you need to change this tag because there appears to be some grammatical problem. So in the future, when I search for posts about that topic, I might not find it since it is written incorrectly.

I think this also needs a chicken little tag.

And maybe an "overwrought" tag, too.

One good thing about this post is that I now know Olberman can be found places other than crooksandliars.com
posted by dios at 8:06 AM on October 19, 2006

Kudos to Olbermann. Or is he just another tinfoil-hat nutcase too? I reckon there's still some MeFites out there who'd argue that he is. You know who you are! But perhaps some of you will start seeing the light now that Habeus Corpus is out the window.
posted by flapjax at midnite at 8:08 AM on October 19, 2006

He was better alongside Dan Patrick.
posted by Kwantsar at 8:12 AM on October 19, 2006

I suspect that certain individuals who seem to think this new law is no big deal and nothing to worry about would feel...differently, had it been brought forth by, say, Bill Clinton.
posted by you just lost the game at 8:12 AM on October 19, 2006

dios writes "I think you need to change this tag because there appears to be some grammatical problem."

dios, I thought you were a lawyer, not a grammarian. Perhaps you could use your expertise to explain to us why the Founding Fathers thought Habeas Corpus was important, and why they were wrong, because we can trust the current Administration of Mr. Bush, and all future administrationa, even Hillary's, not to ever abuse the executive power.
posted by orthogonality at 8:13 AM on October 19, 2006 [1 favorite has favorites]

Transcript.
posted by gleuschk at 8:13 AM on October 19, 2006

Tags: someofusarereallyfucked

I think you need to change this tag because there appears to be some grammatical problem. So in the future, when I search for posts about that topic, I might not find it since it is written incorrectly.

I agree with dios. Malor, you're going to need to change that tag to allofusarereallyfucked.
posted by Faint of Butt at 8:14 AM on October 19, 2006

I think this also needs a chicken little tag.

And maybe an "overwrought" tag, too.

The only things worth getting worked up over are the vagaries of online forum policy, right?

That was an incredible speech.
posted by sonofsamiam at 8:16 AM on October 19, 2006

Habeus Corpus is out the window.
posted by flapjax at midnite at 10:08 AM CST on October 19

I just called down and talked to Judge Patterson. And he said that he it not aware that habeas corpus has been completely discarded. I told him to check Metafilter.

Or is he just another tinfoil-hat nutcase too? I reckon there's still some MeFites out there who'd argue that he is.

I wouldn't call him tinfoil-hat nutcase. He isn't saying anything conspiratorial. I would say that he completely undermines his valid criticisms by being overwrought and hyperbolic them.
posted by dios at 8:17 AM on October 19, 2006

posted by efbrazil at 8:18 AM on October 19, 2006

Olbermann gives conservatives ground to stand on when they talk about the "liberal media' or whatever.
posted by dead_ at 8:19 AM on October 19, 2006

Perhaps you could use your expertise to explain to us why the Founding Fathers thought Habeas Corpus was important, and why they were wrong
posted by orthogonality at 10:13 AM CST on October 19

They aren't wrong. Habeas corpus is a good thing. And it still exists.

I notice in his rant, he didn't mention Good and virtuous Abe Lincoln suspending habeas corpus.

Apparently we survived that.
posted by dios at 8:19 AM on October 19, 2006

And he said that he it not aware that habeas corpus has been completely discarded.

Not completely discarded. Only for terrorists. And suspected terrorists. And anyone suspected of giving aid to terrorists.
posted by you just lost the game at 8:19 AM on October 19, 2006

My main problem with Olbermann is his tone. All the "You, sir" and "wroughts" just seems like trying too hard to be serious and important. Everyone of these clips seems like someone trying desperately to make some list of important American speeches from 2035. It's not that he's wrong, although he is on a few specific points, but rather that it doesn't feel like genuine outrage, it feels like self promotion. He's latched on to a topic and a mode that will make him very popular with certain people, and he comes out every night with the same routine, hoping to get another one of his clips put on YouTube. He's like a contemporary Father Coughlin, and even if he's right, it's still distasteful.
posted by Bulgaroktonos at 8:20 AM on October 19, 2006 [2 favorites has favorites]

why so many posts about commies badmouthing our way of life?
posted by Postroad at 8:20 AM on October 19, 2006

by being overwrought and hyperbolic them.

Yeah. He should discuss the breakdown of American democracy using a more calm and soothing rhetoric.
posted by mr.curmudgeon at 8:20 AM on October 19, 2006 [1 favorite has favorites]

The demise of Habeas Corpus...

Add to that Posse Comitatus (Read this, please.)

Also from Kos, a comment explaining that this all started back in 1990...

Enough has been said about The Patriot Act before...

Hat Trick for the guys who want to destroy our Constitution.

George Orwell is banging on his coffin lid and screaming, "1984 was a cautionary tale, you dolts, not a motivational speech!"

Olbermann has more courage and conviction in his fingernail clippings than any of our Rethuglican leaders.

I fear for our democracy more each day.
posted by Corky at 8:23 AM on October 19, 2006 [2 favorites has favorites]

Yes, dios, habeas still exists, but a citizen can be designated an enemy combattant, and they don't have habeas rights.

Are you defending what the bill actually does?
posted by ibmcginty at 8:24 AM on October 19, 2006

He should discuss the breakdown of American democracy using a more calm and soothing rhetoric

It is not the material content of one's speech, but rather the emotional state in which it is delivered that should ultimately determine our evaluation of its relevance.
posted by Blazecock Pileon at 8:27 AM on October 19, 2006

"I am deeply disappointed that Congress enacted this law," said Wisconsin Democratic Sen. Russ Feingold."We will look back on this day as a stain on our nation's history." [source]

Are YOU the Enemy?
posted by ericb at 8:27 AM on October 19, 2006

Right, have you watched it, or are you just here to complain?

I watched it. I even agree with it. But it is just an Olbermann editorial. Is it better or worse than his 400 other Murrow imitations? Nope. Is it better than the pre TimesSelect NY Times editorial posts that used to get run out of town for being just NY Times editorials? Nope. Is it anything that is even news? Nope. Just the president signing a bill we have already ranted about extensively.

Best of the Web. Remember when our founding father, math of owie said Best of the Web. Remember when metatalkers invoked Best of the Web during the Sockpuppet wars. We have been sleepposting for too long. So complain I will.

(If I could I would complain with the melodramatic cadence and faux gravitas of Olbermann but I would probably giggle at some point and go all zefrank bugeyed, breakout and catch a cold.)
posted by srboisvert at 8:28 AM on October 19, 2006 [1 favorite has favorites]

You're going?

So soon?

Hey, can we have your stuff?
posted by CynicalKnight at 8:29 AM on October 19, 2006 [2 favorites has favorites]

ibmcgnity, I'm pretty sure that's the wrong way to read the bill. The relevant portion reads

"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

The definition for enemy combatant doesn't specify aliens, but pretty much every other provision of the bill does, including the one on habeas corpus. I'm not really sure how any court could reasonably interpret it to apply to citizens.
posted by Bulgaroktonos at 8:30 AM on October 19, 2006

I think this also needs a chicken little tag.

Please explain how you can think it's not such a big deal that the executive can now decide that you are affiliated with a terrorist group (or, hell, even just make a fricking mistake and think you're a different person) and grab you off of the street to never be heard from again.

Keep this in mind: you know the Bayesian anti-spam filters that you have on your email? The data mining that could be used to finger YOU is not all that much fancier than that--and it will be wrong just as often. Imagine if they grab someone based on such an electronic profile. Imagine the number of false positives. Do you still think suspending habeas corpus is not that big of a deal?

This law gives the president tyrannical powers. We are just supposed to trust that he won't abuse them. But surely, the entire idea of having a constitution in the first place is that we aren't supposed to have to trust the government to do the right thing.

It is shamefully naive to think that this much power will be used only for "the right ends". It will be used for power, period. Look at the PATRIOT act and the DHS--Both have already come to be used for ends that have nothing to do with the original intent. The same will happen with the Military Commissions Act of 2006, either now, or sometime in the future, possibly with a president from a different party. And the power inherent in the act, and hence it's potential for abuse, is far worse than anything before.
posted by mondo dentro at 8:31 AM on October 19, 2006 [2 favorites has favorites]

So was it "The Beginning of the End of America" during Roosevelt, Wilson, Lincoln, and Madison, too? Or is this, like, seriously the end?

Obviously this is hyperbolic on the part of Olbermann, but it's the good kind. Better to get a overly outraged at this kind of stuff than The Gays. Also, is it just me, or does it seem like all those Reagan Republicans/genuine conservatives are starting to see Bush's bullshit, too?
posted by billysumday at 8:32 AM on October 19, 2006 [1 favorite has favorites]

it doesn't feel like genuine outrage, it feels like self promotion.

Oh, come on, he's a TV personality, a media figure. Find me any other media figure or politician who doesn't have a whiff of self-promotion about them. Of course there's an element of self-promotion. That doesn't mean he's not genuinely outraged.
posted by flapjax at midnite at 8:33 AM on October 19, 2006

I just called down and talked to Judge Patterson. And he said that he it not aware that habeas corpus has been completely discarded. I told him to check Metafilter.

Don't be disingenuous, you know exactly what everyone is talking about. No, just any jacknuts prosecutor can't ignore habeas corpus. You have to have a direct order of the president. The point stands that it's unconstitutional and a threat to American liberty.
posted by empath at 8:33 AM on October 19, 2006 [1 favorite has favorites]

I told him to check Metafilter.

Hi Judge Patterson, why is the American Judiciary sucking the Administrations cocks instead of protecting the rights of the people? Is it because they are impotent themselves and love the feel of something hard (and let's face it, the administration is so hard compared to you bunch of walk overs)?

Thanks,

a concerned foreigner (who never wants to get picked up for no resaon (as many have been already), shipped to one of your not-quite-torture detention centres for years, tried in a kangaroo court, thrown in a prison cell and left to rot in the name of your fascism, I mean Freedom)
posted by twistedonion at 8:34 AM on October 19, 2006 [2 favorites has favorites]

dios might be advised to note that Abraham Lincoln suspended habeus corpus during a civil war. There was no civil war during Adams, Roosevelt, Wilson, or W. Bush. And, you neglect to even acknowledge any of those cases in your raising of your straw-man.

As far as it goes, I'm not surprised that so many people can't see the importance of this development. After all, most didn't see it during McCarthyism, most didn't see it during the internment of the Japanese, etc.

It took the courage of the few to overturn injustice, and it will again, this time. Every time, though, it gets harder. Are you ready to fight the battle this time? Because the devil is at your door, and if you don't answer the knock somehow, he's coming in.
posted by zhivota at 8:35 AM on October 19, 2006

Olbermann had John Ashcroft on. Keith read him various
critical comments from various sources, asked him pertinent
but polite questions, and allowed him to answer without
interruption or arguing with him. Keith was punctiliously
courteous at all times, including during follow up
questions. I mean, you'd have thought Keith was a Neocon sounding board for Ashcroft rather than a Liberal, sometimes radical, and usually acerbic critic of everything Ashcroft stands for.

That, ladies and gentlemen, is not being soft, it is being
an interviewer with the integrity not to allow his personal
views to get in the way of being fair and balanced when
dealing with someone who supports everything he personally despises. That, folks, is journalism at it's unbiased best.

That, people, is character of the highest order.

Keith makes his points in his editorial asides, jokes,
satire, and special comments. He allows others to make
theirs when they are on camera, and he does so politely and attentively.
posted by wfc123 at 8:35 AM on October 19, 2006 [3 favorites has favorites]

>>I think this also needs a chicken little tag.

Please explain how you can think it's not such a big deal

"Chicken little" has nothing to do with whether it was a big deal.

Rather is the logical absurdity of "This time we are really fucked. We can't recover from this. It is the beginning of the end"...... after just getting done discussing times in the past when such thing occurred (although ignoring Lincoln's actual suspension of habeas corpus).

Chicken Little kept crying that the sky was falling. And that is what has happened about 10,423 times since Bush was president. But you know what? As the Presidential election approaches, we will be hearing about "getting on the right track" and the new president will fix what was wrong with Bush. So to act like Chicken Little is completely absurd and that is what undermines his points.

There are completely rational and valid legal criticisms of this bill. As there are thoughtful humanist objections. But reason doesn't sell... or maybe its beyond Olberman's capacities.
posted by dios at 8:37 AM on October 19, 2006 [1 favorite has favorites]

On balance, I'd welcome such screed and vitriol come from someone closer to the scene of the crime. Say, the minority leader or other leading Democrat (pardon the oxymoron).
posted by hal9k at 8:37 AM on October 19, 2006

the new president will fix what was wrong with Bush.

!!!
posted by sonofsamiam at 8:39 AM on October 19, 2006

dios: by being overwrought and hyperbolic them.

mr. curmudgeon: Yeah. He should discuss the breakdown of American democracy using a more calm and soothing rhetoric.

I think dios would suggest that it's the "breakdown of American democracy" part that's hyperbolic and overwrought, not just Olberman's presentation style.
posted by pardonyou? at 8:39 AM on October 19, 2006

I think this also needs a chicken little tag.

And maybe an "overwrought" tag, too.

But the post isn't about you dios so those tags aren't required.

It's great to see an editorial like this and I for one, consider some of the best of the web indeed. But that's another debate isn't it...
posted by juiceCake at 8:39 AM on October 19, 2006

I like Olbermann and am a big fan of what he's doing, but we run the risk of Dawkinsnizing him here.

Good point, wfc123.
posted by Alvy Ampersand at 8:40 AM on October 19, 2006

This is a big deal. The "right" of a sovereign to toss anybody in jail just because they say so went away all the way back in 1214. Talk about your good old days. Plague, divine right of kings, papal infalibility, great time to be a lord and a lousy time to be a serf. I hope I'm wrong about this, but....

.
posted by ilsa at 8:40 AM on October 19, 2006 [3 favorites has favorites]

Rather is the logical absurdity of "This time we are really fucked. We can't recover from this. It is the beginning of the end"...... after just getting done discussing times in the past when such thing occurred (although ignoring Lincoln's actual suspension of habeas corpus).

If he had said "This Is the End Of America" instead of "This Is the BEGINNING Of The End of America", you'd have a point.

The beginning of the end merely implies that we are heading in a very, very bad direction, and the end of this path that we are currently on is tyranny.
posted by empath at 8:44 AM on October 19, 2006

Dios: Out of curiousity-- What would George Bush and the GOP have to do before you say 'this is too far." Where is your clear, bright dividing line between democracy and dictatorship? How many rights are you willing to give up and for how long? How much trust are you willing to extend to the executive not to abuse the powers they've asked for?
posted by empath at 8:46 AM on October 19, 2006

The definition for enemy combatant doesn't specify aliens, but pretty much every other provision of the bill does, including the one on habeas corpus. I'm not really sure how any court could reasonably interpret it to apply to citizens.
posted by Bulgaroktonos

One of us is really naive. My money's on it being you.
posted by leftcoastbob at 8:47 AM on October 19, 2006

dead_ writes "Olbermann gives conservatives ground to stand on when they talk about the 'liberal media" or whatever."

Defending a tradition that dates back to 1215 AD, that our founding Fathers enshrined for the protection of our freedoms, that we used to rightly justify our superiority to the totalitarian regimes of Nazi Germany and Soviet Russia, is liberal now?

What ever happened to the small-government, anti-totalitarian conservatives? Did they drown in the Kool-Aid?
posted by orthogonality at 8:49 AM on October 19, 2006

I don't know why you-all are rising to the bait. It is by now abundantly well-established that there is no exercise of tyranny dios wouldn't stoop to defend.

He's the very epitome of a "useful idiot," and honestly, as much contempt as I have for him and all his kind, I hope they never do see their 1937 - it'd be just as bad for all the rest of us.

Just leave him be.
posted by adamgreenfield at 8:51 AM on October 19, 2006 [2 favorites has favorites]

ilsa and others: habeus corpus might go back 800 years, but for the most part has only been applied to select white men in that time.

Try getting a fair trial as a woman in 1800, or as a sioux in 1850 or as a so-called black man in 1930. As long as you weren't a white male it was, and still is, common that you could be picked up, detained, killed, or tried in any which way.

I am not saying this suspension is not a big deal, but let's be honest, the world wasn't an orderly, just place before this bill.
posted by milarepa at 8:51 AM on October 19, 2006

empath: that was a distinction without a difference. If the limited suspension of habeas corpus triggers the end of America, then it would be ended already. It has been suspended in limited circumstances several times. We recovered. It has been completely suspended one time. We recovered. To say this time is different is Chicken Little.

The Constitution itself provides for the whole suspension of habeas corpus:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. (U.S. Const. Art. I, sec. 9).

Insofar as it is authorized under the Constitution, it is antithetical to reason to argue that if it occurs in a limited circumstance, then the foundations of the country are irrevocably harmed.

As I said, there are valid criticisms of its implementation and there are legal questions whether the proper procedural and substantive basis exists.

But arguing that this is fatal for democracy just makes you look like you don't know what you are talking about and are resorting to emotion instead of reason.
posted by dios at 8:52 AM on October 19, 2006

The definition for enemy combatant doesn't specify aliens, but pretty much every other provision of the bill does, including the one on habeas corpus. I'm not really sure how any court could reasonably interpret it to apply to citizens.

Riiiiight, just like the Patriot Act was NEVER going to be misapplied whenever it suited the Justice Department's needs.

See you in the camps.
posted by briank at 8:52 AM on October 19, 2006

dios writes "I notice in his rant, he didn't mention Good and virtuous Abe Lincoln suspending habeas corpus. "

Presunmably, becauae what Abe did was Constitutional. US Constitution, Article 1, Section 9, Clause 2, emphasis added:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

posted by orthogonality at 8:52 AM on October 19, 2006 [1 favorite has favorites]

Where is your clear, bright dividing line between democracy and dictatorship?

Elecitons. And we are having one in a month. And then a Presidential one in 2 years.

How many rights are you willing to give up and for how long?

Just one. Luckily, like everyone else, I haven't lost a single right.
posted by dios at 8:54 AM on October 19, 2006

He should try speaking modern English.
posted by muppetboy at 8:55 AM on October 19, 2006

orthogonality: there is an "or" there. You didn't italicize it. And that is the clause that is at issue here.
posted by dios at 8:56 AM on October 19, 2006

leftcoastbob, that's laziest kind of argument. It says, ignore what's actually going on, and pay attention to what you think will happen based on the presumption that your argument is true in the first place. Essentially it runs like this

"Who cares what the law says, it will lead to a dictatorship because Bush is a totalitarian, look he's taking away habeas corpus."

We still have three branches of government in this country people. Congress and the President can say they're taking away habeas corpus, but it only applies if the Courts choose to enforce the law that way. I do not believe that the Courts will enforce this law, as you read it, against American citizens. Courts can do a lot of funny things, but they tend to follow the text when it's amazingly clear, as in this case.

Given that there is not the constitutionally mandated "rebellion or invasion", I don't think they will apply any of the habeas provisions at all, but they might apply them to aliens as the laws says. There's no way they apply them to citizens.
posted by Bulgaroktonos at 8:56 AM on October 19, 2006

Seriously, does anyone in the news actually read the bills before congress, or do they just look for quick blog summaries of them? This is what we get for turning to ESPN for hard news.

S 3930, which is what this is about, has absolutely nothing to do with "the executive can now decide that you are affiliated with a terrorist group (or, hell, even just make a fricking mistake and think you're a different person) and grab you off of the street to never be heard from again" as someone wrote above

Read the bill.

It is impossible to be "disappeared" as some blogs are saying, under this law, because this law describes precisely the process you go through when you are hauled before one of these commisssions. Furthermore, they only apply to enemy combatants, who are designated as such by some tribunal. It does not, and can never apply to US citizens or legal residents.

Now a lot of people fell asleep just then, so let me explain it. Only enemy combatants, who are designated as such by a tribunal, can be brought before a military commission, at which point they are entitled to see all the evidence against them, get a trial, get a lawyer, etc. Read the bill.

Nobody can get picked up off of a US street under this law. Sure the government is physically capable of doing that to you if they want, but it would be just as illegal now as it would have been 1, 10, or 50 years ago. In that respect, nothing has changed.

This law is about how to treat people who are not POW's because they aren't soldiers in any army or representatives of any country. Period.

Furthermore, if you don't like this law, that's fine. But you have to provide an alternative. You can't just sit on your ass and say "I don't like it." You have to engage your brain.

So what is the alternative? If someone is attacking US soldiers in a war zone, and the attackers are not soldiers in a national army and they disguise themselves as and mingle with civilians, i.e. if the attackers are violating the laws of war and the Geneva Conventions, how do you deal with them once you capture them? Stop doubletalking and whining. Give us a specific and detailed solution to this problem.
posted by Pastabagel at 8:57 AM on October 19, 2006

Senator Leahy's astute appraisal of the mental dwarfism of our present ruling class:

"Over 200 years of jurisprudence in this country, and following an hour of debate, we get rid of it?"

We are sad and ignorant animals, lost and worshipping at the shrine of expediency, unable (or unwilling) to civilly and logically debate and address the issues that face us. We deserve to sink in the cesspool we have so willingly created.
posted by Benny Andajetz at 8:57 AM on October 19, 2006

LOL dios, you say the US is under invasion?!? Get a grip.
posted by twistedonion at 8:58 AM on October 19, 2006

If Holbermann is right, then he's a dead man.
posted by jimfl at 8:58 AM on October 19, 2006

Come on guys, you're dealing with the "winner" of MetaFilter here. I think he has a pretty good grasp on "overwrought".
posted by prostyle at 8:59 AM on October 19, 2006

dios writes "orthogonality: there is an 'or' there. You didn't italicize it."

dios, we're being invaded? Currently? Are you really saying that the plain language of "invaded" includes " a couple guys with shoe bombs"?

I don't think the Founders were such wimps as to trash fundamental liberties over a few shoe bombers; it's a pity the current Administration is.
posted by orthogonality at 8:59 AM on October 19, 2006

Given the state of the media these days, is it really such a crime to model your tone on E. R. Murrow? I loves me some ironic whiteboy late-night anti-news comedy feed, but I think there's room for a variety of voices, and yeah, a stilted outraged voice sometimes really hits the spot. And frankly I'm not too worried about giving the conservatives room ground to stand on - you wanna talk about some overwrought writing, spend the day on Redstate or some such drek and get back to me. Doesn't matter what the media says or does, they're gonna freak out either way. The point is not freak out the Great Muddling Middle.
posted by DenOfSizer at 8:59 AM on October 19, 2006

"Olbermann gives conservatives ground to stand on when they talk about the "liberal media' or whatever."

You're right. I guess he shouldn't have said any of that then.
posted by inoculatedcities at 9:00 AM on October 19, 2006

Piss on you, dios. You have always been full of it. You'll redefine words endlessly until nothing means anything.

9-11 was not an invasion by any means. al Qaeda are not occupying our streets.
posted by sonofsamiam at 9:00 AM on October 19, 2006

Elections. And we are having one in a month. And then a Presidential one in 2 years.

Lots of countries have elections who are not actually functioning democracies. The Soviets had regular elections too. As Iraq is showing there's a heck of a lot more to an open and free democracy than just elections.
posted by octothorpe at 9:00 AM on October 19, 2006

Rather is the logical absurdity of "This time we are really fucked. We can't recover from this. It is the beginning of the end".

That is a willful misinterpretation of what he (and I and we) are saying. Obviously, there is hope. Hell, if I thought there were no hope I'd be getting out of the country or going underground or something. I, like you, hope that we can reverse this, just as similar threats have been reversed in the past.

But this is a Very Serious matter. We're all saying "wake the hell up". And you should be saying the same thing if you value the constitutional principles upon which the United States is based.

Combine this law with PATRIOT, unitary executive theory, and signing statements and I think the evidence is clear that we are heading towards a very authoritarian, and I would argue profoundly un-American, future. How much longer do you want to wait before you express concern?
posted by mondo dentro at 9:01 AM on October 19, 2006

Pastabagel writes "Nobody can get picked up off of a US street under this law. "

Dude, even bore this law was passed they picked up Jose Padilla, and we (according to an extensive filing by the lawyer he was only able to get after the supreme court intervened) tortured him. He's an American citizen, arrested in America.
posted by orthogonality at 9:02 AM on October 19, 2006

Olbermann seems to be correct. What are the chances that the neocons won't eventually be rounded up under such a "expedient" law? Just who are the neocons kidding here? There's nothing cultural to protect them because they are a narrow band of fools, and they seem to have no idea what the average redneck really thinks of them. Muslims will always have the politics of oil to shield them, no matter how bad it gets.
posted by Brian B. at 9:02 AM on October 19, 2006

Seriously, does anyone in the news actually read the bills before congress, or do they just look for quick blog summaries of them?

Are you new to Metafilter? Nobody EVER reads the bills they bitch about. They just take whatever Kos or Olberman or whomever told them about it at face value. We've had people's entire post link to nothing but a piece of legislation that the poster didn't even read. He just read a characterization of it and thought he should rant about it.

But when you are engaged at the level of rhetoric that is going here, what does it matter what the legislation says? It's all about what the worst light something can be cast in. Relying on the legislation itself is unhelpful in that regard.
posted by dios at 9:02 AM on October 19, 2006

Only enemy combatants, who are designated as such by a tribunal, can be brought before a military commission, at which point they are entitled to see all the evidence against them, get a trial, get a lawyer, etc.

Tell that to the people in Gitmo or the "secret" CIA facilities. What tribunal? What judge? What evidence? What trial? What lawyer?

It amazes me that so many people seem to be unable to realize that you don't have to be foreign to be unAmerican. We always have the choice to do the right thing, and we seem to work overtime to do the wrong thing.
posted by Benny Andajetz at 9:03 AM on October 19, 2006 [1 favorite has favorites]

Nobody EVER

Nobody ever watches their own universal qualifiers, either, for how much they bitch about precision.
posted by sonofsamiam at 9:04 AM on October 19, 2006

Are you new to Metafilter? Nobody EVER reads the bills they bitch about.

Sometimes the politicians don't read the laws before they vote for them either. It's like a sick merry-go-round of ignorance.
posted by milarepa at 9:06 AM on October 19, 2006

Sometimes? Frequently.
posted by sonofsamiam at 9:07 AM on October 19, 2006

So what is the alternative? If someone is attacking US soldiers in a war zone, and the attackers are not soldiers in a national army

Then they are probably civilians taking up arms against aggressors and deserve to be treated as such. I'm sick of this shit. Iraq is a fucking mess thanks to America. "Global Terrar" is greater since 9/11 thanks to America. My Government is starting to go all crazy thanks to the example set by America.

Compare the threat of terrorism to the threat of America. America is a greater threat to world peace than Osama and all those other fuckers. This has been proven. So can we stop all the bullshit now please and work out how we are going to put an end to this threat to our way of life and freedom.
posted by twistedonion at 9:08 AM on October 19, 2006

Orthogonality - Precisely. Before the law passed they did this. They cannot do it now because now there is a procedure they have to follow. The operative part of what I said was "under this law". Padilla didn't get picked up under this law. He got picked up underoridnary criminal law (planning a terrorist attack), but then had his citizenship status bizarrely altered, becaome an enemy combantant, which was undefined in the law befopre this and without precedent, and then he vanished for a while. By essentiually revoking his status, they tried to call it legal (it wasn't).

That was all illegal, but the govt claimed to be able to do it because of his new nebulous status as an enemy combatant.

Now, they can't. If Padilla is an unlawful enemy combatant (if we assume all the intel about him was true, then he would be), s3930 (or whatever its USC number is) kicks in.

If he's an enemy combatant, it would be a violation of his due process rights, among other things, because now there is a process for dealing with enemy combatants that he is due. There wasn't before.

In other words, this law brings back into the system people who fell outside of it.
posted by Pastabagel at 9:09 AM on October 19, 2006

"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

Who decides that you are a citizen?

What happens if the executive declares that you're an Alien, when you aren't. How do you get access to the courts to prove that you're a citizen, thus, immune to the restrictions of the above citation?
posted by eriko at 9:11 AM on October 19, 2006

Plenty of dictatorships have elections. Our elections are starting to smell more and more each time.
posted by knave at 9:11 AM on October 19, 2006

Furthermore, they only apply to enemy combatants, who are designated as such by some tribunal. It does not, and can never apply to US citizens or legal residents.

Some gross mistakes in your comment which should be rectified:

Enemy combatants are generally designated as such by the President of the United States or through his Attorney General. Combatants can be tried by military tribunals.

Enemy combatant status has been applied to US citizens (among others).

If you are a US citizen, once you have received this designation you lose the right of due process (habeas corpus) as ruled by judges in US Circuit Courts and the US Supreme Court (see "Timeline").
posted by Blazecock Pileon at 9:12 AM on October 19, 2006

In other words, this law brings back into the system people who fell outside of it.

Thats, umm, horseshit.

Read the Geneva Conventions- particularly Article Five. All this is addressed. G.W. feels he doesn't have to play by the rules, and he has no intention of doing so.
posted by Benny Andajetz at 9:14 AM on October 19, 2006

In other words, this law brings back into the system people who fell outside of it.

Bullshit. If Padilla is a criminal, charge him with crimes.

He's only outside the system because they put him out. And now they're widening the door.
posted by sonofsamiam at 9:14 AM on October 19, 2006

dios: "Just one. Luckily, like everyone else, I haven't lost a single right."

Ahem. I'm not an American. Through signing this bill I am now at peril of being swept up, put in a cell to be tortured and not having a single legal recourse I could take; all it would take is for your president to accuse me of "aiding a terrorist". Just think how that makes foreigners feel: George Bush now reserves - officially - the right to do with us as he pleases, to arbitrarily, without judicial oversight or legal procedures lock us up, on charges we need not be told, without informing our governments, families or legal assistance. Do you seriously think that America's image could look any worse, seen through the eyes of a foreigner? Don't you have to agree you're stooping to the lowest lows of dictatorship by giving one man such power without oversight? Why do I have to give up all my rights to America?
posted by PontifexPrimus at 9:16 AM on October 19, 2006 [6 favorites has favorites]

Presunmably, becauae what Abe did was Constitutional.

Not entirely.
posted by DevilsAdvocate at 9:18 AM on October 19, 2006

one good move has a higher quality version of the olberman piece, if youtube looks as crappy to everyone else as it does to me.
posted by ambulance blues at 9:19 AM on October 19, 2006

Pastabagel, you have a history of posting false yet vehement defenses of the Bush administration. Your summary above is the same - false, yet vehement. Both of your two posts in this thread are full of misinformation.

Anyone designated by the President - not a tribunal - as an enemy combatant can be detained indefinitely. The law covers procedures IF you are brought before a military tribunal, but nowhere requires the government to actually bring you before one - so you can be imprisoned for life with no trial. The law prohibits courts from reviewing any claim you make about your imprisonment - so if a lawyer acting on your behalf files a claim with a court saying, "Help, I've been imprisoned without any charges for the past five years", the court is legally prohibited from taking your case.

I'm guessing that you are a Fox viewer. You should probably read this.
posted by jellicle at 9:22 AM on October 19, 2006 [2 favorites has favorites]

Wow - you just tried to characterize this law as an improvement, Pastabagel. That's seriously fucked up.
posted by odinsdream at 9:22 AM on October 19, 2006

Presunmably, becauae what Abe did was Constitutional. US Constitution, Article 1, Section 9, Clause 2

Only Congress can suspend HC. Abe's actions, like a lot of things he did during the Civil War, were questionable at best.

orthogonality: there is an "or" there. You didn't italicize it. And that is the clause that is at issue here.

You think we've been invaded?

I do have some high hopes that the Supreme Court will overturn this law, though, for many of the same reasons that they overturned the previous incarnation of this program. And the chance that the next Congress will roll over and pass anything close to as terrible as this law is nil.
posted by norm at 9:23 AM on October 19, 2006

Why *do* you all reply to dios? If you can ignore the part of *you* that should be examining things objectively, surely you can ignore *someone else* making the argument for the other side.
posted by Krrrlson at 9:24 AM on October 19, 2006

Hey Krrrlson, piss on you, too!
posted by sonofsamiam at 9:27 AM on October 19, 2006

Not entirely.

What's interesting about that case is that Chief Justice Salmon Chase was a staunch federalist, which — given the anti-"activist judge" stance of today's GOP — really calls into question the legitimacy of invoking Lincoln's suspension of habeas corpus as a defense of suspending civil liberties.
posted by Blazecock Pileon at 9:28 AM on October 19, 2006

Never mind the "End of America" - how about the "End of the International American Tourist Industy" - who in their right mind would want to travel to the US after this idiocy has been enacted in law?
posted by sporb at 9:28 AM on October 19, 2006

Rather is the logical absurdity of "This time we are really fucked. We can't recover from this. It is the beginning of the end".

Olberman never said this. Typical Fox News style bullshit spin.

He said the suspension of Habeas and disregarding the Geneva Conventions is wrong. He said the Administration has provided no proof or substantive reason for doing so. Nor that in doing so this administration will yield anything positive.

Because of that Olberman said we, as a nation, will deeply regret it. And it is steps like suspending time honored democratic traditions that mark the way towards tyranny. IE: it COULD be the end of what we know as American democracy.

He's right.

So Dios. Your really useless to these discussions. We can all tune in Fox if we want too. At least try to do better that Bill O’rielly. I know you think your giving a meaningful counter viewpoint, but your not. At least not intelligently. Just drive by trolls. Please do yourself a favor. Shut the fuck up.

Is Olberman actually making a difference? That's what i'd love to know. I read somewhere is ratings are up, but what does that really mean in the grand scheme of things. America stills seems to be fucking up.

Jesus Christ.

Ok then. Let's shut down NPR, and Migrate FOX to every outlet and have Tony Snow send us text messages every fifteen minutes of how great Bush is, and how everything is going swimmingly.

Of COURSE Olberman is doing something. Bush's polls will not rise above 43%.

While that is WAY too high for an administration so completely incompetent, unable to even accomplish their own corrupt agenda, it at least shows that some of our brain-dead electorate has at least partially woke-up out of their fag-hating, Terry Shivo reviving, Ay-rab killing stupors long enough to actually act IN THEIR OWN GODDAMNED INTERESTS.
posted by tkchrist at 9:28 AM on October 19, 2006

given the anti-"activist judge" stance of today's GOP

C'mon. Not even Republicans really think they oppose "activist judges", that just means "a judge who didn't rule what I though he should." Nobody was bitching about activist judges in the 2000 election, were they.
posted by sonofsamiam at 9:30 AM on October 19, 2006

Nitpicking over hyperbolic language when the worst President in US history has been given unprecedented and utterly unconstitutional power to deny people their fundamental human rights is like rearranging the deck chairs on a fairly leaky boat of moderate size that probably won't sink if we all bail really hard.
posted by Armitage Shanks at 9:30 AM on October 19, 2006 [1 favorite has favorites]

Pastabagel, kudos for your ever-so delightful combination of unwarranted certitude and patronizing tone.

First of all, my friend, I have read the bill. I'm not a lawyer, but I've read it. In addition to reading, understanding its implications is also important, would you agree?

Second, referring to "the blogs" is a cute (i.e. dishonest) rhetorical ploy, since you manage to dismiss many blogs by legal and constitutional scholars who are critics of the bill by lumping them with ranters. What is your expertise (and I mean expertise, not ideology) relative to, say, Glenn Greenwald, or Marty Lederman?

Finally, as has already been pointed out, as best as I can tell YOU ARE WRONG.

An American citizan can be designated and enemy combatant and hence subjected to the suspension of the writ. To quote just one analysis:

Most of the attention in the press has focused on subsection (i) of the definition, which would designate as an UEC any "person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)." And that subsection is, indeed, broad, and fairly indeterminate, depending on how "materially supported hostilities" is interpreted (something that the Administration apparently could do without much or any judicial review).

But the really breathtaking subsection is subsection (ii), which would provide that UEC is defined to include any person "who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Now, if you are prepared to argue why this interpretation is wrong, fine. I'm all ears.

Otherwise, stuff it.
posted by mondo dentro at 9:31 AM on October 19, 2006 [2 favorites has favorites]

Making ad hominem attacks against dios rather than arguing his points is not helping you.
posted by smackfu at 9:33 AM on October 19, 2006

Congress and the President can say they're taking away habeas corpus, but it only applies if the Courts choose to enforce the law that way. I do not believe that the Courts will enforce this law, as you read it, against American citizens.

But denying habeas corpus means that person will likely never see the inside of a US courtroom, where a judge might have a chance to rule on that. You will be at the mercy of the military commission system, which can deny you a lawyer and convict you on evidence you're not allowed to hear.

Given how Bush has interpreted other laws on these subjects, it's not unreasonable to assume that he believes his power as Commander-In-Chief allows him to ignore the limitation of this law to aliens/non-citizens, and that he considers the battlefield in this war to be the entire planet. I don't think that means he's planning to start rounding people up tomorrow, but I do think it means there will be a lot of people detained based on pretty flimsy evidence who will spend a long time behind bars and possibly tortured before they see the light of day again.
posted by InfidelZombie at 9:34 AM on October 19, 2006

Are you talking to me, smackfu? Cuz I don't think I'm going ad hominem. At least in this thread :).
posted by mondo dentro at 9:35 AM on October 19, 2006

Making ad hominem attacks against dios rather than arguing his points is not helping you.

help do what?
posted by sonofsamiam at 9:36 AM on October 19, 2006

...rather than arguing his points

LOL. His POINTS. HAHAHAAHA....

Oh. Your serious.

Dude, he has no points... other than the well worn empty TALKING points of picked up from Fox News Editorials. How many times must we rip those down? Dios simply uses the tired propaganda trick of repeating a lie over and over until it becomes truth... er... truthy. Why waste your breath addressing that?
posted by tkchrist at 9:38 AM on October 19, 2006

The only answers to Bulgaroktonos so far have been claims that "alien" will be interpreted to mean "alien or citizen". Granted the Bush administration will stretch everything as far as they can get away with, I don't think it is right to say that habeas corpus has been abolished for citizens when the law in question plainly specifies "alien". Maybe it will be interpreted contrary to the literal meaning, but I thought it literally applied to citizens and that was what the alarm was about, but it doesn't.

There is plenty to be alarmed about, but the claims that habeas corpus has been abolished for citizens are apparently speculations that a law will be interpreted contrary to the plain meaning, not of what has happened in a legal sense.

On preview, seeing mondo dentro's post, I still side with Bulgaroktonos. The over-broad definition of "enemy combatant" doesn't come into play for a citizen until you get past the clause in the main part which is limited to aliens.
posted by jam_pony at 9:39 AM on October 19, 2006

Kevin - one more for Mt. Rushmore... I nominate Lewis Black's.
posted by winks007 at 9:39 AM on October 19, 2006

C'mon. Not even Republicans really think they oppose "activist judges", that just means "a judge who didn't rule what I though he should." Nobody was bitching about activist judges in the 2000 election, were they.

I don't disagree with you, I'm simply enjoying the delicious irony that results when apologists for Bush invoke Lincoln's suspension of due process, all the while throwing around the rhetoric of "activist judges", perhaps forgetting or ignoring that old-school federalists (such as Chase) would have probably supported impeaching Bush (or at least handily overturning laws such as these), if their past rulings are any indication.
posted by Blazecock Pileon at 9:40 AM on October 19, 2006

smackfu writes "Making ad hominem attacks against dios rather than arguing his points is not helping you."

smackfu is right. Instead, let's just get dios declared an illegal enemy combatant. I'm sure dios would be OK with that, and the treatment he'd get, and his inability to petition for habeas corpus, as long as we all agreed it was for the Common Good. Right, dios?
posted by orthogonality at 9:41 AM on October 19, 2006

Rather is the logical absurdity of "This time we are really fucked. We can't recover from this. It is the beginning of the end"...... after just getting done discussing times in the past when such thing occurred

you know how we recovered from the previous times? People stood up and pointed it out and made a big fuss. What you view as unnecessary hand wringing is exactly what keeps these kinds of changes in check, to at least a limited degree. If everyone were to shrug it off and trust that the executive branch knew what they were doing, the gov would simply push further - it's human nature, and it's naive to imagine those in power will check themselves out of rational obligation or something. It is the oldest problem of human interaction: we push against each other, and everyone thinks their own judgment is best in the end.

I don't doubt we'll get through this fine, but the main reason I don't doubt it is because of the people responding to it.
posted by mdn at 9:42 AM on October 19, 2006

The only answers to Bulgaroktonos so far have been claims that "alien" will be interpreted to mean "alien or citizen".

I don't see that Bulgaroktonos' quoted section addresses citizens who have been declared enemy combatants, only stating that no trial is necessary for aliens.

Does that leave the question of habeas corups for citizen combatants open, or not? The issue seems ominously unspecified.

I mean, the whole designation of 'unlawful combatant' was made up to avoid the legal system already in place. If citizens can be declared illegal combatants, does anyone really know what rights they are guaranteed?
posted by sonofsamiam at 9:44 AM on October 19, 2006

The whole dios thing is interesting, mostly because no one seems to be understanding the essence of his point:

I would say that he completely undermines his valid criticisms by being overwrought and hyperbolic them.

That's a pretty simple and staightfoward point: he recognizes that Oberman has points but thinks the presentation undermines them.

Yet, all the respones to dios seem to be about several past arguements and bad feelings. Strange.
posted by Brandon Blatcher at 9:46 AM on October 19, 2006 [1 favorite has favorites]

An American citizan can be designated and enemy combatant and hence subjected to the suspension of the writ. ... Now, if you are prepared to argue why this interpretation is wrong, fine. I'm all ears.

Wrong. You only address the broad definition of enemy combatant, and do not address the section of the MCA that actually strips the courts of habeas jurisdiction. Section 7 of the MCA eliminates habeas for an “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Now, I'm not defending this bill by any stretch of the imagination, but criticizing it because it allows citizens to be "grabbed off the streets" is simply wrong. Jonathan Hafetz has some educated objections to this section.
posted by monju_bosatsu at 9:54 AM on October 19, 2006

Here is what I was referring to:

But the post isn't about you dios so those tags aren't required.

He's the very epitome of a "useful idiot," and honestly, as much contempt as I have for him and all his kind, I hope they never do see their 1937

Piss on you, dios. You have always been full of it.

So Dios. Your really useless to these discussions.
posted by smackfu at 9:56 AM on October 19, 2006

This bill is a fig leaf to provide legalistic cover for coerced testimony and "confessions", enabling the executive branch to point to its many successes in the Terror War.

The reason that warning siren in your head should be going off is that, as mondo dentro points out, the entire process of assigning enemy combatant status is under the control of the executive branch. The tribunals (appointed and convened under authority of the President or SecDef) will decide whether you are "entitled" to participate in the judicial process; if they decide you are not, there is simply no legal recourse, as your case, by power of the decree of UEC status, will never come under the aegis of the judiciary.

I agree that some mechanism must be created to process irregulars overseas, but foreign nationals and US citizens on our soil can and should be successfully prosecuted within the bounds of our legal system.
posted by Mister_A at 10:04 AM on October 19, 2006

You think we've been invaded?
posted by norm at 11:23 AM CST on October 19

Well, that is the legal question I alluded to earlier. One could make the argument that the attacks on 9/11 were an invasion. One could also argue that we have actual knowledge of enemies inside our borders.

But to understand my point, it helps to have a knowledge of the law instead of relying on the word invasion. Since Ex Parte Milligan through Quirin and the Japanese cases up to the recent ones, the Supreme Court has gone over constitutional writs of habeas corpus dozens of times. The language at issue "civil war or invasion" is secondary to the inquiry of whether the public safety may require it. That is, "the public safety may require it" in instances of civil war or invasion. So the triggering issue is public safety, not whether there is an actual invasion. To put it another way: there could be issues of invasion or civil war when the public safety wouldn't require it, and it would therefore be unconstitutional.

So, going back over the cases, you will see that "invasion" just doesn't mean boats at the shoreline or troops marching down main street. Rather, it means aggresive acts of war against the United States. And "invasion" can be mean the threat of invasion. See, e.g. Duncan v. Kahanamoku, 327 U.S. 304, 314, (U.S. 1946); Korematsu v. U.S., 323 U.S. 214 (U.S. 1944). That was really the essence of the Japanese cases. We weren't being invaded by Japan beyond the attack at Pearl Harbor (c.f. 9/11). So it doesn't work to just say that we aren't being actively invaded, and therefore it cannot be triggered.

So the primary question is: are the facts so that we could suspend habeas corpus in toto? That would hinge on that determination. One can make a colorable argument that we are. If we are, then the constitutionality of this legislation is a slam dunk.

But the way the cases trended in Hamdi and Padilla, the inquiry may not even reach that question because the question is enemy combatants, not habeas.
posted by dios at 10:08 AM on October 19, 2006

My America ended a while ago. I want it back.
posted by Astro Zombie at 10:09 AM on October 19, 2006

Does the Military Commissions Act apply to citizens?

Has Congress unconstitutionally suspended the writ of habeas corpus?
posted by homunculus at 10:11 AM on October 19, 2006

That's a pretty simple and straightforward point: he recognizes that Oberman has points but thinks the presentation undermines them.

Please. So when Dios makes it AD HOM, it's ok? Essentially that is what HE does.

That is not a "point" it's a typical talking point tactic.

When he can't refute an argument (actually he never really refutes an argument he circumvents or obfuscates it) he then ALWAYS points to there presenter being hyperbolic (Ohes noes it's "Kos!"). Thus in his world the argument is not worth considering so just move along.

And the reason people "strangely" get worked up about his past posts is simple. He is unprincipled and not trust worthy.

He made a series of statements about the war and this president that were very entrenched and absolutist. Fine. And later they turned out to be completely wrong. We all make mistakes. Most people of principle admit they made a mistake. Yet he never owned up to it or admitted he was wrong. So he has been fighting this retreating rhetorical battle with obfuscating trench warfare tactics ever since. Reducing every political thread he enters ABOUT him. Oops.

And I fell for it again. Sigh.
posted by tkchrist at 10:12 AM on October 19, 2006

has been given unprecedented and utterly unconstitutional power
posted by Armitage Shanks at 11:30 AM CST on October 19

Did you bother to even read the thread, watch the link, or consider a basis for this comment?

This is just ridiculous. It's been done before. And the Constitution authorizes suspension of habeas corpus.

.....

And after seeing all the other comments that popped up before I made my last one, I'll just ignore them since its clear they aren't interested in a serious discussion about what is going on here and are more interested in providing examples of confirmation bias.
posted by dios at 10:13 AM on October 19, 2006

I agree that some mechanism must be created to process irregulars overseas, but foreign nationals and US citizens on our soil can and should be successfully prosecuted within the bounds of our legal system.

See above.
posted by monju_bosatsu at 10:17 AM on October 19, 2006

but criticizing it because it allows citizens to be "grabbed off the streets" is simply wrong.

Wait a minute. The bill (and congress has affirmed) gives the President the ability to define and declare WHO is an alien or enemy combatant, right? If HE say's you're the enemy... even IF you're a citizen... you're an enemy. So yes you CAN be picked up.
posted by tkchrist at 10:26 AM on October 19, 2006

mondo dentro -
Maybe you should read the version that actually passed the house and senate.

See this:

(a) Jurisdiction- A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001

So this quite clearly says that the military commission can only try offenses defined under this law when they are committed by alien unlawful enemy combatants.

Secondly, that blog you linked was discussing an earlier draft of the bill that didn't include the word "alien".

Thirdly, unlike someone said earlier, the President can't label anyone an enemy combatant:

`(c) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

Someone else criticized me for suggesting that this law is an improvement. It is:

(power to capture and detain people) + (rules governing the capture and detention) > (power to capture and detain) + (no rule whatsoever).

The government could capture these non-soldier al qaeda types and disappear them. There were no rules. Now there are. When it comes to this stuff, more rules are better than none.

Everything everyone is criticizing the government for was done before this law was passed. And at that time, it was all arguably legal, because it took the Supreme Court to settle the issue. Now congress has to enact laws taking into account all those decisions. What the lawyers are talking about are very specific instances of how the bill could be read or implied in a way that does not conform to one of the recent supreme court cases on the topic. But none of them are saying that the law is unconstitutional on its face.

Furthermore, the bloogers you linked to do not in any way resemble the arguments presented by Olberman or most of the comments here. Here, the argument, or complaint, is that the law rolls back civil rights, the constitution etc.

My point is that that is all nonsense. This law is part of the uniform code of military justice, which does not apply to US citizen civilians.
posted by Pastabagel at 10:26 AM on October 19, 2006

You know, I really wish someone who could actually DO something about this would give a speech like this. My god, how did we ever get here? We've seen it coming, for years this has been in the works, our civil liberties have been stripped away one by one by one, and yet there are people who are surprised this passed, and now that it has passed, now that it's almost too late to do anything about it, the only person with the nerve to stand up and risk his credibility, and his personal freedom, if we're going to come right down to it, by making a very public speech is a television personality?

Where the fuck are we? Where are we all - watching tv? Playing WoW? When are we going to wake up and do something (myself included)? Viva la revolucion, people!

As an aside - I go a long way to not read anything dios has to say in these threads, and it gets very distracting when people spend half the thread arguing with him, because then I have to read his rantings just to follow the discussion, which negates the whole point of ignoring him in the first place - so please, for the love of god, let the thread be about the topic at hand and not just responding to dios. Thank you.
posted by jennaratrix at 10:27 AM on October 19, 2006

(actually he never really refutes an argument he circumvents or obfuscates it)

I would say that this pretty much meets the actual definition of a refutation. Or at least a rational expansion of his points. I'll take that over all the stupid OMG BUSH SUXORS AMERICA IS DEAD b.s.
posted by spicynuts at 10:29 AM on October 19, 2006

Did you bother to even read the thread, watch the link, or consider a basis for this comment?

Uhh, it was a joke, Dios. I made a hyperbolic statement and then followed it up with a de-hyperbolicinated analogy.

The whole dios thing is interesting, mostly because no one seems to be understanding the essence of his point:

Yes, yes, the essence of Dios' point is pretty much always to ignore the topic at hand and derail the thread into a discussion about whether the great monolithic MetaFilter groupthink is overreacting to this Bad Thing. Eventually, when enough people have taken the bait, he'll acknowledge that, no, he doesn't support the Bad Thing either, but by then, it's all about Dios again. Rinse and repeat ad infinitum.
posted by Armitage Shanks at 10:31 AM on October 19, 2006 [4 favorites has favorites]

Olbermann for President!
posted by stonedcoldsober at 10:32 AM on October 19, 2006

I'd like to respond to the idea, which I've seen a lot, that denying habeas corpus means these people will never be in court, and so it doesn't matter how a court would interpret the statute.

The suspension of habeas corpus is only effective, as a practical matter, if a court chooses to let it be. Let's say I as a citizen am detained. The court can say I don't have the right to challenge by detention all they want, but it doesn't mean anything if a court chooses to hear my case. A statute can claim to strip habeas corpus protections, but that does not preclude a judicial hearing on whether that's the proper statutory interpretation, or whether or not the statute is constiutional.
posted by Bulgaroktonos at 10:32 AM on October 19, 2006

Er, that first "court" should read "the government"
posted by Bulgaroktonos at 10:35 AM on October 19, 2006

Wait a minute. The bill (and congress has affirmed) gives the President the ability to define and declare WHO is an alien or enemy combatant, right? If HE say's you're the enemy... even IF you're a citizen... you're an enemy. So yes you CAN be picked up.

No! The bill does not say that. You have to be designated as an enemy combatant by a tribunal set up for that purpose, differnt from the commissions we're talking about here. Under the UCMJ this tribunal includes military personnel, not DOD or DOJ hacks. Furthermore, this law only applies to a subset of unlawful enemy combatants, alien unlawful enemy combatants. Even if they designate you an unlawful enemy combatant (UEC), they do not have the power to designate you an alien. So under this bill at worst, you get a normal ordinary military court martial the likes of which have been around forever, and which are used to try US soldiers as well.

It is worth investigate what standards have to be met in the tribunal before they can designate you an U.E.C.

You need to distinguish two cases:

John Walker Lindh - U.S. citizen in Afghanistan, fighting with taliban against U.S. soldiers. He is not an alien unlawful enemy combatant. (1) he's not an alien, he's a citizen. (2) He's not an unlawful enemy combatant, he's part of the taliban fighting force, which is ostensibly the legitimate military of the ruling govt. of afghanistan. So He's a lawful enemy combatant.

So what happens to him? He's shipped back to the US to stand trial in federal court.

Jose Padilla - US citizen, but this time arrested in the US for suspected ties to al qaeda and in connection with a plot to bomb targets in the US - this is your "violent overthrow of the United States" case that everyone learned about in civics class. He is not an alien, but he is an unlawful enemy combatant, because al qaeda is not a lawful army, he's targetting civilians, etc. So with this guy, the question is, should he get an ordinary US criminal trial, or military court martial? Or, in the extreme does he revoke his citizenship by attacking the US?

Before this, though, there's a problem. You can either put him on criminal trial in the US, but likely you only have the intelligence (CIA) level of proof, not proof beyond a reasonable doubt (district attorney) level of proof. He's not a POW, so what the hell is he? So they made up "unlawful enemy combatant" which for all intents and purposes they pulled out of their ass without any legal foundation. But the term doesn't help them to figure out what to do with him.

But do you see how there are no (or fewer) cracks for these guys to fall through?
posted by Pastabagel at 10:41 AM on October 19, 2006

Fundamentally, Dios doesn't give a fuck because he doesn't think any of this will ever affect him in any meaningful way. Aryans did OK under the Nazis. You get the picture.
posted by unSane at 10:44 AM on October 19, 2006 [1 favorite has favorites]

orthogonality writes "Defending a tradition that dates back to 1215 AD, that our founding Fathers enshrined for the protection of our freedoms, that we used to rightly justify our superiority to the totalitarian regimes of Nazi Germany and Soviet Russia, is liberal now?

What ever happened to the small-government, anti-totalitarian conservatives? Did they drown in the Kool-Aid?"

No, I agree with him 100%. I'm just saying that when conservatives see this kind of thing, the meaning is trumped by his tone and his argument gets lost completely as they sit and fume over what they see as "the liberal media."
posted by dead_ at 10:44 AM on October 19, 2006

Furthermore, the bloogers you linked to

Blogger + booger = blooger?

Sorry, but that's just so incredibly awesome I think I'm getting a little misty.
posted by loquacious at 10:44 AM on October 19, 2006

if a court chooses to hear my case

Comforting.
posted by sonofsamiam at 10:46 AM on October 19, 2006

So long as this allows us to indefinitely detain Borat, I'm all for it.
posted by It's Raining Florence Henderson at 10:47 AM on October 19, 2006

But do you see how there are no (or fewer) cracks for these guys to fall through?

Ok. Yes. Sure.
I think most people, though, are still very uncomfortable with the Executives power to sway and define what these tribunals and commissions do. What with the zero tollerance for dissenters in this administration and all. BTW. Olbermans Geneva Convention, torture and accountability criticisms still stand.
posted by tkchrist at 10:48 AM on October 19, 2006

But do you see how there are no (or fewer) cracks for these guys to fall through?

You know who else had fewer cracks for these guys to fall through?

im in yr constitution filling in yr cracks

Metafilter: fewer cracks for these guys to

oh never mind
posted by Armitage Shanks at 10:53 AM on October 19, 2006

But do you see how there are no (or fewer) cracks for these guys to fall through?

The only reason there is a crack in the first place is because they illegally opened one up. This bill keeps it from closing up.

If Padilla is a criminal, charge him as one. If you do not have enough evidence, then you cannot hold him.
posted by sonofsamiam at 10:54 AM on October 19, 2006

Sorry, I'm just now noticing my links to the statue don't work because the thomas.gov server only feeds up temprorary documents or something. Hopefully, this one will work (PDF, sorry).

Ultimately, this will begin at 10 U.S.C. § 948, but the usual places for the us code aren't updated yet.
posted by Pastabagel at 10:59 AM on October 19, 2006

I like Olbermann, and agree with most of the things he says, but he's going overboard with the anger. It's a disservice to his message. I mean, he's basically screaming at the viewer halfway through. One can make a point and argue it well without frothing as such.
posted by xmutex at 11:02 AM on October 19, 2006

If Padilla is a criminal, charge him as one. If you do not have enough evidence, then you cannot hold him.
posted by sonofsamiam at 1:54 PM EST on October 19 [+] [!]

That's what the law says we have to do, now. Try him in court, or have the military try him. He gets a trial, people put on evidence, he gets a lawyer, etc. This Act is all about the things that Padilla must get. But your example only makes sense if you catch him in the US.

But do you see how there is no evidence against any of these guys when they act outside of the US? If you wiretap my Baghdad phone, and I say "Bob said he's going to bomb the base tomorrow, he says he's got the trucks and the nitro and everything", do you realize that isn't evidence? That's inadmissible hearsay in a criminal court. At most I can get a search warrant for your house, but that's it. Meanwhile, joe's gassing up the truck.

If I'm the CIA or the military I go grab Joe throw him in a room and start asking him about the truck. I search the truck, I search his house. I find all these things that are inadmissible without warrants if I'm in a criminal trial. But I'm not in the US. So why the hell would I put him on a plane and take him to the US to stand trial when I know I'm going to lose because the proof I have is not admissible as evidence? Legally speaking, what crime took place in the US? Which US court? Do I have jurisdiction? What constitutes a jury of his peers, if he's never been to the US or isn't an American?
posted by Pastabagel at 11:10 AM on October 19, 2006

I don't think I like anybody who can talk about institutionalized torture without getting angry.
posted by sonofsamiam at 11:11 AM on October 19, 2006 [1 favorite has favorites]

Well, certainly Lincoln did quite a few things that were questionable during a time of war. And the end result was that the U.S. of A. survived for more than a century.

On the other hand, it is also reasonable to argue that the second half of the 19th century was a relatively dark time in terms of civil liberties and American justice, between militias such as the KKK, corrupt and private police forces beating down unions, and almost universal discrimination and segregation, and widespread lynching. Perhaps it's reasonable to argue for strong civil rights because American history shows that their lack is not overall a good thing for public safety.
posted by KirkJobSluder at 11:14 AM on October 19, 2006

Pastabagel: I can't tell, does Joe have a truckbomb in the US, or is he outside of the US? Why don't whatever laws that have been applied to international terrorists for decades apply anymore?

:P
posted by sonofsamiam at 11:19 AM on October 19, 2006

But do you see how there is no evidence against any of these guys when they act outside of the US?

Well, yeah, that's how it works. If the Castro government got wind of a few expats in Miami planning something in Cuba, would you support the right to snatch them up and put them in a Cuban prison indefinitely?
posted by Armitage Shanks at 11:24 AM on October 19, 2006

Regardless of the "who is an alien, who is an unlawful combatant, etc." argument, anytime an executive or any other governing body can do any one thing - anything - without vigorous judicial review, there is a problem.

Anyone who would argue with that doesn't understand the point the founding fathers were trying to make in regards to our system of government.
posted by WhipSmart at 11:31 AM on October 19, 2006

I don't see how dios is wrong about the Constitution. The clause about suspending habeas corpus is all about public safety. Right?
posted by Yeomans at 11:34 AM on October 19, 2006

IF dios is right, and everything this shitty admin and congress have done is legal and kosher, then why did anybody think the Constitution was worth dying for in the first place?
posted by sonofsamiam at 11:37 AM on October 19, 2006

Ugh, I changed Joe's name to Bob, but forgot to change it everywhere. JoeBob is not in the US in that example.

Laws against international terrorists were always vague, but it didn't matter because they never attacked the US before 1993, and in 1993, the planning and execution of the attacks were done here, so they prosecuted them criminally in NY. In short, the problem never ripened until 9-11.

But before 9-11, there was never a situation (that was made public) where the attack was ordered and organized overseas and then only the grunts sent here to carry it out.

Now, we send soldiers to Iraq to overthrow saddam. The soldiers that are caught or surrender are treated as POWs. Do you hear a lot of stories about how the IRaqi soldiers were mistreated? Nope. Because they fit into a very well understood category. POWs.

But in Iraq, we start to capture all kinds of people in all variety of groups fighting each other and the US. They aren't POWs, because POW requires a state actor and an army. Furthermore, these guys break every rule that the Iraqi army didn't. They don't wear uniforms. They don't take up military positions, but rather mingle with civilian populations, take pot shots, and fade into the crowd.

In most places, there is a domestic law that can be put into action. In other words, normally Iraqi criminal law takes effect.

But for now, there is no Iraqi criminal law, or at least one that can be relied on to be fair, impartial, efficient, etc. IT's lawlessness, literally. There is no law. So the US Army catches one of these guys, what are they supposed to do with them? This law tells them what to do.

What the anti-Bush crowd is missing is that it was the US occupations blunder in dismantling the Iraqi military and local authorities that put us into this mess. Had we kept the bureaucrats in place and simply took out the leadership, there would be a system to deal with these guys locally - it wouldn't be a question of US law, it would be a question of Iraqi law. The whole country is in a bizarre legal limbo - "occupied" is not a political status. Iraq isn't a colony, it hasn't been annexed so it's not a territory. It sure isn't soverign, at the very least because 150,000 US troops do whatever the hell they want.

So if Iraq is in limbo, the guys who are fighting the US are in the worst kind of legal grey area.

But again, this has nothing to do with US citizens protesting in the streets. It's like guys like Olberman and others are feeding off some spin they heard from some "legal expert" (=lawyer with a publicist).

The irony is that if Al Qaeda successfully took over a country, these issues would disappear, as every al qaeda fighter would then be considered as acting on behalf of a hostile state and entitled to POW status.
posted by Pastabagel at 11:39 AM on October 19, 2006

One of the things that I found ironic about Olbermann's speech (which was on the whole fairly good) is that he kind of breezed over the whole issue of who Eugene Debs really was when he talked about Wilson's use of the Espionage Act. Debs, of course, was a labor activist, one of the founders of the Socialist Party and the Industrial Workers of the World, and one of the beacons of revolutionary, democratic socialism in the 20th century. Stripping his 1920 campaign of its context in the class-struggle upsurge of 1917-1919 and the "Red Scare" that followed (which was much more violent, particularly in the suppression of the IWW) seems to make it ring hollow. But hell, Debs was on primetime TV.
posted by graymouser at 11:48 AM on October 19, 2006

You have to be designated as an enemy combatant by a tribunal set up for that purpose, differnt from the commissions we're talking about here. Under the UCMJ this tribunal includes military personnel, not DOD or DOJ hacks.

Hmm, it looks like I could be designated an enemy combatant by either:

‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful enemy combatant’ means— ...‘‘(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

And the whole habeas corpus does look like red herring. All you need is Rummy or Bush to make a decision on the above. And since they're the ones in charge of actually setting up the whole kangroo court:

‘‘(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.—The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.

And they've helpfully removed my right to a speedy trial:

‘‘(d) INAPPLICABILITY OF CERTAIN PROVISIONS.—(1) The following provisions of this title shall not apply to trial by military commission under this chapter:... ‘(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courtsmartial relating to speedy trial.

It seems like I can sit in some dark hole for a long, long time without ever having worry about being entitled to my non-alien habeas. And pastabagel, I appreciate your analysis of this as pertaining to Iraq less than Main Street here in Anytown, USA but please forgive a Democrat for suggesting I might be swept off the street after listening to various GOPers calling me a "defeatocrat" and accusing me of undermining the war effort and listening to 3 years of people with audiences in the millions, like Micheal Savage or Reagan's devil spawn, calling for their fellow citizens to be hanged for sedition.

I'm not a lawyer, and if I've missed something or incorrectly infered, I welcome the correction. But it seems to me we can argue about the sky falling, and shout down uproar by parsing words ad nauseum, but this thing is just deeply disturbing, and I'm amazed anyone on either side of the political spectrum is comfortable with it.
posted by jalexei at 11:52 AM on October 19, 2006

They don't wear uniforms. They don't take up military positions, but rather mingle with civilian populations, take pot shots, and fade into the crowd.

Gosh that's terrible. Us, we only commit war crimes in civilized ways, like with white phosphorus.

I do not see any reason why detainees who do not qualify for POW status should not be treated in substantially the same way as POWs would.
posted by sonofsamiam at 11:55 AM on October 19, 2006 [1 favorite has favorites]

Never mind the "End of America" - how about the "End of the International American Tourist Industy" - who in their right mind would want to travel to the US after this idiocy has been enacted in law?

I work in a library (in Toronto), and this morning I worked out driving directions for an Arab woman who was determined to go hundreds of miles out of her way to avoid travelling through Michigan in order to get to her location. So there's a couple hundred bucks in gas, food and lodging you're out, America.
posted by The Card Cheat at 11:58 AM on October 19, 2006

As an aside - I go a long way to not read anything dios has to say in these threads, and it gets very distracting when people spend half the thread arguing with him, because then I have to read his rantings just to follow the discussion, which negates the whole point of ignoring him in the first place - so please, for the love of god, let the thread be about the topic at hand and not just responding to dios. Thank you.

That's odd. I've been seeing a rather calm, logical dios. Not a person with whom I agree, but a person who is addressing the topic with reason and interesting points. It might help you clarify your own position internally if in fact you did engage with people who hold different viewpoints. That's often helpful.
posted by xmutex at 12:01 PM on October 19, 2006

Just a question ... wasn't there an article a while back about the Bush Administration looking to get the power to revoke the citizenship of (suspected) terrorists? If such is the case, what's to stop somebody revoking the citizenship of a US citizen and then getting them banged up as an alien illegal combatant?

Secondly, a legal question:
Dios:But to understand my point, it helps to have a knowledge of the law instead of relying on the word invasion. Since Ex Parte Milligan through Quirin and the Japanese cases up to the recent ones, the Supreme Court has gone over constitutional writs of habeas corpus dozens of times. The language at issue "civil war or invasion" is secondary to the inquiry of whether the public safety may require it. That is, "the public safety may require it" in instances of civil war or invasion. So the triggering issue is public safety, not whether there is an actual invasion. To put it another way: there could be issues of invasion or civil war when the public safety wouldn't require it, and it would therefore be unconstitutional.

Didn't Milligan also say that the writ of Habeas Corpus may only be suspended when the civil courts are not operating in the area where Habeas Corpus has been suspended? I was reading through it, it was pretty heavy going, but at least that's my intepretation of what they were saying.

Looking for a more precise summary than any I could devise I tried Wikipedia, which does seem to sum it up nicely:
The Supreme Court decided that the suspension of habeas corpus was lawful, but military tribunals did not apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were still operating, and the Constitution of the United States only provided for suspension of habeas corpus if these courts are actually forced closed. In essence, the court ruled that military tribunals could not try civilians in areas where civil courts were open, even during times of war.

It further observed that during the suspension of the writ of habeas corpus, citizens may be only held without charges, not tried, and certainly not executed by military tribunals. After all, the writ of habeas corpus is not the right itself, but merely the ability to issue orders demanding the right's enforcement.

Has a more recent case updated this? 'cos it seems a fairly clear-cut case saying that suspending Habeas Corpus in the current environment is a big no-no, doesn't it?
posted by kaemaril at 12:06 PM on October 19, 2006

Okay, I read the bill. Yeah, I sure did. Because I don't like MetaFilter or the bloogers (I love that and will be using it in perpetuity) to be my sole source of information.

So, here we go:

Section 948b.(a) states: "This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission." This is very clear. Earlier in the definitions it was stated that an unlawful enemy combatant is (i) "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enat ment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." It then defines alien as "a person who is not a citizen of the United States."

So it seems clear that this bill pertains EXCLUSIVELY to non-citizens who have been determined by a tribunal to be unlawful enemy combatants. Non-citizens is key here.

Lest anyone think I'm defeding this bill, keep on reading, because I'm just doing a little informed analysis. IANAL, etc.

Shortly thereafter, and what should be more troubling, is this little gem: "GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF RIGHTS. No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights." So, merely determining that an alien is an UEC, a determination that is made under the authority of the President or the Secretary of State, strips that person of his or her Geneva Conventions rights. Nice. Not an issue for citizens of course, but well and truly frightening just the same.

Moving on. Section 948e. states that an unclassified annual report of any trials conducted by military commissions must be filed, but it may contain a classified annex. Hmmm. Who determines what is to be considered classified? Oh, here it is: "(A) Any information or material that has been determined by the United States Government pursuant to statute, Executive order (emphasis mine), or regulation to require protection against unauthorized disclosure for reasons of national security." That's pretty broad, and gives the President quite a bit of leeway.

Next. Section 950a.(a) states: "A finding or sentence of a military commission under this chapter may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused." Now, this may just mean that you can't reverse a finding because the defense didn't file their motion in 12 point font, but again, who is making the determination that the error "materially prejudices" the rights of the accused?

My next issue is with Section 950b.(B)(2): "The term 'protected person' means any person entitled to protection under one or more of the Geneva Conventions..." So, the alien UEC has no protections under the Geneva Conventions, but can be brought to trial for violating them? That hardly seems legal.

This section goes on to define all kinds of actions that are considered offenses under this act, all of which should apply only to alien UECs, but which sound suspiciously like things that happen during riots: attacking civilians, pillaging, attacking protected property (as defined under the Geneva Conventions), taking hostages, raping, etc. If we are going to trust the government to apply this ONLY to alien UECs, then maybe this is nothing to worry about; but should that "alien" get pulled from this bill in any future variations, a whole lot of Katrina survivors are in trouble. As well as anyone implicated in the torture of prisoners at Abu Ghraib and Guantanamo. Just saying.

Secton 5 states: "No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories." They were so concerned that no one have access to Geneva Conventions rights that they put it in twice. And, just in case you were in any doubt, Section 6(a)(3)(A) states "As provided in 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." In other words, we'll decide which conventions to follow and what they mean. This is troubling to me.

Later on in Section 6, it is stated that: "The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to - (A) collateral damage; or (B) death, damage, or injury incident to a lawful attack." This seems to be stating that as long as it was "lawful" or "collateral" (as determined by whom?), none of the above applies.

But for my money, here's the best part: "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination (emphasis mine)." Later, "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 conditiosn 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 (emphasis mine)."

Nowhere in this act did I find any specification of a timeline for such a determination; I did not see anything which provides that this determination should be made in a timely fashion. So, if you have not been determined to be an alien unlawful enemy combatant, there is no recourse available to you. Not to protest your detainment, or the conditions of your prison cell, or allegations of abuse or torture. Now, you may feel comfortable saying "but this only applies to ALIENS, and I'm a CITIZEN, so it doesn't matter to me" but I am not comfortable with that.

Sorry for the length, but the cries of "did you read it" and "you don't know what you're talking about" got to me. So I read it, and now I know what I'm talking about.
posted by jennaratrix at 12:20 PM on October 19, 2006 [3 favorites has favorites]

Kevin - one more for Mt. Rushmore... I nominate Lewis Black's.

No, no, no. I love Lewis Black as much as the next guy, but he's merely yet another person comedically-descended from Bill Hicks, who totally should go on that sorta-Rushmore.
posted by sparkletone at 12:22 PM on October 19, 2006

No - Rushmore was Bill Murray, not Bill Hicks.
posted by It's Raining Florence Henderson at 12:25 PM on October 19, 2006

Since no one seems to want to reference the Geneva Conventions we were a signatory to, here is Article 5:

Art 5. The present Convention shall apply to the persons referred to in Article 4 [ Article 4 basically defines organized/uniformed enemies] from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

BushCo. has argued that we are fighting a "new breed" of enemy and we require new rules. As you can see, this issue was already addressed by the Conventions. So - think hard - why the bullshit misinformation program from the Executive branch? Why do we need to go our own way? My bet is the correct answer is more sinister than the apologists among us want to concede.
posted by Benny Andajetz at 12:25 PM on October 19, 2006 [1 favorite has favorites]

I am disgusted by people who shrug and say 'Oh, well, it only applies to aliens. We're citizens, we're OK'.

I don't care if you've each been issued a 'Get out of jail free' card signed by George Bush himself, promising that as a citizen he'll never revoke your Habeas Corpus rights, honest injun. The fact it's been revoked for a mere subset of the people the constitution applies to does not, in any way, render the suspension of Habeas Corpus somehow "OK" or even vaguely constitutional. Nobody should be shrugging and saying "Not my problem".

My uncle has been living in the States for 20+ years, but he's still a BRITISH citizen. His son is a naturalised American citizen. If they were both in cahoots to do something mischievous (they're not, I hasten to add, I'm sure) why is it OK for one guy to be locked away without Habeas Corpus and for the other it isn't? Anyone wanna call that moral?

Further, if George thinks he can get away with it with little more than a "meh" from the morons in congress, why shouldn't he suspend it for citizens too at a later point? Who's going to say it's not constitutional when he can point to the precedent of this law and say "Hey, if it was OK for x people protected by the constitution why isn't it OK for y people?"
posted by kaemaril at 12:35 PM on October 19, 2006

Charles Swift doesn't believe that it will match constitutional muster.
posted by homunculus at 12:41 PM on October 19, 2006

If only there was some way for your uncle to become a citizen.
posted by smackfu at 12:47 PM on October 19, 2006

What a shock Bush's Torture Bill will be to the couch potatoes for whom nothing is real until it happens to them.

HOLLOW MEN
by T.S. Eliot (1925)

I

We are the hollow men
We are the stuffed men
Leaning together
Headpiece filled with straw. Alas!
Our dried voices, when
We whisper together
Are quiet and meaningless
As wind in dry grass
Or rats' feet over broken glass
In our dry cellar

Shape without form, shade without colour,
Paralysed force, gesture without motion;

Those who have crossed
With direct eyes, to death's other Kingdom
Remember us -- if at all -- not as lost
Violent souls, but only
As the hollow men
The stuffed men.

II

Eyes I dare not meet in dreams
In death's dream kingdom
These do not appear:
There, the eyes are
Sunlight on a broken column
There, is a tree swinging
And voices are
In the wind's singing
More distant and more solemn
Than a fading star.

Let me be no nearer
In death's dream kingdom
Let me also wear
Such deliberate disguises
Rat's coat, crowskin, crossed stavesr
In a field
Behaving as the wind behaves
No nearer --

Not that final meeting
In the twilight kingdom

III

This is the dead land
This is cactus land
Here the stone images
Are raised, here they receive
The supplication of a dead man's hand
Under the twinkle of a fading star.

Is it like this
In death's other kingdom
Waking alone
At the hour when we are
Trembling with tenderness
Lips that would kiss
Form prayers to broken stone.

IV

The eyes are not here
There are no eyes here
In this valley of dying stars
In this hollow valley
This broken jaw of our lost kingdoms

In this last of meeting places
We grope together
And avoid speech
Gathered on this beach of the tumid river

Sightless, unless
The eyes reappear
As the perpetual star
Multifoliate rose
Of death's twilight kingdom
The hope only
Of empty men.

V

Here we go round the prickly pear
Prickly pear prickly pear
Here we go round the prickly pear
At five o'clock in the morning.

Between the idea
And the reality
Between the motion
And the act
Falls the Shadow

For Thine is the Kingdom

Between the conception
And the creation
Between the emotion
And the response
Falls the Shadow

Life is very long

Between the desire
And the spasm
Between the potency
And the existence
Between the essence
And the descent
Falls the Shadow
For Thine is the Kingdom

For Thine is
Life is
For Thine is the

This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.
posted by chance at 12:49 PM on October 19, 2006

If only there was some way for your uncle to become a citizen.

Service guarantees citizenship!
posted by Armitage Shanks at 12:51 PM on October 19, 2006

And the fallout from this, for all the apologists out there, is that having abandoned the moral high ground provided by the Geneva conventions, we have guaranteed worse treatment for our own captured soldiers in the future, whether or not the capturers signed Geneva.

And even if you believe that our present (and future likely) enemies would have been unconstrained by Geneva and would have tortured our soldiers anyway, we have also forsaken any resulting outrage-based moral authority on the national stage when it eventually does happen, which is yet another critical piece of diplomatic power.

And even if you don't believe that the moral authority was useful (perhaps you think we can do what we want by ourselves and to hell with the foreigns), we've shocked the civilized world and inflamed our enemies by essentially confessing that we subscribe to patently inhuman methods.

And what have we gotten in return? The ability to get highly unreliable confessions from people through the use of crippling violence. Confessions which, as any ex-POW will tell you, are not worth the blood they're written in. And when we finally release our captives, the story of their experiences will get out, photos of their abused bodies will fill the Arab public square, hundreds of Bin Ladens will be born and a billion peaceful Muslims will once again be swayed into thinking that maybe, just maybe, the Taliban and Bin Laden are right.
posted by felix at 12:55 PM on October 19, 2006 [1 favorite has favorites]

smackfu : If only there was some way for your uncle to become a citizen.

Now there's an advertisement for America : Become a citizen, you might not be illegally detained for an indefinate period without any opportunity to appeal.

Stick that in your tourism brochures, why don't you?

btw: way to completely avoid the point, amigo.
posted by kaemaril at 12:57 PM on October 19, 2006

These guys (BushCo) are all about the symbolism (Wikipedia):

October 17, 2006 - 135 years to the day after the last American President (1870s, President Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act.
) suspended habeus corpus, President Bush signed into law the Military Commissions Act of 2006.

posted by rzklkng at 1:16 PM on October 19, 2006

From the bill - "No [enemy combatant] may invoke the Geneva Conventions as a source of rights."

Fuck this shit. And fuck anyone who would vote for it.

Sure, I could say it in a nicer and more verbose manner. I'm sure I could spend countless posts making and defending arguments in support of the sentiment. But as an American, I see no reason to go that far. As an American I think the expected response should be -

Fuck this shit. And fuck anyone who would vote for it.
posted by Ragma at 1:23 PM on October 19, 2006 [1 favorite has favorites]

"Lincoln suspended habeas corpus and the country didn't fall apart" is not a valid point to raise in this case, because Lincoln wasn't a dangerous shitstain possessing the ethics, manners and charisma of a giant naked mole rat with a genetic predisposition towards anal rape and incontinence.

It's a subtle point, so I'm not surprised a lot of people miss it.
posted by PinkStainlessTail at 1:35 PM on October 19, 2006

(On preview, jennaratrix may have covered most, all, or more of this. Maybe I can contribute something from in my own way.)

Hold up. According to this law US citizen (or anyone, really) can indeed be designated an "unlawful enemy combantant", although the military tribunals, etc., only apply to "alien unlawful enemy combatants".

Here's a nice analysis that you should check out. My own follows, but I'm just a simple caveman programmer..

Please reference the version passed by both houses. On page two:

(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful enemy combatant’ means— ‘‘(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or ‘‘(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Note that "alien" is not mentioned ANYWHERE in the definition of "Unlawful Enemy Combatant", although "alien" is defined later:

ALIEN.—The term ‘alien’ means a person who is not a citizen of the United States.

Many questions remain:
1. What happens to citizen "unlawful enemy combatants"? I would think they'd have to run them through civilian criminal courts. But...
2. What is the process for stripping a US citizen of their citizenship? Is treason adequate? (or *cough*accused*cough* treason?) Because, guess what, now you're an alien and the rest explicitly applies to you. If this is an easy thing, or subject to military/executive whim, then any talk of alien vs. citizen is pointless.
3. What recourse is there to the falsely accused? If the military/executive says "you're an unlawful enemy combatant" then, well, are you fucked then and there?
4. How can this law be challenged in court for constitutionality if those damaged parties are explicitly barred from having their cases heard? (Not to mention stuck in a cell with zero contact with the outside world.)
5. Does using illegal drugs (googlecache cuz article now pulled) and/or criticizing the Bush administration constitute "purposefully and materially support[ing] hostilities against the United States"?

As an aside...

What the FUCK is wrong with folks who are so keen to see this applied to only aliens?? My ex-wife is an alien. My sister's husband is an alien. I have many friends who are aliens. Would you be just as happy if this only applied to, say, black people? As long as it doesn't apply to you, right?? As long as it only affects "other people". Well it's your problem now.

Suck it.

Okay, but suppose you're okay with all this. This is our response to nearly 3000 Americans being killed on 9/11. Drastic times, drastic measures, and all that.

What happens when an actual (N. Korean?) WMD or three actually slip through and take a large chunk out of NYC, LA, and DC? 5-10 million Americans dead. Oh noes, then five more hit. Death, destruction, and suffering like we've never seen. What's acceptable then? What will we demand? Country-wide martial law? Probably. Mass executions of anyone of Korean decent? How scared are the white people?

We look down our noses at teh evil dictat0rz who kill tens of thousands to quash mass civil unrest, but when it comes down to it, I think we're not so different. We just haven't been put in such an extreme scenario yet.

My concern is that we're way down the slippery slope already, so very easily, and I dunno if we can clamber back up.
posted by LordSludge at 1:37 PM on October 19, 2006 [1 favorite has favorites]

Pastabagel: "It does not, and can never apply to US citizens or legal residents."

Let's say I believe you. Let's say you are excreting elephantshit!

As an unAmerican, a foreigner working here _legally_, I am quite amazed at the profound smugness of some people who thinks as long as it doesn't apply to US citizens, it's just fine. I wonder what would happen if other countries retaliate by passing laws that dish out similar treatment to visiting Americans. And when you guys start getting special treatment in the security line that is when America, collectively, as a nation will wake up and ponder hither nhither as to what happened in the last few years. I know it's not just for quite a significant majority of those who oppose The Selected Dumb One, but frankly guys, we foreigners have had enough of your internal politics. Pls put your house in order.

Having recently watched Last Best Hope(KLRU showtimings, details), and as a citizen of the yuppie generation quite distanced ethnically, politically or any other way of stories of that era, I was all teary-eyed at one point in the film where the Belgians speak of the Americans (and Englishmen) in high praise as saviors (and realise that I along with the audience in the special screening was clapping with cheer). Someone equally removed from all sides of that event like me, could see just how far America as a nation has slided down in terms of goodwill it enjoyed across the globe all these years. I feel sympathetic for the anti-Bush americans to note that one dumbfuckingwit of a wad of phelgm with a (R-) after his name has eroded all of that and made life suckage for you and for people like me. I just fervently hope all of you get your asses out and vote for someone who has real balls of steel who can reverse some of the damage that this excuse of a govt has done.

Fuck you Pastabagel, fuck you dios and fuck your ilk. See y'all in gitmo.
posted by forwebsites at 1:38 PM on October 19, 2006 [1 favorite has favorites]

kaemaril and others, I hope you're not menaing to imply that everyone who argued about the citizen/alien issue was defending any aspect of the law. Some of us were trying to correct inaccurate statements. This is very far from defending the law as a whole, or its application to aliens, or its intent, or its likely abuse or anything else. It does have some defenders but I haven't seen them here. Aim such remarks at the right-wingers please.
posted by jam_pony at 1:49 PM on October 19, 2006

Fuck you Pastabagel, fuck you dios and fuck your ilk. See y'all in gitmo.

Metafilter: The home of intelligent discourse.
posted by smackfu at 1:54 PM on October 19, 2006

MetaFilter: fuck your ilk
posted by It's Raining Florence Henderson at 2:00 PM on October 19, 2006

LordSludge and forwebsites, how do you get from "does not apply to citizens" to "therefore OK"? Can you cite the places where anyone made the latter claim in this thread?

It has taken over a thread of over 150 comments just to clarify that some of the initial statements were inaccurate, and now you're muddying the issue again by attributing an egregiously unfounded view to some of the people who tried to make that clarification.

This law is one of the worst evils from the worst government in U.S. history. If you insist that someone must be defending it because they point out that some statements about it were inaccurate, you're just being wilfully irrational and should go calm down before trying to participate.
posted by jam_pony at 2:00 PM on October 19, 2006

It's hard to read this thread with all the strawmen that have been erected. It's interesting how after dios and pastabagel did a good job of actually explaining, you know, the law that everyone is supposedly so worked up about, suddenly it all became about whether U.S. citizens could "trust" the administration to enforce the law as written. It should go without saying that that's a whole different kettle of wax (or ball of fish, or something) from considering the law to be the "suspension of habeas corpus" and the death knell of American society (and it's based a lot less on fact and a lot more on unhinged speculation).

It's also funny that almost everyone here who has discussed the law has expressed some measure of disagreement with it, but somehow those people have been characterized as leading the march to Gitmo. What a fucking joke.
posted by pardonyou? at 2:02 PM on October 19, 2006

It's also funny

It's not funny. I'd call the behavior of most of the people in this thread an embarrassment to reason and this site.
posted by dios at 2:22 PM on October 19, 2006

OH NOES MY PRECIOUS WHUFFIE
posted by sonofsamiam at 2:29 PM on October 19, 2006

(Dios) But to understand my point, it helps to have a knowledge of the law instead of relying on the word invasion. Since Ex Parte Milligan through Quirin and the Japanese cases up to the recent ones

...

So, going back over the cases, you will see that "invasion" just doesn't mean boats at the shoreline or troops marching down main street. Rather, it means aggresive acts of war against the United States. And "invasion" can be mean the threat of invasion. See, e.g. Duncan v. Kahanamoku, 327 U.S. 304, 314, (U.S. 1946); Korematsu v. U.S., 323 U.S. 214 (U.S. 1944). That was really the essence of the Japanese cases.

Two things. First, the precedents you cite are not, shall we say, bright spots in American jurisprudence. In fact, I'd rate* Quirin and Korematsu, specifically, as two of the worst decisions ever handed down by the Supreme Court. Can't we do a little better than dragging out the nastiest precedents that are out there and saying "see, we've done it before?" Additionally, let's not forget that in addition to Pearl Harbor, Japan did invade American soil, considering that we still held the Phillipines at the outbreak of WWII.

Second, we are talking more about a political question than a constitutional question. Do we, as a country, want to be in the business of creating exceptions to the rule of law? Should we carve out areas of the law that are not reviewable by normal courts and deny people access to judicial review of their treatment by the United States? For in the end, that is what this whole debate is about.

*In fact, I did rate Korematsu as one of the worst decisions ever, back in 2001, now that I think about it. Self link. And here's a previous thread on Quirin, for good measure.
posted by norm at 2:31 PM on October 19, 2006 [1 favorite has favorites]

>It's not funny. I'd call the behavior of most of the people in this thread an embarrassment to reason and this site.

How do you embarrass reason?
posted by Brian B. at 2:32 PM on October 19, 2006

"How do you embarrass reason?"

Nail it to a "T".
posted by It's Raining Florence Henderson at 2:35 PM on October 19, 2006 [2 favorites has favorites]

jam_pony: It has taken over a thread of over 150 comments just to clarify that some of the initial statements were inaccurate, and now you're muddying the issue again by attributing an egregiously unfounded view to some of the people who tried to make that clarification.

Like this one?
"It does not, and can never apply to US citizens or legal residents."

Seriously, I'm askin'; the above "some of the initial statements" is quite vague. I seek clarity.

Because legal residents (see the law's definition) are definitely covered by this law and US citizens would be once stripped of citizenship.
posted by LordSludge at 2:39 PM on October 19, 2006

"It's also funny that almost everyone here who has discussed the law has expressed some measure of disagreement with it.."

I hope your "almost everyone" doesn't include people like dios and Pastabagel, who are not only NOT disagreeing with it, but pastabagel has clearly stated that it's even an improvement in as many words.

Lest it's not clear from my prevs comment, my rants/fuck y'all/ire is entirely directed towards those who support this law. In this thread Pastabagel and dios stood out and hence the callout to them and their ilk(ie others who hold the same view, not other Americans) in my conclusion. I hope MeFiites are smart enough to read from the context.

I am entirely aware that those who do oppose the law but merely dissecting that part of the law whether "alien/enemy combatant" applies to "citizens" are not in any way supportive of other aspects of this law, and I have no axe to grind with them. But I must say that some comments I have read here and elsewhere give me the creepy feeling that had the law clearly stated in stone that "it doesn't and will not apply to US citizens in any form, and is reserved wholly for foreigners and aliens", there'd be less opposition to it than we see now and more people playing WoW. I hope I am wrong on that though.

And I appreciate all you liberals fighting on my behalf. I can't vote.
posted by forwebsites at 2:49 PM on October 19, 2006

That's like saying citizens can't vote (once they commit a felony). It's true but it doesn't mean that citizens can't vote.
posted by smackfu at 2:50 PM on October 19, 2006

That was in response to:

Because legal residents (see the law's definition) are definitely covered by this law and US citizens would be once stripped of citizenship.
posted by smackfu at 2:51 PM on October 19, 2006

So.

If you are an American citizen who is declared to be an 'unlawful combatent.'

Do your rights re: trial/seeing evidence against you/freedom from torture etc. change because of your new status or do they not?

Some people are saying that you will not lose any rights if you are declared to be an 'unlawful combatant.'

Then WHY does the administration want to be able to make such a declaration?
posted by sonofsamiam at 2:57 PM on October 19, 2006

smackfu: You get a trial before you become a felon. Not so with with unlawful combatant status.
posted by sonofsamiam at 2:57 PM on October 19, 2006

jam_pony: No, I'm not implying any such thing. However, apparently I have no control over what you might or might not infer.

For the record, I'm referring to the cowardly oath-breaking members of congress, and the professional chattering classes (O'Reilly, Coulter, etc) who are, even as we speak I'm sure, going out of their way to soothe the troubled brows of their audience by gently cooing to them 'Don't worry, it's just the dirty foreigners not, y'know, real people. Not people you should have to give a shit about. Your president cares about you, is doing it all for you, and would never do anything to hurt you. Because he loves you all. Like a Father, though, nothing dirty.'

However, I am somewhat annoyed that anyone should actually need to debate the whole 'it doesn't apply to citizens' thing. That's a colossal red herring, and I'm sure the republicans are just loving it. If only the public could see that this law, in breaking the constitution for one, breaks it for all. There is no distinction in section 9 between persons and citizens. None.
posted by kaemaril at 3:00 PM on October 19, 2006

posted by monju_bosatsu at 3:02 PM on October 19, 2006

Decent post. Semi-decent discussion. Three thoughts:

1) 9/11 was an invasion of our homeland? Oh yeah, just like in 1939 when all those German Panzer divisions went across the border into Poland and then they swallowed cyanide capsules as they declared victory.

2) What norm said. There's only one lawyer I've ever known of who frequently throws out the Korematsu decision as a good thing for America. And he's a mefite. Hurray!

3) General elections are remedy to government tyranny. Huh? I guess that third grade talk about "a nation of laws, not men" didn't sink in. There's a reason we don't have national referendum votes, and in places where they have lots of them, like California, lots of problems arise. For someone to champion voting as the remedy to the Executive branch breaking the law sounds nice and populist, but is quite disingenuous. A president breaks the law when he breaks the law, not when people vote him out.

PS monju_bosatsu, adults are tying to talk here. I realize your legal comrade got pwned yet again, and it's time for you to try and further derail, but I'd appreciate it if you didn't.
posted by bardic at 3:04 PM on October 19, 2006

And it's started . . . .
posted by landis at 3:05 PM on October 19, 2006

PS monju_bosatsu, adults are tying to talk here.

posted by monju_bosatsu at 3:06 PM on October 19, 2006

So what is the point of 'unlawful combatant' status for citizens? Does it mean anything at all or not?
posted by sonofsamiam at 3:08 PM on October 19, 2006

I realize your legal comrade got pwned yet again

One is not "pwned" simply because the opposition is more numerous and shrill.
posted by pardonyou? at 3:09 PM on October 19, 2006

By the way, here's something to ponder:

If this law does pass constitutional muster (and here's hoping it doesn't) what, precisely, would suddenly render it unconstitutional if - in six months time - a bill comes out which strikes the word 'alien' from this law?

The answer, I suspect, is: Nothing.
posted by kaemaril at 3:09 PM on October 19, 2006

Hyperbolic, yeah. And he’s trying to be Ed Murrow. But he’s not wrong.

“Laws against international terrorists were always vague, but it didn't matter because they never attacked the US before 1993...”

Uh, what?
Disputing that detail aside, I can’t at all address the point there.

The fact of the matter is there were plenty of tools in place to deal with international terrorism, but very little political will. Strangely, while folks in the counterterrorism community did crave the legitimacy given to other kinds of forces that had the full backing of that kind of political will, when it came, it came in a form that was deleterious to core mission goals. Such as, y’know, fighting terrorism.

It’s like a rich influential passenger convincing the other travellers he should take over the cockpit when the plane hits stormy weather because he thinks he can do a better job that a poorly paid, unconnected pilot. This law is like putting the landing gear down mid flight because “we might need it.” Well, yeah, we might, if we have to land. “Well we’re gonna land some time right?” Stupid. Pointless. But then I like order and stability and not radically changing things if it’s not absolutely necessary or the right time.

(Some kinky people like their ilks fucked btw)
posted by Smedleyman at 3:09 PM on October 19, 2006

From the NYT link above:
The law does not apply to American citizens, but it does apply to other legal United States residents. And it chips away at the foundations of the judicial system in ways that all Americans should find threatening. It further damages the nation’s reputation and, by repudiating key protections of the Geneva Conventions, it needlessly increases the danger to any American soldier captured in battle.
posted by landis at 3:13 PM on October 19, 2006

landis, I hope that was an intentional reference to the first comment in this post.
posted by smackfu at 3:14 PM on October 19, 2006

monju_bosatsu, agree or disagree with Olbermann, this is an important issue, right? For a lawyer, I'd imagine even moreso, right? Lots of people contributed to this thread and tried to learn more about the issues at stake. Certain posters on both sides threw out a lot of hyperbole. Many people did a good job of cutting though the hype, to some extent. You're a smart guy, obviously. What makes you think it's happy-happy .gif time? Honest question.
posted by bardic at 3:16 PM on October 19, 2006

smackfu. Yes, I saw a reference to a NYT editorial, but didn't see a link. If my post was redundant, I'm sorry.
posted by landis at 3:21 PM on October 19, 2006

I'm still waiting to find out why Ex Parte Milligan's conclusion, that Habeas Corpus cannot be suspended in an area where civilian courts are in operation, isn't relevent to this ...

Where's a lawyer when you want one? :(
posted by kaemaril at 3:22 PM on October 19, 2006

. . . read post as comment. It's been a long day.
posted by landis at 3:23 PM on October 19, 2006

What makes you think it's happy-happy .gif time?

I can't speak for m_b, but what dios is saying here is fundamentally right, as distasteful as that may be. This law is a bad law, and this administration is a terrible administration, but neither this law nor the current administration itself is the "beginning of the end of America." And I suspect that if it had been made by anyone but dios, it wouldn't have been shouted down so vehemently. Perhaps happy-happy .gif time is in order when rational discourse fails.

There's only one lawyer I've ever known of who frequently throws out the Korematsu decision as a good thing for America.

Acknowledging its existence is not the same as saying it's a "good thing." Like it or not, Korematsu v U.S. has not been overturned. Its legal reasoning is still the law of the land. Fred Korematsu cleared his name by pointing out an error of fact, not an error of law.
posted by me & my monkey at 3:46 PM on October 19, 2006

neither this law nor the current administration itself is the "beginning of the end of America."

posted by sonofsamiam at 3:50 PM on October 19, 2006

Seriously, what does it mean to me as a US citizen if I am declared an enemy combatant? Does my legal situation change or not?

If not, what is the significance of the designation and why might the administration want it?
posted by sonofsamiam at 3:52 PM on October 19, 2006

Dios said a lot of things in this thread. If, indeed, the framing of the FPP could have been toned down, I agree. And you and I have fallen for yet another one of his derails.

As for Korematsu, while it hasn't been overturned directly (that WWII thing being over now for a few years), it's certainly not correct to call it the law of the land.

As for rationality, there's some of it in this thread, and there's some obvious bullshit. But if the new standard for mefi is that any thread that has any illogical or ill-advised comment ever must be shat upon toute suite, than I hope monju_bosatsu has more wacky .gifs available. He's going to be busy.
posted by bardic at 3:53 PM on October 19, 2006

I hope monju_bosatsu has more wacky .gifs available.

posted by monju_bosatsu at 3:56 PM on October 19, 2006

Huh. You really are an asshole. And for a few moments over the last month I almost though otherwise. My bad.
posted by bardic at 4:00 PM on October 19, 2006

I can't speak for m_b, but what dios is saying here is fundamentally right, as distasteful as that may be. This law is a bad law, and this administration is a terrible administration, but neither this law nor the current administration itself is the "beginning of the end of America." And I suspect that if it had been made by anyone but dios, it wouldn't have been shouted down so vehemently.

So this is how liberty dies: with thunderous applause.
OK, maybe not so thunderous in George's case.

Even when you're teetering at the edge of the precipice it's not too late to step back, but this doesn't mean that when you first started walking toward the volcano that it wasn't the beginning of the end.

Is it a bad law? Yes. Yes, it is. Is this a terrible administration? Yes. Yes, it is. Could this law be used, as is or modified six months down the line to include citizens, as a tool of oppression? Yes. Yes, it could. Will it be? Maybe. Maybe not. Probably not, even.

Doesn't mean that people should be muttering 'Ah, who gives it a shit?' and going back to watching the latest episode of Desperate Housewives, though.

The important thing, as I understood it, about the way the American system is supposed to work is this: You're not supposed to rely on the government's good intentions.
posted by kaemaril at 4:09 PM on October 19, 2006

Glenn Greenwald today: The President's comments are as historically inaccurate as they are contrary to core American principles. Historically, the worst mistakes made by America -- those instances in which it has most radically departed from its principles and aspirations -- have come not when Americans failed to take seriously enough some external threat, but to the contrary, when government leaders exaggerated the threat and induced overreactions among citizens. That is the question that will almost certainly be asked by historians.
posted by bardic at 4:17 PM on October 19, 2006

And you and I have fallen for yet another one of his derails.

It's not a derail. He's disagreeing with the central premise of the post. I don't see how you can possibly be more on-topic than that.

As for Korematsu, while it hasn't been overturned directly (that WWII thing being over now for a few years), it's certainly not correct to call it the law of the land.

WWII being over now is completely irrelevant. I'm pretty sure that Marbury v Madison is still standing, for example.

As far as I can tell, Korematsu hasn't been overturned, directly or indirectly. Until it does, it is the law of the land. That's how Supreme Court jurisprudence works. Presumably, in the future, when a more enlightened judiciary is faced with similar circumstances, they will overturn Korematsu, but that hasn't happened yet.

Could this law be used, as is or modified six months down the line to include citizens, as a tool of oppression? Yes. Yes, it could.

Really? So, presumably, the courts would be just OK with denying habeas corpus to citizens? If they would be ok with that, why didn't the legislature just go ahead and do it now?

Doesn't mean that people should be muttering 'Ah, who gives it a shit?' and going back to watching the latest episode of Desperate Housewives, though.

So, there are only two possibilities apparently: either you don't give a shit or you think it's the death of the republic. Surely there's something in between those two extremes?
posted by me & my monkey at 4:18 PM on October 19, 2006

"Surely there's something in between those two extremes?"

Another brick in the wall perhaps.
posted by Smedleyman at 4:35 PM on October 19, 2006

Could this law be used, as is or modified six months down the line to include citizens, as a tool of oppression? Yes. Yes, it could.

Really? So, presumably, the courts would be just OK with denying habeas corpus to citizens? If they would be ok with that, why didn't the legislature just go ahead and do it now?

You've not bothered to read my earlier posts, have you?

Here, let me refresh you:
By the way, here's something to ponder:

If this law does pass constitutional muster (and here's hoping it doesn't) what, precisely, would suddenly render it unconstitutional if - in six months time - a bill comes out which strikes the word 'alien' from this law?

The answer, I suspect, is: Nothing.

So, tell me this:
If this law DOES pass muster, if the Supremes say 'Sure, you can deny Habeas Corpus to aliens' how, exactly, will they be able to say 'No, you can't deny it to citizens'? They may not be "OK" with it, but with this setting the precedent what will their argument be?

What section of the constitution will they base their arguments on? Because this:
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Is pretty much it as far as the constitution goes. So if they can ignore that for 'aliens' why shouldn't they ignore that for citizens? What pretext will they rely upon to draw a distinction that is not mentioned in the constitution?

Milligan says you can't suspend Habeas Corpus unless the civil courts aren't in operation. Guess what? The civil courts are still in operation. Guess what? They're still suspending habeas corpus.

Assuming (and it's a big assumption) that they're OK with this law, how will they squeak their little minds around the problem of 'Um, it's constitutional to lock up the foreigners but not the citizens' when the constitution doesn't say there's a distinction to be made there?

As to how it can be abused now?

You're walking down the road. A black van pulls up, agents emerge and pull you into the van. A hood is placed over your head and you feel a needle go in ...

Next thing you know, you're waking up wearing an orange jumpsuit, and it's much hotter than you remembered. Your jailer says 'Welcome to Gitmo'.

You say 'This can't be right, I'm an American citizen'. The jailer nods. 'Sure you are, buddy. You all are. We've heard it before. Well, too bad for you you can't ... oh, I dunno, appeal or anything'.

Ridiculous? Undoubtedly. Made just a little bit more plausible by recent events, though? Maybe a little.

Doesn't mean that people should be muttering 'Ah, who gives it a shit?' and going back to watching the latest episode of Desperate Housewives, though.

So, there are only two possibilities apparently: either you don't give a shit or you think it's the death of the republic. Surely there's something in between those two extremes?

Don't be an ass.
posted by kaemaril at 4:45 PM on October 19, 2006

Sodomy laws are still on the books in many states. They are not considered "laws of the land" because they are not generally enforced (yes, there are some extreme situations, but you really don't understand what "law of the land" means). Hence, Korematsu is not the law of the land, yet it won't be overturned either, because the circumstances of 1941 won't come about again.

Ask a real lawyer or Constitutional scholar if you don't belive me. I have.

And if you don't believe me, fine. Forget Korematsu. Answer this simple question -- does the POTUS have the right to suspend habeas for a given US citizen at will? Maybe, maybe not -- I'd argue it does, simply because it already happened with Padilla. Does the bill Bush just signed further clarify this issue, or give his lawyers more wiggle room to incarcerate citizens without evidence being presented and a trial? I think it does. I think Olbermann and others have every right to be pissed off about it. If that spoils anyone's precious little idea of civil discourse, too bad. Thank god people take the time to understand these issues and get upset by them, in the face of so many "experts" who say, oh, relax, nothing new here, stop being so shrill.
posted by bardic at 4:48 PM on October 19, 2006

*And apologies for my spelling today.
posted by bardic at 4:49 PM on October 19, 2006

So you're a US citizen, suspected of providing material support to a terrorist organization. At this point you can be declared an unlawful enemy combatant (UEC). What was touched on early in the thread is that under the Domestic Security Enhancement Act of 2003, section 501 states that "The voluntary commission or performance of [a terrorist act] shall be prima facie evidence that the act was done with the intention of relinquishing United States nationality." Again, the burden of proof required to label someone an UEC is left up to the president.

While the current bill only seems to apply directly to alien UECs, Patriot Act II ensures that any American citizen determined to be an UEC can be expatriated, thereby falling into the category of an alien UEC, at which point habeas corpus can lawfully be suspended. I'm no lawyer, but it seems that in conjunction with previous anti-terrorist legislation that has passed, this in fact does mean that ANY person, US citizen or not, can now be legally locked away indefinitely without being told why.
posted by Nquire at 4:51 PM on October 19, 2006 [3 favorites has favorites]

No - Rushmore was Bill Murray, not Bill Hicks.

I was, no shit, this close to putting the following parenthetical at the end of that post: "(No, wait, Rushmore had a different Bill)"
posted by sparkletone at 4:52 PM on October 19, 2006

You've not bothered to read my earlier posts, have you?

I did, but they struck me as no more plausible than your later posts.

with this setting the precedent what will their argument be?

That under the Constitution, citizens have inherent rights that non-citizens do not?

Milligan says you can't suspend Habeas Corpus unless the civil courts aren't in operation. Guess what? The civil courts are still in operation. Guess what? They're still suspending habeas corpus.

The problem with saying things like this is that court decisions are never as simple as that. Are civil courts (with US-recognized jurisdiction) in operation outside the boundaries of the US? Did Milligan say anything about whether the President could suspend habeas corpus? Does Milligan apply to non-citizens?

Don't be an ass.

Maybe you should try a nice gif or something.
posted by me & my monkey at 4:56 PM on October 19, 2006

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

And to quote dios

So the triggering issue is public safety, not whether there is an actual invasion.

and as far as I understand dios is making this statement after reviewing SC cases, finding that SC considered the language "in cases of rebellion and invasion" to be _secondary_ and not as relevant as "public safety", so that the direction of the threat (internal rebellion by citizens(?) or external invasion by aliens(?) ) is not as important as public safety.

This kind of interpretation greatly enlarges the extent of law to _any_ act that seems to reduce "public safety" by removing (without actually changing the text of law) the consideration for the nature of the alteration of "public safety" , as "invasions" and "rebellion" semms to suggest a sense of immediate, violent threat that is incompatible with the exercise of law, maybe simply because after the fact there would be no court to rule on anything.

It would seems to make sense to temporarily and extraordinarily suspend habeas IF an only IF the procedure to respect it is immediately, clearly and not only potentially incompatible with the conservation of the VERY system creating and enforcing the right. Let's notice that "public safety" is a concept abstract enough to include anything including spilling water, someone may slip on it ! Yet that would hardly destabilize a country-system.

That was really the essence of the Japanese cases. We weren't being invaded by Japan beyond the attack at Pearl Harbor

Under a very extensive interpreation, having japenese-alikeness is enough of a threat for public safety to suspend habeas. This seems to be too wide a criteria and too open to abuses of any kind. The concept of "enemy combatant" is arguably more strict

‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful
enemy combatant’ means—
‘‘(i) a person who has engaged in hostilities or who
has purposefully and materially supported hostilities
against the United States or its co-belligerents who is
not a lawful enemy combatant (including a person who
is part of the Taliban, al Qaeda, or associated forces)"

On a tangent : curious to see such a clear reference to a group

We can read further and see

§ 948c. Persons subject to military commissions
‘‘Any alien unlawful enemy combatant is subject to trial by
military commission under this chapter.

So in theory US citizens are immune, but I don't know enough about US law to know if citizenship can be suspended somehow or reduced. Yet as a non US citizen, this law tells me that I would be batshit insane to ever enter U.S. territory as I haven't understood who should determine, and how, that I could possibily be an unlawful enemy combatant.

// About Olbermann

While it _sounds_ like he is making good points, I have too much experience with O'Reilly and Faux News to just listen to the emotional arguing anymore.
posted by elpapacito at 4:58 PM on October 19, 2006

If he had said "This Is the End Of America" instead of "This Is the BEGINNING Of The End of America", you'd have a point.

Precisely wrong, I'd say. America's been sliding like a turd of unusual size into the toilet of history for decades, and these times are the finale rack.
posted by stavrosthewonderchicken at 5:09 PM on October 19, 2006

The problem with saying things like this is that court decisions are never as simple as that. Are civil courts (with US-recognized jurisdiction) in operation outside the boundaries of the US? Did Milligan say anything about whether the President could suspend habeas corpus? Does Milligan apply to non-citizens?

Yes, it did. Go back to my earlier post, where I linked it. Milligan referred to citizens, it's true. However, this was because the guy who was declared an illegal combatant WAS a citizen. I don't recall seeing anything in the ruling which said 'Hey, if he weren't a citizen then everything would be kosher.' - but I'll admit it was very dense reading. I don't think it unreasonable to infer that the ruling would also apply to non-citizens GIVEN THAT THE CONSTITUTION MAKES NO DISTINCTION, although (as I asked earlier) I'm not sure if Milligan was ever superceded or clarified in this respect.

Certainly, if a defence attorney in a criminal case filed a writ of habeas corpus, and some DA tried to get it thrown out on the grounds the defendant wasn't a citizen, any judge would laugh him out of court.

So, again, let's try this very, very carefully :

1) WHERE, precisely, in the US constitution or the legal code of the Unites States prior to this, does it say that the great writ of Habeas Corpus applies only to citizens? No, seriously. Where?

2) US courts have jurisdiction on the US mainland (and Hawaii, etc). People can be declared alien illegal combatants ON THE MAINLAND. It doesn't say in this bill 'Oh, we only mean illegal alien combatants captured in Iraq and Afghanistan, by the way. If we catch you with dynamite in a US airport we can't declare you an illegal alien combatant'... because actually they very much CAN.

Maybe you should try a nice gif or something.
Maybe your monkey should stop flinging poop at you. It appears to be hitting your keyboard.
posted by kaemaril at 5:10 PM on October 19, 2006

Sorry, not enough coffee. Not precisely wrong, but not far enough.

OK, well, pretty much right. Never mind.
posted by stavrosthewonderchicken at 5:10 PM on October 19, 2006

Nquire: Interesting! I thought they'd tried this on, but didn't know it was in the passed version...
posted by kaemaril at 5:15 PM on October 19, 2006

> GIVEN THAT THE CONSTITUTION MAKES NO DISTINCTION <
In the case of Habeas Corpus I meant, of course. While, generally, the constitution makes no distinctions ('We the people' not 'We the citizens') there are obviously SOME. Like voting, etc :)

Freedom of speech? Protection from illegal search? Right to not self-incriminate, cruel and unusual punishment, all the good stuff? People, not citizens.
posted by kaemaril at 5:19 PM on October 19, 2006

President Clinton Jails 938,000 Illegal Enemy Combatants (via Orcinus)
posted by jaronson at 5:22 PM on October 19, 2006

Ooh, good one. A tad far-fetched, perhaps.

Perhaps.
posted by kaemaril at 5:26 PM on October 19, 2006

...would also apply to non-citizens GIVEN THAT THE CONSTITUTION MAKES NO DISTINCTION,...

Astute observation, and done on purpose. Rights are not given by the state, only taken away by the state. Citizenship is superfluous - at least in liberal theory when "conservatives" (fascists) are doing fuck-all to take those rights away.

I still have yet to hear anyone explain why all this was not already addressed by the Geneva Conventions. Were they just not one-sided enough for us?
posted by Benny Andajetz at 5:33 PM on October 19, 2006

are not doing
posted by Benny Andajetz at 5:34 PM on October 19, 2006

kaemaril: Looks like I posted too soon. It turns out that the Domestic Security Enhancement Act of 2003 never became law, so still not sure whether US UECs can be expatriated. Hmmm...
posted by Nquire at 5:36 PM on October 19, 2006

They are not considered "laws of the land" because they are not generally enforced (yes, there are some extreme situations, but you really don't understand what "law of the land" means).

Comparing sodomy laws (or any other state or local laws) to Supreme Court decisions indicates to me that you're the one who doesn't understand. Korematsu is a standing interpretation of the US Constitution. It might not be applicable to everyday life, but in the absence of a decision which overturns it, it is most certainly the law of the land.

Hence, Korematsu is not the law of the land, yet it won't be overturned either, because the circumstances of 1941 won't come about again.

Really? How can you be so sure? You know, it doesn't have to be the exact same set of circumstances. And again, I strongly suspect that if we were to see a roundup of Muslims, the Supreme Court would then overturn Korematsu. But in the absence of such a decision, it would stand!

Ask a real lawyer or Constitutional scholar if you don't belive me. I have.

OK, please hold.

...

Alright, I'm back. My spouse, who is a real lawyer, agrees with me. He is not a Constitutional scholar, but he did score well in con law. However, I readily admit he may be biased, or just saying whatever he thinks will shut me up. He also thinks that I waste too much time on the web.

Answer this simple question -- does the POTUS have the right to suspend habeas for a given US citizen at will?

I don't know. I would prefer the answer to be no, but Lincoln got away with it.

I think Olbermann and others have every right to be pissed off about it. If that spoils anyone's precious little idea of civil discourse, too bad. Thank god people take the time to understand these issues and get upset by them, in the face of so many "experts" who say, oh, relax, nothing new here, stop being so shrill.

My problem with this has nothing to do with civic discourse. Calling this "the beginning of the end of America" is like the insipid anti-drug rhetoric about pot being a gateway drug. It's bullshit, and it doesn't do your cause - my cause - any good, and when people figure out that you were bullshitting, you lose your credibility. I don't want the Republicans in office any more than you do - they haven't done much to cater to the gay atheist segment, you know.
posted by me & my monkey at 5:36 PM on October 19, 2006

Could you ask your spouse about Milligan, please? I'd like to know what a lawyer thinks about whether or not it's on point for this.
posted by kaemaril at 5:43 PM on October 19, 2006

I don't think it unreasonable to infer that the ruling would also apply to non-citizens GIVEN THAT THE CONSTITUTION MAKES NO DISTINCTION, although (as I asked earlier) I'm not sure if Milligan was ever superceded or clarified in this respect.

I'm too tired to find a cite, but this general statement should do for now:

... there is a body of case law limiting the applicability of the Constitution’s procedural protections to non-citizens ...

And what really gets me is that you readily admit that these cases aren't exactly clear about everything, but still they must obviously support your position.
posted by me & my monkey at 5:47 PM on October 19, 2006

Shit. That's awesome. How long before he's working at Hardee's with a lobotomy?
posted by luckypozzo at 5:51 PM on October 19, 2006

Could you ask your spouse about Milligan, please? I'd like to know what a lawyer thinks about whether or not it's on point for this.

I will have to wait on that. He's downstairs watching The Office, and I told him I had work to do. If he thinks I'm still wasting my time, he'll start griping about how I'm not spending enough time with him, and if I act like I'm interested in this law stuff, he'll start talking about EEO cases, and I'll be forced to tear my own head off.

Some things are more important to me than the future of the Republic.
posted by me & my monkey at 5:53 PM on October 19, 2006

Lincoln indeed got away with it, during a civil war. That war was entitled The Civil War. If you don't see a qualitative difference between the circumstances of 1861 and 2006, you should marry a history teacher as well.

As for Korematsu, it's not the law of the land, because it's not the law of the land. I know Japanese-Americans, and they aren't living in camps right now. Again, stop being willfully obtuse.

As for the framing of this FPP, I agree that less is often more.
posted by bardic at 5:58 PM on October 19, 2006

... there is a body of case law limiting the applicability of the Constitution’s procedural protections to non-citizens

First para : The Constitution may be more than 220 years old, but it remains of central importance to American politics and policy. This essay considers some current areas of constitutional controversy over issues of federalism, separation of powers, and civil liberties.

This certainly answered my question about where in the constitution or the US legal system (prior to this) a sharp distinction is made between the habeas corpus rights of citizens and the habeas corpus rights of non-citizens.

Oh, wait, actually it didn't. Because it's says it's a subject of controversy.

And yes, as far as I can tell from what my non-lawyerly reading of it tells me, Milligan supports my position. As such, I might (shockingly!) make reference to it when discussing my position. Note, however, that I've several times said I might be wrong, or out of date, on the subject of Milligan.

Did you ask your spouse about Milligan, by the way?
Also, you might like to ask him if he's ever heard of a petition of Habeas Corpus being turned down explicitly because the petitioner wasn't a citizen. As I said, I'm interested.
posted by kaemaril at 6:06 PM on October 19, 2006

Did you ask your spouse about Milligan, by the way?
Ah. Never mind, I see you did. I'm a slow typist, and your reply wasn't there the last time I previewed, I guess :)
posted by kaemaril at 6:08 PM on October 19, 2006

Constitutional protections extend to people in the US, citizen or non-citizen. Yes, there are gray areas, but let's not move the goal-posts (a favorite past-time of Bush and his apologists).

Think about it -- many of the founding fathers were born in England. Why would they set up a system that denied rights to people based simply on the fact of whether or not they were born in America?

Which makes the Padilla case all the more disturbing. Maybe he's a nut-job, maybe not. We don't know. But what part of the Bill of Rights don't people understand? If you're arrested in the US and aren't a citizen, you almost always have a right to a trial. If you're a US citizen, you always have a right to a public trial before a jury. All of this mincing is an attempt to obfuscate the basic legal rights of the Constitution and further muddy the waters under the Orwellian banners of "Terror," "Homeland," and "Why Do You Hate America?" If ever there was a time to over-react, I'd say this is it. And if Olbermann gets paid handsomely to do it, fine -- that means advertisers are paying MSNBC, because people are watching MSNBC rather than FOX. Small victories and all that.
posted by bardic at 6:17 PM on October 19, 2006

Constitutional protections extend to people in the US, citizen or non-citizen.

And you wonder why I don't take this conversation seriously.
posted by monju_bosatsu at 6:20 PM on October 19, 2006

The First Cup of Kool-Aid
posted by Benny Andajetz at 6:32 PM on October 19, 2006

You've posted eight times to this meaningless conversation. Way to pick your fights.
posted by bardic at 6:32 PM on October 19, 2006

I'm not fighting, I'm posting "wacky gifs."

Anyway, your assertion that "[c]onstitutional protections extend to people in the US, citizen or non-citizen" is only true if you prepend "some" to the statement. Compare the P&I clause of the 14th Amendment to the EP clause, for example.

I don't think this conversation is meaningless; I just think it's full of ineffectual wailing and gnashing of teeth with relatively little useful information.
posted by monju_bosatsu at 6:51 PM on October 19, 2006

I'm happy to amend my statement like this: Constitutional protections extend to non-citizens to a lesser extent than to citizens. But the SCOTUS hasn't put up a brick wall between the two. My larger point, which you selectively ignored, was that we aren't dealing exclusively with non-citizens be locked up. I think that should bother Americans across the political spectrum. But thanks for quoting me selectively. I'll return the favor some time.

But more to the point, we need more of your disdain in the form of wacky .gifs. Stick to your strengths.
posted by bardic at 6:53 PM on October 19, 2006

*being
posted by bardic at 6:55 PM on October 19, 2006

I don't have any disdain for you or any of the other contributors to this thread. I don't even disagree with you. Indeed, I think that the MCA is a travesty, and that it probably amounts to an unconstitutional suspension of the writ of habeas corpus. I think that the Patriot Act and its various amendments should never have been passed. I certainly think that Korematsu is weak precedent at best.

Don't assume that my "wacky gifs" mean that I must not take restrictions on important liberties of both citizens and noncitizens seriously. I just don't take MetaFilter so seriously.

posted by monju_bosatsu at 7:04 PM on October 19, 2006

I'm as pro-wacky gif as the next man but ... 1,449,666 bytes?!? I hope nobody here's still using dial-up ...
posted by kaemaril at 7:06 PM on October 19, 2006

For your convenience, I am attaching a useful list of rebuttals. Please circle the one you fancy:

a) Stop posting this Nazi filth, fascist scum.
b) LGF is that way.
c) 600,000 Iraqis have died!
d) You probably love torture. You're probably masturbating to fantasies of torturing Arabs right now.
e) Fuck you, go back to sucking Bush's dick! It's acceptable for me to address you this way because I'm righteously outraged!
posted by Krrrlson at 7:09 PM on October 19, 2006

Which makes it hard to take you seriously. Or at least think you're capable of some simple courtesy.

Threads can and have devolved into .gif fests. I've enjoyed them at times. But like I said, when adults are trying to talk, it's impolite to make fart noises.
posted by bardic at 7:11 PM on October 19, 2006

Ooh, ooh, forgot:

f) What? I don't agree with this at all! TROLL!!!
posted by Krrrlson at 7:11 PM on October 19, 2006

Amazing. A voice of passionate reason long missing from America media. A man speaking to, and for, history. I was reminded of Ed Murrow, speaking more quietly but with similar eloquence.

We've been transported to Potterville for a while to see what life would be like without us. It's time for us to wake up now.
posted by Twang at 7:13 PM on October 19, 2006

You also forgot g) All of the above

:)
posted by kaemaril at 7:14 PM on October 19, 2006

You're right Krrrlson. If not for those hippies who wrote the Constitution, we'd have caught bin Laden by now. It's not about across-the-board failures in American intelligence and competence when it comes to the GWOT, it's about that sniper who had bin Laden in his crosshairs, and right then he got a cell-phone call from Ted Kennedy saying that what he was about do was unconstitutional.

God, straw-men are the only thing Republicans have left.
posted by bardic at 7:15 PM on October 19, 2006

Bardic: Not quite everything. If you want the full line-up, you must amend your comment thusly:

and right then he got a cell-phone call from Bill Clinton saying that what he was about to do was unconstitutional.

OK, that's covered everything ;)
posted by kaemaril at 7:18 PM on October 19, 2006

Hehe. That was my first choice.
posted by bardic at 7:20 PM on October 19, 2006

But like I said, when adults are trying to talk, it's impolite to make fart noises.

I tell you what; I'll stick with the wacky gifs if you stick with the righteous condescension.
posted by monju_bosatsu at 7:34 PM on October 19, 2006

I don't think this conversation is meaningless; I just think it's full of ineffectual wailing and gnashing of teeth with relatively little useful information.
posted by monju_bosatsu at 9:51 PM EST on October 19 [+] [!]

Sure thing broseph. Sure thing.
posted by bardic at 7:37 PM on October 19, 2006

God, straw-men are the only thing Republicans have left.

The irony is staggering.
posted by Krrrlson at 7:38 PM on October 19, 2006

Lincoln indeed got away with it, during a civil war. That war was entitled The Civil War. If you don't see a qualitative difference between the circumstances of 1861 and 2006, you should marry a history teacher as well.

Well of course, for Christ's sake there's a qualitative difference between then and now. But that doesn't mean comparisons can't be made between then and now.

As for Korematsu, it's not the law of the land, because it's not the law of the land. I know Japanese-Americans, and they aren't living in camps right now. Again, stop being willfully obtuse.

I had no idea we were still at war with the Japanese. The other half is right - I must be spending too much time on here.

Korematsu, in a nutshell, says that race-based restrictions on civil liberties, while subject to the highest scrutiny, may not be unconstitutional under "pressing public necessity." It doesn't say "the Japanese must remain in camps after the war."

Think about it -- many of the founding fathers were born in England. Why would they set up a system that denied rights to people based simply on the fact of whether or not they were born in America?

Citizenship is not purely a matter of birth; citizenship is an outward token of acceptance of the social contract on which the state is based. I seem to recall the founding fathers being big fans of Locke, Hobbes, Rousseau, etc.
posted by me & my monkey at 7:38 PM on October 19, 2006

That's not irony Krrrlson. I very much mean what I said. It's righteous condescension.

Adherence to the GC and Constitution (which says, by all means, if someone is trying to attack the country lock them up, but if they're a citizen, present some evidence, try and convict them, and then lock them up for life or execute them) isn't what lost the war in Iraq, and is losing the war on terror. Incompetence is. Plain, simple incompetence on the part of this administration.

But this is all getting very circular now. We won the Civil War with, yes, abuses of the Constitution re: HC. Thank god. We won WWII with some further abuses re: Korematsu. I don't lose any sleep over it, but then again, thousands of American citizens had their lives destroyed. We shouldn't take that lightly. Now, our panties filled with urine stains, we need to revoke bedrock tenets of the Constitution in order to defeat a seven-foot tall Yemeni living in a cave. On dialysis. And possibly already dead.

Who are the real cowards here?
posted by bardic at 7:46 PM on October 19, 2006 [1 favorite has favorites]

sonofsamiam: Seriously, what does it mean to me as a US citizen if I am declared an enemy combatant? Does my legal situation change or not?

As Nquire noted, Patriot Act II says you can have your US citizenship stripped for providing support to terrorist groups.
Section 501 of the bill, deceptively titled "Expatriation of Terrorists," would provide for the presumptive denationalization of American citizens who support the activities of any organization that the executive branch has deemed "terrorist."

Presto, instant alien.

And, by the same criteria, you're also an unlawful enemy combatant (discussed at length above) according to the Military Commissions Act of 2006.

Now you're an unlawful enemy combatant. Hurray!

alien + unlawful enemy combatant = alien unlawful enemy combatant

The brunt of Military Commissions Act of 2006 is now in effect for you.

FWIW: I, too, await a refutation, other than, "well, no, it wouldn't apply to American citizens, you know..." Geeze, the fark forum contains a lot more good info at this point. (And fewer animated gifs.)
posted by LordSludge at 7:59 PM on October 19, 2006

Metafilter : Fewer animated gifs than Fark

:)
posted by kaemaril at 8:04 PM on October 19, 2006

LordSludge: However, as Nquire also noted:

kaemaril: Looks like I posted too soon. It turns out that the Domestic Security Enhancement Act of 2003 never became law, so still not sure whether US UECs can be expatriated. Hmmm...

Of course, it's not impossible that some other legislation somewhere doesn't allow (suspected) terrorists/"illegal combatants" to be expatriated. But hopefully someone would have noticed it :)
posted by kaemaril at 8:08 PM on October 19, 2006

Can anyone answer what it means to me if I am designated as an enemy combatant and why the administration would want to make such a designation if it does not alter my trial and detention rights?

on preview: oh thanks, LordSludge. That's pretty much what I was thinking. I'd really appreciate it f someone who thinks this bill did not remove any rights could explain why this situation can't arise.
posted by sonofsamiam at 8:09 PM on October 19, 2006

Metafilter : Fewer animated gifs than Fark

Or, rather, you'd think that's what the aspiration should be. Gimme a break, it's 4am :)
posted by kaemaril at 8:10 PM on October 19, 2006

reading this thread is like watching someone pull their own guts out buy the handfull.
posted by nola at 8:47 PM on October 19, 2006

The Cases of Lynne Stewart, Clive Stafford Smith, and Navy JAG Lawyer Charles Swift: Government Retaliation Against Attorneys for Terrorism Suspects
posted by homunculus at 8:51 PM on October 19, 2006

Thornton:

Tell me, Mr. Harrigan. How does it feel gettin' paid for it? Gettin' paid to sit back and hire your killin's with the law's arms around you? How does it feel to be so god-damned right?

Harrigan: Good.

-the wild bunch
posted by nola at 8:57 PM on October 19, 2006

A Dangerous New Order
posted by homunculus at 9:08 PM on October 19, 2006

That's not irony Krrrlson. I very much mean what I said. It's righteous condescension.

No, believe me, there is irony. You just don't see it.
posted by Krrrlson at 10:53 PM on October 19, 2006

What the FUCK is wrong with folks who are so keen to see this applied to only aliens?? My ex-wife is an alien. My sister's husband is an alien. I have many friends who are aliens

Oh, yeah? Well my teacher is an alien.
posted by sparkletone at 1:21 AM on October 20, 2006

"You might however consider whether you should not unfold as a background the great privilege of habeas corpus and trial by jury, which are the supreme protection invented by the English people for ordinary individuals against the state. The power of the Executive to cast a man in prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers is in the highest degree odious and is the foundation of all totalitarian government, whether Nazi or Communist." - Winston Churchill, 1943, in a telegraph to then Home Secretary Herbert Morrison (interestingly enough, Peter Mandelson's grandfather)
posted by kaemaril at 2:10 AM on October 20, 2006

So, to sum up the thread from my viewpoint: dios trolls, numerous apologists claim it doesn't apply to citizens... and then someone with a little knowledge points out that your citizenship can be stripped from you for 'supporting terrorist organizations'. Which includes things like, say, running a web site. (people have already been accused of terrorism for exactly that.)

Basically, at this point, every tool is available to disappear anyone. If you were a citizen, it can be revoked simply by pointing The Finger.

But that extra law isn't even needed. Just this law, all by itself, allows you to be held without judicial recourse of any type while your citizenship status is 'being determined'. And that determination process is handled by the Executive Branch.

They can take as long as they like to determine it... and if you don't like that, you are explicitly forbidden from going to court to force them to. So they can hold you forever, and there's not one goddamn thing you can do about it.

All it takes is pointing The Finger. It's all perfectly legal.

You know what this means? Al Qaeda wins.

You have one chance -- only one chance -- to fix this. You need to call your friends, you need to canvass your neighbors. We MUST take back the government in November. If we don't, America the social experiment is over, stolen from the people by a few unprincipled men.

In two more years, it will be too late. We must retake the government NOW.
posted by Malor at 3:57 AM on October 20, 2006

Get real, people. If they lock your ass up and hold you incommunicado, you're screwed. If the government is not kept transparent, they can do anything and get away with it. Who knows who may be locked away in prisons no one knows exist?

The very fact that congress critters would vote such a piece of shit into law is all you need to know to be sure that being angry and alarmed is perfectly reasonable.

No need to worry about the economy in the toilet. No need to worry about the couple thousand dead American soldiers. No need to worry that the American image in the world is ruined. No need to worry about unlawful telephone taps or data mining. No worry at all. No need to worry about the war that is bankrupting America was started based on lies.

Yes, indeed, Mr. Olbermann is over the line. This law is nothing to worry your silly little head about. It's not like everything else that's happened since January 20, 2001 has been weird. All is normal! There is no pattern of abuse. It's just one silly lawa that says it doesn't even apply to citizens!

The fun thing about this debate (and so many on Metafilter, like it) is the way people essentially ignores the WHOLE PICTURE. The shit didn't start with 9-11, it only got thicker and more blatant.

There are fools and tools, then there are the profiteers. There are puppets and strings, and then there are those doing the pulling. Who is who? Who can say for sure? This shit stinks, and it's been piled high for some years now.

The United States of America is much weaker than it was this time 6 years ago. And it has far more to do with the actions of elected officials than it does with any nambly pambly terrorists. The stupidist thing possible is to give additional power to those who have done nothing but damage in the first place.
posted by Goofyy at 7:35 AM on October 20, 2006

Ah, good call, kaemaril; my mistake. Seems some more digging is needed to determine the expatriotion process, whether being declared an UEC (just to be clear, UEC = terrorist) is a factor in this process, etc.

The thing is, I sorta agree with Pastabagel. Sorta. There *does* need to be some legal structure for dealing with illegal enemy combatants captured on the field of battle, e.g., an uniformed al Qaeda sniper captured in Bagdhad. (Of course, the no-Geneva-Conventions-for-you clause is despicable, to be sure, and the prospect of indefinite detention is patently ridiculous, but I can agree with the general concept that we need to codify the process of dealing with UECs into law.) What has the legal process been in the past?

The problem is that the "field of battle" idea is interpreted to mean anywhere, anytime, presumably until terrorism doesn't exist -- because, after all, terrorists could be among us. That's really, really scary. This law is pitched as applying only to alien UECs in hot battle zones (e.g., Iraq, Afghanistan), and most people (incl. myself) can get behind that in spirit, if not in detail. However, the language includes (accused) alien UECs within the U.S., with no ties to al Qaeda & friends, in the tribunal process, with zero recourse to refute the UEC status. Not cool. It may also be used to help build a case to expatriate American citizens, which can be now definitely be declared (accused) UECs, which in turn renders them unto the tribunal process, with zero recourse. Double uncool.

(Perhaps, indeed, this law is truly intended to deal with al Qaeda in the Middle East. Fine. Write those constraints into the damn law!)

In a way, though, it is a 'good thing" that this steamy pile is being exposed for the American people to see, rather than done illegally, in secret. My hope is that Americans will react against it and give the bill's supporters the bum's rush. I think it depends on whether Americans can see past the "pitch" to what this bill really says and what the implications are.

However, it *was* being done illegally. People should answer for that. Thanks to this law, they won't. Presidential pardons are one thing, but you shouldn't be able to brazenly break the law, then pass a law years later that makes it all okay, ex post facto. That's bullshit.
posted by LordSludge at 8:54 AM on October 20, 2006

Perhaps, indeed, this law is truly intended to deal with al Qaeda in the Middle East. Fine. Write those constraints into the damn law!

If that's what was desired, that's what would have been written, right?

For a point of comparison, look at the wiretapping issue. Bush already had the ability to get retroactive warrants for wiretapping terrorists, but somehow, that wasn't good enough. The only reasonable interpretation of that debate is that the administration wanted to wiretap some people for whom they knew they couldn't get warrants.
posted by sonofsamiam at 9:09 AM on October 20, 2006

First they came for the Communists, and I didn't speak up, because I wasn't a Communist.

Then they came for the Jews, and I didn't speak up,
because I wasn't a Jew.

Then they came for the Catholics, and I didn't speak up,
because I was a Protestant.

Then they came for me, and by that time there was no one left to speak up for me.

Pastor Martin Niemöller (1892–1984)
posted by Shanachie at 10:21 AM on October 20, 2006

Shanachie: I quite like this version, by NOFX. Seems more contemporary, somehow.

First they put away the dealers,
keep our kids safe and off the street.
Then they put away the prostitutes,
keep married men cloistered at home.

Then they shooed away the bums,
then they beat and bashed the queers,
turned away asylum-seekers,
fed us suspicions and fears.
We didn't raise our voice,
we didn't make a fuss.
It's funny there was no one left to notice
when they came for us.

Of course, this is all just some of us being paranoid. I'm sure this legislation could never be misused...
posted by kaemaril at 11:46 AM on October 20, 2006

The thing is, I sorta agree with Pastabagel. Sorta. There *does* need to be some legal structure for dealing with illegal enemy combatants captured on the field of battle, e.g., an uniformed al Qaeda sniper captured in Bagdhad. (Of course, the no-Geneva-Conventions-for-you clause is despicable, to be sure, and the prospect of indefinite detention is patently ridiculous, but I can agree with the general concept that we need to codify the process of dealing with UECs into law.) What has the legal process been in the past?
uniformed Al Qaeda sniper? If such a beast were to ever exist, then that would be the third Geneva Convention :)

"Unlawful enemy combatant" is something the US made up. The rest of the world covers it under the third and fourth Geneva Convention. i.e,
The Third Geneva Convention relative to the Treatment of Prisoners of War
The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War

I've heard reasons why terrorists should fall outside the scope of the third convention. I've yet to hear a plausible reason why terrorists captured on the battlefield can't be dealt with under the third AND fourth conventions. I've also yet to hear plausible reasons why terrorists captured at, for example, LAX should be 'enemy combatants' and not plain old criminals.
posted by kaemaril at 11:59 AM on October 20, 2006

uniformed Al Qaeda sniper? If such a beast were to ever exist,...

DAMN! My brain wanted to type un-uniformed, but my fingers did a spellcheck, heh..
posted by LordSludge at 2:37 PM on October 20, 2006

“There *does* need to be some legal structure for dealing with illegal enemy combatants captured on the field of battle... What has the legal process been in the past?”
posted by LordSludge

what kaemaril sed +
There have been numerous (and binding) laws of land warfare, military law, et.al distributed in Field Manuals (et.al) as well as international law. It’s ridiculous to think we need a new law to deal with terrorists when they, and sabateurs, spies, etc. etc. have been in existance for thousands of years. American revolutionary forces, minutemen, would have been classified as terrorists under the laws that existed prior to this. The Boers were.

So, this law being prescedent for policy - what’s next? Concentration camps and scorched Earth?
Worked in the Philippines. Although we did come to terms after and start making the right decisions.
(Of course we had MacArthur there...bit racist, but unparalelled strategist)

We’ve been through all these lines of thinking before. Consider Mark Twain:
“There is the case of the Philippines. I have tried hard, and yet I cannot for the life of me comprehend how we got into that mess. Perhaps we could not have avoided it -- perhaps it was inevitable that we should come to be fighting the natives of those islands -- but I cannot understand it, and have never been able to get at the bottom of the origin of our antagonism to the natives. I thought we should act as their protector -- not try to get them under our heel. We were to relieve them from Spanish tyranny to enable them to set up a government of their own, and we were to stand by and see that it got a fair trial. It was not to be a government according to our ideas, but a government that represented the feeling of the majority of the Filipinos, a government according to Filipino ideas. That would have been a worthy mission for the United States. But now -- why, we have got into a mess, a quagmire from which each fresh step renders the difficulty of extrication immensely greater. I'm sure I wish I could see what we were getting out of it, and all it means to us as a nation.”
posted by Smedleyman at 3:06 PM on October 20, 2006

numerous apologists claim it doesn't apply to citizens

Please count, for my benefit.
posted by Krrrlson at 4:07 PM on October 20, 2006

One potato, two potato, three potato, four,
Five potato, six potato, fascists at your door.
posted by It's Raining Florence Henderson at 4:23 PM on October 20, 2006

In S.F., justice talks of 'dialog of the deaf'
posted by homunculus at 7:29 PM on October 20, 2006

Please count, for my benefit.

Ok, just for you krrlson, I went back and counted up apologists... people who say either that this doesn't apply to citizens or that Olbermann is wrong or hysterical. That list appears to be:

dios
bulgaroktonos
pastabagel
jam_pony
monju_bosatsu
pardonyou?
me & my monkey
krrlson

I'd call that numerous. It's certainly more than 'several'. And I note you're included, with a gif, yet.

Allow me to express my complete disdain for your attitude and politics. People just like you have done more damage to this country than a million bin Ladens ever could... happily tossing away the things that define us as a nation for a bit of expedience in finding our enemies. I can hear your cowardly knees knocking from here. "Goodness!" I hear you shriek. "Let's get rid of those pesky freedom things. Anything to get the Bad Man!"
posted by Malor at 8:41 AM on October 21, 2006

When the cold war ended, and conservatives didn't need to be nice to the civilized left anymore (because they were only nice to prove to the communists that they weren't as bad as communists said they were) then it was expected that they would become bastards again. But this leaves a lot of their core constituency left holding the empty slogans. The poor fools that ever bought into the idea that being conservative translates into expanded rights and freedoms have anxiety about their loyalties. Of course, we know they deal with this anxiety by using forms of denial and cognitive dissonance, which often means adopting a zealous approach to misunderstanding their own conservative doctrine in order to discount the realization--and then campaigning for it to convince themselves. Disconnected to the extreme, but still a force in politics as long as their denials can be skillfully entertained by a candidate or two.
posted by Brian B. at 9:42 AM on October 21, 2006

I'd call that numerous. It's certainly more than 'several'. And I note you're included, with a gif, yet.

I count over 20 shrill agreements in the first 30 comments alone, and you have the nerve to call 7 numerous? 7, of course, because you lied about me -- nowhere did I interpret this law or claim who it applies to.

People just like you have done more damage to this country than a million bin Ladens ever could... happily tossing away the things that define us as a nation for a bit of expedience in finding our enemies. I can hear your cowardly knees knocking from here.

If you're hearing things, it's best to check with a psychiatrist, especially considering that I'm not even a citizen of your country.
posted by Krrrlson at 10:17 AM on October 21, 2006

dios: So the triggering issue is public safety, not whether there is an actual invasion.

And since there's clearly a negligible threat to US public safety from international terrorism (by comparison with, say, automobile travel), there ought to be no need to consider such issues.

Yet here we are.
posted by lodurr at 11:31 AM on October 22, 2006

and you have the nerve to call 7 numerous? 7, of course, because you lied about me -- nowhere did I interpret this law or claim who it applies to

You might want to make that 6, since nowhere did I suggest being an "apologist" for the law. I don't agree with the law. However, I don't think it's the end of democracy, or the beginning of the end, or whatever the fuck. I'm sorry if you're so stuck in your "one side versus the other"/"you're with me or you're the enemy" perspective to understand that reasonable people can be both offended by a law, and offended at tactics that exaggerate the law's application in order to try to scare people.

In short, you might want to look up "apologist." I do not think it means what you think it means.
posted by pardonyou? at 2:09 PM on October 25, 2006

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