the end of the rule of law

courtesy of John McCain and Joe Lieberman. Via OpenCongress:

One of Congress’s most notoriously hawkish duos, Sen. John McCain [R, AZ] and Sen. Joseph Lieberman [I, CT], recently introduced legislation in response to President Obama’s decision to try Umar Farouk Abdulmutallab, the Christmas Day airplane bomber, in a criminal court. Their proposal, which they are calling the Enemy Belligerent Interrogation, Detention and Prosecution Act, would empower the U.S. military to arrest anyone, U.S. citizen or otherwise, who is suspected of terrorist associations and detain them indefinitely, without right to a trial.

From the legislation itself:

SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS.

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3( c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

And the people eligible for such treatment:

(2) CRITERIA FOR DESIGNATION OF INDIVIDUALS AS HIGH-VALUE DETAINEES- The regulations required by this subsection shall include criteria for designating an individual as a high-value detainee based on the following:

(A) The potential threat the individual poses for an attack on civilians or civilian facilities within the United States or upon United States citizens or United States civilian facilities abroad at the time of capture or when coming under the custody or control of the United States.

(B) The potential threat the individual poses to United States military personnel or United States military facilities at the time of capture or when coming under the custody or control of the United States.

(C ) The potential intelligence value of the individual.

(D) Membership in al Qaeda or in a terrorist group affiliated with al Qaeda.

(E) Such other matters as the President considers appropriate.

The passage of this bill will mean the president can lock up anyone he wants for any length of time for any reason he deems sufficient. It does not matter if that person is a US citizen on US soil, or how many decades there are considered to be "hostilities," or even whether or not the person is in any way involved with terrorism.

For all of you consoling yourselves by figuring this will never survive judicial review, remember that only those people with "standing" can challenge a law in court. What this means is the ACLU can't just petition the Supremes to review any law they see fit; you can only challenge a law you have been personally punished by or will be imminently punished by. In this case, you have to have already been jailed by the military under this law to take the president to court.

Except you can't, of course, because this law explicitly denies you the right to a trial or a lawyer.

simple questions

From the Wall St. Journal:

WASHINGTON -- The Obama administration is weighing plans to detain some terror suspects on U.S. soil -- indefinitely and without trial -- as part of a plan to retool military commission trials that were conducted for prisoners held in Guantanamo Bay, Cuba.

The proposal being floated with members of Congress is another indication of President Barack Obama's struggles to establish his counter-terrorism policies, balancing security concerns against attempts to alter Bush-administration practices he has harshly criticized.

Sen. Lindsey Graham (R., S.C.), who met this week with White House Counsel Greg Craig to discuss the administration's plans, said among the proposals being studied is seeking authority for indefinite detentions, with the imprimatur of some type of national-security court.

Sen. Graham said he wants to work with the administration to pass legislation to increase judicial oversight of military commissions, but noted the legal difficulties that would arise.

"This is a difficult question. How do you hold someone in prison without a trial indefinitely?" Sen. Graham said.

Eh, was that a rhetorical question? Because that issue seems pretty easily resolved.

Greenwald on yesterday's Supreme Court decision

Read the whole thing. In among all the important points he makes is a key difference between the Crazy Train and Barack Obama:

The Military Commissions Act of 2006 was -- and remains -- one of the great stains on our national political character. It was passed by a substantial majority in the Senate (65-34) with the support of every single Senate Republican (except Chafee) and 12 Senate Democrats. No filibuster was even attempted. It passed by a similar margin in the House, where 34 Democrats joined 219 Republicans to enact it. One of the most extraordinary quotes of the post-9/11 era came from GOP Sen. Arlen Specter, who said at the time that that the Military Commissions Act -- because it explicitly barred federal courts from hearing habeas corpus petitions brought by Guantanamo detainees -- "sets back basic rights by some 900 years" and was "patently unconstitutional on its face" -- and Specter then proceeded to vote for it.

The greatest victim of the 9/11 attack has been our core, defining constitutional liberties. Of all the powers seized by this administration in the name of keeping us Safe, the power to imprison people indefinitely with no charges and no real process is the most pernicious.

Passage of the Military Commissions Act was spearheaded by John McCain, who was anointed by cowardly Senate Democrats to speak for them and negotiate with the White House. Once McCain blessed the Military Commissions Act, its passage was assured. Barack Obama voted against it, and once its passage appeared certain, Obama offered an amendment to limit it to five years. That amendment failed, rendering the MCA the law of the land without any time limits.

It never ceases to amaze me that these so-called "small government" conservatives only wag their fingers at "big government" when it tries to help poor people. When it comes to taking away the rights and power of individuals, on the other hand, no encroachment on popular sovereignty or the rule of law, no lurch toward authoritarianism, is too far for the modern Right. Their objections to government power are purely capitalistic, without a shred of concern for democratic principles. In fact, where such democratic principles are concerned, the Right opposes them.

Thus, the true moniker for the American successors of Strauss and Buckley: police state conservatives.

discas scribere*

When I was an undergrad, I took a course on the Renaissance, and we all had to give presentations to the class on a certain figure or book from the period. One of my classmates picked Rene Descartes for his presentation, and so far as I can tell, he put some work into it and had an okay understanding of the material. When he began his presentation, however, the very first word to flop out of his mouth was a jarring "Rene Desscartss..." For those of us in the class who knew the name or had the slightest inkling of French, the word seemed to plop languidly onto the floor and lay there in middle of the room like a steaming turd or a dead cat, and we stared at it, horrified, not even listening to the rest of his speech, save for the many-- so many!-- occasions where he repeated the name, seeming to point at the word to remind us of it again and again. As if we could get past it in the first place!

Similar moments happen online, where one's ignorance of a term's pronunciation--or in the case of writing, spelling--can undermine one's own credibility. Obviously, spelling on blogs doesn't carry the same import as spelling in an academic journal, as we're expected to be typing on the fly and thus letting a typo here and there slip by. Terminology, however, is different: showing knowledge of the subject matter's terminology is a necessary step to establishing your bona fides, and misspelling the lingo exposes readers to the unmistakable whiff of dilettantism. Like, for instance, when you're writing a post or trying to make a point about constitutional law or political theory and you drop a "habeus corpus." When I see that, my eyes glaze over, your point fizzles, and I click the "back button," assuming (often correctly) that you have no idea what you're talking about.

Ahemmmmmmm *donning my tweed and elbow patches and making my best elite Classicist affectation*
Habeus is a Latin-esque gibberish adjective modifying "corpus."

Habeas is a command verb meaning "have" as in "have your body [brought before a court of law]." As in habeas corpus, the right to contest your imprisonment in court.

Habeas freakin' corpus, people. Learn it.

*Learn how to spell.

The Republican Party is run by totalitarians

Don't believe me? From Glenn Greenwald:

Various Republican candidates attended a meeting of Club for Growth, and afterwards, National Review's Ramesh Ponnuru spoke to Cato Institute's President Ed Crane about what they said. This brief report from Ponnuru is simply extraordinary:

Crane asked if Romney believed the president should have the authority to arrest U.S. citizens with no review.

So Crane asks GOP presidential candidate Mitt Romney if he believes the president can nullify by fiat a United States citizen's rights of habeas corpus and a fair and speedy trial of his peers, a power no British king has had since the 12th century. Any person with American political sensibilities, especially, God bless him, a conservative, would be aghast at such a proposition, right? Romney's answer:

Romney said he would want to hear the pros and cons from smart lawyers before he made up his mind.

Apparently the issue of whether American citizens have the right to contest their charges is a little hazy for this Republican candidate.

What about leading GOP presidential candidate Rudy Giuliani?

Crane said that he had asked Giuliani the same question a few weeks ago. The mayor said that he would want to use this authority infrequently.

Giuliani promises he'll only occasionally strip American citizens of the most basic freedoms guaranteed them in the Bill of Rights.

There is no such thing as a democracy in which the Executive can imprison citizens without a fair trial. The law states that all citizens have rights, and in order for power to rest with the people (the definition of "democracy"), the rule of law must be upheld. If it is a president that rules, and not the law, then power rests with him and not with the people. And a president that can defy the Bill of Rights with impunity is not a president, but a dictator. After all, if a president can disregard amendments to the Constitution, what laws bind him?

Democracy and totalitarianism cannot exist side by side. Either the people rule, or the executive rules. I vote for the people.