Respectful Insolence

Although I think Bora is being overly alarmist when he declares that we are now officially living in a fascist state, that doesn’t mean that I don’t find the passing of the Military Commissions Act of 2006, which authorizes military tribunals for “enemy combatants,” a category that, given the murky language of the act, is not clearly limited to noncitizens, to be a deeply disturbing turn of events. What I find the most strange about the whole exercise is how little Republicans seem to have thought this whole law through. Do they realize what they’ve done? Sure, they trust President Bush to exercise this new power wisely, but he is only going to be in office for two more years, with no guarantee of a Republican President to follow him. In their eagerness to pass this, apparently they never asked themselves: Would they trust a future President, say a future President Clinton with this power?

Personally, I do not trust President Bush, a future President Hillary Clinton, or any other President with the power to label people an “enemy combatants” and throw them in jail in essence indefinitely. It clearly goes past the line of powers that the President should be given, even in a time of war. It’s not unlike what I discussed earlier today regarding laws in Germany against Nazi symbols. This administration may not use this law much; the next administration may not use it much; but some administration in the future will be tempted to push this law to the limit. The longer this law is on the books, the more likely it is that some future President will use it in a big way, particularly if the U.S. suffers another major terrorist attack. So, even though the piece I linked to above is clearly meant to be an exaggeration designed to make a point, I think it still makes a valid point through hyperbole.

ADDENDUM: Abel sent me a link that suggests some of the concerns about this law are overblown. Certainly, I always thought that the “we’re in a fascist state now” crowd was succumbing to hysteria over this, but even so I still find the bill troubling.

More here:

The Tragedy of the Detainee Treatment Act
Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely (there’s a lot of interesting stuff in the comments, and apparently a key section was altered to say “alien unlawful combatants” before passage–a close call.)

Comments

  1. #1 wolfwalker
    October 2, 2006

    I confess to being extremely confused by this bill. Other individuals whose opinions I respect have said basically the same thing you have: that it effectively eliminates all legal protection for anyone that the president or his agents chooses to identify as an “enemy combatant.” However, when I read the bill’s text, it seems that the bill applies only to “aliens,” which term is explicitly defined within the bill’s text as “not a citizen of the United States.” Which parts of the bill (if any) apply to citizens? Which (if any) apply only to noncitizens?

  2. #2 Rich
    October 2, 2006

    You know, personally I think they would trust President Clinton with the powers.

    The truth is that even the most reality-challenged ‘I always vote Rep.” sheep has to admit that while Clinton actually had Sex with a Woman, and Got So Distracted that he listened to his Qualified Advisors and Didn’t Preemptively Invade to Get Osama. Clinton behaved much more rationally when in office than Bush – the vast majority of the scare tactics in his administration involved what the definition of ‘is’ was.

    Deep down below the level of conscious thought (as if American voters could ever be claimed to be above such a level) I figure that voters expect that eventually this will all blow over and the decisions they make today will all become moot. We won’t have to trust future presidents because they won’t be under the same pressure and won’t be at risk of behaving so irrationally.

    Sorry, I’m trying to be serious. But these days the truth is essentially satire.

  3. #3 Eric Wilner
    October 2, 2006

    I think a lot of the Right would have more-or-less trusted Clinton with such powers, if 9/11 had happened on his watch, thereby establishing that there was a real foreign threat.
    Personally, I wouldn’t have trusted Clinton with such powers any more than I trust Bush with them… or FDR, for that matter.
    What I find really alarming is the Left’s insistence that (a) the entire current administration is evil, and at the same time (b) government powers over our everyday lives must be increased. Why would they trust the current administration with the powers they advocate?

  4. #4 Rich
    October 2, 2006

    Eric,

    I didn’t follow your last paragraph very well.

    For example, I am (used to be?) a Republican and I don’t consider myself part of the Left. But I do think that this is one of the worst administrations ever. Some parts — like using the Laffer Curve to push irresponsible economics that our children will have to pay for — I would even go so far as to call evil.

    I agree that no President should be King — especially one whose morals were trusted as weakly as Clinton’s. But the Left’s insistence is not nearly what I find really alarming these days.

  5. #5 Miguelito
    October 2, 2006

    Some of the concerns are overblown? All it will take is for Bush to attach one of his famous signing statements so he can ignore parts of the bill he doesn’t like.

  6. #6 Joshua
    October 2, 2006

    It’s a rare Leftist indeed who really wants to increase “government powers over our everyday lives”. Maybe when you get out to the extreme end of the scale where the Communists live, sure. But, as this administration is demonstrating very clearly, being with the “Right” doesn’t necessarily mean advocating a lack of government control.

    What the “Left” does traditionally support are things like welfare, social security, universal health care, etc… I have a hard time equating those with “government powers over our everyday lives” on the same level as being able to hold people without trial.

    Orac: I don’t trust the statement you got from Abel at all. It reeks of spin. “Sure, we passed this law, but really it didn’t change anything! Honest!” Well, if it doesn’t change anything, why’d they bother writing it? Either they’re eroding our freedoms or wasting our time.

    I also don’t see what the big bloody deal is about treating everyone by the same standard, regardless of what crime they’re suspected of. That’s the big issue for me. We don’t need and shouldn’t have special rules for “terrorists” or “alien unlawful combatants”, nevermind the more vague “enemy combatants” terminology. If the arrest is domestic, they should be treated as any domestric criminal. If the arrest is foreign, they should be treated as any uniformed prisoner of war. We shouldn’t be inventing standards on the fly like this. It doesn’t make any kind of sense, unless you want to justify some unscrupulous practice, which certainly seems to be the case here.

    (First person to say that foreign terrorists aren’t like criminals or uniformed soldiers gets a one-way trip to Guantanamo. I’ve seen exactly no arguments for this position that don’t devolve to “They’re scary and foreign!” Because the only difference between domestic and foreign terrorists is the fact that one kind are citizens and the other aren’t. Noone seems to argue that we need to take extra (illegal, morally reprehensible, democracy-eroding) measures to fight domestic terror, which has proven to be a much more persistent threat — just less dramatic — than the foreign kind.)

  7. #7 Mark
    October 2, 2006

    I don’t think this law makes the US a fascist state. In some sense (M-W online: “a tendency toward or actual exercise of strong autocratic or dictatorial control”) the US could be argued to have already become a fascist state. Giving the President extra-Constitutional powers makes this country something closer to a dictatorship, but Bush has already demonstrated that he believes he has the power and authority to ignore laws if he thinks he should.

  8. #8 Clark Goble
    October 2, 2006

    What is the proper way to deal with a foreign soldier acting to carry out sabotage or murder on US soil? If that soldier is not portraying themselves as a soldier, as I understand it the Geneva convention specifies that they be shot. Surely the issue isn’t that the “normal” procedures are too soft but rather that they are too hard. Military tradition doesn’t look fondly on people blending into the populace to conduct raids on your soil. I believe they traditionally were dealt with harshly.

    My sense is that people complaining the most want this to be dealt with as a criminal matter. But surely prosecuting a war as a criminal matter is a mistake as well.

    Don’t get me wrong, I’m not a fan of this law nor the Bush administration. But I think people have to be clear what they want and it sure sounds like make it all a criminal matter is starting to win.

  9. #9 Clark Goble
    October 2, 2006

    For the record, during wartime, I’d not have trouble with Clinton, Carter, JFK, or others having such powers.

    It just seems to me that folks want to pretend there’s no war on simply because there isn’t a clear and obvious end to the war.

  10. #10 Sheila
    October 2, 2006

    The bill specifically said it applies only to non-citizens. I’m surprised you didn’t read it before getting all hysterical about it.

    Section 94b
    ”(a) PURPOSE.–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.

    Section 94a
    ”(3) ALIEN.–The term ‘alien’ means a person
    who is not a citizen of the United States.

  11. #11 Shelia
    October 2, 2006

    Here’s another one:

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

  12. #12 Orac
    October 2, 2006

    You apparently didn’t read my addendum (the “more here” part), did you?

  13. #13 TheProbe
    October 2, 2006

    The new Robin Williams movie has a line that I paraphrase…

    Change politicians as often as you change diapers and for the same reason.

    The article Abel cited does give me a bit of comfort, simply because I tend to trust McCain and Warner more than any other Republicans.

    As for Joshua’s comment vis-a-vis treating all equally…agreed…so long as there are three classes of capturees…domestic, members of the military of a foreign government as POWs, and the third class called “terrorists/enemy combatants” as they are stateless individuals who are not bound by any state signed treaties.

    There has to be three classes. POWs are returned at the end of hostilities to their own people. They do not continue to make war against us. Terrorists who arfe captured inside the US, should are treated as spies, etc. under the law. Incarcerate or kill them, with full due process.

    The third class, “enemy combatants” do not have an identifiable state to return them to. We surely cannot return them to any Arab country, as they are likely to be released (even by our so-called friends). They have not, as yet, comitted a crime inside the jurisdiction of the US, but clearly intend to kill Americans. Short of composting them, we choose the third option, although it is imperfect. We place them between the two other groups and first ensure that they are truly enemy combatants. If so, put them away. If not release them.

  14. #14 coturnix
    October 2, 2006

    The McCain-Warner-Graham article is wrong on every point – it is just a piece of apologia for what they did. Three days later, every lawyer I heard/read on this issue agrees that anyone, citizen or not, can be arrested for no apparent reason and detained indefinitiely without access to the judicial system. It is really THAT bad no matter what these guys say in their little spin article.

  15. #15 bigTom
    October 2, 2006

    Anyone who thinks that the GWOT makes any sense need to read Louise Richardson’s book “What Terrorists Want”. She has spent a lifetime studying the phenomena (she nearly joined the IRA). You will learn that illegal internment only makes the problem worse. The book should be required reading for ALL Americans.
    I would hope the Republicans would be afraid of a Clinto having that power, and repeal it. Abe Lincoln had that power during the Civil War, but realised that it was a horrible temptation that no man should have, he had congress repeal it a year later.

  16. #16 Joshua
    October 2, 2006

    TheProbe: I can see the justifications for that, but I disagree. I really think the standard should be the same all around, but I can also see how that may not be reasonable in a lot of cases (mostly from a diplomatic standpoint). I would compromise towards having two categories, one for domestic criminals and one for foreign criminals. This is where it really would be ideal to have an effective international court — which the UN has tried to do, but the US characteristically has blocked at every junction. A truly international court wouldn’t need the third distinction of stateless combatants.

    (I also reject the categorisation of terrorism as an act of war. War is a conflict of states. The term has been senselessly diluted for a long time now. I think England has shown that treating terrorism as crime is an effective means to combat the issue. You also don’t need to consider terrorism itself an act of war in order to justify action against obviously state-backed terrorist groups; in my opinion, the US-led invasion of Afghanistan is a good example of this. But my thinking here is that if a state is sponsoring criminal acts against another state (e.g., but not releasing one of its citizens to foreign justice), that could definitely provide a strong case for escalating to war if a strong international consensus can be built, as happened with Afghanistan.)

  17. #17 Eric Wilner
    October 2, 2006

    Rich & Joshua: Yes, I didn’t state that very well.
    For one thing, I used “Left” very casually and inappropriately, failing to distinguish the political Left from the philosophical Left (very different animals), when in fact what I meant was “those who, in contemporary U.S. society, are called liberals.”
    The outspoken “liberals” of my acquaintance (using scare quotes here because I see little resemblance between their set positions and what used to be called liberalism) have very definite ideas on How The World Should Be, and they advocate the strong use of government power to make the world conform to their notions. Not too much different from those who are now called “conservatives,” really, except for the vision of a perfect world being different.
    Common “liberal” schemes that involve expansion of intrusions into everyday life include monolithic government-run health care (hmmm, the government logging phone calls is bad, but the government having all our medical records is good?), immoderate and/or arbitrary restrictions on the use of private property, and all the usual “people oughtn’t be allowed to do that” issues, dressed up in “liberal” jargon, as well as a belief that the government should be the instrument of first choice for a wide variety of goals.
    What I really meant was that there’s a large contingent of people who believe that the government ought to be Doing More – “Why didn’t the federal government rescue all the Katrina victims right away?” – and, while believing that the current administration is more evil than Satan (yes, I’ve heard that, and from people who seemed to believe it), still think it a fine idea to have a bigger, more powerful government that will swoop in and set things right. For them, having the Evil Party in power is not a hypothetical future situation, but the present, and yet they advocate bigger government. This, I just don’t grok.

  18. #18 akibare
    October 2, 2006

    Enemy combatants are not stateless just because they fought with (or in some cases are merely suspected of fighting with) a non-state-backed militia. They (and the vast majority of humans in the world) are citizens of SOME state, even if a weak or US-hating one – it’s rather rare to be truly stateless.

    If the state they are citizens of refuses to take them back and effectively revokes their citizenship (this is the case with some Uighurs from China, for example) then they will become stateless, however, and that is an actual problem.

    It seems a bit of a slippery slope to me to say that because someone is a citizen of a state that the US suspects will be sympathetic with the non-state-backed militia’s goals, and therefore let their citizen free, that the US thereby should be able to lock them up forever. If they did commit a crime, charge ‘em with murder or consipiracy or whatever sticks, and have them do their time in US prisons. If not, well, WANTING to kill Americans or hating the US isn’t a crime, yet.

    The problem I have is with the refusal to bring charges. At some point it’s time to sh*t or get off the pot, as the saying goes.

  19. #19 KeithB
    October 2, 2006

    I believe that I heard that it also allowed for *any* person to be given enemy-combatant status via some future unspecified tribunal system. That is what has folk’s knickers in a twist.

  20. #21 Jim Lippard
    October 2, 2006

    KeithB:

    Sec 948d subsection (c) says: “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.”

    This appears to me (not a lawyer) to possibly override the limitation to aliens in 948c and 948d (a). The qualifier “alien” doesn’t appear again in the bill. 948d (b) says that such commissions do not have jurisdiction over lawful enemy combatants, but says nothing about non-alien unlawful enemy combatants.

  21. #22 Orac
    October 2, 2006

    This is good: http://www.avantnews.com/modules/news/article.php?storyid=287

    I see that you didn’t click on the link in the sentence about a future President Clinton being trusted with that power. ;-)

  22. #23 Joseph Hertzlinger
    October 2, 2006

    There have already been laws passed by people claiming to represent the “Republican base” which, when carried out by a Democratic administration, had the effect of sending an alleged foreigner to a place resembling a jail.

    That’s what the Elian Gonzales case was about.

  23. #24 Joseph Hertzlinger
    October 2, 2006

    The “938,000 enemy combatants” article seems unlikely. For one thing, the Second Amendment may slow matters down a bit.

  24. #25 shadowfax
    October 2, 2006

    The impact of this bill will probably be limited to the poor bastards (some terrorists, some innocent) at Gitmo and in Afghan detention facilities. So it’s hardly the end of the republic.

    BUT, this bill does deny habeas petitions, deny judicial review, and admit (limited) secret evidence, and as such is a blow against the judicial protections which have been in place since the Magna Carta in 1215. As such it sets a very scary and awful precedent. You and I will probably never wind up in a CIA detention facility, so our lives will be unaffected by this. But I weep for the innocents who get mistakenly picked up by our troops, becuase they’re screwed.

  25. #26 James
    October 3, 2006

    “NO freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.”

    I believe the Magna Carta was 1297, not 1215, and my understanding was that it only bound the English monarchy, so it ceased to apply to the US when you guys ceeded. A royal proclamation protecting the people against their democratic government – now that’s irony.

    I echo Eric’s comments about US “liberals” and big government. They fed the fire and now they get burned by it. Hopefully this law will generate such a backlash that the small-government conservatives in the Republican party will rise to the fore. Then the 2008 election may actually get interesting.

  26. #27 Thony C.
    October 3, 2006

    A lot of you seem to think that its all right to remove somebody’s basic human rights as long as he’s not an American. That seems to me to be pretty fascist!

  27. #28 Andrew Dodds
    October 3, 2006

    http://britannia.com/history/magna2.html

    Not the most modern of documents, but since it was the first instance where the powers of the monarch were actually restricted, it’s quite important.

    It was 1215.. and although technically a royal proclamation, it was a case of ‘Proclaim this, your maj, or lose the bonce’. You do have to decapitate royalty occasionally, stops them getting above their station..

  28. #29 KeithB
    October 3, 2006

    Thanks Jim:
    Isn’t the internet wonderful! I think we are putting more thought into the language of this bill than most of the people who actually voted on it.

  29. #30 Dunc
    October 3, 2006

    Oh, so as long as it’s only non-US-citizens being detained and interrogated without trial or any proper legal recourse, that’s OK then?

    And you wonder why anti-american sentiment is growing around the world…

    It’s very simple really, but I’ll spell it out: those of us who are not US citizens are still people.

  30. #31 TheProbe
    October 3, 2006

    Thony C.: A lot of you seem to think that its all right to remove somebody’s basic human rights as long as he’s not an American. That seems to me to be pretty fascist!

    Incorrect. If there were summary execution upon capture, that would constitute removal of basic human rights. However, I do not want to see anyone have that happen, although the temptation is there. Instead, I want to deal with the capturee based on the nature of what they were doing. Thus, the Germans who landed on Long Island in WWII to sabotage the war effort were properly executed after due process. The Geneva Convention does not prohibit this.

    The German POWs who were transported back to the US’s midwest were detained out of the war zone as was required by the Geneva Convention. For the most part, they were happy to be here, and did not constitute a security problem as our POWs did in Germany.

    As for “terrorists” they are, contrary to what is written above, _de facto_ stateless persons. Their home countries most likely do not want them back (and if they do, they are not our friends), and other countries who would be friendly to the US, do not want the headache.

    Thus, “terrorists” have made a niche for themselves. I do not believe that they are entitled to the full due process of the US Court system, but, they do need an opportunity to challenge their detention with the ability to fully confront the evidence against them.

  31. #32 James
    October 4, 2006

    Ok Andrew fair enough my source (an official New Zealand government website no less!) was wrong.

    The essential trouble with non-US terrorists is that they do not have the same relationship to the US government that an American citizen (or resident) does. A normal citizen is essentially powerless before their government, foreign terrorists come from outside the country (obviously) so they are not within the US government’s power in the same way. As such I don’t think its reasonable to afford non-citizens the same rights in this matter.

    Equally as terrorism is in and of its self a war crime protection under the Geneva Conventions would be ludicrous. I understand that there is a provision under the conventions for trying illegal combatants in a military tribunal, that might be the bast solution.

    As for terrorists caught in the field (Iraq, etc) I don’t see why they shouldn’t be treated the way pirates were historically treated. No lengthy trials and no illegal detentions.

  32. #33 Andrew Dodds
    October 4, 2006

    James -

    If these terrorists are actually committing offenses on US soil they are subject to US law; and if they are NOT comitting offenses (And I believe that planning terrorist acts is an offence) then there is no reason to act against them.

    This is the danger; the removal of rights means that people can be picked up on the flimsiest of evidence (Or indeed no evidence whatsoever) and detailed indefinately. Indeed, if the evidence existed then this law would not be required.

    As far as those picked up outside the borders of the US, they should be treated as POWs; unless evidence exists that they should be not. Again this law seems to imply that no evidence is required; if not then you cannot by defintion say that people are terrorists.

  33. #34 MartinM
    October 4, 2006

    The essential trouble with non-US terrorists is that they do not have the same relationship to the US government that an American citizen (or resident) does. A normal citizen is essentially powerless before their government, foreign terrorists come from outside the country (obviously) so they are not within the US government’s power in the same way. As such I don’t think its reasonable to afford non-citizens the same rights in this matter.

    According to your constitution, rights are not ‘afforded’ by the US government or anyone else, are they?

    I understand that there is a provision under the conventions for trying illegal combatants in a military tribunal, that might be the bast solution.

    Yes, where ‘illegal combatants’ means anyone the Executive says is an illegal combatant, and ‘military tribunal’ means ‘we won’t let you see the evidence against you, nor gather evidence of your own.’

    As for terrorists caught in the field (Iraq, etc) I don’t see why they shouldn’t be treated the way pirates were historically treated. No lengthy trials and no illegal detentions

    Why am I reminded of South Park? “Look out! He’s coming right for us!”

  34. #35 Dunc
    October 4, 2006

    As for “terrorists” they are, contrary to what is written above, _de facto_ stateless persons. Their home countries most likely do not want them back (and if they do, they are not our friends), and other countries who would be friendly to the US, do not want the headache.

    The only problem with that is that it’s not necessarily true. See, for example, the case of the “Tipton Three“, released without charge and now back in the UK.

  35. #36 PZ Myers
    October 4, 2006

    So when, exactly, will it be time to ring the alarm bells and turn on the sirens?

    If the Republicans remove term limits for the presidency, shall we all remain calm?

    If there is another terrorist attack and they claim that, for the short duration of the emergency, we should suspend elections, shall we write “tut, tut” in our blogs?

    When a few radical bloggers suddenly and mysteriously fall silent, shall we just discuss the very, very good reasons they belong in jail?

    We’re seeing alarmingly bad legislation being passed — stuff that is appalling in its implications. This is not the time to sit quietly and carefully parse out phrases that you think don’t sound quite as bad as they could have been.

  36. #37 Orac
    October 4, 2006

    When a few radical bloggers suddenly and mysteriously fall silent, shall we just discuss the very, very good reasons they belong in jail?

    We’re seeing alarmingly bad legislation being passed — stuff that is appalling in its implications. This is not the time to sit quietly and carefully parse out phrases that you think don’t sound quite as bad as they could have been

    OK, what, precisely, do you propose that we should do besides try to vote the bastards out or protest?

    Quite frankly, I see a lot of heat but not much in the way of concrete solutions or action about this on Pharyngula. Cries of “impeach the bastard” may make you feel good but you know as well as I do that it’s nothing more than a howl in the darkness, given that Republicans control both Houses of Congress. Given that you’re the one castigating me for supposedly being too wishy-washy for your liking, I consider this a legitimate point.

    As for “parsing” my words, both here and over on your blog, I was merely pointing out what this bill does and does not do. Now that I’ve actually read the damned thing I realize that it does not make American citizens subject to military tribunals. It just doesn’t. In 948c near the beginning, the law states unequivocally:

    “Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.”

    I tried to find passages that might be interpreted as applying to U.S. citizens, but I couldn’t find any. We can have a reasonable discussion about whether the loss of habeus corpus for these “alien unlawful enemy combatants” makes that distinction moot, but the distinction is in the text of the law. In any case, there’s lots of other bad things in there worth getting worked up over. Harping on badness that isn’t there only weakens the case against the law.

    The first step in reversing something is to understand it.

  37. #38 PZ Myers
    October 4, 2006

    Now that you understand it so well, are you endorsing it?

    That’s my criticism: what you are doing is less than nothing — it’s waffling, planting excuses for ignoring it, and trying to find loopholes in the wording. It’s a document that says people can be held without trial. We’ve got an administration that says it’s OK to torture people. And your response is basically, “Well, I’m not technically an alien, so it doesn’t affect anybody who matters.”

    What I am advocating is exactly what you said: protest and vote these criminals out of office. Howling in the darkness is far, far better than hiding in a dark corner and muttering that the fading light really isn’t all that bad.

  38. #39 Bronze Dog
    October 4, 2006

    PZ. Count to ten and read what Orac typed. I like you, but you don’t seem particularly cogent at the moment.

  39. #40 Orac
    October 4, 2006

    Now that you understand it so well, are you endorsing it?

    That’s my criticism: what you are doing is less than nothing — it’s waffling, planting excuses for ignoring it, and trying to find loopholes in the wording. It’s a document that says people can be held without trial. We’ve got an administration that says it’s OK to torture people. And your response is basically, “Well, I’m not technically an alien, so it doesn’t affect anybody who matters.”

    Not one but at least two strawmen arguments, from you? And such obvious ones, too.

    I never would have thought it possible before. Really. I wouldn’t have. I’m totally serious.

    Before this gets out of control, please try to back off a minute and think about what you’re saying, and I’ll do the same. Believe it or not, on this issue we actually agree on much more than on what we disagree. We’re basically on the same side. And yet you insinuate that I somehow “endorse” the law, now that I’ve read it? That’s a low blow, and uncalled for based on what I’ve said thus far, both here and in the comments of your own blog.

    Remember, I started this thread by posting a link to an article pointing out the stupidity of Republicans for not considering that the next President might not be Republican and therefore giving any President this power. I pointed out that there is plenty to hate about this law. I said quite firmly that the law is a travesty and that I don’t trust any President with this power. My only apparent sin in your eyes seems to be pointing out that attributing evils to this law that it does not in fact exhibit is counterproductive, particularly when there’s more than enough to hate about the law without inventing new things.

    Read the text of the law for yourself and see what I mean.

    Howling in the darkness is far, far better than hiding in a dark corner and muttering that the fading light really isn’t all that bad.

    Again, we are on the same side on this; so why the hostility over what are, in the grand scheme of things, minor differences? What is it? Either I have to be 100% in agreement with you or I must be a Bush sycophant? Is that what it is?

    I’m quite serious about this. Trashing potential allies for no good reason just doesn’t make a lot of sense to me.

  40. #41 PZ Myers
    October 5, 2006

    I am saying that your comment that Bora was “overly alarmist” is not the sentiment we need now. We are not being alarmist enough. Haven’t you been paying attention? Every year there’s a new outrage, and everyone goes tut-tut and watches the instrumentalities of fascism slowly put into place, and instead of addressing the sources of the problem, we tell the people sending the alarm to calm down, be quiet, don’t get upset.

  41. #42 James
    October 5, 2006

    MartinM: When I say rights are “afforded” by law I mean afforded in practice, not in theory. No natural right is worth a dam unless the government chooses to recognise it (even if they are “persuaded” by the populace to choose to recognise it).

    After reading both your comments and Andrew’s I realise my last post was overly simplistic and i apologise for that. Let me try again:
    1) domestic terrorists (to the US) should be treated like criminals – all standard rule of evidence due process etc. would apply.
    2) Foreign terrorists (to the US) caught within US borders should be regarded as spies / illegal combatants (as defined under the Geneva Conventions, not just any old way) and that may include a military tribunal (by which I envisioned something like a proper Court Martial, not just some nebulous tribunal as defined in a badly-written law).
    3) Realising now that my third category was too simple, i suggest the follwing correction: Foreign terrorists (again meaning foreign to the US) captured overseas in a non-combat situation should be treated as 2 above.
    4) Foreign terrorists (to the US) caught overseas in a combat situation (eg a US patrol is attcked from ambush by combatants that were not visibly armed and/or uniformed in accordance with the Geneva Conventions) should simply not be taken prisoner. That goes for suicide bomber blowing up Iraqi civilians (targeting civlilians is after all a war crime). If the Iraqi police or military want them then fine, otherwise shoot to kill.

    Sorry about the confusion I hope that cleared things up. Incidentally my above comments shouldn’t be interpreted as an endorsement of the Military Commissions Act. The Magna Carta is the closet thing my country has a constitution and I am rather fond of it.

  42. #43 Orac
    October 5, 2006

    PZ,

    With all due respect, if that had been all you’d said, there would have been no problem. But that’s all water under the bridge.

    At the risk of being considered an appeaser, I stand by my statement.

    Bora was being too alarmist,. He said we are now living in a fascist state. We’re not. Not yet, anyway. This law may be a disturbing step in that direction, but it does not mean that we have suddenly stepped across the threshold. The U.S. has had times where it’s taken dangerous steps in that direction before (sedition laws during WWI and the internment of Japanese-Americans during WWII, for instance), and we’ve so far managed to muddle through without degenerating into a dictatorship. This law needs to be kept in perspective. Am I being too complacent? No. I’m more worried about the future of our republic than I can ever remember being. Does the past mean we’ll muddle through this time and avoid the loss of freedom? Not necessarily, particularly if there is another major terrorist attack before George Bush leaves office (or even after). That’s why this law needs to be reversed if at all possible. However, crying “fascism”or “dictatorship” over and over again is a lot like crying “wolf!” It’ll get the troops all riled up. But if there is no actual impending fascist takeover, the next time the cry arises people will be less inclined to pay any attention to it.

    I’m not telling you or Bora not to get upset. I merely suggested that it is excessively alarmist to say that we are right now living in a fascist state. Come to think of it, I take it from your advocacy of “voting the bastards out” and protesting, that you yourself probably don’t truly believe we are now in a fascist state, either. If we were truly living in a fascist state now, both of those options would probably be pointless, as I’m sure that you realize. (Dictators of a fascist state generally don’t allow themselves to be voted out, and it usually takes protests on a truly massive scale to drive them out without a lot of bloodshed.) That would only leave insurrection.

    We’re not a fascist state yet. The fact that there’s still time to use the lawful democratic process to reverse things is strong evidence for that.

  43. #44 Dunc
    October 5, 2006

    On the subject of whether this could apply to US citizens, hasn’t the administration already asserted the right to revoke the citizenship of anyone suspected of hostile acts against the US?

    Forgive me if I am mistaken about this, but I’m pretty sure it’s already happened – I believe in the case of Jose Padilla.

  44. #45 anonimouse
    October 6, 2006

    Real fascists laugh at our attempts to start up a dictatorship. You honestly think military tribunals aren’t authorized in other countries, or even at various times in our country’s history? Try living in North Korea or Cuba, and then tell me we’re living in a dictatorship.

    I think the response to this law is knee-jerk hatred for Bush far more than a reasonable look at what the legislation really encompasses. Believe me, there are far more things to get pissed at Republican leadership about.

  45. #46 wolfwalker
    October 6, 2006

    Dunc asked: On the subject of whether this could apply to US citizens, hasn’t the administration already asserted the right to revoke the citizenship of anyone suspected of hostile acts against the US?

    It has long been part of US law that a naturalized citizen, someone who stood before a judge and swore the citizenship oath, could have their citizenship revoked if they somehow falsified their application for citizenship, or if they do something that demonstrates their oath was falsely sworn. It isn’t done very often as far as I know, but the provision is definitely in the law and has been for decades.

    However, Jose Padilla is a natural-born citizen. No government agency has any power to take away his citizenship, and no agency has tried. What Bush did was order Padilla classified as an “enemy combatant” — essentially changing him from a prisoner of the criminal justice system to a prisoner of the military justice system. I think the Padilla case was grossly mishandled by holding him without charges for so long, but that’s a different legal topic.

  46. #47 Orac
    October 6, 2006

    It has long been part of US law that a naturalized citizen, someone who stood before a judge and swore the citizenship oath, could have their citizenship revoked if they somehow falsified their application for citizenship, or if they do something that demonstrates their oath was falsely sworn. It isn’t done very often as far as I know, but the provision is definitely in the law and has been for decades.

    Indeed. In fact, it’s traditionally been very difficult for the government to revoke citizenship in these cases. That’s one reason it’s taken so long to strip ex-Nazis suspected of war crimes (like John Demanjuk) of their citizenship so that they could be deported.

  47. #48 James
    October 6, 2006

    I think the hysteria generated in reaction to this law is symptomatic of the toxic nature of US politics at the moment. It seems the US has reached a point were neither side can see anything but pure, unadulterated evil in the other. Note I’m not saying that the law isn’t bad, but rather than the left saying “this law is bad, you’ve made a mistake, you are better than this” otherwise rational people are frothing at the mouth about some vast right-wing conspiracy to annoint your president King George the First (or maybe the Seventh, I don’t know how that would work).

    If the Republican leaderhip is clever they will realise they have an opportunity to reclaim the centre by nominating a presidential candiate who opposes Bush’s policies on Iraq, but using sufficiently coded language that he doesn’t sound like an opponent of Bush. Such a candidate could leave the Democrats completely outflanked.

    Of course the Democrats could do a similar thing as well.

  48. #49 Chris Beck
    October 10, 2006

    “it does not make American citizens subject to military tribunals.”

    The problem as I see it is that if you have been declared an alien enemy combatant you loose most of your rights. So let’s say that they decide (which they can) that a dual citizen is an alien enemy combatant. Or even better, they decide that you, Orac, are actually Osama bin Laden. Go ahead. Prove them wrong. Which court are you going to try to argue your point in? Because thay don’t actually have to try you with anything. They can simply detain you for the duration of hostilities.

    See ya.

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