Coyote Blog

For years I have complained that the opposition to the GWB administration was focused on the wrong things vis a vis the detention policy at Gitmo.  There was too much focus on Gitmo itself as a lightening rod, and too much discussion of whether flushing a Koran down the toilet was torture.  My point was that there didn't have to be torture for it to be wrong to hold non-uniformed suspected non-combatants in a non-declared war indefinitely, as if they were captured Nazi U-boat commanders.   For example:

I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted.  But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me.  As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.

Justice Scalia argued that giving habeas corpus rights to enemy combatants during war time was unprecedented, but I responded:

I don't have enough law background to know if this is truly unprecedented in this way, but what it if is?  One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well.  As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant.  I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine [that] the Supreme Court, encountering this new situation, sides with the individual over the government.

So now, just as I feared, the soil was fertile for a classic political bait and switch.  Obama agreed to close Gitmo, the lightening rod of the controversy, thereby inspiring us to believe he is changing policy.  When, at its heart, the real problem is still there:

Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.

She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

If confirmed as U.S. solicitor general, Kagan, 48, will defend the administration's legal policy in the courts.

I assume she and Holder are toeing the Obama line on this, though they could be the bearers of a trial balloon and it may be Obama has not made up his mind.  I hope so.  Here is some more.

"Do you believe we are at war?" Graham asked.

"I do, Senator," Kagan replied.

Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.

"Do you agree with that?" the senator said.

"I do," Kagan replied.

Graham said that under the law of war, the government can say, "If you're part of the enemy force, there is no requirement to let them go back to the war and kill our troops. Do you agree that makes sense?"

Kagan replied, "I think it makes sense, and I think you're correct that that is the law."

"So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals," Graham concluded.

I may have missed it, but did the AUMF or whatever it was that Congress passed before we entered Afghanistan and Iraq actually declare we were at war with the organization named "Al Qaeda."  Or does the president saying the words "war on terror" enough times in 8 years just make it so?

Under Bush:

• Iraq Invasion:  Hurry, we need this, emergency, rush, no time to argue, trust us
• Patriot Act and Related Legislation:  Hurry, we need this, emergency, rush, no time to argue, trust us
• TARP I:  Hurry, we need this, emergency, rush, no time to argue, trust us

Under Obama:

• TARP II:  Hurry, we need this, emergency, rush, no time to argue, trust us
• Stimulus bill(s):  Hurry, we need this, emergency, rush, no time to argue, trust us

Change we can believe in.

On a related note, Greg Mankiw looks at this graph in the TED spread:

And says:

[The TED spread's] decline suggests that the TARP is working and is certainly good news

Really?  You get all that from this chart?  I am not an economist, but I would have said the TED spread spiked up and came back down quickly in a very similar manner to any number of fear-induced price spikes, and had already fallen a fair ways before TARP was approved and had fallen a lot before the first dollar flowed (it is hard to read the chart, but by October 24 it had fallen to around 2.5).  This strikes me as pretty post hoc ergo propter hoc reasoning.  One could as easily say that the recent fall in oil prices was due to the most recent energy bill from Congress, but I am not sure even the most hard-core statist could say that with a straight face.

The longer-term history of the TED spread shows many such spikes, all of which came to earth quickly without a trillion federal dollars:

JD Tuccille has an interesting take on speed cameras from Maryland:

Originating from Wootton High School, the parent said, students duplicate the license plates by printing plate numbers on glossy photo paper, using fonts from certain websites that "mimic" those on Maryland license plates. They tape the duplicate plate over the existing plate on the back of their car and purposefully speed through a speed camera, the parent said. The victim then receives a citation in the mail days later.

Students are even obtaining vehicles from their friends that are similar or identical to the make and model of the car owned by the targeted victim, according to the parent.

JD calls this action "brilliant," and while I feel bad for the car owners who are caught in this trap, I understand his enthusiasm.   His argument, and I hope it is true, is that it won't take much of this sort of activity to greatly undermine whatever public support or trust there is for these cameras.

However, I guess I have less confidence in the state's reaction to this (which is saying a lot, because my read is that JD has zero confidence in the state).  My guess is that rather than back off the cameras, the government will just double-down on it with some crazy-high penalty (e.g. 10 years in prison) for counterfeiting a license plate.  After all, this is what they have done in the drug enforcement world.  You start with trying to ban a little joint-smoking by teens and you end up with millions of people in jail.

Update: Speaking of civil disobedience, here is another great story:

KopBusters rented a house in Odessa, Texas and began growing two small Christmas trees under a grow light similar to those used for growing marijuana. When faced with a suspected marijuana grow, the police usually use illegal FLIR cameras and/or lie on the search warrant affidavit claiming they have probable cause to raid the house. Instead of conducting a proper investigation which usually leads to no probable cause, the Kops lie on the affidavit claiming a confidential informant saw the plants and/or the police could smell marijuana coming from the suspected house.

The trap was set and less than 24 hours later, the Odessa narcotics unit raided the house only to find KopBuster's attorney waiting under a system of complex gadgetry and spy cameras that streamed online to the KopBuster's secret mobile office nearby.

To clarify just a bit, according to Cooper, there was nothing illegal going on the bait house, just two evergreen trees and some grow lamps. There was no probable cause. So a couple of questions come up. First, how did the cops get turned on to the house in the first place? Cooper suspects they were using thermal imaging equipment to detect the grow lamps, a practice the Supreme Court has said is illegal. The second question is, what probable cause did the police put on the affidavit to get a judge to sign off on a search warrant? If there was nothing illegal going on in the house, it's difficult to conceive of a scenario where either the police or one of their informants didn't lie to get a warrant.

Update #2: Alas, the KopBusters seemed to have been playing loose with the truth themselves, and apparently called in a tip to the police to have themselves raided.  Ugh, nothing worse for one's arguments than screw-ups on your own side.

Via TJIC, Radley Balko shares almost exactly my position on the death penalty:

I'm opposed to the death penalty not because I don't think there are some crimes so heinous that they merit death as a punishment. I'm opposed to it because I don't think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.

This is an issue that I have moved pretty far on since my high school conservative days.  I used to be a death penalty hawk --  I suppose this was in part due to the natural tendency to take the opposite side of folks making bad arguments.  Death penalty opponents would argue that we just don't have the right to take away the life of that lady who drowned her three kids by sinking them in a car in a lake because she was tired of taking care of them.   Well, I felt she had pretty much forfeited her ability to fall back on the sanctity of life defense.

But I am increasingly pessimistic of the justice system's ability to adequately separate guilt from innocence (it is run by the government, after all).  We have far too many examples of people who have exhausted their normal appeals and have sat in jail, and even on death row, for years or decades before exculpatory evidence came to light (or, in situations of bias like in the deep south, where courts were finally willing to consider exculpatory evidence).   We can only tremble to think of how many innocent men were never cleared before the day of the fatal injection came.  Prosecutors, who often are using the position as a springboard for higher office, generally have the incentive never to back down from a case and to defend every conviction, no matter how clear the evidence becomes that an innocent person is in jail, to the very end  (see Janet Reno, for example, who in a twist of terrible irony now sits on the board of the Innocence project, while men falsely convicted in her day care pogrom still sit in jail).

Update: Speaking of prosecutorial abuse....

Yeah, I think the title is worded awkwardly, but I am trying to curb my enthusiasm for ending sentences with prepositions  (I will continue to boldly split infinitives that no man has split before).

Anyway, in the spirit of this post and this one, I try from time to time to reinforce my support for free speech as an absolute right by publicly supporting the speech rights of those with whom I disagree.  Today's case is the public University of Nebraska-Lincoln deciding to un-invite former terrorist William Ayers to speak on campus.  The reason given was the current weak-ass excuse often used to reverse the invitation of controversial speakers, "we can't gaurantee security." 

Though I would never have hired the guy, Ayers is a professor at a real public university, and what he has to say is particularly relevant given his ties to Barack Obama.  I find the behavior of Nebraska's conservative politicians to be especially absurd here -- after months of calling for more discussion and disclusore of Ayers and his ties to Obama, they want to prevent Ayers from speaking publicly?

Update:  In an odd coincidence, at about the same time I was writing this post, the NY Times blog was posting on split infinitives.

Laws that require the goodwill and ethical functioning of its participants, without oversight, always worry me.  The companion argument to this is when someone says (and this is popular among Democrats nowadays) all this infrastructure in the government that does not work will be fine when we get our own smart people running it.

It never, never works.  Here is yet another example:  All that extra post-9/11 investigatory power?  Trust us, we only use it on the bad guys.

The Maryland State Police classified 53 nonviolent activists as
terrorists and entered their names and personal information into state
and federal databases that track terrorism suspects, the state police
chief acknowledged yesterday.

Police Superintendent Terrence B.
Sheridan revealed at a legislative hearing that the surveillance
operation, which targeted opponents of the death penalty and the Iraq
war, was far more extensive than was known when its existence was
disclosed in July....

Said the unrepentant leader of this efort:

"I don't believe the First Amendment is any guarantee to those who wish to disrupt the government," he said.

Reading my history, disrupting the government was not the last thing they were trying to protect, it was the first thing. 

At first, I thought this was an interesting article in the battle of urban planners against suburban "sprawl."  Here is the voice of the often silent majority, who like suburbs and don't want a bunch of high-density mini-Manhattans :

Jones and his neighbors moved to Laveen's low-scale subdivisions in
hopes of finding a suburban life near the heart of the Valley, where
they could enjoy large, affordable homes a few miles southwest of
downtown Phoenix.

"We had the opportunity to buy a brand-new home we could afford, and
we had a view of downtown," Pacey says. "The potential to make this as
wonderful as other areas of Phoenix is huge."

The story has the typical highly-connected former politician turned developer (is there another kind?) using his unique access to his old zoning cronies to manipulate regulation for personal profit:

Then Paul Johnson, a former Phoenix mayor, proposed taking a mostly
vacant 27-acre parcel a few blocks east of Jones' home and building 517
apartments and townhouses on it.

The property was zoned for one house to the acre. It abuts a
two-lane road where the speed limit, when two nearby schools are in
session, is 15 mph. And the nearby intersection of 27th and Southern
avenues, which provides access to downtown Phoenix, is still controlled
by stop signs.

Schools in the neighborhood already were overcrowded, and residents
were concerned about the police's ability to keep up with calls for
service. Where were all these new people going to go?

"They've done so much building in Laveen that the infrastructure has
not kept up," says Jones, an auditor who had no previous involvement in
civic affairs.

Despite a resident outcry and opposition from Michael Nowakowski,
the councilman who had just been elected to represent the district, the
council approved the rezoning 7-1 on Dec. 19.

Johnson gets extra bonus points as the urban-chic villain, expressing the superiority of sitting in cafes to, say, having a back yard.

As a former mayor, Paul Johnson is familiar with residents' arguments against high-density developments.

"They feel that any time you have additional density, that it means
a lower quality," he says one morning over coffee at Biltmore Fashion
Park. "The counter to that is this."

Johnson gestures across Camelback Road to the high-rise apartments and townhomes near 24th Street.

"I look out across the street, and there's a lot of density there,"
he says. "But I'm also sitting in a pretty nice cafe. I have a nice
place to sit. And there's a lot of other people here who think it's a
nice place."

But it turns out that there are no good guys in this story, as is often the case for your poor libertarian correspondent.  Because, the opponents of such development are turning to the ballot box, converting property decisions from individual ones made by the property owner to group decisions made on election day.  What can be built on this particular property may well be decided at the ballot box, just as I discussed another parcel of land whose fate will be decided not by its owner, but at town elections in November.

Sometimes, the reaction to government control is a bid for de-regulation.  But more often, it merely results in a scrap for power, as parties ignore the question of whether the government power should exist at all, and instead fight over who gets to wield it.

For the most part, it has been up to city councils to decide how
much density one neighborhood can tolerate. If Jones is successful,
they could lose some of that power.

"It speaks to the age-old dilemma of representative democracy versus
direct democracy," said Paul Lewis, an assistant professor of political
science at ASU. "There's always an issue with land use because what
might be in the overall interest of the city might still be seen as a
detriment to its immediate neighborhood."

This is all very depressing.  No mention of any age-old question between individual rights and government power.  For these guys, the "city" and the "neighborhood" are somehow real entities with more rights than actual people. 

For centuries we have had a perfectly serviceable approach for determining who gets to decide what gets built on a piece of land:  ownership.  If one wanted to control a property, she/he bought it.  But the desire to control property without really owning it is a strong one, and a driving force for much of government regulation.

I stand by my no-McCain vow I made years ago after his role in campaign speech limitation.  But Obama does not look like a very promising alternative:

The Obama campaign disputes the accuracy of the advertisement, which is
fine. It has also threatened regulatory retaliation against outlets
that show it, which isn't fine. Instead of, say, crafting a response
ad, Obama's team had general counsel Robert F. Bauer send stations a
letter [pdf]
arguing that "Failure to prevent the airing of 'false and misleading
advertising may be 'probative of an underlying abdication of licensee
responsibility.'" And, more directly: "For the sake of both FCC
licensing requirements and the public interest, your station should
refuse to continue to air this advertisement."

In particular, I would love to see Obama actually say what positions that are ascribed to him on gun control are false, and what his actual, specific positions are.  A vague, gauzy support for the second amendment does not necessarily mean he has walked away from his earlier positions.  In fact, I am sure that McCain would say he supported the First Amendment but I would certainly feel comfortable pointing out how he fails to do so in the details.

This weekend, I had a conversation with a group of people about the upcoming election.  As is typical in a fairly diverse group, at least one woman said that she was voting for Obama to protect "women's rights."  When pressed, this seemed to boil down to support for abortion rights. 

Boy, I am sure glad that I am a man, where my rights are not narrowly defined around the availability of a single out-patient surgical procedure.  I get to define my rights to include free speech, commerce, property, gun ownership, immunity from arbitrary search and seizure, and habeus corpus.  Even in the narrow world of medical care, I can aspire broadly to rights such as the ability to use medications not necessarily labeled safe and effective by the FDA, the ability to contract for whatever procedures I want even if the government is not willing to pay for them, and the abilty ride my motorcycle with or without a helmet as long as I am willing to bear the cost and consequences of my actions.

I will confess that this broader view of my rights makes voting more difficult, as neither the Coke nor the Pepsi party consistently protects my rights defined this broadly.

Last year, a University of Delaware student was banned from campus and ordered to undergo psychological testing before he could return.  This was the administration's reaction to another student's complaint about certain content on his website, which was described as "racist, sexist, anti-Semitic, and homophobic."

Now, I have a guess that I would not have thought much of this student's professed opinions, but the first amendment is there to protect speech we don't like from punishment by government bodies such as the state-run University of Delaware.  So it is good to see that the US District Court for Delaware granted this student summary judgment on his free speech claim.

In particular, I was happy to see this:

The court also noted that speech is constitutionally protected when it does not cause a substantial disruption on campus"”even
if an individual student feels so upset by the speech that she feels
threatened by it, and even if university administrators strongly
dislike what is being said. That is, the complaining student's
reaction, together with the administrative trouble involved in dealing
with the situation, was not enough to show a substantial disruption
requiring punishment for Murakowski's protected speech.

This is important.  While it seems odd, college campuses have been the vanguard for testing new theories for limiting free speech over the last several years.  One popular theory is that offense taken by the listener is sufficient grounds to hold speech to be punishable.   This definition kills any objective standards, and therefore is a blank check for speech limitation, something its proponents understand all too well.  It is good to see a higher court very explicitly striking down this standards.

Our execrable sheriff Joe Arpaio conducted another of his famous roundups of people with brown skin.  This time descending on an area landscaping company, our brave deputies zip-tied anyone who did not look Anglo-Saxon.  To have their handcuffs removed, workers of Latin descent had to first provide proof that they were in the country legally.  Note that there is no legal requirement that I know of that workers in this country carry proof of citizenship at all times, on the off-chance the local Gestapo will descend on them and demand to see their papers.

Deputies from the Maricopa County Sheriff's Office raided a Mesa
landscaping company early Wednesday morning, arresting nearly three
dozen people suspected of being in the country illegally.

The raid on offices of Artistic Land Management, on Main Street just
west of Dobson Road, happened about 4:30 a.m., according to one worker
who was handcuffed and detained before being released when he produced
documentation that he was in the country legally....

Juarez estimated about 35 workers were handcuffed with plastic zip-ties
while deputies checked for documents. Those who could provide proof
they were in the country legally were released, while others were put
on buses and taken away.

From Eric L Muller's "Hirabayashi:  The Biggest Lie of the Greatest Generation" which studies the Supreme Court decision upholding race-based civil rights restrictions (eg curfews) in WWII.

This Article presents new archival evidence of an enormous lie that Executive Branch officials presented to the Supreme Court in the Japanese American litigation of World War II, one that impugns Hirabayashi at least as much as it does Korematsu. The lie concerns what might be termed the "external" component of the national security threat in early 1942 "“ the danger that Japanese military forces posed to the West Coast of the United States.  The government's brief in Hirabayashi did not mince words about that external threat: The "principal danger" that military officials "apprehended" was "a Japanese invasion"  which "might have threatened the very integrity of our nation."  With the Japanese "at the crest of their military fortunes," the brief maintained, military officials found it "imperative" to "take adequate protective measures against a possible invasion of the West Coast."  The nighttime curfew on Japanese Americans was one such measure.

This depiction of the external Japanese threat found a sympathetic audience in the Supreme Court in Hirabayashi. Chief Justice Stone, writing for the unanimous Court, accepted that the men "charged with the responsibility of our national defense had ample ground for concluding that they must face the danger of invasion," a danger that concurring Justice Douglas insisted was "not fanciful but real." Singling out Japanese Americans for curfew was reasonable because of their "ethnic affiliations with an invading enemy."

Archival records now make clear that all of this talk of a threatened Japanese invasion was a massive distortion of the actual military situation in the eastern Pacific in early 1942. There was at that time no danger of a Japanese invasion of the West Coast. The army and navy viewed any sort of Japanese invasion of California, Oregon, or Washington as impracticable. They were neither anticipating nor preparing for any such event. Indeed, during the key time period of early 1942, the Army was more concerned with scaling back the defense of the West Coast from land attack than with bolstering it.

Wow.  Exaggeration of a security threat as an excuse to curtail civil rights.  Gee, I'm sure glad that doesn't happen anymore.  HT:  Jonathon Adler

Reason has been on top of the LA crackdown on bacon-dog sales from mobile carts for some time.  Recently, the police stormed in and confiscated a number of vendors' inventory and push carts.  OK, its bad enough that bacon product sales have been deemed a threat to the Republic.  But what freaked me out is that the police did not impound the carts but rather junked them (pictures here).  So where is the due process?  If the police are found to have acted precipitously in arresting these folks, if they are found to be not guilty for whatever reason, their property is still gone forever.  This is roughly equivilant to having your car crushed in a mobile hydraulic press within minutes of being given a speeding ticket.  I wonder how many of these carts, which likely represent a huge investment relative to the investment capital these small business people possess, are collateral for loans?

This is cross-posted from Climate-Skeptic, but it is very much in the spirit of the Canadian tribunals and University speech codes.  There are increasing efforts, mainly on the left, to make the world a better place by limiting speech of those who don't agree with them.

I thought this was a pretty good video -- why even the innocent should not talk to the police.  Learn to love your fifth amendment rights.  He demonstrates that even the innocent can make statements that can be used to wrongly convict them.

Radley Balko has a roundup of stories of overdue freedom for the improperly incarcerated.  Its good to see this happening, though I must say I still have some mixed feelings about the Innocence Project after their staggeringly bad judgment of putting Janet Reno, Queen of Abusive Prosecution, on their board.

Unlike many libertarians, I don't blog about gun rights much.  Some think this odd, but in my mind this is like saying it is odd that a female blogger doesn't blog much about abortion.  I have always thought it was pretty clear that the 2nd amendment protects an individual right to bear arms, but it's just not a subject for which I have much passion  *shrug*

However, I did find this hilarious.  Megan McArdle passes on the District of Columbia's petulant response to the Heller decision:

Here's what they're proposing:

* Allowing an exception for handgun ownership for self-defense use inside the home.
   
* If you want to keep a handgun in your home, the MPD will have to
perform ballistic testing on it before it can be legally registered.

* There will be a limit to one handgun per person for the first 90 days after the legislation becomes law.

* Firearms in the home must be stored unloaded and disassembled, and
secured with either a trigger lock, gun safe, or similar device. The
new law will allow an exception for a firearm while it is being used
against an intruder in the home.

* Residents who legally register handguns in the District will not
be required to have licenses to carry them inside their own homes.

OK, so I can have a handgun in the home solely for self-defense, but this self-defense weapon must be stored unloaded, disassembled, and locked.  The only time it can be unlocked and assembled and loaded is "while it is being used against an intruder".  Jeez.  In the time it would take to unlock, assemble, and load the gun, I could probably build some McGyver device out of dental floss, a TV remote, and a couple of Thin Mint Girls Scout Cookies to just blow them up.

Postscript: I have never been that confident in my ability with a handgun.  TV portrayals notwithstanding, I find them very difficult to handle accurately, and they require a lot of practice which most casual owners don't pursue.  In my case, I find this a more realistic home defense weapon.

The government claims that it is important to crack down on gambling because people who gamble might do themselves financial harm.  Of course, just like the teenager who is thrown in jail because it is better for him than smoking marijuana, so goes the case of Salvatore Culosi:

"¦ Salvatore Culosi "¦ was a 37-year old optometrist in the
Washington, D.C. suburb of Fairfax, Virginia. According to friends,
Culosi was a wealthy, self-made man. He was easygoing and friendly, a
guy who enjoyed his success.

He was also a small-time gambler. Culosi and his friends
regularly met at bars in the area to watch sports, and frequently
wagered on the outcomes of games. The wagers weren't insignificant "”
$50, $100, sometimes more on a given afternoon. But the small circle of
friends also had the means to back up their wagers. No one was betting
the mortgage, here"¦

Fairfax police detective David J. Baucom met Culosi in a bar
one evening last October, befriended him, and was soon making wagers
himself"¦ Baucom began upping the ante, encouraging Culosi to wager
larger sums than what the friends were used to"¦

Baucom eventually encouraged Culosi to wager at least $2,000
in a single day, the lower threshold under which Culosi could be
charged under state law with "conducting an illegal gambling
operation." On January 24 of this year, Detective Baucom assembled the
Fairfax County SWAT team, and marched off to Culosi's home to arrest
him.

According to press accounts, police affidavits, and the
resulting investigation by the Fairfax prosecutor's office, Baucom
called Culosi that evening, and told him he'd be by to collect his
winnings. With the SWAT team at the ready just behind him, Baucom
waited outside Culosi's home in an SUV. As Culosi emerged from the
doorway, clad only in a t-shirt and jeans, SWAT officer Deval Bullock's
finger apparently slipped to the trigger of his Heckler & Koch MP5
semiautomatic weapon, already aimed at the unarmed Culosi.

The gun fired, releasing a bullet that entered Culosi's side,
then ripped through his chest and struck his heart, killing him
instantly.

The NY Times reports, via Hit and Run, that judicial review of Gitmo detainees, which the Administration has steadfastly resisted, may be quite justified:

In the first case to review the government's secret
evidence for holding a detainee at Guantánamo Bay, Cuba, a federal
appeals court found that accusations against a Muslim from western
China held for more than six years were based on bare and unverifiable
claims. The unclassified parts of the decision were released on Monday.

With some derision for the Bush administration's arguments, a
three-judge panel said the government contended that its accusations
against the detainee should be accepted as true because they had been
repeated in at least three secret documents.

The court compared
that to the absurd declaration of a character in the Lewis Carroll poem
"The Hunting of the Snark": "I have said it thrice: What I tell you
three times is true."

"This comes perilously close to suggesting
that whatever the government says must be treated as true," said the
panel of the Court of Appeals for the District of Columbia Circuit.

The
unanimous panel overturned as invalid a Pentagon determination that the
detainee, Huzaifa Parhat, a member of the ethnic Uighur Muslim minority
in western China, was properly held as an enemy combatant.

The panel included one of the court's most conservative members, the chief judge, David B. Sentelle....

Pentagon officials have claimed that the Uighurs at Guantánamo were
"affiliated" with a Uighur resistance group, the East Turkestan Islamic
Movement, and that it, in turn, was "associated" with Al Qaeda and the Taliban.

Next up, the detainee whose mother's gynecologist's dog's veterinarian's great uncle once was friends with a Muslim guy.

The Administration now complains that there is nowhere that this man can be sent back to, and somehow this is supposed to validate his detainment?  He wouldn't have had to be sent back anywhere if he hadn't been snatched up in the first place.  I am willing to believe that this guy may be a bad buy, but we let lots of people we are pretty sure are bad guys walk the street, because for good and valid reasons we rank false detainment of the innocent as a greater harm than non-detainment of the guilty.  Anyone seen OJ lately?

I got a lot of email this weekend telling me why I was short-sighted in supporting the Supreme Court's decision on habeas corpus rights for detainees.   First, I will observe that I have great readers, because all of the email was respectful.  Second, I will say that I am open to being convinced that I am wrong here, but I have not been so convinced yet. 

I got a lot of email about past precedents and settled law on this.  What I don't seem to be communicating well is that I understand and agree with past precedent in the context of other conflicts, but that the concept of "combatant" as currently used by the GWB administration is so different than in the past as to defy precedent.  The folks sitting in Gitmo are not uniformed Wermacht officers captured in the Falais Gap.  They are combatants generally not because they were caught firing on our troops but because the Administration says they are combatants.  New situations often require new law, and as I said before, when in doubt, I will always side for protection of individual rights against the government.

I'm not going to get into an anecdotal battle over the nature of individual Gitmo detainees.  I can easily start rattling off folks who were detained for extended periods for no good reason, and I am sure one can rattle off names of hard core bad guys who none of us would be happy to have walking the streets.  The place where reasonable people disagree is what to do with this mixed bag.  Gitmo supporters argue that it is better to lock up a few good guys to make sure the really bad guys are off the street.  I would argue in turn that this is exactly NOT how our legal system works.  For good reasons, our system has always been tilted such that the greater harm is locking up the innocent rather than releasing the guilty.

It may be a faulty analogy, but I considered the other day what would have happened had the US government taken the same position with active communist part members in the 1950's.  Would it really have been that hard to have applied the same logic that has a number of Gitmo detainees locked away for years to "communist sympathizers?"

I think this Administration, time and time again, has exhibited a strong streak of laziness when it comes to following process.  It doesn't like bothering to go through channels to get warrants, even when those warrants are usually forthcoming.  And it doesn't want to bother facing a judge over why detainees are in captivity, something that every local DA and police officer have to deal with every day.

Update: More, from Cato and George Will, here.  There are certain people who I find it to be a sort of intellectual confirmation or confidence builder to find them on the other side of an issue from me.  John McCain is quickly falling into to this camp for me, at least vis a vis individual rights questions.

I am a bit late to this, having just gotten back in town, but this is extraordinarily good news:

In a stunning blow to the Bush Administration in its
war-on-terrorism policies, the Supreme Court ruled Thursday that
foreign nationals held at Guantanamo Bay have a right to pursue habeas
challenges to their detention. The Court, dividing 5-4, ruled that
Congress had not validly taken away habeas rights.  If Congress wishes
to suspend habeas, it must do so only as the Constitution allows "” when
the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are
entitled to be released "” that is, entitled to have writs issued to end
their confinement. That issue, it said, is left to the District Court
judges who will be hearing the challenges. The Court also said that "we
do not address whether the President has authority to detain"
individuals during the war on terrorism, and hold them at the U.S.
Naval base in Cuba; that, too, it said, is to be considered first by
the District judges.

The Court also declared that detainees do not have to go through the
special civilian court review process that Congress created in 2005,
since that is not an adequate substitute for habeas rights.

During the17th and 18th century, as various western countries began to reign in autarchs, habeas corpus rights were high on their list of protections they demanded.  There is just too much potential for abuse to allow the Executive Branch to hold people (of any nationality) indefinitely without any kind of judicial due process.  I refuse to discuss the detentions in the context of their effectiveness in fighting terrorism just as I refuse to discuss immigration in terms of who will pick the lettuce.  If there are valid and legal reasons for these guys to be in detention, then the President must allow the judicial branch to confirm them or the legislative branch to amend them.

Update:  Powerline writes:

Justice Scalia characterizes the decision this way:

Today, for the first time in our Nation's history, the
Court confers a constitutional right to habeas corpus on alien enemies
detained abroad by our military forces in the course of an ongoing war.

It strikes me as odd to confer such a right, but then I haven't read Justice Kennedy's opinion yet.

I don't have enough law background to know if this is truly unprecedented in this way, but what it if is?  One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well.  As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant.  I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine for the Supreme Court, encountering this new situation, sides with the individual over the government.

Update #2, via the Onion 9/11 issue:

Bush is acting with the full support of Congress, which on Sept. 14
authorized him to use any necessary force against the undetermined
attackers. According to House Speaker Dennis Hastert (R-IL), the
congressional move enables the president to declare war, "to the extent
that war can realistically be declared on, like, maybe three or four
Egyptian guys, an Algerian, and this other guy who kind of looks
Lebanese but could be Syrian. Or whoever else it might have been.
Because it might not have been them."...

U.S. Sen. John McCain (R-AZ), one of Congress' decorated war
veterans, tried to steel the nation for the possibility of a long and
confusing conflict.

"America faces a long road ahead," McCain said. "We do not yet know
the nature of 21st-century warfare. We do not yet know how to fight
this sort of fight. And I'll be damned if one of us has an inkling who
we will be fighting against. With any luck, they've got uniforms of
some sort."...

Secretary of Defense Donald Rumsfeld said the war against terrorism will be different from any previous model of modern warfare.

"We were lucky enough at Pearl Harbor to be the victim of a craven
sneak attack from an aggressor with the decency to attack military
targets, use their own damn planes, and clearly mark those planes with
their national insignia so that we knew who they were," Rumsfeld said.
"Since the 21st-century breed of coward is not affording us any such
luxury, we are forced to fritter away time searching hither and yon for
him in the manner of a global easter-egg hunt."

After digging a First Amendment hole for itself in the Plame affair, the New York Times seems to still be hell-bent on narrowing the very First Amendment protections that probably kept its employees out of jail in the early 70's.  Specifically, the Times frets that the US is out of step with Europe in having a much broader view of freedom of speech:

Six years later, a state court judge in New York dismissed
a libel case brought by several Puerto Rican groups against a business
executive who had called food stamps "basically a Puerto Rican
program." The First Amendment, Justice Eve M. Preminger wrote, does not
allow even false statements about racial or ethnic groups to be
suppressed or punished just because they may increase "the general
level of prejudice."

Some prominent legal scholars say the United States should reconsider its position on hate speech.

"It
is not clear to me that the Europeans are mistaken," Jeremy Waldron, a
legal philosopher, wrote in The New York Review of Books last month,
"when they say that a liberal democracy must take affirmative
responsibility for protecting the atmosphere of mutual respect against
certain forms of vicious attack."

In the 1970's, members of my family worked in the oil industry, and we received numerous death threats of varying believability, and several of our friends received letter bombs or had family members kidnapped.  Many of these attacks and threats were directly traceable to certain media shows that featured editorial attacks on the oil industry.  So is the Times suggesting that the media should hold off on its criticism of the oil industry because this criticism created an atmosphere of hate in which these attacks were conducted?

No freaking way, because these calls to limit criticism and "hate speech" always have an ideological filter.  There is never a suggestion that the speech bans be even-handed.  Criticism of African Americans is outlawed, but exactly parallel language about white folks is A-OK.  Criticising Islam is out, but Christianity is a fine target.  Death threats against Haitian activists must be avoided at all costs, but death threats against corporate executives are no reflection on free speech or the media.  The article is quite explicit that by their definition, hate speech only applies to "minorities," which you can translate to mean "groups the political class has decided to protect."  You may be assured that members of the political class will find a way to get themselves included in this definition, so they can be free of criticism,

Kudos to Harvey Silvergate, who even makes the exact same point I have made about Hitler a number of times:

"Free speech matters because it works," Mr. Silverglate continued.
Scrutiny and debate are more effective ways of combating hate speech
than censorship, he said, and all the more so in the post-Sept. 11 era.

"The world didn't suffer because too many people read "˜Mein Kampf,' " Mr. Silverglate said. "Sending Hitler on a speaking tour of the United States would have been quite a good idea."

I will add that I am also happy to be out of step with Europe in terms of any number of other policies, including American libel law, or laws that make it ever so much easier to start a business, and European tolerance for a cozy business-political elite that, whatever their party, focuses on keeping their elite wealthy and powerful.

After digging a First Amendment hole for itself in the Plame affair, the New York Times seems to still be hell-bent on narrowing the very First Amendment protections that probably kept its employees out of jail in the early 70's.  Specifically, the Times frets that the US is out of step with Europe in having a much broader view of freedom of speech:

Six years later, a state court judge in New York dismissed
a libel case brought by several Puerto Rican groups against a business
executive who had called food stamps "basically a Puerto Rican
program." The First Amendment, Justice Eve M. Preminger wrote, does not
allow even false statements about racial or ethnic groups to be
suppressed or punished just because they may increase "the general
level of prejudice."

Some prominent legal scholars say the United States should reconsider its position on hate speech.

"It
is not clear to me that the Europeans are mistaken," Jeremy Waldron, a
legal philosopher, wrote in The New York Review of Books last month,
"when they say that a liberal democracy must take affirmative
responsibility for protecting the atmosphere of mutual respect against
certain forms of vicious attack."

In the 1970's, members of my family worked in the oil industry, and we received numerous death threats of varying believability, and several of our friends received letter bombs or had family members kidnapped.  Many of these attacks and threats were directly traceable to certain media shows that featured editorial attacks on the oil industry.  So is the Times suggesting that the media should hold off on its criticism of the oil industry because this criticism created an atmosphere of hate in which these attacks were conducted?

No freaking way, because these calls to limit criticism and "hate speech" always have an ideological filter.  There is never a suggestion that the speech bans be even-handed.  Criticism of African Americans is outlawed, but exactly parallel language about white folks is A-OK.  Criticising Islam is out, but Christianity is a fine target.  Death threats against Haitian activists must be avoided at all costs, but death threats against corporate executives are no reflection on free speech or the media.  The article is quite explicit that by their definition, hate speech only applies to "minorities," which you can translate to mean "groups the political class has decided to protect."  You may be assured that members of the political class will find a way to get themselves included in this definition, so they can be free of criticism,

Kudos to Harvey Silvergate, who even makes the exact same point I have made about Hitler a number of times:

"Free speech matters because it works," Mr. Silverglate continued.
Scrutiny and debate are more effective ways of combating hate speech
than censorship, he said, and all the more so in the post-Sept. 11 era.

"The world didn't suffer because too many people read "˜Mein Kampf,' " Mr. Silverglate said. "Sending Hitler on a speaking tour of the United States would have been quite a good idea."

I will add that I am also happy to be out of step with Europe in terms of any number of other policies, including American libel law, or laws that make it ever so much easier to start a business, and European tolerance for a cozy business-political elite that, whatever their party, focuses on keeping their elite wealthy and powerful.

The list of topics banned from criticism is increasing in Canada.  First it was Islam, and then it was homosexuality.  Now, it is making activist professors at public universities immune from criticism.  By order of the Canadian government:

That Mr. Boissoin and The Concerned Christian Coalition Inc. shall
cease publishing in newspapers, by email, on the radio, in public
speeches, or on the internet, in future, disparaging remarks about gays
and homosexuals. Further, they shall not and are prohibited from making
disparaging remarks in the future about Dr. Lund or Dr. Lund's
witnesses relating to their involvement in this complaint. Further, all
disparaging remarks versus homosexuals are directed to be removed from
current web sites and publications of Mr. Boissoin and The Concerned
Christian Coalition Inc.

That fact that I vociferously disagree with Mr. Boissoin (I am in fact thrilled, for example, that gays will be able to marry soon in California), I whole-heartedly support his right to publicly voice his opinions, even if it makes some people feel bad.  Dr. Lund, as I understand it, as a professor at a state university, is a government employee, and a vociferous one at that.  All limitations on speech are bad, but this decision has crossed that critical line of protecting government employees from criticism, what we would think as the absolute solid heart of the First Amendment (while simultaneously restricting religious beliefs, just for extra credit).

I have always wondered how people could describe European countries as more egalitarian than the US.  Yeah, I know the income distribution tends to be flatter, but that is almost entirely because the rich are richer in the US rather than the poor being poorer.  But pure income distribution has always seemed like a terrible way to make comparisons.  My perception has always been that class lines in Europe are much harder than they are in the US.  The elites in Europe have made a sort of arrangement in which they pay off the masses with an income floor and low work expectations in turn for making sure that none of the masses can in turn challenge their elite status or join their ranks.  The government protects large corporations form competition, foreign or domestic.  The government protects existing laborers against new entrants into the labor market.  The government makes it virtually impossible for the average guy to start a business.  The result is a lower and middle class who won't or can't aspire to breaking out of their class.  Elites are protected, and no one seems to care very much when political elites enrich themselves through public office and then entrench themselves and their families in the power system.  This, presumably, is why the American political class thinks so much of the European model.

Bryan Caplan writes via Marginal Revolution:

In the U.S., we have low gas taxes, low car taxes, few tolls, strict zoning that leads developers to provide lots of free parking, low speed limits, lots of traffic enforcement, and lots of congestion.

In Europe (France and Germany specifically), they have high gas
taxes, high car taxes, lots of tolls, almost no free parking, high
speed limits (often none at all), little traffic enforcement, and very
little congestion. (The only real traffic jam I endured in Europe was
trying to get into Paris during rush hour. I was delayed about 30
minutes total).

If you had to pick one of these two systems, which would you prefer?
Or to make the question a little cleaner, if there were two otherwise
identical countries, but one had the U.S. system and the other had the
Euro system, where would you decide to live?

Much as it pains me to admit, I would choose to live in the country
with the Euro system. If you're at least upper-middle class, the
convenience is worth the price. Yes, this is another secret way that
Europe is better for the rich, and the U.S. for everyone else.