Coyote Blog

Sigh -- here is your update:  Human beings are still being detained by the US government in Guantanamo without any due process.  I was writing about this 15 years ago, but with the loss of some of my early content the earliest I can find is this from 2006.  The problem always was our using US POW rules from past wars in this very different war.  In the past, wars actually ran for what now seems like a limited time (though folks living through WWII would be surprised at that perspective).  POW's for most part were captured in uniform and on a battlefield (or floating in the water after their ship sank).  Nobody really had due process concerns as a) being in a German uniform in a Normandy pillbox on June 7 was pretty persuasive evidence one was an enemy combatant; b) the detained combatant was likely headed to Arkansas to harvest crops for a year or two, which was a FAR better place to be than where they were captured; c) when the war unambiguously ended, they went home.

But in our current AUMF and the "war on terror," where does it end?   There are no uniforms.  The battlefield as defined is the entire world.  The power to detain human beings for the duration of the war allows the Administration to detain roughly anyone they way, without having to defend that decision, and keep them however long they want because only the Administration (or perhaps Congress if it had a spine) decides when the "war" is over.

I had hoped that the Supreme Court would take the opportunity to review this practice after so many years had passed.  I think there were real reasons to ban this practice in 2004 when the Court reviewed this the first time, but at that time the war was relatively fresh and the detentions still shorter than other wartime POW internments.  But what about now?  Unfortunately, the Court declined to rethink their earlier position, despite hints in the original decision that matters might change if the "war" dragged on.

Today the Supreme Court declined an opportunity to examine whether it's still acceptable to hold enemy combatants in Guantanamo Bay at a time when Washington's interventions in Afghanistan and Iraq no longer resemble anything the U.S. was doing in the direct wake of 9/11.

Moath Hamza Ahmed al-Alwi, a Yemeni citizen, has been imprisoned in Guantanamo Bay since January 2002, when he was captured in Pakistan fleeing Afghanistan. He was initially accused of being a veteran terrorist combatant and a former Osama bin Laden bodyguard. Much later, in 2015, officials concluded he was most likely not a former bodyguard; while he was affiliated with Al Qaeda and the Taliban, it's unclear whether he was engaged in any sort of combat against the United States. He's one of 40 prisoners still detained there.

He's been sitting in Guantanamo Bay for 17 years, but the U.S. government has not charged him with any crimes. It doesn't appear to intend to charge him with anything, but it also refuses to release him, because the Authorization for Use of Military Force (AUMF) to wage war in Afghanistan and against the Taliban and al Qaeda remains in force.

In 2004's Hamdi v. Rumsfeld decision, the Supreme Court ruled that the AUMF authorized such detentions with an understanding that this authorization ended at the conclusion of the war. But even in 2004, the majority was cognizant of the possibility that this amorphous "war on terror" was likely to change over time. In the ruling, written by then-Justice Sandra Day O'Connor, it notes: "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date."

I find Conservative support for these detentions frustrating in light of recent events.  People across the political spectrum, but particularly Conservatives, were outraged that Harvard would terminate a dean merely because as a lawyer he chose to represent an unpopular client (Harvey Weinstein).  They rightly argued that due process demands representation of every client, and that to make that work an attorney's moral standing can't be conflated with that of his clients.  Or put another way, what a defendant allegedly did or did not do is irrelevant to  what we owe them for due process.  I think the same can be said of the folks left to die in Guantanamo.

But Coyote, they aren't American citizens!  We don't owe them due process.  Wrong.  We do.  Read the first words of the Declaration of Independence.  Rights belong to all human beings -- they are not grudgingly granted by the Constitution to US Citizens only.  There is nothing in what I call the extended Bill of Rights (including 13-15) that does not apply to everyone who walks the Earth and interacts with the US Government.  Otherwise, as an extreme example, grabbing Africans and enslaving them would still be Constitutional.

But Coyote, no one wants these guys.  Well, that is a different point and is NOT the current legal underpinning of their detention.  I do understand it is politically impossible, and perhaps even unethical, to drop these folks in the US.  If we free them all and no one will take them, then they may stay as our guests to try to live some kind of life at Guantanamo.  But that is not the status they have today.

But Coyote, one of these guys may kill again.  In general, the argument in favor of confining or keeping at a distance any group that probably contains future criminals is bankrupt.  The argument exploded in popularity on the Right a while back with the Skittles immigration meme.  The meme said something like if you had a thousand Skittles and knew one was poisoned, would you eat from the bag?  And if not, why would you let in immigrant populations that likely include some future criminals.  The problem with this is that if this argument really had moral weight, we would be equally required to ban sex or at least all births since some percentage of babies born will be criminals.  At a higher level, our whole legal system is based on the presumption that it is better to err on the side of not punishing an actual criminal than on the side of punishing the innocent (which we still do a lot of nevertheless).  This presumption of innocence is one of the key markers that separate us from totalitarian governments.

Chicago police's use of a warehouse at Honan Square to detain suspects for secret interrogations just gets worse and worse.

Police “disappeared” more than 7,000 people at an off-the-books interrogation warehouse in Chicago, nearly twice as many detentions as previously disclosed, the Guardian can now reveal....

According to an analysis of data disclosed to the Guardian in late September, police allowed lawyers access to Homan Square for only 0.94% of the 7,185 arrests logged over nearly 11 years. That percentage aligns with Chicago police’s broader practice of providing minimal access to attorneys during the crucial early interrogation stage, when an arrestee’s constitutional rights against self-incrimination are most vulnerable.

But Homan Square is unlike Chicago police precinct houses, according to lawyers who described a “find-your-client game” and experts who reviewed data from the latest tranche of arrestee records obtained by the Guardian.

“Not much shakes me in this business – baby murder, sex assault, I’ve done it all,” said David Gaeger, an attorney whose client was taken to Homan Square in 2011 after being arrested for marijuana. “That place was and is scary. It’s a scary place. There’s nothing about it that resembles a police station. It comes from a Bond movie or something.”

For whatever reason, the story does not seem to be able to generate much national heat, as partially evidenced by the fact that it takes a UK newspapers to show any initiative on the story.  The Right fetishizes law enforcement,  the Left refuses to take on a powerful public union, and the city is run by a mayor with powerful connections to both the President and Hillary Clinton, so essentially no one is interested.

By the way, most of these folks are being held for hours or days due to drug possession arrests (5386 of the 7000+), yet another indicator of why the war on drugs has become so stupid and counter-productive.

OK, there are lots of reasons to get Obama out of office.  The problem is, that for most of them, I have no reasonable hope that Romney will be any better.  Corporatism?  CEO as Venture-Capitalist-in-Chief?  Indefinite detentions?  Lack of Transparency?  The Drug War?   Obamacare, which was modeled on Romneycare?  What are the odds that any of these improve under Romney, and at least under Obama they are not being done by someone who wraps himself in the mantle of small government and free markets, helping to corrupt the public understanding of those terms.

So I am pretty sure I cannot vote for Romey.  I really like Gary Johnson and I am pretty sure he will get my vote.  Republican friends get all over me for wasting my vote, saying it will just help Obama win.  So be it -- I see both candidates undertaking roughly the same actions and I would rather that bad statist actions be taken in the name of Progressives rather than in the name of someone who purports to be free market.

To test my own position, I have been scrounging for reasons to vote for Romney.  I have two so far:

1.  Less likely to bail out Illinois when its pension system goes broke in the next few years

2.  I might marginally prefer his Supreme Court nominees to Obama's

That is about all I have.  Stretching today, I have come up with a third:

3.  If we have a Republican in the White House, the press will start doing its job and dig into the facts about drone strikes and warrant-less wiretapping.

You know the press are in full defense mode protecting their guy in office when the only press that reports on the ACLU's accusation about sky-rocketing wire tapping under Obama are the libertarians at Reason and the Marxists at the World Socialist Web site.  Four years ago the New York Times would have milked this for about a dozen articles.  It may take a Republican President to get the media to kick back into accountability mode over expansions of executive power.

This is a nice but probably meaningless gesture to protecting basic Constitutional rights (Hat tip to a reader)

Just a week after the Virginia legislature approved a law to refuse compliance with NDAA“indefinite detentions,” an Arizona law committing the Grand Canyon State to noncompliance with any attempted federal kidnapping under the NDAA now stands just a signature away from implementation.

I guess I would be more thrilled if I thought the state would have passed this if there were a Republican in the White House, but I can't make myself believe it.

that this military detainment issue was a dangerous one, first in Gitmo, and now with Bradley Manning.   I understand the administration and the Army are pissed at the guy for embarrassing them and potentially giving away secrets to hostile parties, but the guy has not been tried or convicted of anything.  Hell, even if he had been convicted of something, I can't believe he would be sentenced to the punishments he is enduring in what is essentially pre-trial detention.   We are all pissed at Jared Loughner but we haven't treated him this way in detention.

The military is NOT doing anything to improve their case that they should be allowed to handle indefinite detentions, such as at Gitmo, through their procedures rather than civil ones.

The Left seems upset and surprised that Obama would allow such a thing, given his rhetoric on the campaign trail.  I was never surprised -- I wrote on inauguration day that candidates who want more transparency in politics and reductions in Presidential arbitrary authority generally change their tune once in office.  As I wrote then, "It seems that creeping executive power is a lot more worrisome when someone else is in power."  And if that wasn't enough, the Administration's about face on closing Gitmo was another reminder.

(via Popehat) one of the writers at Balloon Juice offers this test of a "reasonable" Conservative blog

1) Do you believe in evolution?

2) Do you believe that the average temperature on earth has increased over the past 30 years?

A few semi-random thoughts:

• Count me as a yes for both
• Is the best test of the likely reasonableness of a political blog really to ask two questions about science that such a blog might never even touch?  This is not an entirely rhetorical question -- just the other day I linked the data that suggested that asking your date about beer might be the best way to test their views on sex.  Sometimes odd cross-correlations exist, but I don't think these would be my first test
• I find the Left's obsession with evolution as a litmus test for political thought to be funny, as the theory of evolution is largely irrelevant to any political questions except fairly narrowly the question of teaching evolution in schools.   I find it funny as much of the Left does not believe in a science - micro economics (very specifically differentiated from macro) - that is also fairly old and well understood and is much more relevant to typical political blog discourse.  I had a debate on national TV a few weeks ago with a man who claimed, as many on the Left will, that raising the minimum wage will increase employment.   If we want to test blogs based on scientific questions, why wouldn't a far more relevant question in public discourse be "do you believe demand curves slope down" or perhaps something like "do you believe breaking windows stimulates the economy?"
• The second test is not a bad test of any site writing about global warming and climate change.  I don't know many science-based skeptics who would deny that global temperatures have likely increased over the last 30 years  (from a data base without UHI or alarmist manual adjustments or large data holes, the trend is something like 0.1C per decade).   I say "likely" because it could be argued that 0.1C is within the error bar of the measurement. Even so, this wouldn't be my first test, even for climate sites
• I would tend to have four tests of the liberal and conservative sites I read
  • Is it interesting to read (after all, this is a freaking unpaid hobby)
  • Is the data-analysis-to-name-calling ratio fairly high
  • Are they willing to step out of team politics and question their own team from time to time
  • Do they have interesting perspectives on individual liberty.  I can plow through Marxist economic posts on progressive sites if from time to time they have a useful perspective on, say, indefinite detentions or gay marriage.  I can plow through some social Conservatism if they have useful posts on economics and fiscal policy.

This post from Nick Gillespie is sort of relevent, in which he talks about CPAC and social conservatives.  One line that struck me

A person's choice of sexual partner in no way means he or she can't be in favor of less spending on farm subsidies.

If I weeded out every blog that held some sort of view with which I disagree (or might even call "unreasonable") I would be down to about 3 blogs in my reader.

Discussions about Guantanamo still seem to focus on moving the prisoners to another facility.  This is exactly the danger I warned about several years ago -- that focusing too much on Gitmo itself as a facility was missing the whole point.  The problem was indefinite detentions without due process, not the facility per se.  But since so much of the press latched onto Gitmo itself as the problem, it as allowed the administration to say that it is solving the problem by eliminating Gitmo and moving the prisoners  (either to Illinois or Afghanistan, the plan keeps changing) while still clinging to the position that it should still have the power to detain people at the President's pleasure.

Dhalia Lithwick has a good article on just what a mess we have created at Gitmo.  Are there potential, even past, terrorists there?  Probably.  But I could probably say that there are current or past criminals in any random 1000 people I might sweep off the street.  That doesn't justify locking them up  -- as a country, we have always said that it is better to free the innocent at the cost of potentially missing some of the guilty.

And please don't hammer me again in the comments with "there is a war on and these are just POW's."  Sorry, they are nothing like traditional POW's.  They were not caught on the battlefield, were not in uniform, in many cases were just turned in by other people for a bounty.  I think I would accept that maybe slightly different rules apply to these folks than to a person arrested on 5th Avenue in New York, but on the other hand supporters of their detention need to admit that some extra scrutiny needs to exist vs. traditional POW rules, as in this case their very combatant status is unclear, something that was not the case in, say, with most POW's in WWII.

Today, here on Cape Cod, where every car has an Obama sticker, I was struck by two cars which had Obama stickers as well as this same slogan, a paraphrase of a Ben Franklin bon mot:

Those who give up their liberty for more security neither deserve liberty nor security.

I have absolutely no problem with this bumper sticker in its original context, which I presume was to protest things like the Patriot Act, indefinite detentions, and wiretapping during the Bush Administration (and all retained, so far, by this Administration).

But my question back to them would be -- do you still support this statement in the context of pending health care legislation, which is yet another example of trading individual liberty for security, albeit security of a slightly different type?

Thank god we have a "liberal" president, or else we might all have to worry about our civil rights and abuse of power:

Defense Department General Counsel Jeh Johnson moved the Obama administration into new territory from a civil liberties perspective. Asked by Sen. Mel Martinez (R-Fla.) the politically difficult but entirely fair question about whether terrorism detainees acquitted in courts could be released in the United States, Johnson said that "as a matter of legal authority," the administration's powers to detain someone under the law of war don't expire for a detainee after he's acquitted in court. "If you have authority under the law of war to detain someone" under the Supreme Court's Hamdi ruling, "that is true irrespective of what happens on the prosecution side."

The whole Guantanamo issue has to be one of the great bait and switches of our time.  The fundamental human rights abuse was always the notion that civilians could be seized by the US Government and held, as they say in Britain, at the President's pleasure  (ie as long as the Administration wants, up to and including forever).

Somehow, this whole issue got perverted into a debate about Gitmo, rather than detentions per se.  I warned any number of times that if we kept focusing on merely the location of detention, rather than detention itself, it would give the government cover to close the facility and declare victory, while continuing the abusive practice of indefinite detention.

Unfortunately, I was right, both in this fear and my fear that Obama, once give presidential power, would be reluctant to eschew it.

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

Unsurprisingly, after talking about various approaches for Congressional or Judicial oversight of Administration detention decisions, the Administration has apparently dropped plans for this.  Even the "security courts" of which I have always been suspicious (I always picture a jury full of TSA airport security screeners) have been ruled out by Obama.  We are back to the Bush doctrine of detention at the President's pleasure.

...the problem is indefinite detentions.  But in its general sloppiness, the press over the last 8 years has branded the problem as "Guantanamo Bay," giving Obama the ability to claim progress by closing Gitmo, while still maintaining the right to indefinite detention at the Administration's pleasure.

I guess we have to take our allies where we find them in defending the Constitution, so I will quote Russ Feingold's thoughts here (despite his history of legislative attacks on the First Ammendment).  Via Q&O:

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world....

Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.

Bruce McQuain concludes:

Anyone monitoring what Barack Obama has been saying since taking the oath of office who doesn't see a rather large authoritarian streak in the man hasn't been paying attention. What he is suggesting is blatantly worse than what the Bush administration did. Unfortunately, it is mostly being lost in the ground clutter of the financial crisis. But it is certainly there for those who take the time to look.

Update:  This Rachel Maddow video on Obama's speech is great. She calls it the Department of Pre-Crime based on the Phillip K Dick novel and Tom Cruise movie:

Radley Balko is justifiably happy that Obama is chucking the the theory that the President can detain people indefinitely at his whim:

President Obama yesterday eliminated the most controversial tools employed by his predecessor against terrorism suspects. With the stroke of his pen, he effectively declared an end to the "war on terror," as President George W. Bush had defined it, signaling to the world that the reach of the U.S. government in battling its enemies will not be limitless.While Obama says he has no plans to diminish counterterrorism operations abroad, the notion that a president can circumvent long-standing U.S. laws simply by declaring war was halted by executive order in the Oval Office.

Key components of the secret structure developed under Bush are being swept away: The military's Guantanamo Bay, Cuba, facility, where the rights of habeas corpus and due process had been denied detainees, will close, and the CIA is now prohibited from maintaining its own overseas prisons. And in a broad swipe at the Bush administration's lawyers, Obama nullified every legal order and opinion on interrogations issued by any lawyer in the executive branch after Sept. 11, 2001.

It's worth emphasizing again here these steps Obama's taking effectively limit his own power. That's extraordinary.

But here is my cynical side coming out:  It is easy to limit your own power in areas in which you have no desire to exercise it.  Obama is doing great work here that needs to be done, but he is also not really giving up anything he cares to have.  I could just as easily have written a story that said that Bush took brave steps to limit the power of the executive branch over CO2 emissions.

When Bush wanted to listen to phone conversations or to hold people incommunicado for years, he could have gone to Congress to seek such authority, or used the authority he already had but which was (rightly) limited by oversight from the judiciary.  But terrorism was "too important" to bother with that stuff, so he did it by executive fiat.

So the real test, in my mind, is to see Obama's attitude towards executive power in an area where he really wants to get something done, and might not have the patience to wait for Congress.   Obama is a different kind of guy, right?  He would never expand executive power and short-circuit Congress just because he was in the hurry for something, would he?

President Barack Obama signed an executive order to force the auto industry to produce more fuel-efficient cars, an act he says will begin a new era of global leadership for the U.S.

I thought this was particularly clever rhetoric for continuing to gut the 10th Ammendment.

"The days of Washington dragging its heals are over," he declared, saying it should be easier for states to adopt tough fuel-efficiency rules. "My administration will not deny facts; we will be guided by them. We cannot afford to pass the buck or pass the burden onto the states."

We are not grabbing power here in Washington, we are just relieving them of the burden of governing themselves.

Update: By the way, I do believe the current version of the CAFE legislation gives the NHTSA and the EPA the ability to change the standard, so technically the administration has this power.  However, typically changes to regulations must go through a public disclosure, comment, and review process, with a number of key requirements like economic impact studies.  The reasons for these requirements is to try to offset (imprefectly) the enormous power Congress is delegating to the Administration in these regulations.

Per Wikipedia (yeah, take it with a grain of salt) the CAFE legislation says:

Congress specifies that CAFE standards must be set at the "maximum feasible level" given consideration for

1. technological feasibility;
2. economic practicality;
3. effect of other standards on fuel economy; and
4. need of the nation to conserve energy.

Obama, impatient with following the process (where have we seen that before?) cuts through it with an executive order.   No one has gone through this process of making these tradeoffs -- Obama and a few advisors picked a number and ordered it into being.  By doing so, he is in effect violating the spirit if not the actual text of the legislation in which the power to set CAFE standards was delegated to the agencies under him.

For the last couple of years, much of the debate about detention at Gitmo has focused  on silly arguments about torture.  Flushing a Koran -- Torture!  Showing a picture of a naked girl -- Torture!  The comfy chair  -- Torture!  As I wrote in this post,

Here is my fervent hope:  If I ever find myself imprisoned by hostile
forces, I pray that they will torture me by sitting me in a chair and
having me watch them flush books down the toilet.

If I bought into the theory of Rovian infallibility, I might argue that this was all a clever trick to distract the country with the left hand while the right was really doing the damage.  Whether planned or not, the media certainly fixated on the left hand, while the right was doing this:

In a series of probing and sometimes testy exchanges with a government
lawyer, two of three judges on a federal appeals court panel here
indicated Thursday that they might not be prepared to accept the Bush
administration's claim that it has the unilateral power to detain
people it calls enemy combatants....

"What would prevent you from plucking up anyone and saying, "˜You are
an enemy combatant?' " Judge Roger L. Gregory of the United States
Court of Appeals for the Fourth Circuit asked the administration's
lawyer, David B. Salmons.

Mr. Salmons said the executive branch
was entitled to make that judgment in wartime without interference from
the courts. "A citizen, no less than an alien, can be an enemy
combatant," he added.

The real threat to freedom and the American way here was always the Bush administration's incredible theory that it had a right to name anyone a combatant and then detain them forever, without any sort of independent review or appeal.  Particularly in a "war" with no defined enemy.  It's incredible to me that the Congress and courts have let this slide as long as they have, and good to see some scrutiny may finally be applied.  Hat tip: Reason.  More here, here, here.  Looking back through my archives, I seem to have made this same point months ago:

One of the problems I have making common cause with many of the
civil rights critics of the Bush administration is that they tend to
hurt legitimate civil rights by exaggerating their claims into the
ridiculous. 

A good example is detentions at Gitmo.  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.

One of the problems I have making common cause with many of the civil rights critics of the Bush administration is that they tend to hurt legitimate civil rights by exaggerating their claims into the ridiculous. 

A good example is detentions at Gitmo.  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.

Interestingly, as I watch the Beeb this morning, Britain is having a similar debate.  Its hard to figure the whole thing out from the TV coverage and sound bites, but apparently Britain has the ability to detain suspected terrorists for 90 days, and wants the power to extend this.

Many people have told me that I am an insanely naive Pollyanna for not accepting the need for indefinite detention without trial of suspected terrorists.   I have explained in the past that we don't have the right to do this with our own citizens, but we also don't have the right to do this with any other human being (the short explanation:  The individual rights we hold dear are our rights as human beings, NOT as citizens.  They flow from our very existence, not from our government and not from the fact of our citizenship.   In some ways, the government probably has less right to abuse non-citizens, not more).

Here is a test:  If the government had always had this power, ie to detain indefinitely people it thought somehow "dangerous" to "someone"  (with the government getting to define both these terms), how abused would it have been in the past.  My answer is "very much".  Who would J. Edgar Hoover have detained?  Would Martin Luther King have spent his life in jail, much like Nelson Mandela?

By the way, I have no idea what Hamdan vs. Rumsfeld means for all this, since I haven't read it and pundits seem to disagree on what it means  (unfortunately, this may be something we live with a while, a feature of the new muddled "Justice Kennedy compromise" we seem to have to live with on a number of decisions).  If anyone thinks they have seen a definitive analysis, please link it in the comments.

While I bloviated for many screen-inches on wiretaps, detentions, and separation of powers (and here, and here), George Will nails what I was trying to say in about a paragraph.

But, then, perhaps no future president will ask for such congressional
involvement in the gravest decision government makes -- going to war. Why would
future presidents ask, if the present administration successfully asserts its
current doctrine? It is that whenever the nation is at war, the other two
branches of government have a radically diminished pertinence to governance, and
the president determines what that pertinence shall be. This monarchical
doctrine emerges from the administration's stance that warrant-less surveillance
by the National Security Agency targeting American citizens on American soil is
a legal exercise of the president's inherent powers as commander in chief, even
though it violates the clear language of the 1978 Foreign Intelligence
Surveillance Act, which was written to regulate wartime surveillance.

Will seems to think the wiretapping a reasonable approach, and thinks Congress should authorize it, but its very reasonableness or even necessity does not justify executive circumvention of the Constitution:

Besides, terrorism is not the only new danger of this era. Another is the
administration's argument that because the president is commander in chief, he
is the "sole organ for the nation in foreign affairs." That non sequitur is
refuted by the Constitution's plain language, which empowers Congress to ratify
treaties, declare war, fund and regulate military forces, and make laws
"necessary and proper" for the execution of all presidential powers . Those
powers do not include deciding that a law -- FISA, for example -- is somehow
exempted from the presidential duty to "take care that the laws be faithfully
executed."

The separation of powers concept, so fundamental in our Constitution to checking government power grabs, seems to be on life support.  The reason I say this is that for separation of powers to work, each branch of the government has to, you know, actually monitor and try to check power grabs in other branches.   What I see today are three branches that have kind of reached some sort of peace treaty, agreeing to let the others run amok as long as it is allowed to do so itself.  To support this hypothesis, I make the following observations:

• The executive branch continues to try to accumulate power, adding "indefinite detentions without trial" and "warrantless searches" to its arsenal, justifying nearly anything with the blanket argument that "the world is different post 9/11."  The Supreme Court has generally proved itself unwilling to do anything about it, which should be all the more the case in the future since both Bush appointees seem very comfortable with accretions of executive power.  Even the opposition party, though willing to make verbal assaults, seems unwilling to take any real measures.

• Congress seems perfectly willing to spend their time wallowing in pork and dreaming up new earmarks to satisfy prominent donors.  The current budgeting process is a fiasco, and the executive branch seems unwilling to exercise any adult supervision, including an incredible record of zero vetos is nearly 6 years.  Congress has shied away from working on any issues of any seriousness (e.g. Social Security) which is perhaps good for us, since their only attempt to fix runaway spending in Medicare resulted in them adding an expensive and ridiculously complex drug benefit.  Congress and the President conspired to pass the egregious McCain-Feingold speech limit bill, which effectively helps protect the job of Congressional incumbents and protects them from 3rd party criticism when approaching an election.

• With Congress unwilling to address any legislative issues of substance, the judiciary seems perfectly happy to take their place, creating new law in hundreds of areas.  And Congress seems willing to let them.  It can only be dangerous for a Congressperson to deal with hot-button issues like gay marriage and abortion - its much better to let the judiciary do it for you.  Often Congressman can get the outcomes they want, without actually having to create a legislative record on the issue that might come up in a campaign.

The whole situation depresses me just writing about it.

Over the past few days, I have posted a lot on first and fourth amendment issues, from wiretaps and detentions to free speech to prosecutorial abuses.  It turns out I could have saved my self a lot of time and just linked this great interview with former Judge Andrew Napolitano.

We are in a fit of
constitutional chaos when the government views constitutional guarantees as
discretionary. As Americans, we order our lives on the belief that we have
extraordinary freedoms. We believe those freedoms don't come from the
government. They come from our humanity. The government doesn't give freedom; the government
under the Constitution is restrained from interfering with it. I can
basically say whatever I want about the government. I can basically travel
wherever I want to go. I can basically worship however I see fit. If the
government comes to the view that those freedoms are discretionary, no matter
how noble the stated [reason to restrict them] may be, then we're in a state of
constitutional chaos. We will not be able to order our lives based on freedom.
We won't know who will be prosecuted or who'll just be swept away.

On the Patriot Act:

Let's put aside all of
the procedural problems with enacting it. Forget about the fact that there was
no debate. Forget about the fact that most members of Congress didn't even have
an opportunity to read it. It is a direct assault on at least three amendments
to the Constitution: the First Amendment, the Fourth Amendment, and the Fifth
Amendment. The PATRIOT Act legitimates the notion that if we
give up certain freedoms, the government will keep us safer. I reject that
notion from a moral and legal point of view. I also reject it from a practical
point of view. It doesn't work. The government doesn't need our freedoms to
keep us safer. No one"”no lawyer, judge, or historian"”can point to a single
incident in American history where national security was impaired because
someone insisted on their right to free speech or their right to privacy or
their right to due process.

The PATRIOT Act encourages what the
government calls "national security letters""”basically, self-written search
warrants. It violates the Fourth Amendment, which prohibits self-written search
warrants. The PATRIOT Act and two of its predecessors, the Foreign
Intelligence Security Act of 1977 [FISA] and the Electronic
Privacy Act of 1986, authorized the government to obtain search warrants by
bypassing [longstanding tradition in] the courts. Today an FBI agent investigating a
person need only satisfy her or himself that the person under investigation is
a threat to national security. The agent doesn't have to demonstrate evidence
to a judge

On the regulatory state:

[The FDR era] began, in my view,
the dark part of American history where the federal government believed that it
could solve any problem that was national in scope, irrespective of whether it
was a federal problem. A federal problem is one arising
under the 18 specific enumerated powers given to the federal government under
the Constitution. A national problem is something
that exists in New Jersey and California and Texas and Illinois. But just
because it's national doesn't mean it's federal and therefore can be addressed
by the federal government....

In terms of the
government control of our lives, in terms of the percentage of our income that
the government takes from us, in terms of the types and the areas of human
behavior we let the government regulate, we are infinitely less free. And as
Jefferson once said, it is in the natural order of things that the government
should be greater and human
liberty lesser.

Women have
much more freedom. African Americans have much more freedom. Gays have much
more freedom. The discrimination that was rampant, and often caused by the
government, 40 or 50 or 60 years ago"”there's been progress in those areas. But
the destruction of federalism, the centralization of power in Washington, the
belief that Washington can regulate all aspects of our lives will, if not
checked, lead us to a totalitarian form of government. Freedom is the power and
ability to obey your own free will and conscience rather than the free wills
and consciences of others.

The interview also has a very useful short summary of the history of FISA and the Patriot act, and demonstrates how the incremental assaults on the fourth amendment have added up.  I encourage you to read it all.  In addition to this interview, Reason also had a good debate on the Patriot Act here.

Back when there was all that controversy about flushing Korans at Gitmo, my general reaction was that the charges of outright torture were overblown.  In fact, today I think all this focus on torture-lite was counter-productive, diverting attention from the core question of "no matter how well they are treated, do we have a right to indefinitely detain them at all?" 

The main theme in my posts both on detentions as well as NSA wiretaps has been that our current problems with terrorism do not justify the relaxation or overriding of our core principles of separation of powers.   If we are are going to detain people, it should be following rules laid out by Congress and with clear points of review or appeal to the judiciary.  The exact rules for Habeas Corpus may be different for people captured in Afghanistan than in Omaha, but they can't be thrown out all-together by administration fiat.  The rights protected by our Constitution and its amendments are our rights as humans, not just as Americans.  Our rights not to be locked up indefinitely or not to be subject to invasive searches without a warrant predate government - they are protected by the government, not provided by the government.  As such, even foreigners, who presumably are human, possess these rights too.

It turns out that the Gitmo detentions, years after they began, are starting to get the third party scrutiny that you and I expect to get after 48 hours of detention.

If accurate, this National Journal cover story is scandalous.  Stuart Taylor's Journal column sums up the major points:

• A high percentage, perhaps the majority, of
  the 500-odd men now held at Guantanamo were not captured on any
  battlefield, let alone on "the battlefield in Afghanistan" (as Bush asserted) while "trying to kill American forces" (as [press secretary Scott] McClellan claimed).

• Fewer than 20 percent of the Guantanamo detainees, the best available evidence suggests, have ever been Qaeda members.
• Many scores, and perhaps hundreds, of the detainees
  were not even Taliban foot soldiers, let alone Qaeda terrorists. They
  were innocent, wrongly seized noncombatants with no intention of
  joining the Qaeda campaign to murder Americans.

• The majority were not captured by U.S. forces but
  rather handed over by reward-seeking Pakistanis and Afghan warlords and
  by villagers of highly doubtful reliability.

Maybe an actual government body that does not report to the President, such as the judiciary, can finally enter the fray and habeas some of their corpuses. 

And by the way, I am soooo fed up with the counter-argument, "coyote, you are more interested in the rights of terrorists than security".  I answered this here, but in the case of detentions it is perfectly clear to me that the goal of detaining demonstrably dangerous folks does not require avoidance of judicial review.  I am sure this administration like any other does not like the courts or Congress looking over its shoulder, but they have to get over it.  The Administration has decided that the other branches of government can't be trusted, and the theme of many of their recent actions has been to fight against any separation of powers restrictions on the administration.

Related thoughts:  I see decent support in polls for these detentions and wiretaps.  My sense is that people who trust Bush are OK with him taking on these powers, and people who don't trust him are horrified.  The history of the Patriot Act is illustrative of this.  Most of the Patriot Act was originally proposed by Bill Clinton in response to Oklahoma City and the first bombing of the WTC.  At that time, Republicans opposed it, eventually defeating it in the Senate with the opposition led by... John Ashcroft.  Yes, I know the argument the world changed on September 11, but I think an even more important explanation of this turnaround for Republicans is that they did not trust Clinton, so didn't give him the power, but do trust Bush.  Of course the short-sightedness of this approach is stunning, since we know no party stays in power forever.  To Republicans, if you are comfortable with Bush being able to detain people of his choice without review and to wiretap without warrant, then you need to also be comfortable with Hillary Clinton, Howard Dean, or maybe Patty Murray having the same power some day.  Are you?  Really?  Because I am not comfortable giving the power to either party.

Yes, the world may have shifted on its axis on September 11, but not enough for us to throw out separation of powers.

Update:  More here.

As a libertarian, I am generally quite content to have Congress go on a 364 day a year vacation.  Maybe they can get together once a year and declare a national asparagus day or a national DVD rental day or whatever.

However, I will say that the debate about rules for military prisoner interrogations and detentions at Gitmo have caused me to make an exception to my general Lassaiz Faire approach.  One of the reasons we struggle with these issues is that, because we are facing the relatively new situation of having our military battle with non-uniformed insurgents not associated with any particular government or military force, the rules to be applied are fuzzy or non-existent.  Without rules, the administration has been making up its own, which activists of various stripes have been challenging in court.

And what is Congress doing?  Most of Congress has spent its time shouting out support or criticism (as the case may be) of the administration, and arguing about which judges should be selected to make sure that the administrations rules are or are not struck down.   I could have sworn that Congress has the primary responsibility for creating rules for these situations, to be enforced and interpreted by the Administration and courts.  Why is it, when there are no clear rules, Congress is the only branch of the government doing nothing?

Isn't it about time that Congress stop shouting encouragement or criticism from the shore and actually wade in with some legislation on these issues?  While I certainly have never been one to accept the Gitmo torture hysteria, its certainly a reasonable role for Congress to set standards for treatment of the type of non-military prisoners we are collecting.  For example, while the rules of Habeus Corpus for such a detainee are not necessarily the same as for a prisoner in the US, there certainly need to be some rules beyond the Administration's current ridiculous position that amounts to "we can hold them at our pleasure for as long as we want".

Update:  OK, I am obviously not keeping up.  I just got emailed a couple of links to some action on this front.  Reason has this:

A handful of Republican senators would like to determine:

(i) What is the definition of an "enemy combatant" who may be
detained by the military outside the ordinary civil justice system?; (ii) What
procedural rules should be employed by military tribunals?; and (iii) Which
interrogation techniques should be authorized, and which
prohibited?

Since these are questions the Supreme Court declined
to answer in its rulings on prisoner detention, it's nice to see that other
branch of government assuming a slightly less supine position--almost as if the
Constitution established it as a counterweight against the executive and the
judiciary.

Apparently the Bush administration, which could not manage to find the veto pen when the huge expansion of the already bankrupt Medicare system was in front of them, is announcing itself ready to veto anything:

that would restrict the President's authority to
protect Americans effectively from terrorist attack and bring terrorists to
justice, the President's senior advisers would recommend that he veto the bill.

Marty Lederman has much more analysis here.  His observation:

Heaven forbid Congress should have the nerve to actually exercise its
authorities under Article I, section 8, clauses 10, 11 and 14 of the
Constitution"”which empower Congress to define and punish Offences against the
Law of Nations, to make Rules concerning Captures on Land and Water, and to make
Rules for the Government and Regulation of the land and naval Forces. For to do
so will invariably hamper the Executive's ability to keep the Nation safe from
terror.

Isn't this just a tad too much arrogation of power, even for this President?