Dictatorial powers for Clinton ?

by John Quiggin on October 1, 2006

The passage by the US Congress of a bill that among other things abolishes habeas corpus for terrorism suspects, allows interrogation methods that would normally be classed as torture, and allows the President to declare legal residents of the United States to be enemy combatants has produced a predictably partisan divide. All but two Senate Republicans voted for the Bill (Lincoln Chafee opposed and Olympia Snowe did not vote), and most pro-Republican bloggers seem to have backed it with marginal qualifications.

Those of us who fear and distrust the Bush Administration naturally find it easy to see what harm could be done with powers like this. The Administration’s supporters, on the other hand, seem confident that only the likes of David Hicks and Jose Padilla have anything to fear.

So, for those who support the bill, it might be useful to consider the standard thought experiment recommended to all who support dictatorial powers for a leader on their own side. Think about what the other side might do with these powers.

For concreteness, suppose Hillary Clinton* is elected in 2008** with a Democratic majority in Congress, and appoints someone like Janet Reno as her Attorney-General, and that some rightwing extremist takes a potshot at her. Suppose that the unsuccessful terrorist turns out to have drifted widely through the organisations that Clinton famously called the Vast Right Wing Conspiracy, ranging from organisations with a track record of association with terrorism, like Operation Rescue and the militia movement, to those of the mainstream right, not engaged in violence, but prone to the violent rhetoric of people like Ann Coulter.

The bill, as it stands, would give the Clinton Administration essentially unlimited powers over non-citizens legally resident in the US (or anywhere else in the world) and over US citizens found, by the Clinton Administration, to have provided material support for those involved in the attack. Given unlimited powers of search and seizure, and unfettered use of “aggressive interrogations”, it would be easy to find evidence of some criminal offence even in cases of people who had no connection whatsoever with the original case. The Bush Administration has set plenty of precedents for the kinds of shifting jurisdiction that can keep people locked up for years without ever facing trial.

Moreover, but in the wake of a domestic terror attack, it would be just about impossible to resist a demand for additional powers, drawing on precedents established by Bush. Ambiguous provisions of the existing law could be clarified in ways that negated most of the protections currently given to US citizens.

And, although I may be corrected on this, there doesn’t appear to be any notion of prohibiting retrospectivity or of a statute of limitations. There would be nothing to stop the Clinton Administration revisiting cases of the 1990s, and applying the newly broadened definitions of enemy combatant to anyone who, for example, made threats against the government or government officials over those cases.

  • I’ve picked her since she seems to be the Democrat most hated and feared by Republicans, and has regularly been accused by them of grave crimes, up to and including murder. I have no reason to suppose that, in the real world, she’s anything other than the opportunistic centre-rightist she appears to be.

** A standard response is that the side introducing the powers does not plan to allow a change of government. I don’t think this is true – everything I’ve seen from this lot suggests that they are commonly incapable of thinking through the consequences of their own actions.

{ 46 comments }

1

John B. 10.01.06 at 7:22 pm

“[E]verything I’ve seen from this lot suggests that they are commonly incapable of thinking through the consequences of their own actions.”

This really could serve as an epitaph for the entirety of the Bush administration and the Republican-controlled Congress, could it not?

2

Tahoma Activist 10.01.06 at 7:27 pm

Genius. I’ve heard a few talk show hosts suggest this, but you really have fleshed it out nicely. These lamo right-wingers are idiots, but let’s hope their followers wake up and smell the coffee before we all get our freedoms totally trampled on.

Unfortunately, I fear that the trend is towards greater and greater propagandistic control over mainstream media. If this continues, it will be easier and easier for the Administration to disappear their political opponents, because cons will be habituated to disbelieve anything but official sources.

3

P O'Neill 10.01.06 at 7:31 pm

Note also that the Bushies’ initial response to Katrina — trying to invoke the Insurrection Act — has left a paper trail and potential precedent for putting that Act in play as well. Hillary could put troops on the streets if she was bloody-minded enough about it.

4

Daniel Nexon 10.01.06 at 8:08 pm

F*ck all these “evil Democrat” analogies. Just ask anyone if, knowing what we know now, he or she would trust Nixon with these powers.

5

Jared 10.01.06 at 8:18 pm

But it seems to me that the assumption Republicans have been working under since 9-11 is that only they are bloody-minded enough to make use of such powers. Democrats are all soft on terror, or actually fighting for the other side. So they wouldn’t have the guts to use such tactics, even(!) against militias, anti-abortionists, etc.

6

eweininger 10.01.06 at 8:20 pm

I, for my part, am waiting to hear John Yoo and minions unleash an encomium to a hypothetical Unitary Democratic Executive.

7

kth 10.01.06 at 8:23 pm

Unfortunately the analogy fails because militant Muslims aren’t a large American constituency but the unreconstructed revanche is. If a Dem president ever pulled you hypothetical, you would have the largest insurgent uprising in this country since the terrorists thwarted Reconstruction in the South.

(They would be sort of right to take up arms under such conditions, though their support of the same policies directed at a much smaller and defenseless minority is of course wholly untenable. But of course they not only are indifferent to such notions of consistency, they frankly despise those notions.)

8

kth 10.01.06 at 8:24 pm

“your hypothetical”

9

Arctic Tundra 10.01.06 at 9:24 pm

How about the military (sworn to protect the country from enemies foreign and DOMESTIC) invoking this bill to declare Bush, Cheney, Rumsfeld, Rice & Co as enemy combatants and ship their traitorous carcasses to Guantanamo?

10

John Quiggin 10.01.06 at 9:59 pm

Actually, kth, I think this only makes the hypothetical more plausible. A few heavy-handed raids provoking armed resistance, and before you know it you have a plausible case for a state of emergency.

11

Seth Finkelstein 10.01.06 at 10:24 pm

I think it’s too extreme to phrase the objection as: “A standard response is that the side introducing the powers does not plan to allow a change of government.”. It’s possible to argue that in the unlikely event a Democrat is elected President, the Republicans will still have plenty of power without nullifying the election. There’s still the Republican-appointed justices, the media dominance, power in Congress. In some ways, fantasies of appointing King George Bush The First are distractions from the much duller but more long-term aspects of institutional power.

And remember, some of the senior people in this administration go back to the Nixon administration. They did go through loses of power, and they did just fine.

12

Martin James 10.01.06 at 11:15 pm

John,

You’re missing the whole political dynamic about the law.

The republicans already assume that democrats have no respect for the law. They will torture or not independent of the laws. After all, the past President Clinton lost his license to practice law for five years due to perjury.

Even the commentators here believe that the current administration tortures despite legal restrictions against it.

The law is a political statement to constituents.

13

Miss Cellania 10.01.06 at 11:17 pm

WWHT? Who would Hillary torture? After Bush and Company, it would be on to Monica Lewinsky and Ken Starr.

Gallows humor, of course. Its totally frightening to see the Constitution go down the drain.

14

Tom T. 10.01.06 at 11:54 pm

When I saw a post about Clinton and abolition of habeas corpus, I thought there would be a discussion of AEDPA, the law that was passed in the wake of the OK City bombings and which cut off state habeas petitions after one year and which expanded the Government’s ability to classify aliens as terrorists. In general, the public didn’t care then, and it’s unlikely to care now, presumably because people tend to think that they will never find themselves within whatever net is being cast.

Re: 7, 10. Consider Ruby Ridge and Waco. “A few heavy-handed raids provoking armed resistance,” and the country yawns. McVeigh, Koresh, John Salvi, and Paul Hill are dead. Randy Weaver’s family was killed. Nichols, Hale, and Rudolph are in prison forever. Aryan Nation is bankrupt, and the Order was squashed long ago. Many of these actions did happen under a Democratic administration, and none provoked the slightest whisper of broader civil unrest. These groups have no serious constituency that would be upset to see them shut down.

15

Aaron Swartz 10.02.06 at 12:14 am

Clinton would never do such a thing. And, as an exercise, imagine what would happen if she tried. Republicans aren’t worried because even if Clinton gets elected President, the rest of the system won’t swing to the left.

16

kth 10.02.06 at 12:18 am

people tend to think that they will never find themselves within whatever net is being cast.

I agree that this is why people don’t care now. But John’s scenario was of (not to put too fine a point on it) white people being detained indefinitely without charges, for no greater crime than of being a traveller in far-right circles. Or of being ratted out (truthfully or falsely) by some other Minuteman-type while undergoing torture. If RW Americans were the victims of injustices such as these (unlike Koresh et al, who shot first at agents serving lawful warrants), then I’m fairly certain you would see a ripple effect from people sympathetic to their opinions but not as radical. And it wouldn’t just be a violent uprising; reaction would run the gamut from energized voters through civil disobedience to a non-trivial amount of violent insurgency. The point is, there would be an explosion. And as I said, their reaction would (for once) be relatively justified.

17

roger 10.02.06 at 1:13 am

I think it takes a certain level of bravery to actually want to live in a free country. To tell the torturemongers, who are craven straight through, that they should support democracy for even more craven reasons, seems to miss something of the attitude of these people. They don’t care about argument — they care about bullying the weak and shucking and jiving to the strong. Its the mixture of sadism and masochism that has always constituted the authoritarian personality, the factotums of every lynch mob and death camp. Hopeless getting through to them.

There comes a time when one has to recognize wholesale corruption. We are seeing it now.

18

Maynard Handley 10.02.06 at 3:03 am

Regarding Ms Clinton not doing this because the entire country is not leftist.
Well of course it’s not like this would happen on day 1 of the administration. She would (I damn well hope) follow the playbook of these guys. Start off with some trials against malefactors no-one is going to stand up for (eg Haliburton and Parsons corruption in Iraq). That’s a good forum to generally air the mess of corruption surrounding Iraq and the treatment of big business. From there we have a segue into trials for as high in the administration as they dare to go. Follow that up with some IRS investigation of churches encouraging their members to vote Republican. And gradually you create the necessary environment…

19

John Quiggin 10.02.06 at 3:06 am

Tom T, I had those things in mind, hence my allusion to Janet Reno. AEDPA was/is a bad law, and, as we’ve now seen, paved the way for worse. OTOH, as kth observes, the people you mentioned shot first, and Clinton didn’t use their actions as a pretext for claiming and exercising emergency powers.

Going back to the main point, with the powers to hand, and facing a direct personal threat, who knows how any president might act? Pick the politician you most distrust, imagine them convinced that their own and the nation’s safety is under threat, then take it from there.

20

abb1 10.02.06 at 3:33 am

Bushies and Clintons are not that different, and they represent interests of pretty much the same group; oil companies, investment companies – what’s the difference. Bill Clinton signed Antiterrorism and Effective Death Penalty Act of 1996, that, according to wikipedia, had a tremendous impact on the law of habeas corpus in the federal courts.

Now, if, say, a communist gets elected – then it would be a different story, but it’s not going to happen, is it.

21

MQ 10.02.06 at 3:44 am

Please, read the bill. Military commissions do NOT get power over U.S. citizens found to be giving material assistance to terrorist groups. Such citizens are enemy combatants, but they are not ALIEN enemy combatants. Summary justice from military tribunals, suspension of habeas corpus, etc. only occurs for alien enemy combatants. A lot of left blogs seem to be overlooking this.

22

ajay 10.02.06 at 4:28 am

tom t. Consider Ruby Ridge and Waco. “A few heavy-handed raids provoking armed resistance,” and the country yawns. McVeigh, Koresh, John Salvi, and Paul Hill are dead. Randy Weaver’s family was killed. Nichols, Hale, and Rudolph are in prison forever. Aryan Nation is bankrupt, and the Order was squashed long ago. Many of these actions did happen under a Democratic administration, and none provoked the slightest whisper of broader civil unrest.

And the Alfred P. Murrah Federal Building in Oklahoma City is still standing, right?

23

John Quiggin 10.02.06 at 4:42 am

mq, I was careful not to say that the suspension of habeas corpus and the military commissions applied to US citizens.

But, as I understand it, the president can still declare US citizens to be enemy combatants (as he did with Padilla), without such citizens having been tried or convicted. The power of the President over such declared ‘enemy combatants’ is unclear, but appears to be extensive, potentially including indefinite detention.

24

Harald Korneliussen 10.02.06 at 6:43 am

Over here, when a ship hits a reef* and goes down, there are always court proceedings of a special sort called “sjøforklaring” (sea investigation or sea explanation). I think there is a similar rule that there has to be a special investigation if the police kills someone.

The question is, why don’t we demand the same of heads of state who go to war? Why isn’t there a rule in our consistutions that says that if you invoke martial law/declare war/set in the millitary against the people, or other, you have to defend your decision in court afterwards, no matter how justified you yourself think it is?

*It’s not the word I’m looking for. I’m weak on english nautical terminology. Submerged rock.

25

Tom T. 10.02.06 at 7:24 am

JQ: “Clinton didn’t use their actions as a pretext for claiming and exercising emergency powers.”

Well, he did sign AEDPA itself after the OK City bombings. Of course, AEDPA was passed by a Republican Congress as well. Which may be a salient historical point: that when a threat emerges and looks serious, a broad swath of Democrats and Republicans sometimes comes together to vote broader powers to the executive. Look at Gulf of Tonkin, AEDPA, Patriot Act. An attack on President H. Clinton could well provoke a similar reaction.

Ajay, I guess I wasn’t seeing three men and a truck as broader civil unrest.

26

Tom T. 10.02.06 at 7:27 am

None of this is meant as a defense of awarding dictatorial powers to the President, by the way; I agree with John Q’s larger point that that’s generally a bad thing. I’m just suggesting that the right wing may not be as volatile as might have otherwise been proposed here.

27

ortega 10.02.06 at 8:25 am

I write you from Spain.
I love your country but when you talk about dictatorship you frankly don´t know what you are talking about. You are happy enogh not to have our experience to talk about it with enough knowledge.

28

Barry 10.02.06 at 8:25 am

“Ajay, I guess I wasn’t seeing three men and a truck as broader civil unrest.”
Posted by Tom T.

Let’s see… tens of thousand of people joining ‘miilitias’, whose only purpose was revolution; AM radio, which, by the current standards, should have had most personnel clean-sweeped into Gitmo.

29

Scott Martens 10.02.06 at 8:30 am

MQ, it doesn’t exactly fill me with love for America to know that even though I can be tortured and tried by a kangaroo court if I fall into American hands, my wife can merely be detained indefinitely by presidential order.

At least this gives me an excuse to avoid my American in-laws.

Harald, the stated reason the US never signed the ICC treaty was because they feared that it might actually turn into a court where heads of state and government could be forced to justify their actions.

There’s a sort of perverse logic to the Torture Bill: Think about all the American conservatives who distrust their courts and judges, and yet support the death penalty. Or those for whom the right to life begins at conception but, by all appearances, ends at birth. Some large part of the American population – including a lot of conservative bloggers – see no contradiction between complaining that the government has too much power and is subject to too little oversight, and at the same time demanding that it be granted still more power with even less oversight.

30

Raven 10.02.06 at 8:55 am

Harald: “reef” can refer to submerged rock. Not all reefs are coral reefs.

31

Harald Korneliussen 10.02.06 at 9:02 am

Raven, thanks. You wouldn’t believe how many words we have up here for different kinds of rock sticking out of the ocean, sometimes I look for more accurate translations than are avaliable (or necessary!)

32

Hesiod 10.02.06 at 9:25 am

Imagine another Oklahoma City style attack by domestic terrorists in 2009.

Preisdent HGillary goes to the Democratically-controlled Congress and asks for a suspecion of Habeas Corpus for “domestic terrorism suspects.”

Congress votes her those powers.

Then Hillary authorizes expanded powers for the FBI to investigate domestic terrorist organizations.

Rightwingers who are now crowing about Bush would be shitting bricks.

33

robert the red 10.02.06 at 11:01 am

There’s no point in arguing — since we are now in the ‘brutality first, compromise is for losers’ mode of American politics, we should work towards electing the Republicans’ worst nightmare. Hillary Clinton for dictator!

34

Slayton I. Musgo 10.02.06 at 12:15 pm

My personal version of this has a Christian opponent of abortion bombing a federally funded clinic. President Hillary declares this to be an act of war (Terrorism = act of war in war against Terror). This makes members of (some?) Christian churches into enemy combatants, subject to indefinite detention without trial, and possibly torture – to find the fugitive bomber.

I believe this is all legal under the current statute. And, I think many Hillary haters would find this chillingly possible.

35

bi 10.02.06 at 1:00 pm

There’s of course one very important check on the hypothetical executive powers of Hillary Clinton: the Diebold voting machines.

36

abb1 10.02.06 at 1:06 pm

This makes members of (some?) Christian churches into enemy combatants, subject to indefinite detention without trial, and possibly torture – to find the fugitive bomber.

She should bring back crucifictions! And feeding Christians to the lions!

Or else we’ll have to fight them on the streets of our cities!

If we stopped the abortions and gay marriage, they would’ve found some other excuse to attack us!

We can’t just leave them alone – that would mean handing them a huge victory!

It’s a murderous ideology not unlike communism and fascism!

Vote for me or y’all are dead meat!

37

Brett Bellmore 10.03.06 at 6:18 am

Factual inaccuracies in the above discussion aside, (Like the notion that the Davidians shot first, or that the purpose of the militia movement was revolution…) while trying to persuade people not to support their own side assuming certain powers, because they wouldn’t trust the other side with them makes perfect logical sense, don’t expect it to work.

During the last administration I talked myself hoarse trying to convince Democrats that it was, partisan loyalty aside, just plain stupid to let Clinton get away with his misdeeds, because everything he got away with would become accepted practice when the next Republican got into office. And did they really want all Democratic interest groups subject to perpetual audits, or FBI files used to blackmail Democratic officeholders?

It didn’t work; Democrats were perfectly willing to turn a blind eye to, or excuse, Clintonian abuses that could have been turned on them after the next election. Why expect Republicans to be wiser?

38

bi 10.03.06 at 6:51 am

What kind of Democratic Party “misdeeds” are you talking about, Brett Bellmore, and how exactly do they compare to the “abuses” of the current Bush administration?

39

Harald Korneliussen 10.03.06 at 8:53 am

Scott Martens, I wasn’t proposing _international_ accountability, that would be too much to hope for.
Just national. After martial law, make it mandatory to charge the leaders who declared it.

40

theBhc 10.03.06 at 2:09 pm

But it seems to me that the assumption Republicans have been working under since 9-11 is that only they are bloody-minded enough to make use of such powers. Democrats are all soft on terror…

It amazing to looking at this discussion and notice how profoundly blinkered it is as to what is plainly obvious from the passage of this bill and the larger argument for unbridled unitary executive power. Astoundingly, no one here, no one, is able to gleen to most obvious meaning from the passage of a bill that give the president the power to decide what is torture and who gets it: the Republicans don’t intend to loose another election. (This is not the same thing as saying they won’t.) After illegal wars, torture, secret prisons, warrantless wiretapping, and passing the most odious law since the miserable Alien and Sedition Acts, if you don’t think they’re capable rigging an election, you have a faith that is beyond reckoning. Which is another glaring problem on the left: a timourous failure to see what is plainly in front of their own eyes.

Suggested Reading:

The Elephant in the Polling Booth

The Conyers Report

The DNC’s own Democracy at Risk

Fitrakis, Wasserman, Rosenfeld, How the GOP Stole America’s 2004 Election and Is Rigging 2008

Freeman and Bleifuss, Was the 2004 Election Stolen?

Palast, Armed Madhouse

Kennedy, Rolling Stone articles

Miller, Fooled Again

The Brennan Center Report on electronic voting.
The Princeton University study of Diebold machines

Please, let’s all wake up to just why it is the GOP not only has no qualms about passing such laws, but enthusiastically embraces them.

41

torquemada 10.03.06 at 4:45 pm

Hillary should declare Scalia and the other rightwing assholes on the SC, and AG Gonzales enemy combatants, and render them to some other country to be tortured. What goes around, etc.!

42

Brett Bellmore 10.03.06 at 4:45 pm

“What kind of Democratic Party “misdeeds” are you talking about, Brett Bellmore, and how exactly do they compare to the “abuses” of the current Bush administration?”

I mentioned a couple specifically, so don’t play ignorant. And the way they compare, is that unlike Bush’s torture/habeus stuff, they were direct attacks on the opposing political party, and thus the, “do you really want your opponents to have powers like that?” arument was quite a bit more salient.

43

Barry 10.03.06 at 5:23 pm

Brett, there’s a tiny difference between ‘mentioning’ and ‘proving’.

44

John Quiggin 10.03.06 at 6:26 pm

“Astoundingly, no one here, no one, is able to gleen to most obvious meaning from the passage of a bill that give the president the power to decide what is torture and who gets it: the Republicans don’t intend to loose another election. “

Umm, read footnote 2.

Brett, as far as I can tell, no one claimed the Clinton administration had the right to use FBI files or IRS harassment. The disputes were over whether Clinton could be proved responsible for these actions. In that sense, the parallel is to the various scandals about the Bush Administration allegedly smearing its political opponents e.g. Plamegate.

Legislation that subverts the constitution is far worse. Just to get things clear, having made the necessary point about “Clinton did the same and worse”, do you actually oppose the legislation?

45

Brett Bellmore 10.03.06 at 7:12 pm

Barry, since I DID “mention”, and all you asked was which abuses I was talking about, your question had already been answered before you asked it. You want proof they happened? Nope, sorry, not in the mood to dive into that morrass of denial again. Especially when my point was that the effort had been futile 8 years ago, why expect your analogous efforts to succeed today?

John, no, mostly they simply denied the abuses had actually happened; Sure, they had the files, but no blackmail took place. Sure, there were audits, but it was just normal IRS practice. That sort of rationalization. It was still a way of seeing to it that Clinton would get away with the abuses, and so establishing the precident that they could be gotten away with.

And, you know? The reason we have a unitary executive is specifically so that there’s one person who can’t evade responsiblity. So I don’t care if Clinton’s locked room mystery defense kept us from proving which specific person committed which specific wrong…

And, yeah, I oppose the legislation. Though I think the Constitution has been subverted to the point that it’s practically moot at this point, and so I oppose it on pragmatic grounds. What good does it do to say that only non-citizens will be denied hearings, when you need a hearing to prove you’re a citizen?

46

theBhc 10.03.06 at 7:48 pm

In 45, John Quiggan wrote:

Umm, read footnote 2.

Huh? If there is some discussion of the broken electoral system in there, I am unable to gleen it.

There is one, which I missed earlier, and succinctly put by bi.

There’s of course one very important check on the hypothetical executive powers of Hillary Clinton: the Diebold voting machines.

Indeed. As usual, this crowd engages in moot discussions about nothing. No wonder the GOP won’t loose an election.

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