Cognitive dissonance and detention without trial

by John Quiggin on December 23, 2011

 

Now that Obama has signalled that he will sign the National Defense Authorization Act, US citizens have no legal rights that can’t be over-ridden by miltary or presidential fiat. Anyone accused of being a terrorist linked to Al Qaeda can be arrested, shipped overseas and held indefinitely without trial, or alternatively tried by military commissions.[1] And, if arrest isn’t feasible or convenient then (at least outside the US), they can be hunted down and assassinated, with or without warning.

On the face of it, that makes the US a scary place to live. But, as a matter of everyday reality, most Americans aren’t scared at all.[2] Should they be? 

There is a problem of cognitive dissonance here. The powers claimed by the Bush and Obama Administrations have only been used against US citizens on a handful of occasions and always against people who were, at least, supporters of Islamist terror groups. As far as everyday experience is concerned, the ratification of those powers by Congress makes no difference.

 

Is this situation stable, or is the US on a slippery slope? If the law remains unchanged, expansion of its scope is virtually inevitable. The Republicans have long demanded the end of ordinary criminal trials for those accused of involvement in Islamist terrorism and, sooner or later, they will be in a position to enforce that demand. As with Guantanamo Bay, that’s a step that will prove virtually impossible to reverse.

 

As Glenn Greenwald has pointed out, the system as applied so far has a multi-tiered approach to a guaranteed outcome. If the evidence against a suspect is adequate and legally admissible suspects, can be tried and convicted in civilian courts. If it’s dubious but enough to pass muster in a military tribunal they can be tried and convicted there. If there’s no admissible evidence at all, they can can be held without trial. Whichever route is chosen, suspects, once arrested, need never be released.

 

 

The next steps would probably involve:

 

* removing (or reading down to insignificance) the requirement for a link to the 2001 attacks, and using the detention power for broader groups that might be classed as terrorist. It’s easy to imagine the right using this against leftwing protest groups. On the other hand, once the new laws are fully accepted, it’s worth observing that there are quite a few actual terrorists on the political right, and plenty more people who might be accused of giving them material . A particularly alarming possibility, since it would massively expand the potential target group is the application of the law to alleged ‘narcoterrorists’, some of whom are supposedly linked to Hezbollar.

 

* abandoning any pretense of adhering to rules of evidence, and allowing convictions based on hearsay, entrapment and so on. Existing practice has already gone a fair way in this direction

 

After that, the road is open to the unfettered use of these powers. Even if the numbers actually detained were relatively modest (in the thousands, say) the threat would be available in all sorts of contexts, going well beyond law enforcement. 

 

The process would presumably move more slowly if the Dems retained power. On the other hand, the longer the laws remain on the books with bipartisan support, the harder it will be to challenge their inevitable use.

 

Is there any prospect of a reversal of this trend? Based on past experience, this won’t happen simply because of principled objections, so any reaction will only come when these powers are actually abused. And given the abuses to which the US public (and even more the US elite) are already inured, it would take something quite extreme – either mass detention of people who are clearly innocent or the use of the law against members of the elite, leading the rest to take alarm.

 

Perhaps I’m being overdramatic here. There have, after all, only been a handful of cases where these powers have been asserted, and I don’t detect a lot of enthusiasm for a police state among ordinary Americans. So, anyone who would like to cheer up my festivities is welcome to show me I’m wrong about this.

 

 

fn1. I’m aware that the part of the legislation making detention mandatory includes anexemption for US citizens, and that the part relating to Al Qaeda linked terrorism purports merely to endorse the status quo, which is left undefined. But the fact that Congress rejected amendments that would have explicitly excluded US citizens, and that the Bush Administration succeeded in holding US citizens in military custody for years make it quite unlikely that the courts would intervene to free alleged terrorists from military detention claimed as necessary by the President.

fn2. As a  now-departed visiting non-citizen  the change of rules makes no difference to me – the US has long claimed an absolute right to seize or kill anyone, other than a US citizen, anywhere in the world, and US courts have repeatedly denied redress to those claiming wrongful detention and torture following seizure in the US or elsewhere.  That didn’t stop me coming to the US, nor has the loss of any marginal protection I might gain from being in the US deterred me from going home. And, while in the US, I haven’t worried about what I said or who I talked to, despite the absence of any legal protections. So, I have just the same cognitive dissonance as everyone else.

 

 

 

 

 

 

 

 

{ 92 comments }

1

Doctor Memory 12.23.11 at 6:18 am

The process would presumably move more slowly if the Dems retained power.

[citation needed]

2

Meredith 12.23.11 at 6:28 am

“On the face of it, that makes the US a scary place to live. But, as a matter of everyday reality, most Americans aren’t scared at all.[2] Should they be?”

Yes, they should be. Period.

3

Bruce Wilder 12.23.11 at 6:30 am

Jamie Dimon scares me. Maybe, he’s a terrorist.

4

John Quiggin 12.23.11 at 6:37 am

@Doctor M: The argument that the Republicans would move faster is spelt out in the post, so you need a refutation rather than a snark.

5

Anonymous4aReason 12.23.11 at 6:37 am

I don’t detect a lot of enthusiasm for a police state among ordinary Americans.

You should get out more.

6

Bruce Baugh 12.23.11 at 7:26 am

I don’t think it much matters what the general American public thinks – we have a very, very solidly entrenched hegemony, capable of dismissing large majorities and keeping them largely or entirely out of visible mass discourse.

It’s possible that the left can yet rally and undertake the kind of long-term growth from below that the Religious Right did, but that would be the work of decades. In the meantime, the significant question is what it might take to turn the hegemony against this kind of thing. Using it against the Very Serious People would be required, but may well not be sufficient in itself.

7

Martin Bento 12.23.11 at 7:33 am

Well, the Patriot Act has already been used far more for drug crimes than for terrorism. Although slippery slope arguments are not strictly logical, they are frequently realistic, because actions are judged relative to the status quo. Therefore, every change of status quo changes the standard by which future actions are judged. Each step shortens the remaining journey.

8

Bruce Baugh 12.23.11 at 7:42 am

I really wish it weren’t so useful to think about American policy through the lens of “What would a gang of sadists and sociopaths do here?” I don’t actually think that our policy is altogether made and executed by sadists and sociopaths. But some of it is, and there are enough of them in key positions to warp the whole culture around them.

9

Henri Vieuxtemps 12.23.11 at 8:55 am

This got nothing to do with sadism, just the normal process of accumulation and concentration of power. I think, yeah, the most likely possibility for reversal (assuming the state doesn’t fall apart) would be a series of incidents where it’s used against members of the elite, or their family or close minions. But they seem to have been getting along fine so far, so it doesn’t look like that is going to happen any time soon. Although in Russia, where this kind of stuff does happen, there is no sign of letting up.

10

April 12.23.11 at 9:05 am

Just wondering from afar how terrorism and treason differ in their legal concepts in the US? I understand that punishment for treason is limited constitutionally and whether this would be any grounds for redress for citizens or to repeal the bill ?

11

Hidari 12.23.11 at 9:16 am

American readers of this site may benefit from reading this information sheet.

12

maidhc 12.23.11 at 9:51 am

There is nothing to be afraid of, this law only applies to terrorists.

Documenting animal abuse is an act of terrorism.

According to a Bush administration official, anyone who is a member of a teachers’ union is a terrorist.

13

J. Otto Pohl 12.23.11 at 10:06 am

In order for state terror to effectively terrorize it has to convince a substantial portion of the population that they are in danger. This does not necessarily require large numbers. The Argentinian junta’ Dirty War only involved killing about 10,000 people, but effectively terrorized an important segment of the population. The number of US citizens that would need to “disappear” at the hands of the state before the average American worried would I suspect have to be in the millions, somewhere along the scale of Stalin’s Great Terror of 1937-38.

14

roger 12.23.11 at 10:10 am

I think that Americans should be disturbed about this bill in the context of a host of other events – for instance, it seems that the Federal Government, in the form of the FBI and Homeland security, helped coordinate shutting down OWS encampments. Admittedly, this was a quieter process than when Hoover called out the army to clear out the Hooverville in D.C. in 1931. This time, the Hoover is a Democrat, Obama, whose justice department still can’t seem to find a single thing to prosecute vis-a-vis the fraudulent paperwork presented by banks to foreclose on homes (a systemic problem that any rooky reporter could find), but is able to quietly roust protestors who are homeless or young from disturbing the peace of … bankers and corporation heads.
http://www.guardian.co.uk/commentisfree/cifamerica/2011/nov/25/shocking-truth-about-crackdown-occupy

However, I am an optimist and think OWS will be back this spring, and that the crackdown will have to be more open and violent. And that Obama’s administration will pay for it – as it alienates the youth vote it will be trying to “hoover” up.

15

Jeffrey Kramer 12.23.11 at 11:24 am

I wonder if it would have any impact for civil libertarians to try a kind of Ray Bradbury strategy (“I don’t try to predict the future, I try to prevent it”) on this.

“Let me tell you what will happen in the near future under this law: people will go to jail based in part on what they read; people will go to jail based in part on legal contributions to legal organizations; people will go to jail based in part on emails saying somebody should DIAF; nobody, absolutely nobody, will go to jail, or will even face a grand jury, for multi-million dollar transactions with people and institutions with much, much closer ties to actual terrorist organizations. I hope that I am proved wrong.”

The primary goal would be to get the “security” people on record that this is all paranoid fantasy, that everybody knows that we don’t do things this way in America! It might then be at least marginally more difficult to jail people this way after such denials, or alternatively it might be at least marginally more difficult to keep up the facade that these things can’t happen in America if the “anti-American alarmists” were actually vindicated in such detail.

16

Uncle Kvetch 12.23.11 at 11:52 am

Although in Russia, where this kind of stuff does happen, there is no sign of letting up.

It’s an imperfect comparison in many ways, but as time goes on I think Putin’s Russia offers the most plausible model of where the US is headed. And many of my fellow citizens will be very happy to see that happen.

17

mental pickpocket 12.23.11 at 12:23 pm

And, if arrest isn’t feasible or convenient then (at least outside the US), they can be hunted down and assassinated, with or without warning.

Assassinating somebody without duly notifying him/her of his/her impending assassination first is unjustifiable.

18

Jeffrey Kramer 12.23.11 at 12:29 pm

One factor making it difficult to get through to people on the evils of the security state is the myth that the World Trade Center attack was not only an awful crime committed by religious extremists with a repellent political agenda; it was a crime born of pure, metaphysical, absolute evil, perpetrated against a people whose only crime was standing up for freedom and equality. If that’s your view of things, then anybody who comes within six degrees of separation from bin Laden is a legitimate member of the jailable and torturable class, and any protests on his/her behalf are invitations to The Terrorists to strike again. And — unfortunately — nobody in public office seems willing to challenge that myth, except — unfortunately — Ron Paul.

19

Steve LaBonne 12.23.11 at 1:56 pm

It’s an imperfect comparison in many ways, but as time goes on I think Putin’s Russia offers the most plausible model of where the US is headed. And many of my fellow citizens will be very happy to see that happen.

Yes and yes. I’m getting to old to care much myself but I don’t like to contemplate the world my daughter (now 19) is going to be living in.

20

Steve LaBonne 12.23.11 at 1:58 pm

The primary goal would be to get the “security” people on record that this is all paranoid fantasy, that everybody knows that we don’t do things this way in America!

I always appreciate a bit of humor in the morning.

21

Antonio Conselheiro 12.23.11 at 2:19 pm

I have been told by a civil liberties lawyer that on paper at least these new provisions only apply to individuals thought to be connected either to the Taliban or al Qaeda, and that as written it’s not a catchall for everyone accused of some kind of terrorist affiliation. He agreed with my that this isn’t a reliable bulwark against abuse.

Even if there isn’t immediate abuse of these measures, it’s the kind of precedent that an authoritarian would like to have on the shelf. The powers of the authorities to deal with domestic unrest have increased every decade since 1940 or so, and there are a lot of these powers that haven’t been used much yet, or at all.

22

Barry 12.23.11 at 2:21 pm

John Q: “…and I don’t detect a lot of enthusiasm for a police state among ordinary Americans. “

I’m being redundant, but have you even a casual idea of the ideas espoused by GOP candidates? Ideas which our MSM don’t seem to consider beyond the pale?

23

Barry 12.23.11 at 2:24 pm

J Otto Pohl: “The number of US citizens that would need to “disappear” at the hands of the state before the average American worried would I suspect have to be in the millions, somewhere along the scale of Stalin’s Great Terror of 1937-38.”

It depends on whom, under what circumstances, and how the information gets out/is propagated.

24

Davis X. Machina 12.23.11 at 2:46 pm

US citizens have no legal rights that can’t be over-ridden by miltary or presidential fiat.

This was the case the morning after Washington’s inauguration. It’s what states do, or can do, implicitly. It’s what states are for. Self-restraint, and at the upper bound, violent revolution, are the only checks on the exercise of that power.

Does it really matter if it happens, but it gets to be called ‘illegal’ too?

25

Frowner 12.23.11 at 2:55 pm

Here’s what I expect: this legislation probably won’t be very widely used against visible people with any kind of social legitimacy. It will instead be used to break up social formations that are already perceived as dangerous and illegitimate by mainstream Americans. It will be used somehow against large-scale drug dealers , catching up a certain percentage of homeless people, small-scale drug dealers and various hangers-on who are essentially innocent. Most of these people will be people of color. It will be used intermittently against Muslims, usually for intimidation purposes in oddball cases – a Muslim is donating money to a charity in the Middle East that maybe looks a little dodgy but probably is just fine. This will be for propaganda purposes, for scaring-the-Muslims purposes and because Islamophobia is fun. It will be used strategically to disappear occasional animal rights activists or protest organizers – just enough to panic activists and to make us spend most of our time trying to find our people but not enough to make mainstream folks sympathetic. (That’s how arrests of radicals and absurd “terrorism” charges are used right now; disappearing people would just be worse.)

I feel like the whole point of this legislation is the ability to use it strategically rather than to use it on a mass scale.

I’d expect that once this is in place it will be easier to expand it than get rid of it, and that some egregious case will be used to justify the expansion – either an act of actual-blowing-things-up terrorism, one of those campus shootings (preventive detention!) or some kind of animal rights thing that goes wrong and hurts someone.

It’s a huge pain in the ass to run large detention camps; much better to scare people and keep them disempowered and ignorant so that the whole society is sort of a soft camp.

26

Henri Vieuxtemps 12.23.11 at 3:49 pm

I’m curious if this law really does allow to ‘disappear’ people, and reading a recent Greenwald piece it appears that indeed it does:

Sen. Lindsey Graham, made clear what the provision’s intent is: “If you’re an American citizen and you betray your country, you’re not going to be given a lawyer…

If you’re not getting a lawyer, it sounds like that means that you’re kept incommunicado, ‘disappeared’.

In which case we’ll probably only find out how it’s been used in about 50 years or so. Well, not ‘we’, we’ll be dead by then.

27

Watson Ladd 12.23.11 at 3:54 pm

Some background: The Constitution permits suspension of habeus corpus in time of war. In the Quinn and related cases this was applied to US citizens captured in WWII, and German soldiers captured domestically. So this bill isn’t covering new ground: there is an AUMF which courts have held authorizes taking prisoners of war. (And you really want to make it easy to take prisoners)

The problem is that while its easy to tell who the members of the German army are, its harder to tell who is a member of al-Qaeda. But if we then say that law enforcement is the way we take care of al-Qaeda, we run into the little problem that al-Qaeda is in places that don’t like us and won’t extradite or charge al-Qaeda members.

So given this legal history its unlikely that courts will impose limitations on the ability of the US to deal with al-Qaeda members by military means. What’s needed is Congress to work out better rules for pursuing al-Qaeda that make military action a last resort and prefer civilian courts to court-martials.

28

Andrew F. 12.23.11 at 3:57 pm

Now that Obama has signalled that he will sign the National Defense Authorization Act, US citizens have no legal rights that can’t be over-ridden by miltary or presidential fiat. Anyone accused of being a terrorist linked to Al Qaeda can be arrested, shipped overseas and held indefinitely without trial, or alternatively tried by military commissions.[1] And, if arrest isn’t feasible or convenient then (at least outside the US), they can be hunted down and assassinated, with or without warning.

First, no ordinary act of Congress can provide an organ of government with the power to override by fiat every legal right of a US citizen, and particularly not those recognized by the US Constitution. That would require a constitutional amendment.

Second, while detention “under the laws of war” until the close of hostilities is codified, this is long-standing practice in a conventional conflict. The open question – how this practice applies under the laws of wars, and the Constitution, to a conflict that may be without formal end – is not resolved by this law.

Third, the numerous rights granted to citizens in particular and persons generally by US statute and by the US Constitution remain in force. Freedom of speech, to reference one worry you stated in fn 2, is as protected as it was before. The ability to challenge the legality of a detention remains in place, as protected as it was before.

There are of course problems with this law, but most of the objections in the post go too far.

29

Uncle Kvetch 12.23.11 at 4:08 pm

Shorter Andrew F.: It could never happen here.

30

Rich Puchalsky 12.23.11 at 4:17 pm

“the numerous rights granted to citizens in particular and persons generally by US statute and by the US Constitution remain in force. “

No they don’t. It’s meaningless to say that the government can have a declaration of endless war against a stateless criminal group — whose criterion for membership is “we think that someone is in this group” — and have that not apply to anyone, later. There is no such thing as a special Constitutional provision exempting Islamofascists from its protections and no one else.

What does it mean in practice? It’s impossible to tell right now, obviously, because it’s impossible to predict the future. But the idea of the Constitution as a protection against tyranny is dead. The idea of America as a special state is dead. There may be more or less tortures and disappearances than in Russia, based on whatever factors obtain, but there is nothing intrinsic to the system that would prevent them.

31

J. Otto Pohl 12.23.11 at 4:22 pm

Rich:

You are too pessimistic. In all probability, fifty years from now the law will be declared unconstitutional and there will be an official apology, $25 compensation each for all the survivors, and and a public commitment to never again allow such crimes to occur in the US. I will be very old, but I may still be alive.

32

JJ 12.23.11 at 5:01 pm

“It’s a huge pain in the ass to run large detention camps”

Not really. If you can afford to move to a better neighborhood, then the people who live in the neighborhood you leave behind are that much more likely to become the victims and/or perpetrators of criminal activity, given that criminal activity is more likely to occur among a population of people with less access to social resources.

It doesn’t matter if the neighborhood is forcibly concentrated or economically concentrated. It’s still a concentration camp.

33

Anon. for obvious reasons 12.23.11 at 5:11 pm

I was once taken into custody by Border Patrol agents, and chained to a bench in their office. They were heavily armed, were all of Hispanic origin, and spoke only Spanish to one another. I was driving a truck/trailer rig with a loader/backhoe tractor worth $100k. It was in a very remote area, no lights visible for many miles.

I was in fear for my life, as there was nothing keeping them from burying me in a west Texas gully and taking my construction rig. Eventually a (Hispanic) deputy sherrif appeared, in the wee hours, and wrote a misdemeanor citation to my companion, and we were relased. I’m staying out of Texas and away from the border as much as possible, in spite of the fact that my only brother has a ranch there.

34

Marshall 12.23.11 at 5:36 pm

Given the lack of response to massive robosigning fraud, which included forged documents, I don’t know why people think it will be necessary to terrorize the populace. The Upper Ten Thousand already just do what they want. Given the efficiency of technical surveillance, how could any opposition get organized enough to require being terrorized?

And down below JQ was suggesting the possibility that “we” could run Keyensian counter-cyclical surpluses. Leave money on the table! Silly rabbit.

35

John m. 12.23.11 at 6:01 pm

As other CT contributors found out previously on occasion, mention feminism or abortion or Israel or Iraq or banks or etc…and the Internet explodes in instant rage and fury. The perfect post combining these and more could probably cause the Internet to self destruct.

Mention the US legislating to deny its citizens their most basic rights? A mere whimper. And not just here at CT. Is it just me that finds that surprising? And I’m a deeply cynical person.

36

J. Otto Pohl 12.23.11 at 6:12 pm

John m.

The whole point is that almost no US citizens think that their rights as individuals will be impinged It is only the rights of a few other people not like them that will be trampled. In point of fact this is largely correct. Even in the most totalitarian of societies it is only a minority that actually suffer from direct state repression. Certainly in most such societies far more people actually materially benefit from the state than are persecuted by it. I am thinking here of the USSR and Eastern Europe. Cambodia under the Khmer Rouge was an extreme example where those killed probably outnumbered those who got material benefits. But, most totalitarian dictators including Stalin and Kim Il Sung had more supporters than opponents. I have a recent blog post up on this very subject, just click on my name.

37

cian 12.23.11 at 7:22 pm

Givent that they waited until Al-Quaeda was a defunct organisation, and its leaders are dead, or in captivity – what are the chances that this will ever be revoked?

If the UK is any guide, then these laws will mostly be used on protestors and “criminals”. I know quite a few people who have been detained under UK anti-terror legislation; none of them were engaged in anything that could be remotely described as terrorism. Give the police an inch, they will take a mile.

Such laws are a particularly effective way of pressuring people to admit to crimes they didn’t do – not as if the US needed more such methods.

38

Salient 12.23.11 at 8:19 pm

First, no ordinary act of Congress can provide an organ of government with the power to override by fiat every legal right of a US citizen, and particularly not those recognized by the US Constitution.

Yeah, them Japanese-Americans weren’t really entitled to not be hauled en masse into internment camps and sequestered there until the war on the Pacific front was safely won. And prior to the 14th Amendment black people weren’t really people. It’s so silly to think otherwise!

Freedom of speech, to reference one worry you stated in fn 2, is as protected as it was before.

When corporations expend millions of dollars on soft-money campaign contributions, they’re just exercising their freedom of speech. When I send money overseas to charities and organizations the CIA happens to not like, I’m a fucking terrorist threat. Awesome.

39

John Quiggin 12.23.11 at 8:39 pm

As some of you have probably guessed by now, Andrew F is an automated CT sock puppet, designed by Kieran to put up the weakest possible straw man arguments, so that our real commenters can enjoy knocking them down.

Seriously, people, please don’t feed the trolls.

40

Tom 12.23.11 at 8:40 pm

“The powers claimed by the Bush and Obama Administrations have only been used against US citizens on a handful of occasions and always against people who were, at least, supporters of Islamist terror groups. As far as everyday experience is concerned, the ratification of those powers by Congress makes no difference.”

Not always: see Brandon Mayfield’s case.

41

Watson Ladd 12.23.11 at 8:48 pm

Salient, as a matter of fact they were not. When it comes to a question of what the law is, asking what it should be is confusing the issue. The Holy Land Foundation channeled $12 million to Hamas: do you think we should have laws against giving donations to it? The problem isn’t the acts that these laws prohibit: the issue is that military is having an increasing role in acting against terrorist groups, and this is undercutting traditional ideas of due process. At the same time civilian authorities cannot go jump into Pakistan to arrest terrorist leaders.

42

Bruce Wilder 12.23.11 at 9:14 pm

Andrew F: “The ability to challenge the legality of a detention remains in place, as protected as it was before.”

What Waston Ladd and Andrew F wrote would be plausible *if* the quoted Andrew F proposition was true. But, it isn’t, is it?

The law authorizes the Executive to turn this determination into an expedited administrative decision, in which the detainee — or the target of assassination (and anyone unfortunate enough to be in the vicinity) — is afforded no voice or power or even value.

This is the nature of authoritarianism as an architecture for political institutions, that is, the elimination of conflict by expedience, as opposed to the resolution of conflict by negotiation or adjudication or some other cooperative process, even the contest of arms.

I don’t particularly fear the expansion of application of this particular provision, as I fear that the architectural principles of authoritarian expedience and domination are coming to characterize the entire American legal system and all administrative agencies, in every detail. The “rocket docket” in Florida foreclosures, in which defendants are scarcely heard, while the assertions of banks are never questioned would be an example. Amid the highly visible fight over extending unemployment compensation, the erosion of rights to unemployment compensation against employer objections is scarcely noticed. The 99% are far more likely to find themselves sinking under debt peonage, as they find themselves with no rights vis-a-vis usurious credit card practices or student loan claims, than they are to be disappeared in a terror war, but it is an advance of the same authoritarian agenda and processes.

43

cian 12.23.11 at 9:18 pm

The Holy Land Foundation channeled $12 million to Hamas: do you think we should have laws against giving donations to it?

Given the quality of the “evidence” in that case, I think that it should be “alleged”. Yes I realise they were found guilty, just as Troy Davis was found guilty. But when much of the evidence is faked, and much of the rest relies upon secret Israeli “intelligence” – I’m going to side with the defence.

So while this new law is bad, given the status of the modern US legal system, I’m not sure that even due process provides as much protection as it should. Plenty of “not guilty” people have been locked up entirely legally.

44

cian 12.23.11 at 9:23 pm

But if we then say that law enforcement is the way we take care of al-Qaeda, we run into the little problem that al-Qaeda is in places that don’t like us and won’t extradite or charge al-Qaeda members.

Hey newsflash Watson. Al-Quaeda barely exists. The leader was killed, the organisation was largely rolled back a while ago, and had been largely ineffectual for a long time. The US is bombing and killing people with no formal connection to it, and only the loosest of ideological ties. People who incidentally have zero interest in the US? Somalia? Yemen? Even Afghanistan. This is a completely fake war. It always largely was a fake war. Not helped by the fact that its been infantilised by a compliant media.

45

Salient 12.23.11 at 9:24 pm

The Holy Land Foundation channeled $12 million to Hamas: do you think we should have laws against giving donations to it?

The U.S. government has given $31 million to Bahrain’s kill-its-own-citizens^1,2^ fund in the past three years, in the guise of ‘military aid’ to a country whose only wars are civil against . Should we have laws against paying taxes to fund that?^3^

^1^formerly the “indefinitely-detain-and-torture-its-own-citizens’ fund; mass extermination didn’t get grease-geared ’til mid-2010.

^2^some of this was even documented in and acknowledged by Bahrain’s own inquiry, if only in the “allowing events to unfold as they did” passive formulation of the independent commission report

^3^Watson, I don’t know for sure if you’ve been binned into DNFTT territory or not, but you’re reeeeally not doing yourself any favors with the ambiguously patronizing first sentence shtick (and if the ‘they’ in your “as a matter of fact they were not” is in reference to the were-they-human-people-or-not status of black persons or Japanese-Americans, I’ll kindly never talk to you again and adopt “Laddish” as an adjective for skewed attempts to logically justify something reprehensible with a particular twist of condescension, as if we should all already know something so simple and obvious — at least Andrew pretty studiously avoids that).

46

christian_h 12.23.11 at 9:24 pm

There’s no proof that the Holy Land Foundation channeled any money at all to Hamas, Watson. Unless you count the word of anonymous Israeli intelligence agents as “proof” as was done in this case. (Right to confront your accuser? Not in the US of A.) The constitution is fast becoming a worthless piece of paper – a brilliant piece of writing that once meant something.

Frowner in 25. makes very good points about how this kind of power is likely to be used in the future.

47

Bruce Wilder 12.23.11 at 9:46 pm

Watson Ladd: “At the same time civilian authorities cannot go jump into Pakistan to arrest terrorist leaders.”

There are certainly legal procedures for extraditing criminals, which are well-established between nation-states.

I am not disputing the confused state of relations with Pakistan. My point would be that the resort to expedience is not driven by necessity, as you would have it, but by confusion, created by the resort to expedience. We ought to be figuring out whose side Pakistan is on; instead we have spent billions subsidizing the other side, in the civil war in Afganistan, making that conflict the longest in American history, despite a massive preponderance of military power.

It may be that civilian authority is blocked, but that doesn’t make the willy nilly application of extremely expensive military power effective or even sensible. Expedience is often an argument for stupid.

48

Watson Ladd 12.23.11 at 9:55 pm

Salient, I’m a legal realist: questions about the legality of actions are to me questions about how a court has ruled. As a matter of fact the Supreme Court ruled in 1943 that Japanese internment was legal. Whether this was the right decision or not is different from what the law actually was held to be. (But this is really a side battle: we all agree that the law should have been held to prevent internment of citizens on the basis of race, and whether the judges messed up in recognizing an independent reality or constructed a reality that ought not to have existed is a philosophical one)

The disagreement is that some think this law is granting the president a new power, whereas it seem to me that at least most of this power is contained within the AUMF. Regardless of whether it should be contained within the AUMF or is the correct policy, the courts have been ruling as though the president already has this power, so the AUMF authorizes the president to carry out detention regardless of what we think about the matter.

At the same time some form of military force was required to oppose al-Qaeda: the whole civilian law enforcement thing was not working despite a decade of al-Qaeda being high up on the most wanted list, and the Taliban were not going to hand Osama over.

The military can take prisoners of war, and we want them to be able to do that. The military also can try people for war crimes, and we want them to do that. But it became very tempting to use military commissions for terrorism cases because the military is not a good fit to the police: they have very different roles. And while we can all see the distinction between the LAPD rolling up to someone and arresting them with a bomb in the back seat and someone shooting at soldiers in Afghanistan getting captured, its not clear why the first case is different from a German saboteur entering the US during WWII once we’ve decided the second is a military matter.

49

Natilo Paennim 12.23.11 at 9:59 pm

13: The number of US citizens that would need to “disappear” at the hands of the state before the average American worried would I suspect have to be in the millions,

I think I know what you mean here, J. Otto, as amplified by your 36. However, I still think you’re wrong. Consider the McCarthy era — just a handful of people were imprisoned, a few more had their careers ruined, and yet a very large section of US society was completely marginalized and silenced. If you were a middle-class person with a respectable job in 1951, and you’d been to a few communist meetings in the 1930s, wouldn’t you have been “worried”? Obviously, yes, the average reactionary yahoo is not going to be “worried” about any of this stuff, but there are a lot of people in this country who aren’t reactionary yahoos.

50

Bruce Wilder 12.23.11 at 10:02 pm

Frowner @ 25: “I feel like the whole point of this legislation is the ability to use it strategically rather than to use it on a mass scale.”

I tend to see the timely reform of bankruptcy law and the selection of Ben Bernanke as Fed Chief as instances of suspiciously far-sighted judgment by the powers-that-be. I thought that the Whitewater scandal and Starr’s turn as an independent prosecutor were master plans in getting the Independent Prosecutor statute repealed in time for George W. Bush’s Presidency. And, I see the gramm-leach-bliley financial reform as aimed squarely at creating redistribution of income and wealth upward, and TARP as step 2 in that plan.

Pointing out that the advocates and promoters of plutocracy and authoritarianism are just that, tends to get one called a conspiracy theorist. The continuing advance of a political agenda, by a highly organized political movement, according many on the so-called left, must be talked about only as a series of inadvertant mistakes and misunderstandings. Think of Krugman tirelessly arguing from his perch at the establishment Times, that he’s smart and everyone in power is stupid, instead of admitting that those in power are trying to impoverish great masses of people and seize public property.

51

Natilo Paennim 12.23.11 at 10:04 pm

47: the Taliban were not going to hand Osama over

In addition to being a legal realist, are you also a former member of the Taliban high command? Seriously, the whole UBL/Taliban thing smacks of Great Game-style manipulation. It’s one thing to argue about legal precedent in terms of current or future court cases — extending your argument into the realm of espionage and diplomacy weakens it to the point of irrelevancy.

52

Dan Miller 12.23.11 at 10:06 pm

Question: is the new law any worse than the various Red Scares and other civil liberties violations that the U.S. has engaged in over the years? My instincts are to side with J. Otto Pohl @#31–there will be terrible abuses and no real redress, but I don’t think it necessarily represents some kind of slippery slope (although I’m open to arguments).

53

Watson Ladd 12.23.11 at 10:21 pm

Natilo, the US had been asking for Osama for years before 9/11, and the Taliban were not extraditing him. This is pretty well covered in the wikipedia article on the war in Afghanistan. Ergo, war was required.

54

Tom 12.23.11 at 10:41 pm

@WL 47

“The disagreement is that some think this law is granting the president a new power, whereas it seem to me that at least most of this power is contained within the AUMF.”

Gleen Greenwald’s last post on the subject (on Dec. 16) has an excellent take on this. To sum it up briefly without doing it justice: one thing is to say that the AUMF has been so far interpreted (possibly wrongly) to attribute these powers to the president, another thing is to codify these powers in a law.

55

Tom Bach 12.23.11 at 10:59 pm

Bruce Wilder is on to something. Not, of course, to endorse a conspiracy among a set of the elites to destroy democracy. It is, no doubt about, a simple coincidence that Walker and his fellow Koch-funded fun boys all rely on the Koch-funded ALEC to write their legislation. Nothing conspiratorial about. Nope, indeed not. And those networks explored and explicated in Neoliberal Hegemony and The Road From Mount Pelerin weren’t and aren’t an attempt to create the neoliberal paradise in which we currently live. Nope, indeed not. Just a series of unfortunate events.

56

Tom Bach 12.23.11 at 11:00 pm

about it, I meant to say.

57

Henri Vieuxtemps 12.23.11 at 11:11 pm

The number of US citizens that would need to “disappear” at the hands of the state before the average American worried would I suspect have to be in the millions

I don’t think it matters how many disappear. In fact, it’s enough to hear a rumor that someone somewhere has disappeared. Because this is an institutional development.

Before, you didn’t care that your nosy neighbor might inform the authorities that she saw towelheads entering your house; now you do. Before (well, that’s in the past already) you could laugh into the cop’s face and say ‘fuck off, I know my rights’, and now you can’t. Gotta be careful. Different institution, different culture.

58

Dan Miller 12.23.11 at 11:16 pm

@Henri–”you could laugh into the cop’s face and say ‘fuck off, I know my rights’, and now you can’t.”

This is true iff you happen to be white, IMO.

59

christian_h 12.23.11 at 11:17 pm

Watson, 53.: Ergo, war was required.

That’s a prime example of a non sequitur.

60

BillCinSD 12.23.11 at 11:26 pm

Watson @53, the Taliban are said to have been willing to extradite Osama, but to Pakistan and after they had been shown some proof of involvement.

http://www.j-n-v.org/AW_briefings/ARROW_briefing005.htm

61

Watson Ladd 12.24.11 at 12:29 am

Tom: that’s a good point: this bill does make what was at first a grey area into official policy. But this bill doesn’t change the legal realities, which seems to be what most people are talking about. What it does is show that Congress is being spineless, which isn’t much of a surprise. Instead of doing the hard work of crafting a regime we can live with for detention of terrorist suspects, or making clear that military involvement is only outside the US when extradition will not work, they are dodging the issue, leaving it to courts which are unable to deal with the problem effectively.

62

Sebastian H 12.24.11 at 1:48 am

“But this bill doesn’t change the legal realities, which seems to be what most people are talking about. “

I don’t really buy this kind of argument. Institutions will always have people willing to go a step or two beyond what is technically legal in ‘an emergency’. If you make those steps technically legal, you are opening up the window for people to go even further. This is especially true if you expand the definition of ‘emergency’.

63

Bruce Baugh 12.24.11 at 2:13 am

Dan Miller@58 makes a good point. I’ve made this comment before, but will recycle…

I grew up white and in a professional-class family in Southern California in the ’70s, and it seemed to me then that the big story of justice was expanding the circle of just, fair treatment to people who’d been pushed out of it in the past. I knew that I had classmates who weren’t getting anything like the quality of basic consideration from authorities that I could expect, and that their parents’ complaints would get much less attention, but I could also see a lot of different kinds of folks working to fix that.

It wasn’t all going the right way – I was 12 when Proposition 13 passed, and I got to see the harm it did to my schooling, and the worse harm it did to my younger brother’s school years. But still, there were a lot of people wh knew that wasn’t what they wanted and sought out a lot of different ways to respond so as to fix the harm and make the good better.

Unfortunately, in retrospect, that was about as good as it was going to get for America in some important ways. There are parts of the American picture that do continue to improve. But those at the top are doing a great job pulling the circle tighter and tighter. Those of us who looked forward to the day when women and people of color could expect as good a life as men and white people had instead find ourselves the new arrivals in a neighborhood that never stopped being home for a lot of kinds of neighbors and fellow citizens. We all get to live the way the excluded always have.

64

CharleyCarp 12.24.11 at 2:53 am

With a good judiciary this law means nothing.* With a bad judiciary, it also means nothing, because a bad judiciary is no check on executive power. It’s entirely rational for an American in 2011 to despair over the small prospect of having a good Congress (both houses) or a good Executive anytime in the next decade. A better judiciary is entirely possible, however, and worth working for.

* If you want to hand wave Hamdi away as wrongly decided, then you have to entertain the possibility of a different judiciary overturning it.

65

Rich Puchalsky 12.24.11 at 3:06 am

“A better judiciary is entirely possible, however, and worth working for.”

No and no. The judiciary is a lot more corrupt than Congress has been. I see no signs of a legal theory either in the GOP or Democratic camps that would reverse any of this. Obama taught constitutional law, and the alternative appointer of judges is Bush/Gingrich or whoever, so the amount of working for this (how?) that seems appropriate to me is zero.

66

LFC 12.24.11 at 3:13 am

I share some of the concerns expressed here and oppose the legislation.

That said, there a couple of points that may make the situation look not quite so bleak as some suggest. I am not involved in the legal struggles connected to detainees nor am I an expert on this, so I stand open to correction by people who know more about this than I do. With that preface:

- The Sup Ct made clear in the ’08 Boumediene decision that every detainee charged w terrorist-linked or ‘unlawful combatant’ offenses has the right to file a habeas corpus challenge to his/her detention in federal court. For various reasons, including a US Ct of Appeals for the DC Circuit that went out of its way to crimp the decision, the Boumediene case had less practical impact w/r/t Guantanamo detainees than it might have. It’s still important however as showing that habeas corpus remains intact as far as the Sup Ct is concerned. If the recent legislation runs counter to this, one can expect it to be struck down in a federal ct challenge, which doubtless will be forthcoming.
- A US citizen who was held without trial for a substantial period of time, Jose Padilla, was eventually transferred from the military system and given a civilian trial (or maybe the case was plea bargained, I forget), as a result of pressure from rights advocates and (probably) media attention to the case. (There may well have been other US citizens held without trial for a long period, but Padilla is the only one who comes immediately to mind.)

OTOH, my impression is that some of the sentences for those who have been tried and found guilty in civilian courts of ‘terrorist-linked’ activity are draconian. IIRC, WaPo had a piece a couple of weeks ago (I can’t track it down right now) that opened by describing someone serving a long sentence in the highest-security federal prison for having helped someone else financially and logistically attend a training camp in Afghanistan or Pakistan. If I’m remembering this correctly, the sentence and conditions of incarceration seem too harsh given the nature of the crime. These sorts of disproportions are the kinds of things that worry me, more than the prospect of people being ‘disappeared,’ knocks on the door in the middle of the night followed by carting off to a detention facility, etc. I don’t think this is completely ‘cognitive dissonance’ in the sense that the basic structure of constitutional protections, although weakened and eroded by the Bush and (to a lesser extent) Obama admins, has not completely disappeared. If were a Muslim and/or had a Middle Eastern or South Asian last name, perhaps I would feel more personally threatened by the situation. I’m not sure.

67

Jack Strocchi 12.24.11 at 3:42 am

Pr Q said:

while in the US, I haven’t worried about what I said or who I talked to, despite the absence of any legal protections. So, I have just the same cognitive dissonance as everyone else.

This only goes to show that “legal protections” are not always what they are made out to be. For better and for worse. As Marx quipped “it is the mark of fools to analyse social and political systems on the basis of their formal constitutions”. (no offence)

Pr Q’s invocation of cognitive dissonance is superfluous or worse, fantastic. Whats bothersome is not so much the gap between the US’s high-minded civil libertarian ideals and its grubby national security reality. He is cross with the citizenry (and himself) because they should be experiencing CD, but aren’t. This is worse than double-think, it is no-think. Is he implying that zombies ate the people’s brain?

Not to worry. His post is an instance of what Stove calls the Ishmael Effect, a form of fallacy where intellectuals forecast events or explain behaviour which would be impossible if their underlying theory were true.

Thus Marxists agitate for revolution which their theory tells them is inevitable. Feminists claim that culture is an all-enveloping miasma which conditions all into accepting patriarchal assumptions. Except themselves, of course. And civil libertarians are forever button-holing us, wide-eyed and breathless, with alarming tales of the repressive state apparatus. From whose monstrous clutches they have somehow mysteriously escaped.

I doubt if Bush & Obama’s belated foot-stamping presages the long dark night of fascism or any of the typical Left-liberal paranoid fantasies. Its really the same deal as McCarthy, when the purge came as a belated reaction to previous liberal excess. My recollection is that this did not push the US onto the slippery slope of authoritarian rule. In fact it was the overture to the greatest liberal free-for all of all time.

68

CharleyCarp 12.24.11 at 4:02 am

Puchalsky: The Democratic mainstream is actually good enough, for a judiciary. You don’t have to postulate some sort of golden Eden (like you apparently do to have an Executive not beholden to the military/intelligence apparatus).

LFC: Yeah, I’d certainly rather have Salim Hamdan’s living options than John Walker Lindh’s right now.

This statute doesn’t (and couldn’t) repeal Boumediene, and suggestions that it does are overwrought. The bigger problem, though, is Bihani and Latif. Cert was denied in the former, and not yet filed in the latter.

69

John Quiggin 12.24.11 at 4:40 am

@JackS, nothing more on this thread please, and to others, no responses

@CharleyCarp I think the argument goes the opposite way. If the judiciary were either heroic defenders of civil liberties or craven tools of the executive, this legislation would make no difference. But the extremes don’t exhaust the possibilities, and neither is true. The judiciary is a mixture of constitutionalists, authoritarians, partisans and hacks. This bill will line up the last two groups with the authoritarians.

Until new the judiciary were collectively feeling their way, sometimes going one way and sometimes another. An almost unanimous vote of Congress, supporting mandatory unlimited detention for everyone except citizens, and rejecting an explicit exemption for citizens will have a big impact on the way they choose to jump.

70

LFC 12.24.11 at 5:04 am

CharleyCarp:
This statute doesn’t (and couldn’t) repeal Boumediene, and suggestions that it does are overwrought.

I wasn’t making such a suggestion. What I meant was that if this statute contravenes Boumiedene (or a good case can be made to that effect), one might expect the statute to be struck down. Just speculating, of course.

71

LFC 12.24.11 at 5:07 am

To clarify: A statute can run afoul of a Sup Ct decision without ‘repealing’ it, right? But I take it you don’t think the statute does run afoul.

72

CharleyCarp 12.24.11 at 5:14 am

LFC, I didn’t mean you.

JQ: I think the damage has already been done by the judiciary, in Hamdi and its ugly stepchildren Bihani and Latif. A judiciary that won’t revisit those cases has already created a situation as bad as any interpretation one might want to give this statute. One that will revisit those precedents isn’t going to be impressed with this statute.

That is, I think the ‘codification’ so many people are wound up about is completely meaningless. It’s already the law. If it wasn’t, or it turns out later that it isn’t, then the codification, hedged as it is, doesn’t do anything extra.

I can’t understand at all people who want to read out the judiciary when talking about civil liberties. As if they are self-executing restraints on the executive.

73

CharleyCarp 12.24.11 at 5:15 am

LFC: I don’t.

74

CharleyCarp 12.24.11 at 5:17 am

Until new the judiciary were collectively feeling their way, sometimes going one way and sometimes another.

I don’t think this has been the case. Certainly not in the DC Circuit.

75

anon 12.24.11 at 7:43 am

yes

Not that it matters that much. The standard of ‘evidence’ in American trials is infamously quite weak. Laughable in truth.

In Illinois, for example, in capital cases where the penalty can be death, many of those found ‘guilty’ are eventually released because they didn’t do the crime. Of course they have already served a decade or more in jail.

So, to restate, yes Americans should be worried. It is even easier now to be disappeared by the Gumint. And this is under what goes for a ‘Left Wing’ party in the states.

If this keeps up, we Americans won’t be around to bail the Brits out the next time they need patsies to fight for them. But, perhaps, that is a FEATURE and not a BUG :-}

76

dbk 12.24.11 at 11:15 am

anon@75 re: Illinois capital cases

Governor Quinn signed a repeal of the death penalty in Illinois in early September; doubtless one of the reasons was the revelation of the innocence of persons on death row. cf. http://www.politico.com/news/stories/0311/50966.html

77

Andrew F. 12.24.11 at 12:52 pm

Rich @30: It’s meaningless to say that the government can have a declaration of endless war against a stateless criminal group—whose criterion for membership is “we think that someone is in this group”—and have that not apply to anyone, later. There is no such thing as a special Constitutional provision exempting Islamofascists from its protections and no one else.

The Constitution isn’t suspended by the AUMF, or by any other ordinary act of Congress. If you want to be an Islamofascist or whatever in this country, you can be; you don’t lose constitutional protections by doing so.

Salient @38: Yeah, them Japanese-Americans weren’t really entitled to not be hauled en masse into internment camps and sequestered there until the war on the Pacific front was safely won. And prior to the 14th Amendment black people weren’t really people. It’s so silly to think otherwise!

With respect to the internment of American citizens of Japanese descent during WW2, you highlight the real danger: that the courts simply acquiesce to executive and military decisions without subjecting them to real scrutiny, allowing gross civil liberties violations to occur.

That is without doubt the greatest danger. However the argument in the post here, and elsewhere, is that this law actually grants the government certain powers claimed in the post and comments which the law most certainly does not.

Bruce @42: The law authorizes the Executive to turn this determination into an expedited administrative decision, in which the detainee—or the target of assassination (and anyone unfortunate enough to be in the vicinity)—is afforded no voice or power or even value.

The legality of detention is something that the executive must justify before the courts. Watson Ladd’s assertion that habeas is suspended by an authorization of war is mistaken. And this law doesn’t change that, and frankly could not change that even if it were explicitly worded to do so. It doesn’t give the executive any additional shield from the judiciary. It doesn’t give the executive the power to deny constitutional rights.

78

Tim Wilkinson 12.24.11 at 1:23 pm

CharleyCarp @72: A judiciary that won’t revisit those cases has already created a situation as bad as any interpretation one might want to give this statute. One that will revisit those precedents isn’t going to be impressed with this statute. That is, I think the ‘codification’ so many people are wound up about is completely meaningless. It’s already the law. If it wasn’t, or it turns out later that it isn’t, then the codification, hedged as it is, doesn’t do anything extra.

Maybe, but you might see it from an opinion dynamics pov as consolidation – judges are after all to some extent both consumers and purveyors of rhetoric, and adding more repetition, pseudoreplication, bedding down of ‘established’ practice all helps. Then the ratchet is ready for its next step.

(cf. http://crookedtimber.org/2011/09/08/the-war-on-terror-an-old-psychohistorical-fable/#comment-377106 , related though different: The point is not to have a huge unrestricted authority that opens up new wars, but simply to make plain that our military and intelligence services have clear statutory authority to do what it is they are already doing today. It would be possible to rely on constitutional authority; I have absolutely no question about that. But it is useful and important for Congress to be authorizing what government agencies are doing.)

79

Barry 12.24.11 at 1:29 pm

Andrew: “The Constitution isn’t suspended by the AUMF, or by any other ordinary act of Congress. If you want to be an Islamofascist or whatever in this country, you can be; you don’t lose constitutional protections by doing so.”

Please read the original post before commenting.

80

Jeffrey Davis 12.24.11 at 4:55 pm

Don’t elect me. You all look suspicious.

Fortunately, most politicians are reasonable people.

81

Phil 12.24.11 at 11:33 pm

There have, after all, only been a handful of cases where these powers have been asserted, and I don’t detect a lot of enthusiasm for a police state among ordinary Americans.

This cuts with the grain of Paul Waddington’s critique of “slippery slope” arguments which he associates with “libertarian pessimism” (no link at this hour, but those four words ought to find the paper, not to mention the paper it responds to and the response to it). Against the libertarian* critique, Waddington argues that the powers granted by anti-terrorist legislation – which, he acknowledges, are prima facie terrifying – are in practice: (a) only used sparingly by the government; (b) interpreted liberally by the judiciary; and [iii] resisted by influential political groups and bodies of opinion.

All this is true, as it stands, although people may differ about how much weight to give to any of these three points – and may think that Waddington has a lot of damn gall to invoke point [iii]. (On the other hand, in my dreams**, Waddington and his critics shake hands amicably over point [iii] – “damn right we resist them, and the way we resist them is by putting counter-arguments to points (a) and (b)”. But I never said my dreams were realistic.) Perhaps the crucial point at issue can be found in three slightly different points, which Waddington takes as proven without much argument: that these powers will predictably be used sparingly in the future; will predictably be interpreted liberally in the future; and will predictably continue to be resisted in the future. And that’s the context in which the possibility of Dem/Rep alternation makes a big difference – bigger than just about any conceivable alternation in the UK. (This lot? They’re not so bad. I mean, they’re horrible in all sorts of ways, but on civil liberties I can only think of a few areas where they’re clearly worse than Labour, and even those are mostly mood music.)

*That word… it does not mean what you think it means, probably. Small-state, capital-L Libertarians are a recent import to the UK.
**OK, not dreams dreams.

82

Frank Ashe 12.25.11 at 1:55 am

” I don’t detect a lot of enthusiasm for a police state among ordinary Americans. “

Others have said it, but how else do you account for the huge prison population and the use of the war against (some people who use some) drugs [fn1] to ensure the lower socio-economic groups make up a disproportionate amount of that population?

[fn1] Somebody on CT used this phrase and I forget who. Sorry.

83

Soru 12.25.11 at 1:57 am

@81; well yes. Two countries. One has an unbreachable line of defensive fortifications cobering almost all possible lines of attack. One is not located next to Nazi Germany.

Written laws, like defensive fortifications, are a pretty good way of preventing your enemy fromacheiving their goals without becoming their strict mirror image. However, their utility is notably prone to be overestimated.

Certainly, the environment in which obama felt unable to veto the law is more significant. than the law’s wording.

84

Guano 12.25.11 at 10:46 am

The USA has passed a series of laws that are violations of its own supposed values and principles. I think that Americans should be scared. So should those of us who are citizens of states that tend to follow the lead of the USA, using the justification that we too subscribe to those values and principles.

85

Tim Wilkinson 12.25.11 at 3:00 pm

invade-the-world/invite-the-world

I can’t help wondering if it might be fruitful to decompose this category in some way.

86

chris 12.26.11 at 2:30 pm

On the face of it, that makes the US a scary place to live.

Compared to what? I can already be hit by a car without warning, or hit by a stray bullet from a drive-by shooting without warning, or shot without warning by a cop who came to the wrong address based on an anonymous tip and will later claim to have seen me reaching for a weapon. Even if no weapon is found on my body, it is unlikely that the cop would face any serious consequences. These risks are larger in the US than elsewhere, but the first at least can happen anywhere — even countries without the means to manufacture their own cars have imported some, often in questionable states of repair and sometimes driven recklessly.

Of course, I can also contract any number of dangerous diseases without warning, or even be struck by lightning. “Anybody can die at any moment” isn’t just a description of horror movies, it’s a description of life. What makes horror movies scary is that the odds of sudden imminent death go way up because there’s a monster on the loose.

So how much do my odds of sudden imminent death or disappearance really go up with this law? ISTM pretty negligible compared to existing sensational dangers like police abuses, let alone the even more overlooked banal dangers like car accidents, heart disease or diabetes.

The USA has passed a series of laws that are violations of its own supposed values and principles. I think that Americans should be scared.

I think we should be angry, but at the moment there doesn’t seem to be anywhere to direct that anger because contra Quiggin, enthusiasm for our new police state is so widespread no politician can oppose it without being branded extreme for doing so. Ron Paul is a rare conservative example, but there are several extreme liberals who oppose it too. None of them could be a serious contender for a national office though, even if there weren’t a center-left incumbent in the way, *because* their opposition to the police state marks them as extremists.

And of course all the people who are really good at finding a parade and putting themselves at the head of it are all marching along with the “national security trumps civil liberties” drumbeat — that should tell you something. Politicians, like salesmen, have a keenly developed ability to find out what the audience wants to buy, and then sell it to them.

So should those of us who are citizens of states that tend to follow the lead of the USA, using the justification that we too subscribe to those values and principles.

As someone who subscribes to those values and principles, I am heartened by how many of the students have surpassed the master. Emigration might even be available if things in the US do go downhill as some of this thread predicts. India even elected a member of a religious minority to its highest executive office, something the US would never even seriously consider doing.

87

Bruce Baugh 12.26.11 at 2:49 pm

Chris, you might look at Digby’s ongoing blogging about police abuse of tasering, and the way it’s gone from “thing police use against obviously violent and resisting suspects” to “thing police use against developmentally disabled children and deaf adults”. It’s not just what’s happening that’s scary, but the way the authorities talk about justifying it and the lack of consequences for cops doing serious injury to or even killing people that no sensible observer can accept as a threat. It’s this ambient sense of “authorities deserve to feel safe and good about themselves no matter what the cost” that makes some of us really worry about developments like this one the post is about.

88

Guano 12.26.11 at 7:03 pm

” …. enthusiasm for our new police state is so widespread no politician can oppose it without being branded extreme for doing so.”

Which is why it is important that those of us in countries that tend to follow the USA say that they no longer share the values of the USA.

89

gordon 12.27.11 at 12:10 am

Good, so we can finally get rid of that silly “Godwin’s Law” thing now, can we?

90

Dr. Hilarius 12.27.11 at 5:14 am

I don’t think there is any immediate prospect that the civil liberties of the vast majority will be affected by the NDA . It does represent the diminishing constituency for any bright-line protections against governmental action. The War on Terror has been remarkably similar to the War on Drugs in providing reasons to cut holes in the 4th, 5th, 6th and 14th Amendments (and maybe a few others, who’s counting?). In the War on Drugs the judiciary has been notably craven and intellectually dishonest in finding all manner of warrantless searches to be constitutional. When suppression of the fruit of the “poisonous tree” is routinely reversed on appeal, trial judges get the hint.

It is also worth bearing in mind that statutes are presumed to be constitutional and when challenged, the rules of statutory construction require the reviewing court to try and reconcile a statute with constitutional limits before invalidating it. The codification of otherwise ultra vires actions does have a real impact on judicial review.

The Senate vote of 93-7 is the most depressing aspect of the shitty situation. No way Obama would consider a veto with that margin of approval. If “Profiles in Courage” were to be written today it would be thin indeed.

91

CharleyCarp 12.27.11 at 6:50 am

The vote on the Udall amendment was 37-61. Enough to sustain a veto, if the President wanted to issue one.

92

Barry 12.27.11 at 9:35 pm

chris 12.26.11 at 2:30 pm

” Compared to what? I can already be hit by a car without warning, or hit by a stray bullet from a drive-by shooting without warning, …”

Please – that’s for late-night sophomoric dorm philosophy discussions at 2 AM, with heavy herbal supplement.

Comments on this entry are closed.