Cognitive dissonance and detention without trial

“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.

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.

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.

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 ?

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.

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.

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.

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.

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.

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?

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?

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.

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.

“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.

“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.

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.

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.

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.

“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.

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.

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.

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.

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.

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.

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).

@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.

about it, I meant to say.

@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.

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

“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’.

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.

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.

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.

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.

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.

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.

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

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. https://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.)

Don’t elect me. You all look suspicious.

Fortunately, most politicians are reasonable people.

” 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.

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.

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.

” …. 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.

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.

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.