Jimbo the moderate

Some people here in the 3^rd Congressional District are fond of saying, boy, that Jimmy Ramstad! He sure is a moderate, middle-of-the road fella. Not like somma those extra-chromosome Republicans.

If you're one of those people, Spotty suggests you sit down before reading on.

Jimbo likes to play the moderate for the folks back home. For the upcoming election, Ramstad sounds, well, almost Wellstonian. Asked to identify their legislative priorities, here's what the two major party candidates had to say in an October 10^th story in the Star Tribune:

RAMSTAD:

One of his top priorities is passage of the Paul Wellstone Mental Health Equitable Treatment Act, stalled in Congress since 1997. [The next time you run into Ramstad, by the way, ask him to tell you, grasshopper, what he did to get the bill unstalled, and ask for proof.]

WILDE:

She lists as her top issues: The $8.5 trillion national debt, the environment, foreign relations, education and affordable housing.

But if Jimbo is a moderate, Spot's a bloodhound. Jimbo, just like Geoff Michel, is the Great Pretender. Ramstad has supported a number of congressional efforts to undermine democracy and destroy the separation of church and state. Let Spot mention just a couple of them boys and girls.

Federal Election Integrity Act of 2006. Right. This stinker would be an amendment to the Help America Vote (Republican) Act. It has only passed the House so far, with Jimbo providing his reliable 'aye.' This legislation requires a voter to produce a "government issued" photo ID to vote or register to vote. In 2010 and thereafter, only an ID issued after proof of citizenship will be sufficient.

How do you prove citizenship? Ordinarily with a birth certificate. Who do you think that will advantage? A lot of people don't drive or have the means or opportunity to get a birth certificate. Spotty got one some time ago to renew his passport, and it took several weeks. There is some provision in the bill to subsidize state expenses of issuing IDs to indigents, but it doesn't say anything about the expense of the birth certificate.

This is just a transparent attempt to disenfranchise poor people. It is a disgusting, low and mean. And entirely unnecessary. When you see him, boys and girls, ask Jimbo for all of the cases of voter fraud that were presented to the Congress that led him to support this anti-democratic trash. Then wait for the blank stare.

This isn't about election integrity, any more than the "tests" that used to be put to blacks requesting voter registration in the South. This is the opposite of election integrity and democracy. And there is a broad seam of racial bigotry in it, too.

Pledge Protection Act. Also passed by the House, with Jimbo's support, this one would deprive the courts of jurisdiction to decide the constitutionality of Pledge of Allegiance cases. The "destroy the separation of church and state" crowd is worried, of course, about the "under God" language in the pledge. This is one of at least a few initiatives to destroy court jurisdiction over First Amendment issues.

There are more, but Spot will save them for later posts. Stay tuned.

Tag: Jim Ramstad

A teachable moment

Katie's column today begins:

Imagine you're returning from a trip with a bottle of French wine to celebrate your wedding anniversary. At the airport, you drag your bags out to the taxi stand in the cold breeze. As the cab pulls up, you hoist your suitcases, eager to get home.

But when the driver spots your wine, he shakes his head emphatically. The Qur'an prohibits him from accepting passengers with alcohol, he tells you. OK, so you'll take the next cab. But the next driver waves you off, and the next.

Well, of course Katie is really carrying a jug of sacramental wine and some things that look like Carr's Table Water Crackers, but never mind. And never mind that there are always fifty cabs lined up and a cab starter to help you find one.

Katie sees real danger in allowing Somali cabbies to refuse patrons carrying alcohol:

Daniel Pipes, director of the Middle East Forum, wrote about the MAC's two-light proposal [to allow the Somali cabbies to identify themselves as not accepting passengers with that big sack of spirits from the duty-free shop] in the New York Sun on the day its rejection was announced. While the proposal seemed like a common-sense compromise, he wrote, on a societal level, it has massive and troubling implications. Government sanction of a two-tiered cab system would amount to an acknowledgement that Shari'a, or Islamic law, is relevant to a routine commercial transaction in the Twin Cities. The MAC, a government agency, would be officially approving a signal that differentiates those who follow Islamic law from those who don't.

And what if Muslim drivers demand the right not to transport women wearing short skirts or tank tops, or unmarried couples? After taxis, why not buses, trains and planes? Eventually, in some respects, our society could be divided along religious lines. [italics are Spot's]

And what if, Katie, a southern lunch counter owner put up a sign in the window that read "We reserve the right to refuse service to anyone"? We've been through this before. Let's take Katie's hypotheticals, women wearing short skirts or tank tops, or unmarried couples, just a little further. Does an orthodox Jew have to carry a man eating a bratwurst? Or a conservative Christian a couple of guys in killer sweaters and holding hands? Or maybe even a mixed race couple?

Katie is on to something here, but Spot is afraid she'll miss the teachable moment entirely. What, Katie, is the source of the Somalis' objection to carrying passengers with alcohol? You identified it earlier: Shari'a law, enshrined in the Quran. The Quran is, of course, a holy book that not everyone subscribes to. Sort of like the Bible, or parts of it anyway.

Katie, there are people, many Christians even, who think your hysterical wailing about gays is the same kind of superstitious reading of an old book, a bigotry unworthy of the modern age. Not at all unlike a religious aversion to alcohol.

Tag: Katherine Kersten

With Spot's compliments . . .

Here's a web article that Spot commends to Sausages, Katie, and Gena Bounds.

Venerate the Angel of Death

AHS: Progressives must mollify Christians because we want more of them to vote progressive. He (or maybe she; Spot isn't sure about how to determine sausage gender) quotes Saint Barack as saying:

And if we're going to do that [acknowledge the role of religion in American life for political advantage] then we first need to understand that Americans are a religious people. 90 percent of us believe in God, 70 percent affiliate themselves with an organized religion, 38 percent call themselves committed Christians, and substantially more people in America believe in angels than they do in evolution.

So we should have angel-centric school curricula? Ask PZ what he thinks of that one.

Spot had a vision last night, or maybe it was just a dream, that God commanded Spot to start a religious renewal movement. It is to venerate the Angel of Death. The Angel of Death is one of the truly great characters in the Bible. Here are just a couple of examples:

My angel will go before you and bring you to the Amorites, Hittites, Perizzites, Canaanites, Hivites, and Jebusites; and I will wipe them out. (Exodus 23:23 NAB)

That night the angel of the Lord went forth and struck down one hundred and eighty five thousand men in the Assyrian camp. Early the next morning, there they were, all the corpuses of the dead. (2 Kings 19:35 NAB)

Oh, and let's not forget this Holy Smackdown:

At midnight God did as He said [he would do] and struck the Egyptians. As was their custom when someone died, the Egyptians wailed loudly over their dead. Soon others awoke and discovered that a family member had died. Everyone was struck, from the house of Pharaoh, to the house of the lowest slave. There wasn't a single Egyptian household where there wasn't at least one dead. Soon a great crying and wailing filled the land.

It isn't clear this was a contract job for the Angel of Death, but it's hard to imagine that God would bother do it himself.

What God told Spotty he wants is for all of us to pray that the Angel of Death be sent out to kill Osama bin Laden. If we all pray rilly, rilly hard, it will happen. And next, we'll all pray, right along with Pastor Fred Phelps, that the Angel of Death kill all the gays! It seems like such a simple, elegant solution. No muss, no full, just a late night visit from the Holy Hammer.

AHS, if progressives give in to religious zealots on issues like gay rights, reproductive rights, and stem cell research, they won't be progressives anymore.

Faith does not make you a bigot

So says the author of American Hot Sausages:

There are so many logical problems with the liberal shortcut to thinking that we must put them in order. Gena Bounds is a concerned parent, not merely a "minority group member." Ms. Bounds being Christian and believing that sexual and family matters should be taught at home, consistent with home beliefs, is not "flat-ass bigoted," its [sic] something we like to call America. See, in America you have the right to be Amish or Pentecostal or single or pagan or Zoroastrian if you choose. And guess what? Faith does not make you a bigot. Attempting to push you faith on others and restricting their life is problematic, whether it's Christians blocking gay marriage or gays demanding that Christian children agree with the gay concept of "family."

And, as of about eight o'clock Saturday night, to the surfer who came over on an AHS referral, Spot says welcome!

AHS is unhappy about Spot's post Conservatives love it, a post about minority parents complaining about a curriculum at a local school that included books from "All Families Matter." AHS appears to champion the notion that parents should be able, as a matter of "faith," to control a school curriculum on matters of religious belief. AHS is right. Faith doesn't make you a bigot, but my tasty friend, it sure as hell often permits you to be one.

Why? Because it permits a person to believe something – mostly what they want to believe anyway – without having to justify it, explain it, or defend it in any way. I just "believe" it; that should be enough for you. Sorry sister; it ain't. As though we should take civil rights off the table to accommodate religious belief. Oh, wait! Spot guesses we already do. The New York Times ran a story this last week about how religious institutions and the organizations they run are able to evade all manner of civil law.

It is religious quacks like Katie and yes, Gena Bounds, who want to put their own very special brand of bigotry into a protected class.

You have to wonder what Gena Bound's ancestors thought about Christian justification of slavery and the apartheid system in South Africa, or maybe the efforts of the white preachers to get Martin Luther King, Jr. to end the Birmingham bus boycott, rebutted so famously by King in his letter from the Birmingham jail.

This is not a Free Exercise case, boys and girls, it is an Establishment case.

AHS is also exercised about the fact that the teacher involved in this fracas had the nerve to invoke the black civil rights struggle as a comparison to the gay rights struggle. They may differ in, er, complexion, but they are both struggles for equality against entrenched belief that includes a strong religious component. It is sophistry to try to distinguish them.

Spot's going to close with this letter in today's Star Tribune. It will be awarded a Spotty in a separate ceremony.

As a high school student at the Interdistrict Downtown School, I was interested in the Oct. 7 article regarding the protest there. I was disturbed by the protest. IDDS' motto is "A partnership in diversity, community and technology." At our school, we learn about different types of diversity: racial, socioeconomic, family structure and learning abilities among them.

The strongest part of our school community is learning to accept others despite these differences. Why should acceptance of sexual orientation be any different? The Oct. 6 protest rejects these ideals of equality.

I find it unfortunate that parents who choose to send their children to a school that values these ideals would also choose to protest in favor of denying any group's natural right to life, freedom and pursuit of happiness.

I applaud student Walter Kaplan for standing up for his beliefs during this protest. He has the support of many high school students because he didn't allow "authority" to silence our convictions.

The issue of homosexuality in schools goes far beyond IDDS. The complexity of the topic and the strong emotions involved suggest to me the importance of treating this subject with respect and dignity.

ALLISON WONG, MINNEAPOLIS

Allison, you go girl!

Update: Spot forgot a couple of things. In his list of religio-bigots, he should have included the Queen of the Rile, Michele Bachmann. And he should have credited CP's comments to earlier posts on this subject for helping Spot to identify the issues more critically.

She has the perfect name

Here's a letter from today's Star Tribune:

As a teacher, a mother and a grandmother, I am well acquainted with many of these books that "Families All Matter" want included in curriculum.

These books are definitely difficult to present to a group of children in a classroom setting and they should be left out of the curriculum and used only for children experiencing the same type of family relationships. They have a purpose for those already involved in these unusual families, but they are detrimental and definitely inappropriate for young children who need good role models and family values.

Let's get back to individuality as intended. Let's get rid of imposed values that cause too much unrest and indecision in our already mixed-up educational system.

SHERRY BIAS, MAPLE GROVE

This letter refers, of course, to Katie bleat yesterday, commented on by Spot in Conservatives love it! Spot's gotta say, Gramma Bias is well named!

Gramma's opinion is, apparently, that kids with gay or lesbian parents should read the "Families All Matter" books because they, gosh, speak to them, but other little tykes shouldn't read them because they might become, well, tolerant.

A box of kibble to the first reader who can tell Spot where Gramma Bias teaches.

Conservatives love it!

Conservatives like Katie just love it when they run across a minority group member who is just as flat-ass bigoted as they are. Spotty supposes it gives them a sense of validation. Katie must have positively glowed while writing her column in the Star Tribune today: Parents say school undermines their authority over kids.

Apparently some black mothers (no really, mothers) are upset because the Interdistrict Downtown School in Minneapolis – a magnet school (so that parents have to apply to get their kids in) by the way – is teaching their kids about, are you ready for this boys and girls, diversity. Jeebus, you can't make this stuff up! Here's Katie's lede:

The scene last Saturday at the Interdistrict Downtown School in Minneapolis was straight out of the civil rights struggles of the 1960s. A group of black mothers and their supporters stood shoulder to shoulder, demanding what they called a decent education for their kids.

No Katie, not true. In the 60s the blacks were the bigotees, not the bigotors.

Here's the beef: a teacher at the school had been reading "Asha's Mums" to their second graders. This is, apparently, a book about a girl that has lesbian parents, and it's part of a curriculum called "Families All Matter." One mother, Gena Bounds, expresses it this way:

I teach my children about family matters myself, and this isn't what we believe.

Mommy also said that her daughter had learned that people who believe that "a mother and father are best are discriminatory." This must be the undermining of parental authority that Katie is talking about! Why if a parent wants to raise a little bigot in her own image, she shouldn't have to brook any interference!

According to 'nuther muther:

FeLicia McCorvey Preyer, who has second-grade twins at the school, was also incensed about "Families All Matter." Before the school year began, she told Sage [a gay teacher at the school who read Asha's Mums to his students] and school officials that she didn't want her children reading books with homosexual themes, she says. "They knew my wishes and they defied them," she adds.

Well, the nerve! Failing to give a parent complete control over curriculum! It's just the kind of thing that Nathan Bedford Forrest would have condemned! Katie continues:

After Sage read "Asha's Mums," he "told the class that his grandfather had believed that black people are stupid," she says. "He said that other adults had helped him see that his grandfather was a bigot." The implication? That parents who don't share Sage's views on family matters are bigots too.

Sage touched a nerve by claiming the mantle of the fight against racism for his own agenda, says Preyer. "I'm appalled that he, a white man, would use that tactic to push his views on African-American children."

But Bounds and Preyer are most upset at the school's message that kids don't need to listen to their parents when the school and the parents disagree. "The school is undermining my authority as a parent, at a critical, formative stage of my daughter's life," says Bounds.

Hey! We're black and therefore own the franchise on who gets to decide what bigotry is! "Parental authority" is just code for "don't expose my kids to ideas that are contrary to my own bigoted view of the world."

Spot has a hunch that the mothers quoted by Katie in her column are emblematic of some of the black parents in the charter and private school movements. That's what Katie's "decent education" is about: not offending the sense of decency of the parents. There are studies that show that charter and private schools are no better, and usually worse, that public schools, so there must be something else driving the parents.

The only thing that Katie likes better than blacks bigoted against gays is blacks bigoted against blacks.

Tag: Katherine Kersten

Why was John Yoo wrong?

Here's the language in Hamdan v. Rumsfeld that finds that Common Article 3 is applicable to Al Qaeda:

Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war [***14] with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "persons . . . placed hors de combat by . . . detention," including a prohibition on "the passing of sentences . . . without previous judgment . . . by a regularly constituted court affording all the judicial guarantees . . . recognized as indispensable by civilized peoples." The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a "conflict not of an international character. " That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its [***15] own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory "accepts and applies" those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict "in the territory of" a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68. [italics by Spot]

Tags: John Yoo, Geneva Conventions

Seduced and abandoned

The evangelical chumps by the Republican Party that is.

Dogonne it Dave! II

It is hard to decide who is the bigger pain in the neck, Peter or Dave. Spot thinks he will give Dave the nod because of the distance involved. Here's part of a comment Dave left to Spot's last post.

Spot you have proved the President's point with your second to last remark. We all agree that there is a minimum standard that all detainees, regardless of their status, should be provided. But there is no law, and importantly no portion of the Geneva Conventions that spells out what that minimum standard is.

Oh, Dave? Here's what Common Article 3 says:

Article 3, the text of which is repeated in all four Geneva Conventions, is the only part of the conventions that applies explicitly to internal armed conflicts. It has been called a "treaty in miniature," and sets forth the minimum protections and standards of conduct to which the State and its armed opponents must adhere. The protections it spells out are at the core of international humanitarian law. Additional Protocol II of 1977 also covers internal armed conflicts, but it is less widely accepted among States than the 1949 Conventions.

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all cases be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth of wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

This seems pretty specific to Spot. He will return to the subject of the application of Common Article 3 to the conflicts in Afghanistan and Iraq. Spotty has a question, though. All this talk about Hamdi, Hamdan, DTA, and MCA – are you ready for a time line to sort these thing out, boys and girls? Good. Spot would like one, too.

The Detainee Treatment Act of 2005 (sometimes just called the DTA by Spot) has two predicates. One was the revelation April 2004 of detainee mistreatment at Abu Ghraib prison outside of Baghdad by US forces. The other was the Supreme Court's announcement of the decision in Hamdi v. Rumsfeld in June of the same year. Abu Ghraib embarrassed the military and the Congress, and the country, and led to an outcry over the treatment of detainees. Hamdi made it clear that the military and the administration would have to fashion some régime to give detainees a forum to show that they weren't combatants.

The DTA addressed, inter alia, detainee treatment and the Hamdi issue concerning detention without hearing. At the time the DTA was enacted, administration and congressional leaders labored under the illusion that Common Article 3 applied neither to Al Qaeda nor the Taliban. That's right, Dave. Where did they get this notion?

We turn again to John Yoo and Robert Delahunty who wrote a memo to the general counsel of the Department of Defense on January 9, 2002. In the linked copy of the memo, you can read a summary of their conclusions about both Al Qaeda and the Taliban in the first say, four paragraphs. In summary, Al Qaeda was a non-state actor, and the Taliban was not a government, and since Afghanistan was a "failed state," we don't need no stinkin' Common Article 3. The cavalier thinking about the Taliban is especially outrageous, since it was, for better or worse, the government of Afghanistan at the time.

Among the things the memo did was give a green light to outrages upon personal dignity, in particular humiliating and degrading treatment short of torture. And of course, torture was defined down by our friend Professor Organ Failure, John Yoo, in a memo to Alberto Gonzales (then White House counsel) on August 1. 2002.

Spot already discussed how the DTA was pretty well neutered before passage in Because it's good for you.

Then came the shocker for Perfessers Yoo and Delahunty: Hamdan v. Rumsfeld, decided last June. As you know, boys and girls, in fact you are probably sick of hearing Spotty say, Hamdan decided that Common Article 3 did apply to the Taliban and Al Qaeda. That really sent the administration scrambling! For a couple of reasons.

One, it became clear that the administration's ad hoc military commissions did not come within a country mile of meeting the requirement of Common Article 3 that prohibited the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Two, a lot of the "harmless pranks" practiced on detainees by military and civilian authorities no longer looked so harmless! In fact, they looked like war crimes! Uh-oh.

This brings us to the final chapter of our saga, the Military Commissions Act of 2006. Spot has already written about some aspects of the MCA in some detail. What remains is a discussion of the amendments of the War Crimes Act by the MCA. We'll talk about later.

Tags: John Yoo, William Delahunty, Detainee Treatment Act, Military Commissions Act

Dogonne it Dave!

Spot thought he just about had this military commissions stuff about wrapped up, but Dave Thul posts an interesting question:

I wonder if there is so much confusion on this matter because of the huge majority of Americans who have never served in the military. First, Taliban troops would in theory be covered under the Geneva Convention, because they were by and large uniformed troops serving in an organized militia. You have to cut them a lot of slack on the uniform issue, but the intent to act like an army is what is important. Terrorists, on the other hand, are not mentioned in [Common] Article 3 of the Geneva Convention[s].

Yes, Dave, there is some confusion about that. But no only by the unwashed masses of unmilitary citizens, but by the military and the administration, too. Here's the opening graf of the opinion in Hamdan v. Rumsfeld:

Petitioner Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the Taliban (which then governed Afghanistan), Hamdan was captured by militia forces [i.e., the Northern Alliance] and turned over to the U. S. military. In June 2002, he was transported to Guantanamo Bay. Over a year later, the President deemed him eligible for trial by military commission for then-unspecified crimes. After another year had passed, Hamdan was charged with one count of conspiracy "to commit … offenses triable by military commission." App. to Pet. for Cert. 65a.

As far as Spot can tell, there was no allegation that Hamdan was not just a Taliban fighter at the time he was found eligible for trial by a military commission. He was not an Afghan, but there were a lot of Arab militia types in Afghanistan since the days of the invasion of the Soviet Union. The US gave these fighters a lot of support, too. The charges ultimately brought against Hamdan were for "conspiracy to commit terrorism," a charge that the majority in Hamden expressed doubt about the existence of in international law.

Here's what the original military commissions envisioned by the administration would have included: the unrestricted use of hearsay evidence, and evidence obtained by coercion, no requirement of sworn testimony, the inability of the defendant to hear evidence used against him if it was classified, and most amazingly, no right to even be present at the trial. There is a reason why you don't hear about convictions in absentia in the United States; they would violate the right of a defendant to be confronted by the evidence against him.

There is a lot tut tutting by some people, including Dave, who think this about giving terrorists jury trials and granting other rights "never contemplated by our Founding Fathers." Rubbish. Hamdan conceded that a regularly convened court martial would have jurisdiction to try him.

Hamdan's complaint was that the kangaroo court tribunals set up by the administration were created neither by the Constitution or a statute. (Maybe John Yoo just made 'em up!) And he was right. The military commissions met neither the requirements of the Uniform Code of Military Justice nor, the Court found, Common Article 3.

The government tried hard to distinguish between "legal combatants" and "illegal combatants," and the Military Commissions Act strives to maintain a distinction between them. If you are a legal combatant under the MCA, you get an honest-to-goodness court martial. If you are an illegal combatant, you get something less.

This is what Dave is harping about.

But it is not clear to Spot that the Supreme Court drew a distinction. Spot says that the Supreme Court said that Common Article 3 sets a floor below which a member country to the Conventions cannot go, for any trial, of anybody, on charges of war crimes, anyway. Spot thinks you get Article 3 treatment just, well, because you're a human being. Spot knows that disappoints some people.

The MCA may also fail judicial scrutiny under Common Article 3, too. There was discussion of that fact in the Senate, as Spot recalls.

Tags: Hamdan v. Rumsfeld, military commissions

Because it is good for you!

It is clear to ol' Spot, based on traffic statistics, that you, boys and girls, would rather hear about ex-Congressman Foley or Alan Fine than habeas corpus, detainee treatment, and military commissions. Think of Spot as your cod liver oil dispenser, however, because we're going back into these things, whether you like it or not. The last few, maybe several posts, have been about detaining people; this one is about how they are treated while in detention.

The Congress has taken a couple of swipes at the detainee treatment issue. There are really two intertwined issues afoot here: 1) how must detainees be treated, and 2) what happens to people who mistreat them? The first issue is important, but as we will see, the answer to the second one can render the first one moot.

John McCain has figured pompously prominently in both recent Kabuki theater productions, the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

The DTA states that no person in military custody may be subjected to any interrogation that's not in the Army Field Manual. The Army Field Manual has been published on the web for some time. However, the AFM has been recently amended to include ten or so new classified pages. The Los Angeles times reported these changes removed the prohibitions in Common Article 3 of the Geneva Conventions against "humiliating a degrading treatment." You will recall, boys and girls, that John Yoo and Robert Delahunty opined for the Justice Department that Common Article 3 did not apply to the Taliban or al Qaeda, but they were wrong.

The DTA also prohibits treatment of detainees described as follows:

Cruel, Inhuman, or Degrading Treatment or Punishment Defined - In this section, the term `cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

Sounds good, eh? Well, until you read the next section:

Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

That's pretty opaque. Here's Spot's paraphrase of the language that Spot has emphasized above:

If somebody acting for the US is involved in the detention and interrogation of a ferriner that somebody thinks might be a terrrist, and if they did things to the detainee that were authorized, but were a violation of international law, they may raise the defense, if sued or charged with a crime, that they were following orders. The interrogator is entitled to rely on advice from guys like Jay Bybee and John Yoo.

I vas only following orders! Boy, that has a familiar ring to it, doesn't it boys and girls? Of course, it's the so-called Nuremberg defense, named after the place of trial of the Nazi war criminals who tried to raise it to excuse their actions. Didn't work. Principle Four of the Nuremberg Principles reads as follows:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

And that, boys and girls, is what we teach US service personnel, to this country's everlasting credit. A service person does not have to obey an illegal order. Is that a tough call? You bet it is, but we expect everyone, including the people of the absolute lowest ranks in the service to make it. But now, if you torture somebody under orders, that's cool.

Of course, after the protections of the DTA had been thoroughly neutered, the Prezinut had to issue a "signing statement" that included this just to be sure he didn't feel the smallest bit encumbered by the pesky provisions of the DTA:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Spotty, what a urinary executive?

Unitary, grasshopper. Here's one description:

The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.

In other words, Marbury v. Madison was a dirty trick played on the president a couple of hundred years ago.

Spot was going to go on and write about the effect of the Military Commissions Act on detainee treatment, but he has decided to save that for the next post.

Tags: detainee treatment, Nuremberg Principles

News Flash!

The Oakland A's players apparently have families, too! Katie told us yesterday that even though the local boys' backs were against the wall, we would win because we had families.

Obviously, the Twins are big advocates of the family-first principle.
The wives say that one of their most important roles is
counselor-in-chief -- cheering the ups and being there for the downs.

You know, Spot thinks that backslider Joe Mauer is single. Better trade him in the off-season.

Hey Katie!

You'll be interested in this. Remember when you gushed about how good things were going to be for the Christians in Iraq after Saddam's toppling? Well, you're early report was apparently greatly exaggerated.

Link from Informed Comment.


Technorati Tags: Katherine Kersten, Iraq Christians

Before and After

Here is section 2241(e) of title 28 of the United States Code (there are actually two of them, apparently because of some frantic drafting that went on with the Detainee Treatment Act of 2005, the last time that John McCain folded like a cheap umbrella) before the Military Commissions Act of 2006:

(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005 [10 USCS § 801 note], no court, justice, or judge shall have jurisdiction to hear or consider--

(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

(A) is currently in military custody; or

(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.

[(f)](e) Except as provided in section 1405 of the Detainee Treatment Act of 2005 [10 USCS § 801 note], no court, justice, or judge shall have jurisdiction to hear or consider--

(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

(A) is currently in military custody; or

(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1405(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.

Here is how these sections will read after the amendments contained in the Military Commissions Act of 2006:

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Wow, what's this all about, Spotty?

Oh, sorry grasshopper, this is language from the United States judicial code relating to the writ of habeas corpus. The subsections of section 2241 prior to (e) address the grant of the writ, procedure for application for it, etc. Incidentally, Spot could only get the old language from Lexis, which he cannot link to, and the new language is from a pdf that somebody sent to Spot, so there are no links to provide for the old subsection (e) or the new, sorry.

What follows leans heavily on what was written by Spot in Dissing the Great Writ and Dissing the Great Writ II. You might want to read those posts if you haven't already.

The old language is pretty well, amateurish, compared to the new. While the old language removed court jurisdiction only for habeas corpus petitions for prisoners at Guantanamo Bay detained by the Defense Department, the new language covers any detention by any agent of the US anywhere. (Think secret CIA prisons that the administration told us didn't exist until the fact of their existence was leaked.) The only two conditions are that the person (only aliens or permanent resident ("green card") aliens) be "properly detained" as an enemy combatant or "awaiting such determination."

These status determinations are made pursuant to the Detainee Treatment Act of 2005 passed in the wake of Hamdi v. Rumsfeld.

One issue that is interesting to Spot is whether our present circumstances warrant the invocation of the Suspension Clause:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Article I, Section 9, Clause 2, US Constitution.

Did the attacks of September 11, 2001 amount to an "invasion," and if so, when will we be un-invaded?

Update: There are of course also detention centers in Iraq and Afghanistan currently holding thousands of detainees.

Tags: habeas corpus

This just in!

Spot hasn't had a chance to study it in much detail yet, but it does appear that the provisions of the Military Commissions Act of 2006 related to trial before the commissions and limitation of habeas corpus as sent to the President will only apply to non-citizens. More later.

John Yoo Malpractice Remediation Act of 2006

Spot wondered how John Yoo would skate on his advice when, as a Justice Department lawyer, he authored the advice to the administration that the Geneva Conventions' prohibition of torture were somehow inapplicable to detainees in the warron terra. In a memorandum to the general counsel of the Department of Defense, co-authored by now St. Thomas Law School professor William Delahunty, these two bright lights opined that the United States, and the administration of George Bush in particular, were not bound by Common Article 3 of the Geneva Conventions in its treatment of the Taliban and al Qaeda.

Oops.

Guess you and Bob were wrong, John! In Hamdan v. Rumsfeld, decided this summer, the Supreme Court held that Common Article 3 did apply to the Taliban and al Qaeda. This is such a bummer on so many levels! Not only does the administration now have to go through the motions of pretending to make fair tribunals available to detainees, all the people right up and down the line—including way up—who approved the torture of these detainees are war criminals!

A lot of these people are going to be plenty pissed at you John. And we already know what they are capable of. What's that John? We should amend section 2241 of the federal criminal code, the War Crimes Act, to get rid of that pesky reference to Common Article 3?

Sounds good, John, but we can't do that entirely. You know as well as Spot does that that making domestic crimes out of our Geneva Convention obligations is a part of those obligations. How about this?

We amend the code to say that only "grave breaches" of Common Article 3 are crimes, make it retroactive, and then provide that the president can decide what grave breaches are? Works for you? Good. That should take care of a lot of people. No so many people mad at you now.

Of course, like Henry Kissinger, these people will not be able to travel abroad for the rest of their lives for fear of being arrested and charged with war crimes. Hope you don't have any big travel plans John.

Tags: John Yoo, Geneva Conventions, War Crimes Act

Dissing the Great Writ II

Dissing the Great Writ is the introductory course, boys and girls. Read it before you read this post. Now we return to the opinion in Ex parte Mulligan.

One of the government's arguments to support Mulligan's trial before a military commission was that the country was under martial law during the Civil War. The Court's reply was Oh? Not by a long shot. Here's another part of what the Court wrote:

The discipline necessary to the efficiency of the army and navy required other and swifter modes of trial than are furnished by the common law courts, and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Everyone connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, [p*124] there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion -- if the passions of men are aroused and the restraints of law weakened, if not disregarded -- these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.

It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States.

If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.

The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure [p*125] together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish. [emphasis is Spot's]

Spot apologizes for the density of the Court's writing, but it's kind of lyrical to Spot. Sniff.

So, you want military commissions for whomever the executive orders arrested? Fine, just don't call it the rule of law. Military commissions are a form of martial law. Has civil authority and the court system broken down so badly that martial law must be imposed? On anybody, and just on the executive's say so? The notion is so absurd that there must be a Gilbert and Sullivan patter song about it.

The last time Spot looked, it was six lanes open, no waiting, for the trial of terrorism suspects in civilian courts. Procedures and rules of evidence have existed for a long time to protect information vital to national security.

The Military Commission Act of 2006, at least the House bill that Spotty saw, contained a Congressional finding that the kangaroo courts set up by the Act are in compliance with Common Article 3 of the Geneva Conventions. What absolutely self-serving baloney! The Congress held no hearings, received no expert testimony, and the Republicans didn't even confer with the Democrats about the procedural and substantive sufficiency of the proposed commissions. It was the administration on one side, and Larry, Curly and Moe on the other.

Spot would like to address one last thing. Detention of combatants for the duration of hostilities is really a given. You don't repatriate prisoners of war until the war is over. How do we know when this war is over? There isn't even an enemy to surrender or conclude a cease fire or peace treaty with. What if bin Ladin marched over the hill one day and hoisted a white flag of surrender? Would the war be over then? Is there any limit to how long people can be detained without access to an honest-to-God court to determine if there is any basis for holding them?

Let's be clear: George Bush is a war prezinut only in his own fevered imagination. There has been no declaration of war. It is perilous to civil liberties to permit him to arrogate to himself all of the powers of a war-time commander. The United States has weathered every crisis in its history without granting to the executive all of the powers that George Bush seeks.

Tags: military commissions, habeas corpus

What this blog needs is a billboard

In honor of Spotty's explanation below as to why the Great Writ matters, now more than ever.

Dissing the Great Writ

Habeas corpus is Latin for Bring that sucker here and explain why you locked 'em up. Spot is paraphrasing here. In very general terms, here is how it works. An imprisoned individual, or a person who has standing to petition on his behalf, petitions a court to issue the writ to the person in charge of the prisoner's incarceration. If the writ issues, this person must come to court and defend the incarceration. To request the writ in federal court, the petitioner must allege that his incarceration is unconstitutional.

MNObserver, Spot, and many others have complained bitterly about the impairment of the Great Writ by the recently enacted Military Commissions Act of 2006.

Spotty, is this a big deal?

It is indeed a big deal, grasshopper. Here's a bit from an article by Professor Bruce Ackerman that is linked in the Greenwald post that MNObserver refers to below:

BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops "during an armed conflict," it also allows him to seize anybody who has "purposefully and materially supported hostilities against the United States." This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

Not to worry, say the bill's defenders. The president can't detain somebody who has given money innocently, just those who contributed to terrorists on purpose.

But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

Legal residents who aren't citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president's suspicions.

This is, of course – well perhaps not of course, but it is – the treatment of Jose Padilla, the so-called "dirty bomber," a citizen who was held in a military brig for over three years.

But didn't Abe Lincoln suspend habeas corpus during the Civil War?

Yes, grasshopper, he did. This is where the going gets a little rough. You might want to go and fill you coffee cup and use the restroom if you need to. Spot will wait.

[reader determined interval]

All set? Good. Abe Lincoln did suspend habeas corpus, at least a couple of times. The first time was in 1861 and covered only the states in rebellion. The second time was in 1862 and covered the entire nation. In the second case, Lincoln's concern was whether or not war protesters, the Peace Democrats or copperheads, would be dealt with by state courts for discouraging enlistments or other "disloyal practices."

It might be useful to stop a moment here and recite what the Constitution says about habeas corpus:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Article I, Section 9, Clause 2, US Constitution.

Please note, boys and girls, this provision of the Constitution is in Article I which addresses the powers of and limitations on Congress. It is perhaps not too surprising, therefore, that in 1861 Chief Justice Taney in Ex parte Merryman ruled that the President had no power to suspend the writ of habeas corpus. Lincoln ignored Taney's ruling.

The Congress did later come to help ol' Honest Abe out. In 1863, it passed a statue suspending habeas corpus and providing for the disposition of persons detained by military authorities. They were either to be charged by a grand jury the next time a grand jury met in the jurisdiction, or they were supposed to be freed.

So now we arrive at the sorry case of Lambdin P. Mulligan. Mulligan was arrested by military authorities in October of 1864 in Indiana, a state that was not part of the rebellion but had substantial secessionist sentiment. That same month, Mulligan was tried before a military tribunal and sentenced to hang. According to the opinion in Ex parte Mulligan, he had been tried on certain "charges and specifications." His hanging date was set for May 19, 1865.

What happened between Mulligan's sentencing and the date set for Mulligan to swing?

Christmas of 1864?

Yes, grasshopper, but what Spot really had in mind was the end of the Civil War in April of 1865. The war's end probably influenced how the Supreme Court looked at Mulligan's situation, although on the facts of the case it shouldn't have mattered.

A week before the scheduled hanging, Mulligan's lawyer presented a petition for a writ of habeas corpus to the Circuit Court in the District of Indiana, seeking Mulligan's discharge on the grounds that a military commission had no authority to try Mulligan because he was not in the armed forces of either the Union or the forces in rebellion, that he was a citizen and a 20 year resident of Indiana, a state that had never been in rebellion. Mulligan also stated that a grand jury had been empanelled in Indiana after Mulligan's detention, and it had not charged Mulligan with the offenses complained of. (It probably never considered Mulligan, who was at the time already under a sentence of death, but never mind.)

The Circuit Court certified questions to the Supreme Court concerning the case. In a mocking, scornful opinion, Justice Davis writing for the Supreme Court held that Mulligan was not only entitled to have a writ of habeas corpus issued, that he was entitled to be discharged from custody, and that a military tribunal did not have jurisdiction to try Mulligan in the first place.

After cutting through the pettifogging arguments of the government, here are some of the things the Court had to say:

Had this tribunal the legal power and authority to try and punish this man?

No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole [p*119] people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning.

The Court went on to enumerate the Fourth, Fifth and Sixth Amendments to the Constitution.

The Court also said this:

Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times [p*121] and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

The Court observed that civil law had not broken down in Indiana:

But it is said that the jurisdiction is complete under the "laws and usages of war."

It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise [p*122] connected with the military service. Congress could grant no such power, and, to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior.

Although Mulligan presented a good case under the 1863 statue for his release, the holding is also grounded in constitutional principles. It is regrettable that our supine Congress does not understand them.

Spot has more on the subject, boys and girls, but it'll have to wait.

Tags: habeas corpus, military commissions

Update: Bruce, check your email.