Thursday, June 09, 2005

It Is So Hot

It seems like all kinds of great material should be coming out of summer work, but I don't really know what kind of things you're allowed to say. I do know that the assignments don't feel that much more real than anything we did in legal writing. I have to constantly remind myself that there are real parties with real interests who'd prefer I don't take the write-whatever's-easiest approach that saw me through my first year.

In a moment of regression a couple of days ago, I headed up to the city bar association to watch a panel entitled "The Role of the Federal Courts in the War on Terrorism." It was co-sponsored by the federalist society, so I knew there'd be some serious legal action going down. It always amazes me to watch a forty-two year old lawyer (who has never worked outside the beltway in his life) presume to explain to a retired rear admiral and life-time jag officer how military law works. Before you can recover from the shock, he's gone on to explain to a 2d Circuit Appellate Court Judge what the Padilla case was really all about; ignoring the fact that this particular judge had actually sat on the case in the intermediate court. What they lack in consistency they make up for with what I heard politely referred to as "testicular fortitude" today.

Of course, these are people who cite approvingly to Quirin and Kortematsu because "hey! they haven't been overruled yet! (knock on wood)." Two completely different worlds: I live in the world not steeped in paranoid fantasy. It's warm and humid lately, but otherwise better in every way.


Anonymous Fed Soc said...

Even CNN is in on the paranoid fantasy.

4:00 PM  
Blogger Roonie said...

Freakin' cute website! How do I make mine so cute?

12:43 PM  
Blogger Ain't no power like the Power of Procedure said...

he's revealed himself...

how long until you three do? Even though i already know...

11:18 AM  
Anonymous Anonymous said...

Yeah, Paranoid until Muhammad flies a a nice 767 into your office tower. Hope you feel all warm and cozy packed into your liberal BS. Now step back and let those of us with balls do the real heavy lifting.

4:32 PM  
Blogger I Am Chadha said...

To fed soc: what exactly is that link supposed to prove? That there are terrorists out there? Ummm, no shit? The panel I commented on dealt with what judicial process suspects should be given. The Fed Soc line seems to be, if possible, none, even if the alleged combatants are American citizens. If you actually read the article you linked to, you might have noticed that these suspects have representation, have been criminally charged, and will presumably have all the other rights that crazy constitution of ours guarantees. That article argues my case.

To 4:32: Real heavy lifting? By posting anonymous messages to someone else's blog? I feel safer already.

4:32, you've demonstrated exactly the kind of reactionary fear that shows just how short on "balls" you really are. Cowards are those willing to trade liberty for just a teeny bit more security, to paraphrase Franklin (I understand, of course, that the only relationship most fed socs have with the founding fathers is a cute little profile they slap on their pamphlets).

The essence of my "liberal BS" is apparently that I think reliance on Quirin and Korematsu is totally unfounded. Are you telling me I'm wrong? That those are decisions we should be proud of? If so, good comparison; World War II and the War on Terror are totally equivalent.

If you comment again, try bringing some brains along with your balls.

8:29 PM  
Anonymous Fed Soc said...

Your implication was that the Federalists live in the world steeped in paranoid fantasy - In contrast to your own. Regardless of thier (my) position on the process afforded to suspects.
I think that the federalists have a firmer grasp on reality than most of their detractors. The reality is, people are out to kill us, how we deal with them we can disagree about. It's not paranoia if they are really after you.
Those decisions (qurin,korematsu)are not ones to be proud of, but when the house is burning you can't hide in the closet. The people who are tying to kill us are generally not Christmas Catholics. I'll cite the Van Goh murder: after being shot four times and before being ritually gutted by a muslim fanatic, Van Goh's reaction was "can we talk about this." That should not be a countrys reaction to a punch in the face.

There are nuances to our positions, some are incorrect by my calculation, but saying my reality is paranoid is a cheap way to shut down a debate.

8:50 PM  
Blogger I Am Chadha said...

Fair enough, and you probably deserved a more measured response than the one I gave in a 2-for-1 to 4:32.

I think the real disagreement isn't whether or not there are terrorists out there who want to kill us, unquestionably there are. I call the fed socs paranoid (and here I can only characterize their position by the panelists they chose to present) because I believe they describe a threat far more dire than is at all reasonable. If they (you) suggest an enormous enough threat, they can justify extreme measures. I think that's just dangerous.

It's bizarre because I tend to think of conservatives as especially valuing liberty. This isn't a question of moral relativism, which I think the Van Gogh example really gets at. It's a question of constitutionally protected rights. How much of that are you willing to sacrifice to increase your safety an infinitesimal amount?

None of the liberals at the panel argued that terrorism is imaginary, they only argued that it could and should be dealt with under the existing constitutional framework. That means a role for courts and Congress, something that the executive obsessed federalists have clearly forgotten.

9:38 PM  
Anonymous Fed Soc said...

Many Federalists have forgotten that we are, at core, supposed to be skeptical of concentrations of power. I am uncomfortable with the institutional shift form state to national(yeah, I know segrigation was evil) and from legislative to executive and judicial. Unfortunatly we have not been able to choose the battlefeild (::coughing sound:: New Deal; ::cough:: Blackmun/Brennan).

As for the constitutional protections offered suspected enemy. The stakes are high for our liberty if we fail. You saw what happened after the 11th, and that was the first time somthing like that happened. If that happens again, or Lord help us on a larger scale, we *will* gel into a military state over-night. Thats what concerns me about treating those who would destroy civilization with the same mirandia/habeious/representation constraints as a teenage shoplifter in Padouga Kentucky. We are 1/3 of the world economy, and the worlds most adroit army by far. If stirred, we could wage a war that would make Rome v. Carthage look like a disagreement about manners at a bridge-players convention. I don't want to look back form a hyper-military/nationalist state and say, we could have done more, but the enemy needed process rights too.

The Constitution is worth dying for. But without a civil society stable and secure enough to support discourse it is just an old peice of paper.

11:21 AM  
Blogger I Am Chadha said...

We have to burn the village to save it, eh? I think we might just have to agree to disagree on this one.

It is not the provision of due process rights to the suspected enemy (which I cannot stress enough, includes American citizens) that suggests a "hyper military/nationalist state," it is their deprivation. Your argument seems to be that in order to prevent the loss of civil liberties and the protection of rights, we must surrender civil liberties and constitutional rights. I'm just not buying it.

As for your contention that "we *will* gel into a military state over-night," I also find that highly unlikely. In 225 years, we've witnessed the burning of the capitol by an occupying army, a full-scale civil war, and two world wars, the scope of which dwarf anything the terrorists can/have/ever will do to us. Somehow, the constitution has managed to survive those, and you suggest that the next attack will bring us to our knees.

If you're right, and we do risk becoming a military state, who do you think it will be that takes us there? Those calling for the preservation of rights and the balance of power between the various branches of government guaranteed by the Constitution? Or the people you've allied yourself with? The NeoCons and the warhawks? Talk about Stockholm syndrome; the fed socs have become the very people they pretend to fight.

8:09 PM  
Anonymous Fed Soc said...

"In 225 years, we've witnessed the burning of the capitol by an occupying army, a full-scale civil war, and two world wars"
(a)- I think that your memory is selective when it comes to the actual conditions during those highly tense times in our nation’s history. All those cases about suspension of civil liberties happened during those times. During the civil war? - You really think that the constitution was in full effect during the civil war. That’s an interesting interpretation of reality.
"As for Abraham Lincoln, he himself did not approve in advance most of the arrests, detentions, and trials before military commissions which took place during the Civil War. His cabinet secretaries and other advisors did that, but Lincoln acquiesced in almost all of their decisions. In this respect, he seems to me to have acted similarly to the way President Franklin Roosevelt did during the Second World War. Lincoln felt that the great task of his Administration was to preserve the Union. If he could do it by following the Constitution, he would; but if he had to choose between preserving the Union and obeying the Constitution, he would quite willingly choose the former course."
-William Rehnquist
If you had said in the US, while the white house was burning that “I actually like the British" there would have been a summary execution for treason. The constitution survived those times, but their was more than a passing element of ‘silent leges inter arma' - in time of war the laws are silent and the guns speak.

(b) Neo-con-Republican-War-Mongers
Why don't you throw in "white-Christian-pro-life freaks" and then you will be Howard dean.
- The legislature should have taken responsibility for war making instead of handing the sword to President Bush and then backpedaling when the poll numbers changed. The reason why my side is in power is the 'intestinal fortitude' that you besmirch'.
- Neo-cons are just liberals that have been mugged by reality. I am not one of those reality mugged me before I formed a liberal position, but most people come around to our side mid-life because certain realities present themselves.

I hope that you are correct, that the terrorists will not be able to harm us more than we have been harmed in the past, but that seems just a tad naïve.

11:31 AM  
Blogger I Am Chadha said...

I used those "highly tense" times in our nation's history to illustrate we've been through far worse than 9/11, and we never exactly "gel[led] into a military state over-night." Even during the Civil War and World War II, Congress explicitly conferred to the executive the powers that branch utilized. Remember too that in Ex Parte Milligan the Court refused to allow the executive to suspend the writ of habeas corpus. So perhaps the idea that the Constitution can survive national crisis is more than just an "interesting interpretation of reality."

Even the worst of the war-time due-process decisions existed in some kind of constitutional framework, informed by the practical realities of the times, and they were still bad decisions. Your side is making bad decisions too, but this time without any constitutional basis and when faced with a danger that, by any sober analysis, is far less a national threat than was the Civil or Second World War. The fact that you think the terrorists pose a greater threat to the US than Nazi Germany or the Confederacy is simply mind-boggling; that is paranoia plain and simple.

Your side is in power, they've definitely stepped up to the plate, but that doesn't mean they have the intelligence or the skill to play the game. Real republicans and libertarians should be ashamed at what the administration is doing, but I'm afraid nothing much like shame still exists on the right.

12:12 AM  
Anonymous Fed Soc said...

"Even during the Civil War and World War II, Congress explicitly conferred to the executive the powers that branch utilized."

Here it is:
…to use **all necessary force** against those nations, organizations, or **persons** HE determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.
- is the AUMF unclear?

- Ex parte Milligan was after the war ended, see Rehnquist article.

- In WWII we were largely a military state (over 20 million in uniform), and the same proportionally during the civil war. I suspect more civilian deaths on our shores would motivate some serious militarization, at least on par with WWII.(remember kuromatsu).

- Terrorists pose more of a threat than the Nazis and less of a threat than the confederacy, the Nazis never really posed a threat to the shores of America...but isn't that enough?
The fact that you do not see the threat that they pose is sobering to me. Our generation has never seen hardship like the depression, civil or Second World War. We have never known the want of our forfathers. The deaths that an attack would cause are almost insignificant when compared to the economic consequences. I have never been hungry, and I assume that you have not either. However, if our Bonds become worthless because of a major economic shock (like a truck bombing at the CBOT) we may have the chance to experience want firsthand.

-"Real rep/libertarians" - come on. Is that the best division tactic you've got? Good luck with that. Your side can't come together on any major issue other than hating my side. And I am a Catholic, I have plenty of shame. Your post about our new Pontiff shows that you have neither shame nor respect. Whatever your side may say outwardly, your moral/intellectual superiority complex bleeds through. Keep saying "wal-mart shoppers" like you have never been one and implying that we lack the intelligence and skill to play the game. It's been working for our side since the days of Reagan.

Viva la Reagan Revolucion.

10:47 AM  
Blogger I Am Chadha said...

Conferring to the president the right to use force in prosecuting a war (or any police action, for that matter) is worlds apart from giving to the president the right to suspend the constitutional rights of American citizens. Quote the AUMF all you want, an authorization to use military force does NOT give the executive the right to undermine the rights of detained citizens, even if it authorizes their initial apprehension through force. Did Congress through the AUMF vest judicial power in the executive branch for purposes of holding military tribunals? As for Ex Parte Milligan, it would be instructive for you to actually read it, rather than to rely on Rehnquist’s summary. Do it now, 71 U.S. 2. Had you done so, you might have noticed that “[m]artial rule can never exist where the courts are open,” to distinguish it by saying it applied after the war ended is disingenuous; it speaks directly to the proper role of the executive during conflict.

Again, I still think you’re hopelessly paranoid, and your insistence that the rights of American citizens by curtailed to feed your paranoia borders on cowardice. I know that your type, fighting wars from your arm-chairs, longs for the chance to write a Tom Brokawesque “Greatest Generation” memoir about how tough things were, but I actually value the achievement more than the struggle. “Gather around, children, and let me tell you about a time when we were so scared we took away people’s rights!” It seems asinine to surrender the rights our “forfathers” [sic] fought for just so we can enjoy the hardships. More than 405,000 American deaths and you think World War II was less of a threat to the nation than terrorism is now, not to sound intellectually/morally superior, but holy shit...

I’m not exactly trying to “divide” your side, Intermeddler doesn’t have the readership yet to really change beltway politics, believe it or not. I’m from a part of the country far more religious and republican than anything you’ve likely ever seen, and I am pretty fluent in the issues that tend to drive traditional Eisenhower republicans and libertarians. Creating an extraordinarily strong executive is not one of those aims. And please don’t think I’m only implying that you all lack the intelligence and skill to play the game for the good of the country; I’ll shout it from the roof-tops. Believing one’s position is morally and intellectually superior has got to be better than shouting at the other side “you think you’re smarter and it hurts our feelings.” Sorry I hurt your feelings about the pontiff, I remember you were pretty upset. I forget how sensitive you are, but I promise to play nice from now on. And I will respond to every post, so only keep posting for as long as you want to do this.

12:02 PM  
Anonymous Fed Soc said...

- The AUMF was an act of legislative cowardice, yet I still see no limitation to non-citizens. And if it does not extend to detention, it would behoove the president to summarily execute rather than detain, because the AUMF does allow for that.

-“it speaks directly to the proper role of the executive during conflict.” – That may be so, but it speaks from the safety of a post war environment, like throwing a punch at a big guy who is in cuffs. Ask the Korematsu/Qurin court if they were ready to go toe to toe with the exec in a time of war.

“More than 405,000 American deaths and you think World War II was less of a threat to the nation than terrorism is now, not to sound intellectually/morally superior, but holy shit...”

- WWII was a war of choice. There were 405,000 deaths to stop fascism from infecting other countries. [This is where you justify on grounds of a gathering threat, and I say ‘gotcha’]. By your logic, the reason we invaded Iraq was the near 2000 deaths of our armed forces to date. **I’d rather misspell forfathers [anal] than conflate the concepts of cause and effect.** I Believe that WWII was rightly fought, But even with qurins little excursion there were no civilian deaths from Nazis on US soil. And the ‘Arsenal of Democracy’ spending actually dragged us out of the depression.
Sure, the Nazis were evil, but they were killing non-US citizens in other countries. I think terrorism on our soil is a much more pressing issue threatening the integrity of our nation.
[In that respect, we had to kill most of the Germans to save them. We firebombed children and civilians, and in Japan, we burned/nuked civilian installations intentionally. So much for the WWII civil liberties high horse.]

-Yep, I am an armchair warrior, paranoid, delusional and a coward to boot. And I am such a sensitive ninny that gets in a huff when somebody mocks my Religion. Ouch. You make excellent arguments, and I only post for the response, but you made me cry and I am going to tell my mommy.

-I do believe that I am right and intelligent; I just refrain from assuming that those who I converse with are less moral/intelligent based upon their party affiliation.

In closing: the nature of this debate – before we both devolved into name calling – is one where if an attack occurs I will say ‘I told you so’ and you will say ‘it was inevitable’, and if an attack does not occur you will say ‘there was no threat’ and I will say ‘ what we did was justified.’ So keep fighting, on balance I think that your side prevents us from going too far, and our side prevents you from acquiescing to every country/group that has a board with a nail through it.

- It's good to see what the other side has. Thanks.

12:36 PM  
Blogger I Am Chadha said...

"[I]t would behoove the president to summarily execute rather than detain, because the AUMF does allow for that." That's more or less what the federalist society at the panel discussion suggested, which led Judge Parker of the Second Circuit to imagine the military gunning down Padilla at Chicago O'Hare. But the distinction isn't as absurd as it might seem, certainly police officers are allowed to use more force in pursuit of a suspect than is allowed once the suspect is in custody, and, of course, the AUMF limits the executive to "necessary" force, a limitation which probably does not include summary execution. It is also true that the AUMF does not specifically limit itself to non-citizens, but citizens rights don’t exist at the whim of the AUMF.

“[Milligan] speaks from the safety of a post war environment.” Which, unless I am mistaken, is precisely the time to address these issues. That seemed to be the suggestion Rehnquist put forward in the speech you cited. The Qurin and Korematsu courts weren’t willing to go head to head with the executive, and the results are something to be ashamed of. How much better to have answered these questions in advance.

I suspect WWII was quite a bit less a “war of choice” than you assert, given that we were attacked at Pearl Harbor, in our bases in the Pacific, and our colonies in the Philippines, followed shortly by a Nazi declaration of war. That we weren’t attacked on the mainland is a happy accident of geography, but I wouldn’t characterize WWII as something we could sit out. The war was definitely a threat to the nation (look at the popular fears of a mainland invasion following Pearl Harbor, there are still artillery pieces in San Francisco harbor). The Nazi’s were not only “killing non-US citizens in other countries,” they and their allies were killing US citizens around the globe, attacking our shipping and trade (to far greater effect than truck-bombing the CBOT), and killing soldiers and civilians at Pearl Harbor, which though not a state yet, is close enough for me. (Military bases and embassies are, after all, considered American soil, to say nothing of our territories, colonies, and protectorates).

“[anal]” Sorry, that was a joke related to my most recent intermeddler post. I think the whole [sic] thing is sort of in bad taste even when it’s properly used in citation, and definitely has no place in a casual discussion on a comment board. I thought maybe you’d catch it.

Your final paragraph be a fair characterization of what our respective sides are saying, except I do think it’s likely that there will be further terrorist attacks. I just don’t think the threat justifies the measures you suggest. Becoming a quasi-military state to prevent becoming a full-military state is something we should avoid (before you yell, I don’t think we’re a military state of any sort yet). I’m also all for intervening when it’s necessary (Afghanistan was, Iraq wasn’t, now we may fail at both). I think leaving Iraq now would be a mistake, but I suspect we will. I think the UN is a nice idea but has utterly failed to matter. In short, I’m all for hunting terrorists, the same way I’m all for hunting child molesters and murders, but not at the expense of liberty.

1:39 PM  

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