The Glorious Counterrevolution

Jesse Walker | June 8, 2004

Somehow we've neglected to blog the Bush administration's recently exposed torture memo. Other pundits, fortunately, have not been so slow. Of the online commentary I've read so far, the most cogent comes from blogger Mark Kleiman:

One cheerful aspect to the torture memo story: it will provide a clear test of the difference between "right-wingers" and "conservatives." Anyone properly calling himself an American conservative will be horrified, and will say so. (William Howard Taft IV, the General Counsel at the State Department, apparently objected but was overruled.)

If the Framers had wanted to give the President emergency authority to suspend the laws, they could have done so. They chose otherwise.

As good Whigs, they had no genuine alternative. Rejection of the claim of an inherent royal power to suspend the laws was the principle behind the Revolution of 1688.

What should the President do when defending the country requires breaking the laws? Why, he should break the laws, which usually means instructing his subordinates to do so. He, and they, remain subject to punishment, and he remains subject to impeachment.

But if the President can lawfully suspend, by his own mere say-so, any law he thinks inconsistent with the public safety, then there is no check on the President's power save his own self-restaint and calculation of political reaction. Perhaps one could call a nation so ruled a republic -- the definitional question is a nice one -- but it would not be the republic established in 1789.

Comments

|6.8.04 @ 2:22AM|#

Stephen Fetchet,

The Constitution is most certainly applicable to non-citizens. When here, they are protected by the Bill of Rights, as well as citizens are, from government aggression. The only conditions not withstanding are the duration specifications of their stay. And, the courts have ruled that even in this, "due process" must be satisfied.

Each of the rights in our Bill of Rights is as applicable to non-citizens. It's the welfare state that's not a constitutionally sanctioned activity.

Gary Gunnels:

"People" is the plural of "person" just as "persons" is.

|6.8.04 @ 2:54AM|#

Rick Barton,

"'People' is the plural of 'person' just as 'persons' is."

Well, historically the meanings differ; and the Supreme Court disagrees with you - please see US. Verdugo-Urquidez (1990).

Here's an excerpt from that decision:

The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, � 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law").

|6.8.04 @ 3:02AM|#

The Constitution is most certainly applicable to non-citizens. When here, they are protected by the Bill of Rights, as well as citizens are, from government aggression

Operative words: "when here". The Supreme Court has generally held that non-citizens who are NOT in the United States do not have Constitutional rights.

That sentiment is so un-American, you might as well be spitting on the flag.

Whatever. The Founders would have simply shot the detainees after capturing them, possibly after torturing them for information. Un-uniformed murderers of soldiers and civilians weren't granted ANY respect in those days -- and torture, of course, was both legal and widespread until the 20th century. Torture and summary execution are, today, understood to be generally wrong -- but calling them "unpatriotic" is silly.

Anyway -- what, exactly, is so bad about this memo? So far as I can tell, it didn't endorse torture; it simply found that Bush had the legal right to order the use of torture, which he does. I hope he hasn't ordered its use, because I think that would be counterproductive and wrong, but he's on firm legal ground either way.

|6.8.04 @ 3:21AM|#

Dan,

Rick Barton is moving the ball again:

Posted by Rick Barton at June 8, 2004 12:21 PM

"Since when should US laws apply to non-US citizens? [Comment Rick was responding to.]

Since the founding of our Republic. When referring to rights, the Constitution specifies 'persons.'" [Note that he does not qualify the statement with any sort of contacts standard.]

Posted by Rick Barton at June 8, 2004 02:22 PM

"The Constitution is most certainly applicable to non-citizens. When here, they are protected by the Bill of Rights, as well as citizens are, from government aggression." [Now - suddenly - the contacts standard shows up.]

Also note that he adopted the "contacts" standard approximately a half-hour after I brought it up (indeed, he essentially summarized my statements). His confusion is also clearly illustrated by the example he chose to use in his first statement - the military prison in Iraq, which does not even remotely fall within the contacts standard as articulated by the courts.

|6.8.04 @ 4:21AM|#

Gary Gunnels, try following the thread and reading more carefully. And, endeavor to debate more with your intellect and less with your ego. Also, please provide links with your citations as you made unsubstantiated claims before, and it's good practice anyway.

Please note that I wrote:

"The Constitution is most certainly applicable to non-citizens. When here, they are protected by the Bill of Rights, as well as citizens are, from government aggression."

in response to: "Rick...offers the authoritative advice that the Constitution is applicable to non-citizens.

My first statement was in response to the sentence:

Since when should US laws apply to non-US citizens?

I was not applying constitutional limits in Iraq.

As to "people" and "persons"... The rights in our Bill of Rights were not intended to be somehow only "collective" rights. They are intended to protect individuals.

Gary Gunnels:

"indeed, he essentially summarized my statements"

Ha! That's funny. And now the guy who won't even provide links for his claims wants attribution!

|6.8.04 @ 4:41AM|#

Dan,

"The Founders would have simply shot the detainees after capturing them, possibly after torturing them for information."

Do you have any historical evidence of this about the founders of our Republic? Also, there were prisoner exchanges during and after the war.

"Torture and summary execution are, today, understood to be generally wrong"

But, apparently not by you, judging by your first post. You should be ashamed of your statement that: "I frankly could care less what they do to the people in Guantonimo."

-- but calling them "unpatriotic" is silly.

Sure they are un-American. The core idea behind our Republic is individual liberty. Torture is directly contra the to the sanctity of the individual.

|6.8.04 @ 4:49AM|#

Dan,

Yuo wrote: "I hope he hasn't ordered its use, because I think that would be counterproductive and wrong"

Good for you on this one. Did you change your mind since your first post? What ever; good for you. Torture is always wrong.

|6.8.04 @ 4:53AM|#

Rick Barton,

"Gary Gunnels, try following the thread and reading more carefully."

Oh I am, you little worm. :0

"Also, please provide links with your citations as you made unsubstantiated claims before, and it's good practice anyway."

*LOL* When you start providing links to all your assertions, I'll do so myself; until such time, your comment rings rather hollow. Indeed, for a guy who supposedly likes to see people throw out citations, you certainly don't practice what you preach.

"The Constitution is most certainly applicable to non-citizens. When here, they are protected by the Bill of Rights, as well as citizens are, from government aggression."

A half an hour AFTER I stated the same damn thing (you plagiarized my statement by paraphrasing it); and AFTER your first claim, which was not qualified by any sort of contacts requirement. Like I wrote earlier; you keep moving the ball.

"Rick...offers the authoritative advice that the Constitution is applicable to non-citizens."

"Since when should US laws apply to non-US citizens?"

"U.S. laws" includes the Constitution (*duh*); though it differs by nature from statutory laws, as Marbury v. Madison went into great detail in describing. Therefore your attempt to create some differentiation here based on "laws" v. "Constitution" is really beside the point. If you meant to respond only to a claim about U.S. "statutory" laws you should have properly qualified your response; since you didn't, this appears to be some sort of post facto attempt to get your ass out of a sling. Indeed, as U.S. statutory law cannot extend any further than the Constitution permits, your argument is even more puzzling, since it was in reference to "laws" that you mentioned the military prison in Iraq.

"As to 'people' and 'persons'... The rights in our Bill of Rights were not intended to be somehow only 'collective' rights. They are intended to protect individuals."

I have as yet to make an argument about whether those rights are collective or not; more "dicta" on your part.

"Ha! That's funny. And now the guy who won't even provide links for his claims wants attribution!"

Actually, I qouted you with the timestamp provided; which was indeed a half-hour after the statement of mine that you summarized. Again, when you start providing links for all of your statements, so will I. Sorry, but I'm not going to live up to some standard that you or no one else here does. Indeed, the fact is that I attribute my claims more than most people here, and certainly more so than you.

|6.8.04 @ 5:04AM|#

Dan,

Torture as a rule was in swift decline in the 18th century as a legal sanction against an individual; I suspect that most of the founders would have found the practice barbarous, indeed, they would have likely viewed as practice fit for only despotic states. Indeed, this general pattern fit with the times - it being the Enlightenment and all. Then again, as such practices were allowed and even codified in the legal codes of at least some of the states for slaves who had committed certain wrongful acts, you may not be entirely incorrect. Needless to say, the 18th century was a time of flux as the subject matter was concerned, but such practices were outlawed in many nations in the 18th century, and clearly the humanitarian movement of the time was having its effect.

|6.8.04 @ 6:19AM|#

As I said; Gary Gunnels, try following the thread and reading more carefully!

I didn't write:

"Since when should US laws apply to non-US citizens?"

John did! I was quoting John in order to respond to him. Geez! It doesn't even make sense that I would write that.

Also; I tend to provide lots and lots of links. Just Google me up.

|6.8.04 @ 6:22AM|#

Do you have any historical evidence of this about the founders of our Republic?

It was standard military practice, which the Founders generally adhered to. Un-uniformed soldiers caught by the enemy were deemed either spies or bandits, and killed.

"Torture and summary execution are, today, understood to be generally wrong"

But, apparently not by you, judging by your first post. You should be ashamed of your statement that: "I frankly could care less what they do to the people in Guantonimo."

This may come as a shock to someone with your limited grasp of reality, but the phrase "generally wrong" carries with it the meaning "not always wrong". Thus, the use of the word "generally", as opposed to, say, "always" or "universally".

So far as I'm concerned, if we have the right to kill them, we have the right to torture them too. And, well, we have the right to kill any member of the Taliban or Al Qaeda, or anyone who aided them or sympathized with them, which pretty much covers most of the Gitmo folks. So we're on firm moral ground if we feel like torturing them.

I don't think we ought to torture them, but I'm not going to lose any sleep over it either way. It's like that child-molesting priest who got shiv'd in jail recently. Was his murderer "wrong"? Maybe, but who gives a shit.

Torture is always wrong

That's a morally indefensible position, unless you concede that killing is also "always wrong" --which is, of course, an idiotic belief to hold, and certainly not a "patriotic" or "American" one.

|6.8.04 @ 6:47AM|#

Torture as a rule was in swift decline in the 18th century as a legal sanction against an individual; I suspect that most of the founders would have found the practice barbarous, indeed, they would have likely viewed as practice fit for only despotic states.

Oh, I agree that the Founders would, for the most part, have been against the more extreme forms of torture. But a lot of things referred to, today, as "torture", would have gone unremarked, including much of what happened at Abu Ghraib.

And certainly, an enemy spy captured during wartime would have been subject to torture for information, if it was thought he possessed knowledge vital to the war. Indeed, this would be perfectly in keeping with several schools of Enlightenment thought.

|6.8.04 @ 7:06AM|#

Rick barton,

"I didn't write:

'Since when should US laws apply to non-US citizens?'"

I never wrote that you did; for someone who goes on and on about reading carefully, you certainly don't do so; here, let me qoute myself in full:

Posted by Gary Gunnels at June 8, 2004 04:53 PM

"U.S. laws" includes the Constitution (*duh*); though it differs by nature from statutory laws, as Marbury v. Madison went into great detail in describing. Therefore your attempt to create some differentiation here based on "laws" v. "Constitution" is really beside the point. If you meant to respond only to a claim about U.S. "statutory" laws you should have properly qualified your response; since you didn't, this appears to be some sort of post facto attempt to get your ass out of a sling. Indeed, as U.S. statutory law cannot extend any further than the Constitution permits, your argument is even more puzzling, since it was in reference to "laws" that you mentioned the military prison in Iraq.


I am clearly here referring to your *response* to the statements by the other posters; I merely juxtaposed the two in order to discuss your ultimate, but bogus, claim, that you were responding to two different statements differently; indeed, you were responding to almost identical statements differently, and now you're trying to cover your tracks by stating that "laws" do not equal "Constitution," when in fact the Constitution is part of the American body of "law." If you wanted to qualify your response to only "statutory laws," then you should have done so; furthermore, such a differentiation makes little sense in the first place because statutory laws cannot reach further than the Constitution itself - in other words, you appear to claim no contacts are needed in the former, while the latter require contacts, which from a Constitutional perspective, makes no bloody sense. However, please do explain why you responded differently to these nearly identical statements; it should be good for a laugh.

To further illustrate my statement that I was discussing your response to the statements of others, I will qoute myself again:

Posted by Gary Gunnels at June 8, 2004 03:21 PM

"Since when should US laws apply to non-US citizens? [Comment Rick was responding to.]

Since the founding of our Republic. When referring to rights, the Constitution specifies 'persons.'" [Note that he does not qualify the statement with any sort of contacts standard.]"


Note that I make it absolutely clear in my first statement on the matter that you are in fact responding to another poster with your original no-contacts statement; all you've tried to do is muddy the waters with a lot of rhetorical splashing.


"Also; I tend to provide lots and lots of links. Just Google me up."

In this whole series posts we've been having I've tossed out about half a dozen or so citations (mostly to court cases and statutes); you've mentioned one. I'll use that as indication of the veracity of your claim. :)

|6.8.04 @ 7:30AM|#

Another potentially interesting thread swamped by one of these "am not"/"are too" pissing contests.
Why is it that about 90% of them seem to involve Gary Gunnels? (And do I have any evidence to back up that figure?)

|6.8.04 @ 7:57AM|#

Dan, you wrote, in response to my: "Torture is always wrong":

"That's a morally indefensible position, unless you concede that killing is also "always wrong"

No it isn't, it's defensible by the same sentiment that proscribes cruel and unusual punishment but allows capital punishment.

"So far as I'm concerned, if we have the right to kill them, we have the right to torture them too."

First off it's not "we, it's our government. Also, the government doesn't have the right to kill captured prisoners. In fact any soldiers who torture or kill captives might face prison, and they should.

"And, well, we have the right to kill any member of the Taliban or Al Qaeda, or anyone who aided them or sympathized with them, which pretty much covers most of the Gitmo folks."

Does that include when our government was funding the Taliban? Also, look at how the, "Black and White" way you view this situation corrupts your ethics.

"So we're on firm moral ground if we feel like torturing them."

Listen to you; you couldn't be expressing a much more un-American sentiment. Are you some kind of sadistic savage?

One of the things that make our republic so special is that the government cannot justify torture to its citizens. It runs contra to what it means to be an American.

|6.8.04 @ 8:17AM|#

Dan,

Torture is un-American.

So is the practice of slavery.

The fact that the founders may have practiced these activities doesn't mean squat.

And, you are wrong. President Bush doesn't have the authority to order torture.

The firm moral gound you claim is going to be an earthquake before this shit is over with.

|6.8.04 @ 11:29AM|#

This thread got off topic pretty quickly. The horror of the memo is not that it tries to justify torture, but that it claims that "the right to suspend laws is inherit in the President." If Bush believes this, he ought to be impeached, whether the law he wants to suspend is serious or trivial. This has been a settled principle of Anglo-American law since 1688. The torture angle does make this a little more cringe-induing than if Bush were trying to do something noble (like the last "Anglosphere" head of state to try this, the unfortunate James II, who just wanted to suspend the laws persecuting his fellow Catholics), but the principle would be the same.

|6.8.04 @ 11:49AM|#

"serving cold pre-packaged food?"

|6.8.04 @ 11:55AM|#

Basically the only time the President could constitutionally suspend say habeas corpus is during some "repel attack" scenario where the Congress cannot meet or doesn't have time to meet. Though not explictly given this power in the Constitution, the framers did debate this issue and generally agreed that he had such power. However, such power is of course temporally limited; indeed, in the case of 9/11, it could have been undertaken since the Congress was in session.

|6.8.04 @ 12:04PM|#

Since when should US laws apply to non-US citizens? I think Bush went a bridge too far in the Padia case because he is an American Citizen. The non US citizens caught in the war on terror have no protection under US law. Its not particularly lawful to bomb and kill US citizens, but of course the President can order just such a thing of enemy combatents during war. As long as they are not US citizens, I frankly could care less what they do to the people in Guantonimo. We are at war and there is only one standard, winning.

|6.8.04 @ 12:08PM|#

I should have also noted that the Congress has granted the President all sorts of emergency operational authority over the years, and this authority lies dormant until certain conditions arise. Indeed, the President can use said authority as long as he says so publicly (they want no repeat of Cambodia - which was based on a secret use of an authority found in a Civil War statute for animal feed); in other words, as long as he states what authority he is specifically using, and why he is using it. This is the reason why Presidents always argue that they are using both their "inherent" Article II auhtority, as well as whatever authority granted to them by Congress. Not only are they trying to get their action into that tier 1 Youngstown Sheet & Tube Co. v. Sawyer (1952) category found in Justice Jackson's concurrence, they are also trying to cover their ass if the courts find that Art. II authority doesn't exist, or can only be exercised with the express permission of the Congress.

|6.8.04 @ 12:10PM|#

Where in the constitution does it say that non-citizens aren't entitled to the same protections as citizens?

"We are at war and there is only one standard, winning."

Then you don't believe in any rules governing war-time behavior?

|6.8.04 @ 12:17PM|#

John,

"Since when should US laws apply to non-US citizens?"

Since the 14th Amendment came into being. Indeed, there is a long line of case-law which states that if a non-citizen has significant contact with the U.S., he or she is granted at least some protection under the U.S. constitution - this is why aliens who overstay their visas, etc. must have some due process before they are booted from the country. Indeed, this due process must include some means of appeal - at least in the habeas corpus sense - according to INS v. St. Cyr (2001).

"The non US citizens caught in the war on terror have no protection under US law."

Actually, they do; indeed, even American military law provides them with at least some protection even if they fall outside of the significant contacts orbit of the case law; such law is based at least in part on treaty law - which is part of the Constitution, and thus part of the supreme law of the land under the Supremecy Clause.

|6.8.04 @ 12:21PM|#

John:

Since when should US laws apply to non-US citizens?"

Since the founding of our Republic. When referring to rights, the Constitution specifies "persons".

"I frankly could care less what they do to the people in Guantonimo."

That sentiment is so un-American, you might as well be spitting on the flag. Also, history is replete with examples of the same abuse governments inflict on captured foreign enemies, as it was at Abu Ghraib and also at Guantanamo,

http://observer.guardian.co.uk/international/story/0,6903,1217973,00.html

later being visited upon dissent at home.

|6.8.04 @ 12:50PM|#

"The review stemmed from concerns raised by Pentagon lawyers and interrogators at Guantanamo after Rumsfeld approved a set of harsher interrogation techniques in December 2002. . . Rumsfeld suspended the harsher techniques, including serving the detainee cold, pre-packaged food instead of hot rations and shaving off his facial hair. . ."

Cold food? Shaving? The horror, the horror. Oh, the humanity...

As always, the rhetoric overwhelms the particulars.

1. The Fourth Geneva Convention, if interpreted literally, means that everyone who is an "irregular" - captured in other than a military formation, in uniform, etc. - has to be treated as a civilian detainee, i.e. no questioning, and no trial.

2. Again, if interpreted literally, it means no questioning of enemy prisoners of war whatsoever. The exact language is no duress, no coersion - you capture someone at gunpoint, hold them against their will, then start asking questions, how can it be anything other than duress or coersion?

3. Having defined torture downward by an excessively literalist interpretation of the Conventions, the mere act of asking questions of a chap in a skirt, who until two minutes ago was shooting at you, is duress and coersion, and therefore torture. So is holding such a person for any length of time - after all, we're taking the conventions literally here, and any doubts are to be resolved in favor of the individual. If Mohammad says he was an innocent civilian, who just happened to be firing that AK-47 in the general direction of the patrol, then you have to take him at his word and release him.

4. Meanwhile, CIA and DOD operatives are left wondering, what to do about the Al Qaida operations officer they just captured, with knowledge of ongoing plots. Dunk his head under water until he stops cursing them out and decides to talk? Keep him awake for a week until he relents? Strip him naked and question him? Feed him cold food? Ask him once, nicely, if he'd like to tell us about the bomb and hijacking and beheading plots? Or just let him go because he says he's a holy warrior and not subject to earthly laws?

5. The French go into high dunder-mode, knowing full well they have actual dungeons into which they throw misbehaving Algerians to rot, at least until they can be thoroghughly and rudely interrogated, or at least rendered to a government happy to do the dirty work for them.

6. The EU doubles over laughing, being fully aware that the accepted and customary interpretation of the Geneva Conventions - and thus international common law - is that very rough treatment short of causing permanent damage is acceptable, and has been for many years thought to be NATO standard interrogation practice for enemy prisoners of war. This includes naked questioning, threats and sleep deprivation.

7. The DOJ attorney who wants to warn his clients about lines that can and cannot be crossed, is now confident that his explanation fo the law can no longer be committed to paper. Forget about the so-called "ticking bomb" exception, which every ACLU lawyer was willing to concede in court, until that day came when we were actually faced with a lot of ticking bombs. Instead, the DOJ lawyer now decides to work on an interesting commercial law issue, and to keep his mouth shut about human rights this time, knowing full well that somebody at State will probably leak any honest assessment of the law to the press, and he will be villified. Better to not give an honest assessment of what the law permits, than to end your career that way.

8. Meanwhile, Rick, ordinarily a raging hater of vast government, in proving he attended law school with Lionel Hutz, offers the authoritative advice that the Constitution is applicable to non-citizens. Tutsis, Hutus, Pathans, Tibetans, Belgians and Chechnyans alike rejoice, and wonder where they can file a claim for welfare.

|6.8.04 @ 12:55PM|#

Rick Barton,

"Since the founding of our Republic. When referring to rights, the Constitution specifies 'persons.'"

That depends on the "right."

For example, take the Fourth Amendment, it refers to "The right of the people..."; or the Sixth Amendment, which refers to "the accused"; or the Ninth Amendment which refers to "the people..." The Supreme Court has stated that the terms like "the people" limit the scope of the right.

Phil|6.9.04 @ 6:33AM|#

Does that include when our government was funding the Taliban?

That didn't actually happen, you know. Robert Scheer notwith.

|6.9.04 @ 11:11AM|#

Phil,

Same folks, different names.