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David Weigel | October 4, 2006

Jacob Sullum checks out the status of the Due Process Clause after Congress' torture compromise.

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thoreau|10.4.06 @ 9:03AM|#

I seem to recall reading that US citizens designated as aiding terrorism can also fall into this black hole. Am I mistaken?

thoreau|10.4.06 @ 9:10AM|#

Another thing: Some people have made a big deal about how we're talking about battlefield captures of non-citizens in hostile territories where the local authorities aren't helping us and the usual rules for evidence and chain of custody can't be applied.

OK, great. So I guess that is carte blanche to torture anybody handed over by an Afghan warlord collecting a bounty. Fair enough. Makes sense to me...or something.

But what about citizens of other Western countries captured in Western countries with the assistance of friendly Western governments that can help us maintain a proper chain of custody for evidence and all that?

I'm thinking of German citizen Khaled El-Masri, captured at a border crossing in Europe because his name was similar to somebody on a watch list. El-Masri was taken to Afghanistan, he was tortured, his torturers told him that he is in a lawless place with no legal protections (yes, they actually said that), and then they found out he's completely innocent.

Can anybody explain why he should have fallen into a legal black hole? He was captured far away from the battlefield in a lawful place with the assistance of friendly local authorities. He may not be a US citizen, but I still can't think of how the "battlefield capture yadda yadda" line applies to him, or why he should have been dragged to a lawless area for torture, instead of getting due process.

What about Maher Arar, a Canadian citizen captured on US soil with assistance from Canadian authorities? He was sent to Syria for torture. Can anybody explain why these special considerations of "battlefield captures yadda yadda" should apply to him, why he should fall into the black hole?

Even if the black hole doesn't apply to US citizens (a point that I hope somebody can correct me on) I still don't see any way to justify the legal black hole in practice. Talk all you want about battlefield captures in hostile lawless areas where all the usual rules can't be observed. Those aren't the only cases falling into legal black holes. And that should give everybody pause. Presuming you have a conscience, that is.

|10.4.06 @ 9:29AM|#

Virtually every significant exercise of power by any branch of government should have some check upon it. I'm not suggesting that a different type of due process might not be warranted for detainees picked up outside the U.S., but I am suggesting that providing no due process at all is wrong. It violates our principles, and it's just plain immoral to lock up innocent people without giving them a chance to say, "Hey, um, I was kidnapped and handed over to you. Here's the video. Oh, I'm a Christian, too." That sort of thing. It may have escaped the attorneys with the Administration, but we're supposedly to believe that all people have certain fundamental rights. . .not just Americans.

I hate to not play Captain Realpolitik here, but my feeling is that all this crap isn't necessary. We could easily play by our own rules and fight terrorism. I'm ashamed of my government--not for fighting terror, not even for the war in Iraq, but for the way it's acting like our values, laws, and principles don't mean anything when they are even mildly inconvenient. No one ever said being the guy with the white hat is easy. Let's stop blurring the line. We can still be tough, we can invade other countries, and we can shoot terrorists. . .let's just not lose our way in doing so.

|10.4.06 @ 11:22AM|#

Thoreau, In the war against terror, the whole world is a battlefield.

Or at least it could be argued as such, and I'm sure it will. You've pointed to a question I have yet to see answered. To whom and where does this legislation apply? Is an AUF or declaration of war necessary for it to take effect? Or is it always in effect.

"""It may have escaped the attorneys with the Administration, but we're supposedly to believe that all people have certain fundamental rights. . .not just Americans""""

It has not escaped the attorneys, they simply do not believe that "international rights" (rights that apply to everyone)aka "unalienable rights" exist. The Constitution need not apply to forgieners, and we can "redefine" any treaty at our will and hold the world accountable to our new definiton. I don't think SCOTUS will be as flexable.

It reminds me of a story I read about Lousiana politics a decade or so ago. Gambling is illegal in LA, so to allow for a casino to be built, the governor changed the states definiton of gambling to exclude that one casino. Not all casino, just his pet casino. That hipped me to the power of definiton when reading the letter of the law.

We are a scared nation that is being driven with fear. The GOP strategy is an "appeal to fear" campaign and it worked for them in 2004. The sooner we get off the 'terrorist are right around the corner' hype machine, the sooner we will be able to make good sense policy.

Fear helps power get more power. The American public is being played as fools and the American public is not disappointing the powers.

If you ask me, churches should get some balls and start excomunicating members who admit to supporting torture under any circumstance or the denying of God's "unalienable rights" to others.

|10.4.06 @ 11:23AM|#

|10.4.06 @ 12:09PM|#

While I don't suggest that we have to extend every legal protection enjoyed by our citizens to every person on the planet, let's recall that the whole point of this country is that certain rights should not be interfered with by government. It's less the individual foreigners and more our government acting outside of the bonds that we have placed on it that I'm worried about.

Sure, this time it's the evil terrorists or people that look like evil terrorists. Next time, though, it'll be the evil drug dealers. And so on. Either people have rights that the government can't ignore, or they don't. War can change the rules somewhat, but that's only assuming that war is a geographically and temporally limited affair. And even warfare has rules--something the Administration doesn't want to apply to the so-called war on terror.

|10.4.06 @ 1:07PM|#

"""While I don't suggest that we have to extend every legal protection enjoyed by our citizens to every person on the planet, let's recall that the whole point of this country is that certain rights should not be interfered with by government."""

Those being the "unalienable rights". But there is no right given by God that man can not take away. Governments, not Gods decides "who" gets "what" rights. So governments would have to recognize those "unalienable rights" as international rights belonging to all people of all nations. That would have every right-winger coast to coast screaming foul.

I think anytime we bring someone into our judical system we give them the rights provided by our system. Does a foreigner who commits a crime while in the U.S. get constitutional protections? I'm no expert but I'll bet there is well over a century's worth of precedents extending those rights to foreigners accused of crimes. If we have a case worthy of prosecution, constitutional rights do not interfere. It would not matter if we extend foreigners all rights or not.

A more interesting question is how much authority do we have to create laws to be applied in a forgien country. You can't arrest someone in Afghanistan for violating a U.S. law. and vice-versa.

|10.4.06 @ 5:08PM|#

When I first heard about this bill, one of the things commenters said about it was that it "suspended habeus corpus(sp?) for non-citizens". My first thought was "HOLY SHIT! Why aren't red flags going up at the phrase "suspended habeus corpus"? This can't be as bad as it sounds if so few people are freaking out about this."

Judging from Sullum's article, this does seem to be a very severe curtailment of due process rights.

I know that Bush has been saying for a while something to the effect that he has the authority to detain anyone he deems an enemy combatant in the war on terror until that war ends (even though it is not clear who if anyone has the authority to surrender on terrorism's behalf). It was my understanding though, that the bill congress was working on was required to make US government policy consistent with supreme court decisions that hold:

- Alleged enemy combatants must have access to some meaningful judicial process to review that status in which evidence is rationally evaluated. A committe that issues rubber stamp approval to the dentention of anyone the government claims is an enemy combatant is not sufficient.

- An enemy combatant must be a member of a hostile militant organization.

- There has to be some reasonably likely future set of conditions in which hostilities with the militant organization of which an enemy combatant is part can be said to have ceased.

(I am less sure that the last two are part of the supreme court's rulings, but they should be part of US policy)

At any rate, it seems to me that this bill not only doesn't implement the due process protections it is supposed to, but supports the idea that the executive branch can ignore due process almost altogether (at least with respect to non- citezens). So I hope either that:

my understanding of this bill is seriously flawed

or

SCOTUS strikes this down on constitutional grounds.

PS. good article Sullum, good points other commenters

|10.4.06 @ 5:25PM|#

More about the "suspension of habeus corpus for non - citizens":

- How can the government have the legal authority to do this? This is clearly not a state of rebellion or invasion in which the constitution permits such suspension, and as the article pointed out, the Due Process Clause refers to "persons" not only "citizens".

- If the government can do this, does this bill only curtail due process for alleged terrorism cases? If this passes constitutional muster, does that mean that aliens have no right to a trial for domestic violations like theft or money laundering?

- If this bill is ruled constitutional but it only applies to terrorism related cases, would that mean that congress has the authority to pass a future bill which would suspend habeus corpus for aliens more broadly?

thoreau|10.4.06 @ 9:07PM|#

I am disappointed that this thread didn't get more traffic.

belle waring|10.4.06 @ 11:08PM|#

This can't be as bad as it sounds if so few people are freaking out about this.

sorry, BG, it can. I recommend starting to freak out right away.

thoreau: everyone's busy on the jailbait thread. ;)

|10.4.06 @ 11:12PM|#

If the Dems really cared about what I cared about, they'd run solely on undoing the damage done by this Congress and this Administration, and stop harping on the usual crap about "tax cuts for the rich", etc., etc., ad infinitum. But they won't. I hope the idiots can at least keep their mouths shut long enough to win the House by default. That's the only real hope for divided government that I can see. From a distance, it looks likely that the next president will be a Republican, given the pathetic batch of candidates the Democrats have put up. Relatively pathetic--the GOP jokers aren't much better (there are a couple okay candidates on both sides, but they aren't well known enough to stay in the race, most likely).

What we need is a pendulum shift back to a more limited government. Wish we had an obvious option to get us there!

|10.5.06 @ 12:50AM|#

belle waring

Fuck. Lets hope SCOTUS does something about this.

I am not really the protest-attending type but something like this might motivate me to get out there with a sign.