Justice Scalia: “You Are Kidding Yourself If You Think” SCOTUS Won’t Vote in Favor of Internment Again

Credit: C-SpanCredit: C-SpanSupreme Court Justice Antonin Scalia spoke yesterday at the University of Hawaii and when the subject of the Court’s notorious 1944 decision upholding the wartime internment of Japanese-Americans came up, the conservative justice had a sobering message for his law school audience. As Audrey McAvoy of the Associated Press reports:

Scalia was responding to a question about the court's 1944 decision in Korematsu v. United States, which upheld the convictions of Gordon Hirabayashi and Fred Korematsu for violating an order to report to an internment camp.

"Well of course Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again," Scalia told students and faculty during a lunchtime Q-and-A session.

Scalia cited a Latin expression meaning, "In times of war, the laws fall silent."

"That's what was going on — the panic about the war and the invasion of the Pacific and whatnot. That's what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It's no justification, but it is the reality," he said.

I guess this means Justice Elena Kagan is not the only "paranoid libertarian" on the bench.

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  • Fist of Etiquette||

    Scalia cited a Latin expression meaning, "In times of war, the laws fall silent."

    What's Latin for war on drugs?

  • AlmightyJB||

    Yeah, the government is always at war against the people. War on drugs, terror, guns, fat. It's all war on freedom.

  • Snark Plissken||

    Jurisdictio delenda est.

  • Swiss Servator, Befehl!||

    Bellum in magna?

  • ||

    Confutuere te, id quod

  • Tonio||

    FYTW?

  • ||

    If my Latin skills weren't so neglected I'd attempt to do a Latin translation of that.

  • Fluffy||

    Pedicabo ego vos et ideo

  • Fluffy||

    Pedicabo ego vos, qui est quid

  • ||

    The people called Romans, they fuck in the house???

  • ||

    Conjugate the verb 'to fuck'.

  • Tonio||

    +1 Roman Centurion played by John Cleese

  • Heroic Mulatto||

    futuere would be a more literal translation, but I like pedicare as it captures the pragmatics and semantics of the English better.

  • Robert||

    Pedicabo ego vos, qui est quid


    "Pedicab, he go west, quietest for a quid."

  • ||

    Ahem.

  • ||

    That was cute.

  • SugarFree||

    Ahem.

    RUN! THAT'S THE NOISE HE MAKES WHEN HE'S ABOUT TO POOP!

  • Snark Plissken||

    Seru tebe, to je proto

  • Doctor Whom||

    Futue te ipsum; ecce quare.

  • Snark Plissken||

    est optimum crassum pizza

  • ||

    Ars longum nova herring.

  • Anonymous Coward||

    Inter Arma Enim Silent Leges

  • Heroic Mulatto||

    Probably the best episode of Deep Space Nine.

  • Hugh Akston||

    "'In time of war, the law falls silent.' Cicero. So is that what we have become; a 24th century Rome, driven by nothing other than the certainty that Caesar can do no wrong?!"

    I would say "In the Pale Moonlight" was the best, but "Inter Arma" was pretty great.

  • Fist of Etiquette||

    Pale Moonlight is generally accepted as the best, therefore your opinion on the matter is pedestrian. I say whichever one had the gawd awful "move along home" game in it was best.

  • Heroic Mulatto||

    You know what? I was confusing the two. I thought the plot of "In the Pale Moonlight" was the plot of "Inter arma..." I absolutely agree with you even if you're a FAAAAKKKEEE!

  • Pelosi's Rabbit||

    Profit and Lace or GTFO

  • Heroic Mulatto||

    What's Latin for war on drugs?


    Bellum contra pharmakon

  • Fist of Etiquette||

    Uh, I wasn't literally asking. I was trying to make a point. WHAT'S LATIN FOR MISSING THE POINT?

  • Fist of Etiquette||

    (Actually this time I am kind of curious if there's a phrase for that.)

  • Almanian!||

    Cogito Ergo Zoom?

  • Snark Plissken||

    E pluribus uhaul.

  • Sevo||

    "WHAT'S LATIN FOR MISSING THE POINT?"

    Tony?

  • SKR||

    he said Latin.

    Tonus

  • ||

    That's dark, but refreshingly honest.

  • Hugh Akston||

    Well fortunately for us, wars are limited in scope and duration, and can only be waged by a formal act of Congress, which takes such things very seriously.

  • Swiss Servator, Befehl!||

    You, sirrah, shall hear from my solicitor! I nearly choked to death, whilst laughing heartily at your comment.

    Damages include restoration of a now messy desk and one half bag of Planters Dry Roasted Peanuts.

  • Almanian!||

    Good luck collecting. You know what they say - "All's fair in love and war"

  • ||

    ...I nearly choked to death ... one half bag of Planters Dry Roasted Peanuts.

    Maybe it wasn't the laughter?

  • Swiss Servator, Befehl!||

    Its the tiny, 50 cent bag.

  • ||

    Be sure to let your allergist know.

  • Voros McCracken||

    slow clap

  • ||

    It's not paranoid libertarian. He just admitted that there is no actual rule of law; the supposed rule of law is subject to the whims and panics of the people and their rulers. Therefore Scalia, a judge who sits on the highest court of rule of law in the country, admitted that we actually live under the rule of man as soon as the fiction of rule of law becomes inconvenient.

    I didn't expect Scalia to back me up about constantly saying that, but I'll take it.

  • ||

    The libertarian paternalists will tell you what is and is not paranoid libertarian. Now go opt out of something good for you and shut up.

  • Irish||

    What the fuck is a libertarian paternalist? Is that like a black white supremacist?

  • ||

    Irish, put "site:reason.com libertarian paternalists" in Google and go to town. You'll find out, and you won't like it.

  • Irish||

    Oh, I see. It's a nice way of saying 'soft Fascism' while making yourself out to be more George Washington and less Mussolini.

  • SugarFree||

    Cass Susstein is the monkey most often seen trying to fuck the "libertarian paternalist" football.

  • ||

    He's also the one who wrote the dipshit article on paranoid libertarians linked yesterday AM.

  • Irish||

    Sunstein is one of the sloppiest thinkers I've ever tried to read. His mind seems to work on the level of Amanda Marcotte.

  • ||

    That's unkind. Not necessarily unfair, but unkind.

  • Irish||

    In fairness, he is a better writer than Marcotte.

    I could pound my head on this keyboard repeatedly and whatever resulted would be better than Marcotte, but at least it's something.

  • ||

    I saw this comic mocking the HBO hit Girls this morning and here would be as appropriate a place to put it as any.

  • ||

    Eh, when you're paranoid and narcissistic you're paranoid and narcissistic.

    The lead characters in 'Downfall' and 'Girls' have that in common.

  • SugarFree||

    Ray is the only likable main character, and he's an insecure asshole most of the time.

  • Irish||

    I watched the first season and gave up. My favorite part is that Marnie is supposedly based on Lena Dunham's best friend.

    This means one of two things:

    1) Lena Dunham hates her best friend.

    2) Lena Dunham doesn't realize how terrible a human being her best friend is.

  • ||

    Wow, Irish, you seem to have missed the entire point: she does know how terrible a human being all her friends are. And herself. The mockery of their selfishness is too pointed and obvious to not be on purpose.

    If she's writing this stuff without being even slightly aware of that, then that makes it so incredible that it's even more interesting to me. Because that would be almost unthinkable.

  • Irish||

    Why would she behave the way she does if she realizes how horrible she is? She actually IS like a character from that show.

    I legitimately don't think it's possible for someone to be self-aware enough to make that show without changing their behavior to be less insufferable.

  • ||

    Or someone comes to the realization that they are an insufferable scumbag, and while realizing they need to change, decides to cash in on it. She might have changed for herself--enough to write this--but decided to keep on with the facade long enough to get rich.

    I don't know; all I know is that there is too much in the show that signals that she knows what she's saying for me to think it's totally unaware.

  • ||

    Why would she behave the way she does if she realizes how horrible she is? She actually IS like a character from that show.

    Because she's lived quite possibly the most sheltered and bubbled life of any person I've ever heard of and thus doesn't interact with anyone other than sycophants and bootlickers that constantly give her positive feedback?

  • ||

    Ray? Don't you mean Adam?

  • SugarFree||

    Adam is very interesting and a damn well written character, but his obsession with Hannah makes him unlikable. It's hard to like anyone who must be filled with self-loathing to do that to himself.

    Hannah is an abyss staring into itself.

  • ||

    That comic is pretty on the money. You're not supposed to like the characters; they are unbelievably selfish, self-centered scum who fuck each other over (and themselves) because of their insecurities and selfishness. All within a framework of uncomfortable comedy and sex.

    It's not meant to be pleasant to watch, and anyone who finds it to be so is being mocked by the show itself.

  • Irish||

    I thought this at first, but Lena Dunham actually behaves like a character from that show.

    If Dunham were a normal person who made that show, I'd think that it was a mean spirited satire. Given what I've seen of Dunham, I'm not so sure.

  • ||

    Maybe, but think about this: if she acted like a normal person when in the spotlight, what would happen to her audience? The vast majority of the Jezebel/Feministing fan base would turn on her in a second as a phony. And that's a large part of the fan base.

    My gut, as someone who has watched a lot of stuff like this, says she knows what she's doing. There is just too much deliberation behind it. If she wasn't, it would be the strangest coincidence of personality I've ever seen.

  • Irish||

    If it turns out that Dunham is just fucking with people and that this really is a mean spirited satire, then this is the greatest piece of performance art America has ever seen.

    I just don't know if that's true.

  • ||

    You're going to hate this analogy, but try me out. Orwell was a socialist with communist leanings who had a terrible experience with communists. He then went on to write vicious satire about them, mocking them at every turn. If you were a particularly dim object of the ridicule, you might think of it as a simple compliment or accounting.

    Let's say Dunham was (is?) a selfish piece of shit, and then got burned super hard by her friends because they are also selfish pieces of shit. What if she decided to write vicious satire about them mocking them at every turn. What if she kept it subtle enough that tons of them were dim enough to take it as a compliment?

    I'm not saying this is the case, but think about it.

  • ||

    But wouldn't that also mean her public persona is also a facade to maintain her credibility?

    This includes being very defensive and sensitive to criticism and mockery as well as her commitment to progressive politics.

  • ||

    It could. It's not like she wouldn't know how to play it.

    It's also possible that she's still the exact asshole you think she is, she's just viciously, assholishly getting back at all her friends who she actually secretly hates...just like in the show.

    The mockery in the show is deliberate. There has to be a reason. This may not be the explanation, but it's an attempt at one, and I think it's somewhat plausible.

  • ||

    I prefer mine: she's simply a selfish, narcissistic young woman who has figured out a way to use get progressives and feminists to fawn over her with this TV show.

    She doesn't care if it makes her and her friends look like terrible people because she's making a lot of money and gets off on being naked on TV and having people talk about it.

    Maybe she really is contemptuous of her friends, I don't know, but I don't think that's her motive. She just happens to be a very privileged person that was raised by the right parents, went to the right schools, believes in all the right things, and is thus entitled to her own TV show and to be her generation's 'voice'.

  • ||

    The problem I have with your explanation is that you clearly let your dislike of her color your judgement. Remember what you said in the Woody Allen thread agreeing one should separate the work from the artist?

    Remember that she is writer, director, and producer most of the time. She gets some amazing performances out of her actors; last week's meeting with the paper publishing house woman and her lackey was brilliant. I constantly see signs of deliberation and combining that with obvious talent, I have a hard time seeing this as some self-absorbed little shit lucking out into a hit show.

    If I want to see that I'l watch a Vincent Gallo movie. Now there's someone who is a self-involved scumbag, with nothing to even make you possibly doubt it.

  • ||

    Remember what you said in the Woody Allen thread agreeing one should separate the work from the artist?

    That's a fair point. And like I said, I don't 'Girls' is a terrible show, it just doesn't entertain me because I don't find it funny enough to off set the experience of watching terrible characters.

    I'm sure she does have talent as a writer and director, but are we sure 'Girls' is really a 'hit'?

    It gets less than 900,000 viewers last I heard. The only reason it's still on is because HBO is a network focused on winning awards and Dunham has managed to get the press fawning over her.

    Basically if Game of Thrones and other popular shows didn't bring in the subscribers for HBO the show would be cancelled.

  • waffles||

    But I really hated Tiny Furniture. All I can get out of this show is nausea, nausea and hate. I guess I must enjoy it on a meta-level. I really do like your analysis, but I can't willingly bring myself to hate-vomit all over my apartment. I hate cleaning up after.

  • ||

    Your comparison of Lena Dunham and George Orwell has completely destroyed my emotional well being. I've weathered encounters with Warty better than I did that analogy.

  • ||

    Oh, stop bragging. No you haven't.

  • ||

    Hmph, fine. No I haven't. But that was a painful comparison.

  • SugarFree||

    Warty is not something to be weathered; Warty is climate, you sons a' bitches.

  • Brett L||

    My gut, as someone who has watched a lot of stuff like this, says she knows what she's doing. There is just too much deliberation behind it.

    This. Just because I don't like it doesn't mean it isn't done with intention and accomplishing exactly what the creator intends.

  • ||

    I saw a few first season episodes. It isn't the worst show ever and it had some funny moments, but I felt it was sandbagged by its attempts to be 'real' or expound upon whatever insecurities Dunham herself actually has.

    If I want to watch horrible people be consistently funny I'll just watch 'It's Always Sunny in Philadelphia'.

  • Brett L||

    My wife was watching the latest episode on DVR last night while I was doing other things, but every time I tuned in, it was just like watching a bunch of 2 year olds all have temper tantrums at each other.

  • Killaz||

    I peed myself a little willingly in approval.

  • John C. Randolph||

    The really irritating thing about that show is that the only hot one in the cast never gets naked.

    -jcr

  • Anonymous Coward||

    Irish, are YOU a professor at Harvard Law?

    How dare you not defer to your betters!

  • Marc F Cheney||

    Why do you people know anything about Girls?

  • fish||

    That is pure fucking poetry!

  • John C. Randolph||

    "Cass", it turns out, is the man's middle name. His first name is "Jack".

    -jcr

  • ||

    Can I opt out of Obamacare?

  • Pro Libertate||

    Yes. Dead people are exempted.

  • ||

    Cass Sunstein says yes. By moving to Somalia.

  • Almanian!||

    You'll be needing that Wildcat moving company from KY, SINCE THERE ARE NO ROADS UPON WHICH TO MOVE YOUR GOODS.

    Happy relo, Epi!

  • ||

    I'd prefer Monaco...

  • Almanian!||

    Excellent choice. Bring your F1 car along.

  • Duke Trshmnstr of Stench||

  • Killaz||

    You're still in Seattle? Whoops, you stayed in place, there's your social contract you practically signed in blood.

  • John||

    The rule of law is only as good as the government's and ultimately the public's will to follow it. He admitted that people are prone to panic and abandoning their commitment to the rule of law. That should be news to no one who knows anything about man or history.

  • Fluffy||

    The rule of law is only as good as the government's and ultimately the public's will to follow it.

    But not really.

    In the case of Korematsu, we didn't need a benign government or public will.

    We needed 9 individual men to choose differently.

    Scalia is effectively saying that if Korematsu had been decided differently, FDR would have had the SCOTUS shot, and I find that incredibly difficult to believe.

  • John||

    But if the public had in large measure not supported the policy, it would have never happened in the first place requiring judicial review.

    Second, if the public really wanted it to happen, they would have told those nine men to fuck off and done it anyway. I am not sure that the SCOTUS members didn't thing it was illegal and only voted to allow it out of fear that ruling to prevent it would resulted in the public and government ignoring the ruling and the even worse precedent that court rulings need not be followed.

  • John||

    Scalia is effectively saying that if Korematsu had been decided differently, FDR would have had the SCOTUS shot, and I find that incredibly difficult to believe.

    He wouldn't have had to have them shot. He could have just ignored the ruling. What would the Court do about it? He could have just had the Congress impeach them and put a new court up there. He could have stacked the court like he thought about doing in the late 1930s.

    He wouldn't had to have shot them. What Scalia is saying is that the Court's power only exists in so far as the rest of the government and by extension the nation as a whole is willing to follow its rulings.

  • Rich||

    Exactly. "The value of something is what you're willing to pay for it."

  • GregMax||

    Or he might have put on his big boy pants and let all those potential terrorists stay in their homes and communities.

  • Adam330||

    In other words, Rachel Maddow will be talking about this breathlessly for the next month.

  • gimmeasammich||

    I never thought I would see the words "Rachel Maddow" and "breathless" in the same sentence.

  • Tonio||

    Dammit, Epi. I hate that you're right about this. Not because it's you, but because of what that means.

  • ||

    Not even a little bit because it's him?

  • ||

    You shut up jesse!

  • ||

    Whatever Epi, after the last time I finished banging your mom like a cheap drum (only twice as leathery!) she told me you liked the abuse.

  • ||

    Don't...don't you mean my dad? Because he'll be really disappointed if not.

  • ||

    I'll go back to nailing your dad when he promises to keep up on his kegels, at this point it's just hip thrusting with no friction.

  • Hugh Akston||

    I'm pretty sure most people would reject a position for no other reason than Epi agrees with it.

  • Tonio||

    I feel othered.

  • Invisible Finger||

    Epi is a man for all seasons.

  • Restoras||

    What's the latin phrase for "No shit"?

  • Swiss Servator, Befehl!||

    Nulla mauris?

  • EDG reppin' LBC||

    Ouell duh.

  • ||

    Mene mene tekel upharsin.

  • BladdyK||

    The headline here is misleading. He didn't say that SCOTUS would vote in favor of internment. In fact, he said internment was wrong in World War II. It seems like he is saying that during war, there will be efforts to do things that are out of panic and are basically unconstitutional.

  • R C Dean||

    He didn't say that SCOTUS would vote in favor of internment.

    Actually, I think he did.

    SCOTUS voted in favor of internment before, and he says:

    I would not be surprised to see it happen again, in time of war.

  • Tonio||

    He didn't actually come out and say it, but it's certainly implied. There are other possible interpretations.

  • Corneliusm||

    Scalia voted that American citizens are not entitled due process during wartime, and deferred to the authority of the Bush administration to detain anyone they wanted.

    Other than scope, how is that not different than internment?

  • kbolino||

    That is not what Scalia's dissent in Hamdi v. Rumsfeld actually says.

    His position was that the government must immediately declare habeas corpus suspended or else try Hamdi in a normal court of law.

    It is worth contrasting against his opinion in Hamdan v. Rumsfeld, where Scalia held that non-citizens were not even entitled to use the courts at all if the law forbade it.

  • R C Dean||

    His position was that the government must immediately declare habeas corpus suspended or else try Hamdi in a normal court of law.

    So, his objection was purely formalistic, and basically a complaint that the government didn't fill out the right form.

  • Ken Shultz||

    Somebody correct me on this--really, I'd like to understand it better...

    But my understanding is that the Constitution is explicit about suspending habeas corpus being the only thing the president can't do during wartime--unless there's an insurrection going on.

    Even then, Lincoln's suspension of Habeas Corpus was held to be unconstitutional--because the civilian courts were still functioning at the time.

    http://en.wikipedia.org/wiki/Ex_parte_Milligan

    I do not understand what I see people saying is Scalia's position--unless we're assuming that Scalia wants to overturn Ex parte Milligan.

  • Fluffy||

    To be fair, the Constitution contains a provision for suspending habeus corpus.

    That means that if the government wants to suspend habeus corpus and they do, in fact, fill out the right form, SCOTUS can't say dick about it.

  • R C Dean||

    Article I, Section 9:

    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.

    No Consitutional basis for suspending habeas corpus has existed since the Civil War. Sure, technically the Japanese invaded Alaska in WWII, but you can't tell me that a handful of troops on a remote (unihabited?) island amounts to "the public safety may require it."

    This is in the limitations on Congress, so I read it to mean that it would take an Act of Congress, not Presidential fiat.

    Theoretically, of course, it could still be litigated, but we all know, because Scalia just told us, that SCOTUS would roll over.

  • Ken Shultz||

    "Other than scope, how is that not different than internment?"

    Although Japanese internment was directed at American citizens, it wasn't directed at enemy combatants.

    At least Hamdi was captured on a battle field, and the government had to claim he was an enemy combatant.

    Internment victims required no such classification. Being an American citizen of Japanese ancestry within so far of the coast was more than enough justification to lock up families with small children.

    It wasn't just the number of people involved that was the problem. It was also that you didn't have to have done anything or even be deemed an enemy during wartime.

  • Ken Shultz||

    "Scalia cited a Latin expression meaning, "In times of war, the laws fall silent."

    Isn't he talking about the Constitution, there? Isn't that an accurate take on what the Constitution says about the Commander-in-Chief's leeway during wartime?

    I'm a big fan of the Constitution because so much of what it says is about protecting my rights from the government, but just because I don't like what the Constitution says in other places doesn't mean it doesn't say that.

    If the Constitution says the president can do pretty much whatever he wants during wartime, why wouldn't we assume the SCOTUS wouldn't uphold the Constitution--during wartime?

    There will be apologies and reconsideration after the fact, sure, but I wouldn't count on the Supreme Court to stand in the way of whatever the president wants to do in wartime.

  • R C Dean||

    Isn't that an accurate take on what the Constitution says about the Commander-in-Chief's leeway during wartime?

    Not at all. The Constitution has no off switch. The C-in-C's authority, as such, is limited entirely to commanding the armed forces. Any additional authority has to come from Congress (again, just reading the Constitution here, not saying how it really works since we discarded the Constitution).

  • OneOut||

    The dept. OHHS has seemed to find the off switch.

    It's determined that if you live within 100 miles of a border or the coast that you live in a constitution "suspended" zone.

    They can take your electronics and scan and copy them just because FYTW.
    ,
    No probable cause needed.

  • OneOut||

    Dept of Homeland Security.

  • R C Dean||

    To repeat:

    just reading the Constitution here, not saying how it really works since we discarded the Constitution

  • Raven Nation||

    This has some parallels to Lincoln's arrest of dissidents during the Civil War. As I understand the constitutional argument (in its current form), American citizens can be detained for treason, (viz. Article III, Section 3) BUT the punishment for treason should be in the hands of Congress not the president:

    The Congress shall have Power to declare the Punishment of Treason (Article III, Section IV)

  • Fluffy||

    If the Constitution says the president can do pretty much whatever he wants during wartime

    It doesn't say that.

    Anywhere.

  • Ken Shultz||

    My understanding is that his powers to wage war are essentially unmitigated. So long as he claims what he's doing is being done in the defense of the United States--during a constitutionally declared war--he can do what he wants with some restrictions regarding habeas corpus.

    If I tell you, you can't eat the fruit of the tree of the knowledge of good and evil, doesn't that mean you can eat from any other tree? So long as the president is arguing that what he's doing is in the defense of the United States--during wartime or a state of emergency--he's got a very powerful argument from a constitutional perspective, unless he's suspending habeas corpus.

    Again, it seems to me that public opinion is a stronger restraint on the president's behavior than the Constitution is during wartime. If the president decided that a presidential election was contrary to the interests of fighting a war during wartime, I'm not sure the Supreme Court would stand in his way.

    Hopefully, the American people wouldn't put up with it.

  • R C Dean||

    My understanding is that his powers to wage war are essentially unmitigated.

    Practically, since we discarded the Constitution? Sure.

    Is there a Constitutional basis for expanded power? No.

  • Ken Shultz||

    Congress has the power to declare war.

    Congress can stop a war by defunding it.

    There isn't anything in the Constitution about the Supreme Court weighing in on how a war is conducted.

    I don't think the Supreme's reluctance to get involved in how wars are prosecuted is just an oversight. How a war is conducted is one of the powers of the president--according to the Constitution--and they give him a lot of leeway if he's claiming that what he's doing is function of the war effort.

    Given the way the Constitution is written, I think it says what it says.

    Congress has weighed in on how the president conducts war from time to time. I'm not sure whether a lot of that would pass constitutional muster or not. Running a war is not one of their powers. However, if you're in a situation where Congress hasn't even bothered to weigh in, the president has even more leeway, doesn't he? ...while the country is in a state of war or national emergency.

    It's a flaw in the Constitution, in my opinion, and one that might need an amendment to address. But I don't think the Supremes are asleep at the switch in regards to the President's power in wartime. I think it says what it says. Wouldn't be the first time the Constitution got something wrong.

  • CE||

    They mean Article 1, Section 9:

    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.

    Notice it doesn't say "during war" or "when a war is declared." It requires a rebellion or an invasion to even have the option.

  • Ken Shultz||

    I'd like to get the point across that just because we don't like that the Constitution gives the President the power to run a war--and only stipulates that he can't suspend habeas corpus except under certain circumstances?

    That doesn't mean we have to pretend it doesn't say what it says.

    Sometimes the Constitution says stuff that's bad. Sometimes the world is arranged in ways that are wrong. And the solution to that problem is not to pretend it's other than the way it is.

    I'd rather argue that the president can only invoke emergency and war powers like that when we're actually in a state of war--and we're not actually in a state of war unless Congress officially declares "w-a-r".

  • Corneliusm||

    This is not the first time Scalia has mentioned this.

    In adjudicating the war on terror, Scalia has come down strongly on behalf of the administration and its prisoners in a number of cases. The extensive powers claimed by the Bush administration would seem to pose a problem for originalists, because the Bill of Rights was indubitably added to the Constitution to keep the new American executive from repeating the monarchal abuses of King George. Yet in a speech in suburban Cleveland in March 2003, just before the invasion of Iraq (where one of his sons would serve), Justice Scalia told his audience that “most of the rights that you enjoy go way beyond what the Constitution requires” and predicted that in war time “the protections will be ratcheted right down to the constitutional minimum.” In one of the first war-on-terror cases to reach the court, Rasul v. Bush, a majority agreed that the foreign detainees at Guantánamo had a right to file habeas corpus petitions. Scalia strongly dissented, as one might have expected given the fact that the Constitution’s protections are generally intended for only American citizens.
  • wef||

    The question is more subtle than that. As the Turow piece in the power-worshiping NYT continued, It thus verged on the breathtaking when Justice Scalia wrote in Hamdi v. Rumsfeld: “Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis. ... Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."

    Verged on the breathtaking, eh? Citizenship appears to be the key to Scalia's view. Why might that cause Turow to almost take his breath?

  • Ken Shultz||

    In times of war, the only real check on the president's behavior is the morals and opinions of the American people. The good news is that as bad as things were during the worst of the War on Terror, public opinion managed to cough up some substantial checks on the behavior of the president.

    The reason we didn't have internment camps for Muslims wasn't out of the warmness of Cheney's and Rumsfeld's hearts. We didn't have internment camps, in no small part, because a critical mass of the American people wouldn't have stood for it.

    No doubt, one of the reasons we didn't have a draft was because of Rumsfeld's pet theories about lean modern infantries, but surely our experiences with conscription in Vietnam also made a difference. Again, a critical mass of the American public wouldn't stand for conscription.

    I know it isn't popular to credit the American people with much these days, but we might have to given them a little credit, here. We seem to learn from some of our mistakes, and having lived up to some of these tests during the War on Terror, the precedent might stick when some future president wants to revisit things like conscription and internment.

    People may say, "We didn't even need those things during the War on Terror, why do we need them now?"

  • Tonio||

    Ken, I think that part of the reason we didn't have internment camps for Muslims is that they are not a racially homogenous group as were the Japanese.

    They could have gone with Arabs but that would have been made even more difficult because of the large Christian Arab community in Detroit - many of whom relocated to the US to escape oppression back home. Also, Egyptian Copts, Iraqi Chaldean Christians, etc.

  • Ken Shultz||

    I think we need to give the American people some credit for not being willing to lock up men, women, and children for being Muslim...

    The Abu Ghraib thing was the same way. The American people saw those photos, and that was pretty much the end of the discussion.

    Yeah, there were some die hard cheerleaders who even came here to Hit & Run and argued that we should torture terrorists during wartime.

    Meanwhile, all the presidents' men were denying, apologizing, talking about how mistakes were made, ...

    That may be a lesson we learned this time around--I bet no president makes the Abu Ghraib mistake the next time we're in this situation.

    It'll be like internment camps or conscription were this time. There probably won't be an Abu Ghraib next time because it's entered our collective memory, and even during the War on Terror, the American people wouldn't stand for it.

  • John||

    Ken,

    Maybe you missed it, but Abu Garib was the result of a bunch of unsupervised perverts working the night shift who were prosecuted and sent to prison for fairly long sentences.

    Your post only makes sense if you assume that Abu Garib was some kind of officially sanctioned event that the government never repudiated or prosecuted the offenders. And that is just not true.

    There is and was an interesting debate to be had about the morality and use of government sanctioned torture in some circumstances. But whatever that debate is and wherever you come down on it, the events of Abu Garhib have nothing to do with it.

  • Ken Shultz||

    "Maybe you missed it, but Abu Garib was the result of a bunch of unsupervised perverts working the night shift who were prosecuted and sent to prison for fairly long sentences."

    Maybe you missed it, but I argued here ever day for months about what the Schlesinger Report showed happened...

    At the very best, these were official policies that were intended for terrorists in Guantanamo, and when the people in charge of Gitmo came to Iraq, they brought the same playbook with them and applied techniques approved for illegal combatants on soldiers at Abu Ghraib who were prisoners of war.

    That's the best possible explanation. The real one is that as the insurgency in Iraq exploded in the Cheney Administration's face, they were desperate to put a stop to it. The insurgency and occupation wasn't something Rumsfeld expected or planned for, and he was willing to do anything to stop it.

    You should read some of Rumsfeld's recent comments on the subject. He should be facing an international court for some of the things he signed--and I bet he doesn't take many vacations outside the country for the rest of his life.

    http://en.wikipedia.org/wiki/The_Unknown_Known

  • John||

    Ken,

    I am friends with the people who prosecuted that case and the person who advised the initial investigation. I speak with complete confidence that you are a paranoid nut if you think there was some kind of coverup or that they were really acting on Rumsfeld's orders.

    That case was known and being investigated and about to be charged when it hit the papers. The defense attorneys in the case tried every way in the world to figure out a way for their clients to rat out someone higher in return for lighter treatment. But they couldn't because they didn't have anyone higher to rate out.

    The things you say about the teams from GUITMO coming to Iraq and Afghanistan are somewhat true. But they have nothing to do with Abu Garhib or the pictures or the cases people associate with it.

    The worst abuses happened in Afghanistan. But those cases were never played up by the media because the media only cared about discrediting the Iraq war.

    You are just profoundly misinformed about this topic. You really are. Most of the things you read and believe about it is just complete horseshit made up by people who have an agenda.

  • Ken Shultz||

    Are you suggesting that Rumsfeld didn't sign enhanced interrogation techniques?

    Are you suggesting that the photos from Abu Ghraib are inconsistent with those enhanced interrogation techniques?

    We're talking about facts, here, right? I have no doubt but that Rumsfeld wanted what was best for American security.

    But that's beside the point, isn't it?

  • Gene Poole||

    And you of course have no agenda...

  • Gene Poole||

    The military is the military. People don't do things on their own initiative just because they feel a little raunchy. The torture was established policy. Why would it be otherwise? Torture has been taught at the School of the Americas for decades.

  • Tonio||

    Please not that I said "part of the reason," and I stand by that. Also, the AG incidents did not surface until early 2004, over a year after the attacks.

    From the Wikipedia article on Japanese American Internment:

    American public opinion initially stood by the large population of Japanese-Americans living on the West Coast...However, six weeks after the attack, public opinion turned against Japanese Americans living in on the West Coast, as the press and other Americans became nervous about the potential for fifth column activity.

    The Japanese were interned by May, 1942, approximately five months after the attack on Pearl Harbor; following a similar timetable Muslims (or Arabs, or whoever) would have been interned by Jan, 2012.

  • Tonio||

    Jan, 2002 of course. Derp.

  • Ken Shultz||

    I don't think you're getting my point.

    The American people of 2002 would not have supported doing to Muslims what the United States did to Americans of Japanese ancestry in 1942.

    And that is a big part of the reason why Muslims were not interned in 2002--because the American people wouldn't stand for it. It is NOT the only reason. Does anything ever happen for only one reason?

    Public opinion is the ultimate check on the president's power in wartime. You can not make a law so impressive that no president will violate it during a state of emergency. Only public opinion will stop a president then.

    Just like public opinion was the only thing that could stop a dictator like Gaddafi. When all else fails, there's always public opinion--that's why vicious dictators obsess about propaganda and people saying bad things about them behind their backs. Public opinion scares the shit out of them.

  • Gene Poole||

    We didn't really even need a 750-bn$-a-year military at the height of the Cold War. Why do we need it now?

  • The Late P Brooks||

    Scalia cited a Latin expression meaning, "In times of war, the laws fall silent."

    Antonin Scalia, drug warrior. Fuck you, pal.

  • Paul.||

    OT: A ray of good news.

    King County sheriff’s deputy fired over threats to news editor

    A King County sheriff’s deputy who threatened to arrest an editor for The Stranger weekly newspaper during a sidewalk confrontation in July has been fired by Sheriff John Urquhart.

    http://seattletimes.com/html/l.....edxml.html

  • Tonio||

    Now, Paul. You've been here long enough to know that he'll take this before a stacked review board and be reinstated with back pay. This is a cynical game they play.

  • ||

    Don't forget psych disability payments!

  • Tonio||

    Jesse, you're worse than Nicole.

  • Paul.||

    I actually posted on the Times comment page, asking when he'll be reinstated after arbitration.

    I do have to comment Sheriff Urqhart:

    “Your ill-advised actions also play to some of the most basic fears among some citizens, which is that a police officer may indiscriminately exercise his or her power in violation of their rights, because in the event of a complaint, the officer will just deny the allegation and ‘circle the wagons’ with his or her fellow officers on the expectation they will take care of their own,” Urquhart wrote.
  • sarcasmic||

    That just means the fired officer will find work at a shop that embraces that most basic fear as standard operating procedure. And nothing else will happen.

  • Brett L||

    I didn't know Scalia was a Rome: Total War fan, too.

  • ~Knarf Yenrab~||

    I laughed.

    Though Scalia might have a problem with going to war with the Pope, killing him, then naming his replacement.

  • ||

    And just wait til a sufficiently large riot or 'insurrection' breaks out to justify the government 'pacifying' a rebellious region by seizing all the guns summarily.

  • Brett L||

    I hope The People will give the government their bullets first, citing a Greek term for that translates to: Come and take them.

  • Paul.||

  • Brett L||

    Yes. Hopefully with similar low casualty counts.

  • Tonio||

    They already did that. Post-Katrina New Orleans.

  • John||

    In fairness they got the shit sued out of them for doing that. I am not sure many city officials would be game to try that little stunt again.

  • Rich||

    *** rising intonation ***

    Wasn't "in time of war" ....

  • John||

    But the level of panic after Katrina was so high that it might as well have been.

  • Rich||

    "My Fellow Americans, I have determined that the level of panic in this country is very high. Therefore, by my Executive Authority, I am declaring martial law."

  • Paul.||

    My Fellow Americans, due to congressional intransigence, I am declaring Martial Law.

  • Dr. Frankenstien||

    Monty Python or messages from the future. You decide.

  • The Late P Brooks||

    What was it Roberts said about it not being the Supreme Court's job to save us from the consequences of our political folly?

    That could not be more wrong. And Scalia apparently agrees with Roberts.

    "If you guys want to elect a Congress full of people who have no real understanding of the Constitutional framework intended to limit government power, and they pass a bunch of laws establishing a totalitarian dictatorship, we won't stop them. Because the law is the law.'

    We're doomed.

  • John||

    They are limited in their ability to rescue us. Congress can impeach Justices. They can deny the court jurisdiction over certain issues. If Congress and the states get pissed off enough, they could amend the Constitution and dissolve the court altogether.

    If your hope is that various top men and robed overlords are going to preserve your freedom, you have already lost.

  • The Late P Brooks||

    If your hope is that various top men and robed overlords are going to preserve your freedom, you have already lost.

    It might be helpful if they'd do their fucking job. I'm not saying they should attempt to overthrow the government, but they might at least pretend they scrutinize legislation more rigorously than saying, "If the government does it, it's not illegal."

  • John||

    They do do that. Last I looked they have bitched slap the government on a pretty regular basis. They seemed to be doing their job on Citizens United, and Heller and the detainee cases and a lot of other times. I don't agree with all of their rulings. But I think it is pretty unfair and ignorant of the facts to say they will rubber stamp anything the government does and don't even try. That is just not true. If they did, all of the cases I list and a lot of other ones would have been decided differently.

  • sarcasmic||

    So they toss us bones once in a while. Whoopity Doo!

  • John||

    I would say heller and citizens are more than bones.

  • R C Dean||

    Not much. Heller, in particular, went to a lot of trouble to make sure that most gun control laws would pass muster.

    They nibble at the fringes of their duty, is the best I could say about SCOTUS. They have forgotten that their reason for being is to enforce the Constitution against the government, and their various doctrines of "deference" mean that their real current function is to ratify most abuses of power.

    That ratification will lose any value unless they occasionally throw something out. So they do. But they have fundamentally inverted the purpose of the Court.

  • Paul.||

    We are firmly in the era of stare decisis.

  • GregMax||

    5 to 4 is hardly a rebuke.

  • The Late P Brooks||

    Of course, nobody who demonstrates an inclination to pull back on the reins will survive the process of nomination and confirmation, so we're unquestionably fucked.

  • Herpes Trismegistus||

    "'Well of course Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again,' Scalia told students and faculty during a lunchtime Q-and-A session."

    The SCOTUS does as it's told, shocking.

  • Rasilio||

    I believe this truism was summed up here...

    Prof: "I'm a rational anarchist. . . .A rational anarchist believes that concepts such as 'state' and 'society' and 'government' have no existence save as physically exemplified in the acts of self-responsible individuals. He believes that it is impossible to shift blame, share blame, distribute blame ... as blame, guilt, responsibility are matters taking place inside human beings singly and nowhere else. But being rational, he knows that not all individuals hold his evaluations, so he tries to live perfectly in an imperfect world ... aware that his effort will be less than perfect yet undimayed by self-knowledge of self-failure."

    Wyoh: "Professor, your words sound good but there is something slippery about them. Too much power in the hands of individuals--surely you would not want ... well, H-missiles for example--to be controlled by one irresponsible person?"

    Prof: "My point is that one person is responsible. Always. If H-bombs exist--and they do--some man controls them. In terms of morals there is no such thing as 'state.' Just me. Individuals. Each responsible for his own acts."

    To the extent that it exists government cannot cover up for mans moral failings because only individuals are capable of acting morally, government just provides a convienent fiction with which some can soothe their consciouses.

  • straightlinelogic||

    The government didn't need a war to eradicate your civil liberties. They just made one up. It's called the war on terrorism. We're not fighting another nation, we're fighting anybody who doesn't like us and is willing to use violence to further his or her antipathy. This is war that can and will last forever, and it has already given us the Patriot Act and a vast expansion of the government's surveillance apparatus. See "The Fully Operational Police State" on straightlinelogic.com.
    http://www.straightlinelogic.c.....State.html

  • VinnyG||

    Fucking Nazgul represent the worst in us, not the best.

    -VG

  • ||

    Scalia was right, but not because of Korematsu. In Ludecke v. Watkins, the only Supreme Court case dealing with internmentit was ruled "Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject " Further, "This Alien Enemy Act has remained the law of the land, virtually unchanged since 1798." IN OTHER WORDS IT HAS ALMOST ALWAYS BEEN LEGAL TO INTERN IMMIGRANTS IN WARTIME. 60,000 German Americans and 3,000 Italian Americans were interned. Ludecke is their legal legacy.

  • ||

    Ludecke was a German refugee

  • Gene Poole||

    And of course, since 9/11 we've been in a state of permanent war...

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