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Saturday, June 14, 2008

Boumediene isn't a rebuke to Bush, but a judicial grab of power over war from the Executive and Legislative Branches

Some people seem to think the current question about the detainees at Gitmo is whether Dubya can simply lock them up and throw away the key without ever giving any of them any sort of trial.

For example, in comments to my post from Thursday deploring the Supreme Court's decision in Boumediene v. Bush, one reader wrote:

The Supreme Court has simply said that we have to demonstrate that there is some legitimate reason for continuing to hold them now and you call that the worst Supreme Court decision ever??

Similarly, another reader commented:

One of the most conservative courts in history has simply said that Bush&Co. cannot abrogate the most fundamental part of the rule of law, the right to be charged with crimes instead of being held indefinitely, in presidential frat boi pique.

These comments are not just wrong, they are spectacularly wrong.  No one could possibly hold these views unless he or she is badly confused by a highly advanced stage of Bush Derangement Syndrome, or else he or she has been asleep for the last five years (and didn't bother to get even remotely up to speed on the prior Supreme Court decisions on Guantanamo Bay detainees).

These commenters seem to be unaware that, in direct response to earlier suggestions from the Supreme Court, a bipartisan majority of Congress carefully crafted a system that balanced national security concerns against the need to provide fair, just hearings for these detainees.  By no means did Congress rubber-stamp what the Bush-43 Administration suggested.

The resulting system closely resembled, and explicitly drew heavily from, the legal system already in place via the Uniform Code of Military Justice for our own servicemen and -women who are accused of crimes. The resulting statutes thus represented the will of the people as expressed through both of the elected branches of government, which — not coincidentally — are also the two branches of government given substantial responsibility by the Constitution with the declaring and conduct of war.

Nobody was going to be "held indefinitely" under this system. To the contrary, under the statutory provisions swept away as "unconstitutional" by the Court this week, the government most emphatically did have to prove a formal case to establish reasons why each detainee should continue to be held.

This is not a subject on which reasonable minds can differ. Anyone who refuses to acknowledge that Congress created, and the president signed, laws creating an elaborate system for trying these detainees is, to be very blunt about it, stuck on stupid.  Please, please, please quit mindlessly repeating the anti-Bush screed of the Hard Left from 2004 — get with the program and at least update your screed to the current version being preached by Bush-haters in 2008. Even then, you'd need to include in your screed the dozens of Democrats in both the House and the Senate who voted for the legislation declared unconstitutional this week.

Look, folks, this wasn't really about George W. Bush. He'll head back to Crawford in January, but this problem won't be remotely close to being resolved by then. Rather, this case is about whether, and to what extent, the federal courts can fly-speck and then overturn both the Executive and Legislative Branches on matters that are absolutely central to the prosecution of war by our military forces. If you can only see this through anti-Bush goggles, you're blinding yourself to what's important.


UPDATE (Mon Jun 16 @ 1:10pm): As to the two commenters whom I've blasted for misstating the fundamental issues in Boumediene, I'm not sure whether the following quote mitigates their offense or not. But it certainly proves that the Democratic nominee for president is at least equally clueless:

Taking audience questions in Pennsylvania, Obama praised Thursday's Supreme Court decision to allow detainees at Guantanamo Bay to challenge their imprisonment in federal courts. Enforcing habeas corpus rights, he said, is "the essence of who we are."

"Even when Nazis' atrocities became known in the 1940s, he said, "we still gave them a day in court" at the Nuremberg trials. "That taught the entire world about who we are," he said.

Obama has no excuse for failing to know that the Military Commissions Act of 2006 in fact provides procedural and substantive protections to the Guantanamo detainees which meet or exceed those which were provided the Nuremberg defendants in their trials by the four-powers military commissions (in which the defendants were most emphatically not guaranteed any rights under the U.S. Constitution, either by habeas corpus petitions or otherwise). Obama voted against that legislation, but one can reasonably presume that he knew what was in it.

Thus, Obama's argument that the detainees would be denied "a day in court" under the MCA is shockingly stupid or shockingly disingenuous. My bet is on the latter: He wants people to be misled over the issues in this decision; he wants to dupe people into the same shallow, entirely erroneous point of view from which my commenters suffered. And the carefully considered statement on Obama's website supports my inference as to his intentions: "The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo — yet another failed policy supported by John McCain." If you cannot trust this man to even state the issues accurately, can you trust anything about him?

Posted by Beldar at 11:24 PM in Global War on Terror, Law (2008), SCOTUS & federal courts | Permalink | Comments (18)

Thursday, June 12, 2008

SCOTUS disgrace: Foreign terrorists captured abroad held to have same rights under U.S. Constitution as U.S. citizens

It's a sad, sad day for our country. A majority of the members of the United States Supreme Court have shown themselves unable to distinguish between an existential military struggle — quite literally, a war over the very existence of western civilization — and ordinary street crime committed by U.S. residents wholly within America. The obvious and inevitable consequence of today's Supreme Court decision will be that terrorist killers presently in captivity, captured at the cost of American soldiers' lives and limbs, will be released instead of punished, and they will return to killing both Americans and others again.

The Supreme Court ruled today that terrorists who are citizens of foreign countries, who have never set foot within the United States, and who have systematically forfeited all the protections of the organized laws of warfare that would entitle them to be treated as prisoners of war, are, when captured on foreign battlefields by the U.S. military, nevertheless entitled to access to the federal court system of the United States — in most essential respects, exactly as if they were lawful, taxpaying citizens born here, raised here, and arrested here by the domestic police for alleged crimes committed here.

If Osama bin Laden, wearing no uniform, surrounded by children as human shields, and in mid-stroke while he's sawing the head off a captured American nurse, is captured by American soldiers tomorrow in Pakistan or Afghanistan, then his rights to use the federal writ of habeas corpus to guarantee him the protections afforded by the United States Constitution will be, so far as I can determine, indistinguishable from my own if I were arrested at my home by the Houston Police Department on a warrant for overdue parking tickets.

The Supreme Court has so ordered notwithstanding the fact that the people's lawful representatives — through statutes passed by their Congress, and signed into law by their president — had otherwise decreed. Instead, five members of the Supreme Court have set themselves up above the rest of the people and government of the United States of America, and they have proclaimed that even acting together, the Congress and president lack the constitutional power to make other provisions for these foreign barbarians and monsters captured on foreign battlefields while trying to destroy America and everything related to it. In the measured words of Chief Justice Roberts' dissent:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation.

And in the more fiery dissent from Justice Scalia:

THE CHIEF JUSTICE’s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires [i.e., beyond the Supreme Court's own power].

Make no mistake about it: This was a naked, arrogant power grab of wartime, war-fighting power by the liberal wing of the Supreme Court. This is Anthony Kennedy, John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer doing their dead-level best — not to protect you and me from the terrorists, but to protect the terrorists and to prevent Congress and the president from protecting you and me!

The readily foreseeable, and indeed inevitable consequence of this decision is that the United States government — when forced to fight a military war as if it were street crime, and when forbidden to punish war criminals unless it can comply with the full range of procedural safeguards from our domestic criminal justice system — will have to release captured terrorists who will then immediately return to killing. Their victims will be not just American soldiers, but innocent civilians of every nationality and religion (including Muslims). Again from Justice Scalia's dissent:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.

This decision is a disgrace and a travesty. It's awful law and even more disastrous policy. It's the single worst decision of the United States Supreme Court in my lifetime, and quite arguably its worst in American history. It can't be sugar-coated. It can't be minimized. In all probability, it can only be thoroughly undone by a constitutional amendment, or by a pronounced change in the membership of the Court that will deprive the liberal wing of a crucial fifth vote in such cases and open the possibility of this decision being overruled.

(There is, still, a chance that Congress and the president could sidestep the decision by formally invoking the Suspension Clause based on the invasion of 9/11, and I think Pres. Bush should immediately propose such legislation, so that it becomes a campaign issue in November races for both Congress and POTUS if Congress doesn't promptly go along. But Congress and the president ought not have to "suspend" habeas corpus rights for foreign terrorists who never, ever in American history have been construed to have them in the first place.)

John McCain says he will appoint Supreme Court Justices in the mold of the four Justices who dissented. Barack Obama admits he will appoint more Supreme Court Justices in the mold of those in today's majority — which means Justices who are eager to seize this sort of power from the American people and their elected representatives, claiming a constitutional entitlement to run this country. There is no difference between the two candidates remotely as stark as this one, and I don't think there is any difference that is more important.

Our enemies will never defeat us. We have the power to defeat ourselves, however, and today's decision by the Supreme Court is a terrible, tragic step toward such a defeat. What will you do in November? Will you help accelerate these judicial power-grabs? Or will you help reverse them?

Posted by Beldar at 03:42 PM in 2008 Election, Global War on Terror, Law (2008), Politics (2008), SCOTUS & federal courts | Permalink | Comments (49)

Tuesday, June 10, 2008

Coffin nails, lies, and the junior senator from Illinois

So what else has Obama been lying to the American public about in addition to his lies about quitting smoking last year?

Why's he still being so evasive about the most recent time he "fell off the wagon"? Every successful ex-smoker I know can tell you to the day when he last had a cigarette; almost every liar about quitting smoking uses the sort of evasive language that Obama still is using.

Why does the press continue to let him get away with that? (cough*inthetank*cough*hacks*cough)

If he really quit last year with only occasional lapses (and those were really "months" ago) why is his "body man" still carrying "emergency Nicorette"? Why's he still still chewing it "regularly ... when not at campaign events"? Niorette's maker, GlaxoSmithKline, warns: "It is important to complete your Nicorette quit program at the end of 12 weeks, so stop using Nicorette at that time. If you still feel the need to use it, talk to your doctor." Obama said in November 2007 that he'd started using it "about nine months ago," causing the NYT to speculate even then that he'd replaced a cigarette addition with one to the gum!

"Real medicine in the form of a gum," says the Nicorette website; indeed, when first released, it required a prescription, and most drug-stores now keep even the over-the-counter version in locked cabinets.

So is Obama regularly misusing any other over-the-counter drugs?

And why's he released only a single page of medical records — an undated letter based on his last examination, and that almost 17 months ago — in marked contrast to the thousands of pages released by the grumpy old man who's running against him? Why's Obama refusing to make the doctor who wrote it, his internist since 1987, available for even a telephone interview?

(H/t: DRJ, in a comment to my April 4 post speculating that Obama was concealing a still-active cigarette habit notwithstanding having claimed to have quit.)

Posted by Beldar at 04:04 PM in 2008 Election, Obama, Politics (2008) | Permalink | Comments (20)

Sunday, June 08, 2008

Texas CPS workers interviewed on FLDS intervention

In a comment to my last post on the FLDS polygamy/child abuse controversy, regular reader and commenter DRJ left this link to a San Angelo newspaper's interview with some of the Children's Protective Services workers who were involved in the initial intervention at the Yearning for Zion ranch and who continue to be involved in the on-going investigation. Their viewpoints haven't much been heard, and I agree with her that they deserve to be, at least to the limited extent that they can speak out now without discussing individual pending cases. A sample:

"We have to back it up with fact," said special investigator Paul Dyer. "That's what we're doing. What you may read in the newspaper or see on the television — that's not necessarily supported by fact. Our investigation is and will be supported by fact."


For Dyer and fellow special investigator Eric Sanders — retired law enforcement officers who work on investigations and often serve as protection for female caseworkers — the wait that night was especially tense.

Jessop would allow only women into the compound. The men, waiting outside the gate with law enforcement and other CPS employees, slept in cars, walked outside and fidgeted while lightning flashed ominously in the black night.

Inside, according to Voss' testimony at an en masse hearing two weeks later and signed affidavits filed by CPS, the investigators ran into resistance — changing birthdates, coached answers, missing or shredded documents.

Distrust had already been high. The sect waited four hours before allowing law enforcement and CPS — which had a court order signed by 51st District Judge Barbara Walther — through the front gates, negotiating the terms of their entrance.

Even participating in such a negotiation was highly unusual, but the agency felt compelled to be as respectful as possible to the sect's wishes, [CPS investigator Ruby] Gutierrez said.

(The "Paul Dyer" referenced and quoted in the article is, so far as I know, no relation to me.)

DRJ had earlier linked an interesting article regarding Texas "Ranger Capt. Barry Caver, the lawman who led the Eldorado search, handled the Republic of Texas incident, and was the [very frustrated] Texas Ranger liaison with the federal agents in Waco." From that one:

Caver and the 22 other Company E Rangers in 43 [west Texas] counties ... had known for four years Eldorado would one day be trouble because of now-imprisoned polygamist leader Warren Jeffs' reputation.

"It was just a matter of when," he said. "We'd been trying to develop relationships with them so we would know who to talk to. But we had no idea how many were in there. We had thought maybe 150, not 600-700. It was overwhelming."

There are almost always at least two sides to every story. Here, there may be dozens and hundreds of sides. In due course, each of them should be heard, because every one of these children and families matter.

Posted by Beldar at 05:29 PM in Current Affairs, Law (2008) | Permalink | Comments (13)

Would Alaska Gov. Sarah Palin be a grand slam as McCain's Veep?

[UPDATE (Fri Aug 29 @ 2:45pm): What follows was the first in a series of almost a dozen posts I've written about the possibility of Alaska Gov. Sarah Palin becoming John McCain's running mate. For a table with titles and dates, along with links, to those posts, click here. — Beldar.]


Palin I fear that it may be counterproductive for conservative bloggers to make any recommendations to the McCain campaign regarding his vice presidential selection. And the conventional wisdom is that, the GOP convention coming after the Dems' convention, he ought to at least wait to see who Obama picks (although Obama may not wait until his convention either).

Nevertheless, I've spent several hours now reading about, and watching video clips of, 44-year-old Alaska governor Sarah Heath Palin. There are indications that she's on McCain's radar, along with many other candidates. I, for one, am very, very impressed with her. Indeed, I'm convinced already that it's no fluke that she's more popular with her constituents than any other current American governor (roughly a 90% approval rating). And I'm finding myself increasingly receptive to, and even persuaded by, the idea that she would be not merely a bold pick, but a smart pick, as McCain's running mate.

If you're not acquainted with Gov. Palin already, you owe it to yourself to get up to speed.

Start with Fred Barnes' July 2007 essay in the Weekly Standard. Barnes charts mostly the latter part of Palin's sharp-elbowed rise through Alaska politics as a reformer puncturing the well-feathered complacency of way-too-comfy Alaska Republicans. Barnes mostly omits her political start as a city councilman, and then (beginning in 1996) the successful two-term mayor/city manager, of Wasilla; as mayor of that fast-growing Anchorage suburb, she reduced property tax levels while increasing services and drawing in new industry. She was also elected head of Alaska's conference of mayors.

After a narrow 2002 primary loss for lieutenant governor, in 2004 Palin, from her appointed position as chair of the Alaska Conservation Commission (the state agency which regulates oil and gas), complained to "[then-]Governor Frank Murkowski and to state Attorney General Gregg Renkes about ethical violations by another commissioner, Randy Ruedrich, who was also Republican state chairman." Rebuffed, she resigned — but then deftly proceeded to drive all three of them out of office, finally triumphantly besting incumbent Murkowski in 2006 by capturing 51% of the vote in a three-way GOP primary. Palin then won handily (and against national trends) against popular former governor Tony Knowles in the 2006 general election. (Campaign slogan: "New Energy for Alaska.")

Of course, in between his apologies for his boneheaded connections to convicted influence peddler Tony Rezko and his Congressional earmarks  to Michelle's employer, Barack Obama can talk a very good game about the (toothless and ineffective) ethics bill he co-sponsored (along with many other senators) in the U.S. Senate. But Sarah Palin actually risked her entire political career to take on her own party's entrenched leadership, and then thoroughly and effectively cleaned house in the largest state in the Union. Between her and Obama, who's already proven him- or herself more likely to provide the "change you can believe in"?

PalinfishThis spring she used her line-item veto to cut $268 million from state spending bills — in a state that, comparatively, is flush with money, which makes pork projects almost irresistible. She resisted, and it appears that she's going to make her vetoes stick. That's the antidote to Bridges to Nowhere! (Which she opposed, by the way; the federal money originally committed to it, she's now re-directed into more appropriate infrastructure programs.)

As governor, she's also pushed hard against other entrenched interests, including the energy companies (BP, ConocoPhilips, and ExxonMobil) who hold the lease rights to much of Alaska's oil and gas wealth. She is a fierce, knowledgeable, and articulate advocate of responsible development of Alaskan resources to benefit not only its own residents — who actually pay among the nation's highest gasoline prices and have the least access to affordable and clean natural gas — but also the other 49 states, and she recognizes that this is not just a matter of economic necessity, but ultimately of national security.

Gov. Palin, negotiating Palin has spoken out and brought suit to prevent radical environmentalists from exploiting the ridiculous naming of the polar bear as an endangered species, showing no hesitation to stand up against them or their well-wishers in the federal bureaucracy. Yet she and her family are enthusiastic outdoorsmen — engaging in ice fishing, hunting, and snow-mobiling (her husband has won the 2000-mile Iron Dog race four times). Check out this campaign video of her and her family loading up their single-prop float-plane (not a corporate jet!) with sporting gear — that's got to be at least as cool as Obama shooting hoops.

It doesn't hurt that Gov. Palin is attractive and photogenic. (She was not, as Jonah Goldberg recently wrote, Miss Alaska, but she was Miss Wasilla; last December Vogue Magazine came to photograph her and her three daughters back in Wasilla; and comedian Craig Ferguson declares that she has a "sort of naughty librarian vibe.") But she's climbed through local and state politics on her own — not based on who her daddy or her husband is (or was) — and listening to her talk on energy policy or any other substantive matter for about 30 seconds (e.g., in this interview with Glenn Beck, starting at about 4:25) will definitively dispel any notions that she's skated by on good looks.

Miss Wasilla 1984   Gov. Palin on a normal business day

And yet Palin seems to be, insofar as one can ever tell from the media reflections, pretty well grounded — still very much your average soccer or ice-hockey mom in addition to her other roles. I really liked this video, too (alas, may only work in Internet Explorer), taken by a local TV station as she and her daughters first arrived at the newly-vacant Governor's Mansion. (I love it when the youngest daughter, Piper, is chastising the older two, Bristol and Willow, as they check out the attic!) Gov. Palin's first-born and oldest son, Track, isn't shown in that video because he enlisted in the Army on September 11, 2007 (he's volunteered to serve in Iraq). And finally, this story about the Palins' brand new infant son, Trig, born just a few weeks ago, leaves me literally teary-eyed in admiration at her and her whole family's faith, love, and courage. Suffice it to say that Sarah Palin's pro-family, pro-life credentials are absolutely compelling.

Gov. Palin, lifelong hunter & NRA member More (generally pro-Palin) punditry, weighing her political pros and cons as a Veep nominee: Josh Painter; Thomas Cheplick; Jack Kelly; Rush Limbaugh; AllahPundit; Ace; John Fund; Don Surber; Glenn Reynolds; Ann Althouse; Brian Faughnan; and a Palin for VP website.

Is she as ready to step into the presidency at a moment's notice as would be, say, Fred Thompson? No. But Thompson, as much as I love him, isn't going to be the Veep nominee; he and McCain together would look like they're running on the Whig ticket. Palin's local and state-government experience is as good or better, though, than that of Charlie Crist and some of the other youngish governors who've been mentioned. (All governors tend to be weak on national security credentials, but that, fortunately, is where McCain is strongest.) And although it hasn't yet been on a national stage, Palin has been an elected public servant, starting at the local level and rising to her state's highest office, since before Obama himself was ever elected to anything, even though she's two years younger than he is.

Gov. Palin's cover on Alaska Magazine   Gov. Palin & husband Todd Palin, a/k/a the 'First Dude,' dancing

"Sarah Barracuda," she was nicknamed when she led her high school basketball team to the state finals. I'm reminded, thinking of possible inaugural balls, of the old line about Ginger Rogers — that she did all the fancy footwork and artistic dance steps that Gene Kelly or Fred Astaire could do on the dance floors, except backwards and in a ball-gown and heels. Afterwards, though, Gov. Palin would switch to her North Face gear, shoulder up her 30.06, and hop on the snow-mobile with one of her daughters to go track down some more moose meat for tomorrow's supper.

Sarah Palin is walking, talking, governing proof that feminism, motherhood, and conservatism aren't inconsistent.

Of course, Alaska and its three electoral votes are not "in play." But shoring up even a single big state like Florida or Virginia or Ohio through a favorite-son Veep candidate is small-ball — maybe a bunt that might or might not produce a base hit, and that might or might not score a run.

I'm thinking that to unite the GOP's conservative base, peel off more independents and some disappointed Clintonistas, continue taking the wind out of Obamamania, and match Obama for sheer coolness, McCain may need a genuine four-bag home-run on the boards from his Veep nominee. I'm thinking that Sarah Palin may just be all that.

Gov. Sarah Palin, campaigning


UPDATE (Mon Jun 9 @ 10:45am): A reader pointed out to me that Gov. Palin — unlike Sen. Obama — has recently visited our troops in the Middle East. These photos are from her July 2007 visit to Alaska National Guard troops serving in a support role in Kuwait, and to others being treated at the American military hospital in Landsduhl, Germany:

Gov. Palin at Camp Buehring in Kuwait

Gov. Palin in Kuwait with soldiers of 3rd Battalion, 297th Infantry Regiment, Alaska National Guard

Gov. Palin visits Army Private James Pattison at Landstuhl Regional Medical Center


UPDATE (Mon Jun 9 @ 11:45am): Here's more re "First Dude" Todd that suggests how Gov. Palin might help McCain with blue-collar voters:

It's not just his title as the state's reigning snowmobile co-champion that sets 42-year-old Todd Palin apart from the nation's other first spouses. And it's not that he's one of just five who are men.

White-collar jobs in law, education or health care are typical among the current crop of first spouses, but Palin spent nearly 20 years as a blue-collar employee in the oil fields of the North Slope. And every summer he heads west to his birthplace in Dillingham to work the Bristol Bay commercial salmon fishery from his property on the Nushagak River.

A lifetime of manual labor in the state's two largest and most physically demanding industries is helping Palin carve out his role as Alaska's first spouse, or "first dude," a nickname he has in common with the Kansas governor's husband, Gary Sebelius....

"For those of us who learn by touching and tearing stuff apart and for those who don't have the financial background to go to college, just being a product of that on-the-job training is really important," Palin said one morning over pastries at an Anchorage coffee shop, before meeting with trainers at several companies and trade groups in Anchorage and Wasilla.

Palin, who took college courses, but does not have a degree, said he is grateful for the training he received from the multinational oil company BP starting in 1989.

Until recently, he earned hourly wages as a production operator in a BP-run facility that separates oil from gas and water. Palin was making between $100,000 and $120,000 a year before he went on leave in December to make more time for his family and avoid potential conflicts of interest. London-based BP is heavily involved in the gas pipeline negotiations with his wife's administration.

His grandmother, by the way, is a "highly respected elder" from the Curyung tribe of the Yup'ik Eskimos (a/k/a Native Alaskans).

Posted by Beldar at 10:17 AM in 2008 Election, McCain, Obama, Palin, Politics (2008) | Permalink | Comments (31) | TrackBack