January 11, 2004
The Maher Arar Case

Impeach George Bush and Richard Cheney. Impeach them now. We are the United States of America. We do not do things like this. Christopher Pyle writes about the Maher Arar case: Torture by proxy / How immigration threw a traveler to the wolves: On Sept. 26, 2002, U.S. immigration officials seized a Syrian-born Canadian at Kennedy International Airport, because his name had come up on an international watch list for possible terrorists. What happened next is chilling. Maher Arar was about to change planes on his way home to Canada after visiting his wife's family in Tunisia when he was pulled aside for questioning. He was not a terrorist. He had no terrorist connections, but his name was on the list, so he was detained for questioning. Not ordinary, polite questioning, but abusive, insulting, degrading questioning by the immigration service, the FBI and the New York City Police Department. He asked for a lawyer and was told he could not have one. He asked to call his family, but phone calls were not permitted. Instead, he was clapped into shackles and, for several days, made to "disappear." His family was frantic. Finally, he was allowed to make a call. His...

Posted by DeLong at 08:35 AM

December 11, 2003
Guantanamo Again

Reason's Jacob Sullum writes about the Captain Yee spy... no, mishandling of classified documents... no, adultery case: Hit & Run: Spy, Adulterer, Whatever: The case against Capt. James J. Yee, the former Muslim chaplain at Guantanamo Bay, seems to be dissolving before the government's eyes. Originally accused of espionage, he was held in the brig for 76 days, after which he was charged only with mishandling classified material, plus some minor offenses having nothing to do with security, including adultery and keeping pornography on his government computer. Now it turns out the classified material he supposedly mishandled may not have been classified after all. The prosecution has asked for a postponement in Yee's pre-trial hearing so it can determine the nature of the documents found in his luggage. One of his defense lawyers, Maj. Scott Sikes, told The New York Times he hoped the military would decide to drop the case. He said he believed that the military was pressing ahead as part of an unwise effort to save face over its initial miscalculation. The case, he noted, "started out with allegations of being a spy." "There has since been a steady decline in the seriousness of the allegations," Major...

Posted by DeLong at 02:03 PM

November 19, 2003
At the Bottom of the Slippery Slope

Unfogged writes: Unfogged: Chun writes, If you live in the U.S., you bear responsibility for a government that tortures people. And, if you read the article he links, it's pretty clear that no one disputes the facts: the US grabbed a Canadian citizen transiting through JFK and sent him to Syria, where he was tortured for 10 months, before being sent--unconvicted, uncharged--to Canada. Officials, speaking on condition of anonymity, said that the Arar case fits the profile of a covert CIA "extraordinary rendition" -- the practice of turning over low-level, suspected terrorists to foreign intelligence services, some of which are known to torture prisoners. I challenge anyone to make a distinction between the morality and propriety of torturing Mr. Arar in Toledo and sending him to be tortured in Syria. What fictions let people sleep at night! And please note, whether Mr. Arar in fact had any ties to Al Qaeda is irrelevent to whether his "rendering" is outrageous. First, because his rendering occurred without even minimal due process. Second, because our government hasn't been authorized in any democratic way to use torture--it hasn't even asked for permission. Also note, there is no need to make a slippery slope argument...

Posted by DeLong at 04:25 PM

November 12, 2003
Michael Froomkin Paddles Into Guantanamo Bay

Michael Froomkin thinks about what the Supreme Court's granting certiorari in the Guantanamo prisoners' appeals might mean: Discourse.net: What Motivated the Cert Grant In Guantanamo Case?: Maybe I'm just a perennial optimist, but I think the grant of cert. is a marginally good sign. Grants of cert where there's no circuit split can be just because of the importance of an issue, but sometimes they're because members of the court think the lower court(s) erred. And, as noted in an earlier and better Linda Greenhouse item, something can be learned from a comparison of how the administration phrased the question presented by the two cases with how the justices phrased it in their order granting review. Solicitor General Olson said the question was whether the federal courts had jurisdiction to decide the legality of detaining "aliens captured abroad in connection with ongoing hostilities and held outside the sovereign territory of the United States at the Guantanamo Bay Naval Base, Cuba." The Supreme Court, by contrast, said it intended to decide the jurisdiction of the courts to hear challenges to "the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval...

Posted by DeLong at 03:48 PM

October 25, 2003
Guantanamo Again

Michael Froomkin sharpens the issues at stake in jurisdiction over Guantanamo: Discourse.net: US Jurisdiction in Guantanamo -- Some Complexities: The issue at the heart of all this is that I think it ought to be the rule that, as Mr. Dooley put it, "the constitution follows the flag." The Navy, the President, his minions, all derive their power for the Constitution. They must take the bitter with the sweet, and accept the shackles of due process and habeas corpus that come with the great power entrusted to them. I wish I were more confident that the Supreme Court will see it that way. Don't underestimate what's at stake here. A ruling that there's no way for the Gitmo detainees to get a court to consider their plight may be one that requires no judicial creativity, but it is a ruling that even if they were being killed or tortured by our government... our courts will not hear them. That should bother you. It bothers me....

Posted by DeLong at 10:01 AM

September 21, 2003
Why Michael Froomkin Should Have Become a Doctor

Now that Michael Froomkin has a weblog, he's telling stories--good stories--that I haven't heard--and I've known the guy since he was seven. Here he talks about his grandmother Rose Burawoy from Bialystock, and why she was upset when he decided to become a lawyer rather than a doctor. And he links it to the Bush Administration's current suspension of habeas corpus (and I still haven't found anyone to tell me a reason why this is constitutional--other than the facts that Rehnquist believes that a good judge is hostile to "rights" by definition, and that Scalia believes that St. Paul told him that whatever the state does is holy)....

Posted by DeLong at 08:35 PM

June 21, 2003
The Southern Cone

When I worry that America's politics may come to look like Argentina's, I'm worrying about what will happen a generation hence when voters say, "You never told us that the tax cuts meant that it was unlikely we would get our social security benefits. We want our social security benefits. Now you politicians figure out a way to give them to us." When Jim Henley worries about America's politics coming to look like Argentina's, he is worrying about something worse: secret arrests and secret detentions (accompanied by warnings to the family that if they make a public fuss the suspect will be transferred to Guantanamo). Unqualified Offerings: ...What has the appeals court authorized? Secret detentions. Please say those words aloud. "Secret detentions." Now use them in a sentence: The US government engages in the practice of secret detentions. The US government has broadly asserted its right to engage in the practice of secret detentions. A federal appeals court has affirmed that the US government may engage in secret detentions. Here's a more complex sentence, for the bonus section: There is nothing in the logic of Judge David Sentelle's affirming opinion that the United States government may engage in secret detentions...

Posted by DeLong at 06:28 AM

April 18, 2003
Stephen Breyer on Civil Liberties

Stephen Breyer on civil liberties. Perhaps most interesting, he says that Lincoln's suspension of habeas corpus during the Civil War is not valid precedent but, instead, a "mistake." Associate Justice Stephen G. Breyer, "Liberty, Security, and the Courts" Association of the Bar of the City of New York New York, New YorkApril 14, 2003 Your President, Judge Leo Milonas, has asked me to repeat remarks I gave last November at a meeting of members of the Paris bar. My object was to help foreign lawyers understand the institutional context in which Americans will resolve their concerns about security and basic human rights. I described the kinds of issues that might soon arise, explained the courts' role, set forth a general framework that would help guide judicial decisions, and made clear that, not only judges, but many other Americans as well, would determine the ultimate outcome. I shall repeat the essence of that talk. I First, the current situation: Post September 11 civil liberties issues fall into three categories. The first includes the rights of detainees. These detainees include (1) approximately 600 individuals from 42 different countries who fought against allied forces in Afghanistan and are presently detained at Guantanamo Bay;...

Posted by DeLong at 08:43 AM

February 24, 2003
Semi-Daily Journal Welcomes Jane Galt's Return to Her Normal Self

At the conclusion of our last episode, Jane Galt had been bitten by a werewolf and turned into a slavering lycanthrope. She chortled with glee in the expectation that "violence... applied in a firm, pre-emptive manner" by a 2 x 4 would teach demonstrators what's what. Rabid foam dripped from her slavering jaws. The fascist undead rose from their graves and shambled forward into her comments section. And then... But now it's time for the next episode. And she has recovered completely--expressing concern for the due process rights of those accused of terrorism in a manner that would win her the chairship of an ACLU chapter based in Berkeley, California. Welcome back. Asymmetrical Information: So the Florida professor who engendered a storm of controversy when his university tried to fire him over his alleged ties to Palestinian terror groups has now been arrested, along with eight others, for raising money for Islamic Jihad. I don't know enough about the particulars of the case to comment on whether it's likely that he's guilty. What I want to say is this: we need to watch this case like hawks. We're emotional about terrorism, justifiably so. But that emotion has got to make...

Posted by DeLong at 11:57 AM

February 22, 2003
Where Are the Heirs of Patrick Henry?

I don't know. But I do know where you can find a large congregation of the heirs of Bull Connor. Jane Galt writes "Bring it On": "I'm too busy laughing... laugh even harder when [demonstrators] try to unleash some civil disobedience, Lenin style, and some New Yorker who understands the horrors of war all too well picks up a two-by-four and teaches them how very effective violence can be when it's applied in a firm, pre-emptive manner." The "pre-emptive" beating up of demonstrators who you think might start smashing windows? How... un-American. It's sad to watch someone cross the boundaries and leave what Max Sawicky calls the "zone of rationality." I hope she recovers soon....

Posted by DeLong at 07:42 AM

September 01, 2002
So Where Did the Volume Go?

"Gene Healy's another smart person at Cato," an acquaintance said. "He's making powerful arguments that the Bush Administration must acknowledge Congress's power over war and peace in foreign affairs." So I went to read what Gene Healy had written. I was expecting considerable volume: I had read a short piece by him on the "executive arrogance" of the Clinton years, calling Clinton's foreign policy: ...shameful... brazen... abuse of executive authority... contempt for constitutional limits ... Nixonian... the cluster-bomb humanitarianism of the war on Serbia... But the volume turned out to be extremely muted. After all, if Healy really does believe that Clinton's conduct of foreign affairs in Bosnia, Kosovo, Haiti, and Afghanistan was "...shameful... brazen... abuse... contempt," what words must have come to Healy's mind to apply to many aspects of the Bush Administration's conduct of the campaign against terror? Yet somehow none of these words make it into Healy's discourse, which seems rather... milquetoast... by comparison. His arguments may be right--but if it was so important to express them so... forcefully in judging the Clinton Administration, isn't it even more important to express them forcefully today? War with Iraq: Who Decides? February 26, 2002 by Gene Healy Gene Healy...

Posted by DeLong at 07:55 PM

August 14, 2002
Did Anything Noteworthy Happen at Runnymede?

Dan Kohn pleads for judicial review. If this goes awry, it will be the result of a very long chain of historical events originating with Supreme Court Chief Justice Roger B. Taney's attempts to use his office to fight for the South in the Civil War... Dan Kohn's Blog: If you don't know the name Yaser Esam Hamdi, you soon will. He was in court today to determine whether the right of Habeas Corpus, first granted to a few English nobles in the fields of Runnymede in 1215 and guaranteed by the constitution to all US citizens, will now be taken away by the Bush Administration's cavalier definition of an :"enemy combatant". The NYT reports on the federal judiciary playing their role as one of the main bulwarks of liberty: "'I have no desire to have an enemy combatant get out,' the judge said. 'But due process requires something other than a declaration by someone named Mobbs that he should be held incommunicado. Isn't that what we're fighting for?'"...

Posted by DeLong at 06:17 PM

August 06, 2002
One Sign of Big Trouble in Post-911 Law Enforcement

One sign of big trouble in post-911 law enforcement: F.B.I. Faces Inquiry on a False Confession From an Egyptian Student ...Abdallah Higazy. He was initially held as a material witness in the Sept. 11 investigation after a security guard said he had found an aviation radio in the safe in Mr. Higazy's hotel room, which overlooked the trade center site. Mr. Higazy was later charged with perjury when he denied owning the radio, and spent about a month in jail. He was released after the guard admitted making up the story about the radio. But while Mr. Higazy was in jail, prosecutors told Judge Rakoff that the student had confessed to an F.B.I. agent that he owned the radio, an admission now known to be untrue. Mr. Higazy asked for a polygraph exam to prove his innocence, the judge said, and an F.B.I. agent administered it without his lawyer present. But at some point, the F.B.I. agent, who has not been identified, stopped, and reportedly began to question Mr. Higazy, who then confessed, the judge noted. The confession fueled suspicions he might be tied to the hijackers. "The alleged misbehavior here," Judge Rakoff said, "consists, worst case, of an F.B.I....

Posted by DeLong at 05:47 AM

July 02, 2002
Our Creeping Suspension of Habeas Corpus

Dan Kohn worries about how the U.S. courts aren't requiring that suspension of habeas corpus be carried out, constitutionally, by the Congress, but are instead eager to do it, unconstitutionally, all on their own. | Dan Kohn's Blog | I hereby appoint Rick Swedloff, an attorney currently living in Philadelphia, PA, to represent me in any habeas corpus hearings if I am detained without counsel for being [accused of being] an enemy combatant. Hopefully, this blog entry will prevent the US government from arguing, as they have against Yaser Hamdi, that the public defender has no right to petition to provide counsel to Hamdi because the attorney has not had a chance to confer with the client he is petitioning to represent. Joseph Heller is laughing in his grave. The 4th circuit ruled today "that a public defender could not represent him because they did not know each other."...

Posted by DeLong at 06:18 PM

June 20, 2002
Our Government Is Going About This All Wrong: If Civil Liberties Are to be Suspended, Then Suspend Them--Constitutionally

Eugene Volokh worries that "military tribunals, military detentions, and the like" raise fundamental questions "that go to the heart of the actual language of the Constitution": | The Volokh Conspiracy | But the main issues raised by military tribunals, military detentions, and the like have very little to do with the Warren Court decisions.... These matters raise fundamental questions that go to the heart of the actual language of the Constitution.... Now there are good arguments that, as a matter of the original meaning of the text (though not of its letter), and as a matter of American constitutional traditions, there are certain implied exceptions to the Bill of Rights with regard to enemy combatants... but the arguments of its critics cannot be rebutted simply by denouncing some "Warren Court set of rights" -- it's the Framers' set of rights that's clearly at issue here. I suspect that he is wrong about the letter of the Constitution (although--thank God!--I am not a lawyer). Article I, Section 9, Clause 2: "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." This is a case of...

Posted by DeLong at 08:42 PM

January 04, 2002
Congressional Oversight

Questioning of Ashcroft by Edwards on Military Tribunals The questioning of Attorney General John Ashcroft by Senator John Edwards, the Democrat from North Carolina, during the Senate Judiciary Committee's oversight hearing on December 6, 2001. SEN. LEAHY: The senator from North Carolina. SEN. EDWARDS: Thank you, Mr. Chairman. Good afternoon, Mr. Attorney General. ATTY GEN. ASHCROFT: Good afternoon. SEN. EDWARDS: Appreciate your patience. I know this has been a long hearing. We want very badly to make sure that you have the tools you need to protect the American people, including new laws and new measures. But while we are protecting American lives we also need to be certain that we protect American values and American principles. And it seems to me that these times of crisis and times of war are times when those principles and values are most at risk, when people get caught up in the passion of doing what's necessary under the circumstances. We have seen in the past during World War II the internment of over 100,000 Japanese Americans by a great president. And I am sure at that time that was a very popular move. But it is not something I don't think that...

Posted by DeLong at 04:48 PM