Between the radioactive elucubrations of the Dear Leader, the accumulation of tortured and executed bodies in Iraq, the tawdry revelations of the Foley affair, and the growing murmur of a supposed Democratic sweep in the midterm election (I’ll believe that one when I see it), there has been precious little front-page consideration of the signing, earlier this week, of the Military Commissions Act.
As you may have heard, the act drastically changes the legal landscape for foreigners in the United States, whether here legally or illegally. It allows the government to deny a foreign suspect the right to challenge his or her imprisonment (habeas corpus), to employ evidence obtained by a wide and ambiguous range of coercive methods, and to use classified evidence whilst withholding it from the defense. Small things like that.
I will leave it to the lawyers here to amplify or amend this summary. Perhaps one reason why there hasn’t been much discussion is that the Supreme Court will ultimately determine whether, and in what form, this law stands. It’s quite possible that the Hamdan case, in which desi lawyer Neal Katyal plays a prominent role, will become the test case. At any rate, some in the media are looking ahead to this next phase, and already centering speculation on Justice Anthony Kennedy, the current swing Supreme.
I did, however, come across one very interesting piece of commentary that I wanted to share. In an Op-Ed in the Boston Globe, Harvard Law professor Martha Minow and a former legal adviser to the Israeli military, Gabrielle Blum, compare the new legislation with Israel’s approach to the same problem. They lead with their finding:
BEFORE ENACTING the “Detainee Bill” (otherwise known as the Military Commissions Act) two weeks ago, Congress should have spent more time learning from the Israeli experience. Compared with Israel’s security measures during a long and difficult experience with terrorism, the US Congress has gone too far in its willingness to compromise human rights and civil liberties. Security considerations, as legitimate and forceful as they are, do not justify such excessive measures, as the Israeli practice demonstrates.
Israel’s Unlawful Combatants Act, enacted in 2002, among other things provides for an immediate military hearing of the detainee upon detention, and a judicial hearing within two weeks and again every six months; a range of requirements for detention conditions and privileges; and the detainee’s right to meet with the Red Cross. The current U.S. legislation provides none of these safeguards. In addition, also unlike Israel, the U.S. law grants immunity to U.S. officials from prosecution except in the most extreme cases.
Minow and Blum conclude:
… the US Military Commissions Act sends to other countries facing terrorism the message that effective judicial review is null and void once the security alarm is sounded. It demonstrates a level of panic and irresponsible abandonment of principles that other nations, facing similar dangers, have avoided.
As bad as this may be for America, it is potentially far worse for countries that look to the United States for leadership. Now, the US example will encourage other nations to throw away rights just when they are sorely tested.
Bang on! I feel extremely disheartened with all the developments recently. Day after day, I hear how bad this law is and how fundamental it is to freedom. And yet, the administration marches on, stomping on with a lead foot on fairness. One last hope is the supreme court throwing it out. I used to like McCain a little bit before this. But after the show they put up, like they are against it and in the end doing nothing of merit to alter the bill, I see him as another showman intent on grabbing power by any means.
S, thanks for this. You mention Katyal and I’m very glad about his presence in the legal sphere. At the same time, I’ve been thinking about the recent Red Cross visit, and, very macaca of me, wondering whether desi docs are a part of such teams. Is there a medical counterpart to Katyal?
Martha Minow actually sounds like an underdog. And Arlen Specter, when you think about it, is a pretty draconian sounding name.
If I were the head of a movie studio, I’d send this one back for a rewrite. Unless it was presented as a battle of good versus evil, in which case…what?…really?…well, never mind then.
Agreed — it is truly sad to see these measures being pushed through. My only hope is that whoever wins in 2008, even if it is McCain, scales back the legislation and we can reclaim at least a semblance of the “moral basis of our fight against terrorism,” as Colin Powell recently put it.
Shameless on-topic plug — for those in the DC area, the South Asian Bar Association of Washington, DC has organized a dinner for Thursday, Oct. 28, at which Neal Katyal will discuss this very issue. All are welcome. More information and registration information here.
I just don’t see how this will stand in the supreme court. Even if the Supreme Court somehow goes along with this decision, the shift in Congress should help balance out things in the future. The pendulum swings from one end to the other.
Avoiding a ‘check and balance’ is not acceptable.
Siddartha:Thanks for covering this topic. A good number of my friends,legally here, not citizens..yet, are quite perturbed by this. Few of them are quite active..politically & this act/law does pose quite a risk to their freedom of expression , especially if someone in power doesn’t like the views.
Here’s the question(for my own clarity): 1.If Supreme Court recognizes the Military Commission Act as unlawful, does it become ineffective? 2.If Supreme Court okays it, but a Democractic Congress(post Nov election) opposes it?…whose view prevails? 3.If both Supreme Court and Congress, kow tow for now….and if the next President elect wants to abolish this act..can he do it?
Though the current status is disheartening,I am trying to find “tiny” possibilities, to keep my hopes alive.
The Supreme Court can declare, in whole or in part, any act of Congress as being unconstitutional. If it is declared unconstitutional, Congress has the option of drafting a new law that conforms to the constitution or simply drop the issue. Until then, the courts act, the law remains in effect. The only real way it would not be effective prior to a court decision is if a plaintiff convinces a district court judge (the lowest federal court) to enjoin enforcement of the law until a decision is rendered.
2.If Supreme Court okays it, but a Democractic Congress(post Nov election) opposes it?…whose view prevails?
If the SC okays it, then Congress can still repeal the law, but that’s doubtful.
3.If both Supreme Court and Congress, kow tow for now….and if the next President elect wants to abolish this act..can he do it?
The President cannot abolish the act. Only Congress can repeal it. However, the President is charged with executing and enforcing the laws of the United States. I don’t believe he can outright refuse to enforce a law enacted by Congress. In practical terms, he can through a variety of means.
Suraj,
I think a more general answer to your question is that there is still hope. I haven’t read the law itself, but I believe on several issues it gives the executive branch the authority to interpret certain laws, especially the Geneva Conventions. Therefore, the next president is well within his/her right to change any interpretation used in this administration. Furthermore, I would not be at all surprised if the SC struck down the law. Justice Kennedy has a healthy respect for international law and I don’t think Judge Roberts is nearly as conservative as people think.
A kinder, gentler face than Scalia, but not much less conservative when it counts. You might want to go back and re-read his opinions from last term. And don’t forget he signed on to the Hamdan decision in the DC Circuit that was reversed by the Supreme Court.
And the law is awful. It effectively eliminates habeas corpus for anyone the President declares an unlawful enemy combatant — with no opportunity for any independent check on that. L’etat, c’est W (and Cheney).
“Hamdi v. Rumsfeld” case
the Hamdi case has already been used to disown the republican’s crazy terror laws
recently, if you recall the NSA surveillance program was ruled illegal by the Supreme Court – one of the basis that was used was the Hamdi case. Basically, the case deals with a guy who was captured in afghanistan as an enemy comabatant and it revolves around what rights (or the lack of) he had in his trial
i dont know if they can use this case as a reference again to rule against MCA but it is plausible
anyway thats my two cents
have a nice day
Sriram – Many thanks for breaking it down for the legally challenged here.
“2.If Supreme Court okays it, but a Democractic Congress(post Nov election) opposes it?…whose view prevails?
If the SC okays it, then Congress can still repeal the law, but that’s doubtful. “
When you get a chance, do tell, why it is doubtful?
Sriram..Thanks a bunch. It was quite educative and morale boosting as well. Just made my weekend!
Thanks buddy 🙂
Thought the comment on Israeli standards was a little snarky – the IDF has one of the cleanest records of any military around.
cough
cough
Damn this throat. Does anyone have some lozenges?
just ruminating….
Why is there more interest in the “Punjabi not Ar….” post (no disrespect, anna), than in the (much more compelling and educational) post above, which, irrespective of our political leanings, should concern us all.
All the more reason to root for a Dem sweep in November.
SWEEP, SWEEP , SWEEP.
get out the vote in every last corner!
Kritic, I’m a ruminant, too, and I couldn’t help but notice that there have been several thought provoking posts here this week that haven’t, well, provoked much thought.
Siddhartha on the Sri Lankan war? Nada. Vinod on the persecution of a Bangladeshi? Zip. Taz on the plight of desi cab-drivers? Not a peep.
But if you sprinkle in the magic words, “marriage” or “skin color” ka-boom, three hundred comments.
I guess SM is a mixed-use space. And maximum respect to the bloggers for keeping it mixed-up, that’s the strength of the site. But it’s funny to observe what large numbers of commenters gravitate towards. Funniest is those commenters who write “this post sucks” or “this has nothing to do with desis” (is it just me, or are there more and more of such comments these days?) and then go on to write dozens of times in the comment-thread of that particular post, while staying away from other posts that, presumably, do not suck.
Before go looking for halls, Kobayashi, Hari did say “…of any military around”
Such as – The Russian and the Chinese armies, for one, have killed, are killing more people (Muslims) than the IDF. Yet nary a peep from the global intelligentia. Not to mention, the Ummah.
I think we should be talking about string theory.
Ah, but while IDF is not the dirtiest military around (that honor, as you suggest, might well go to the Russians), that does not by any means make them one of the cleanest. Who, exactly, is keeping these records you speak of? How often has the IDF made ceasefires by them dependent on a guarantee that there would be no UN investigation afterwards?
The cough medicine I’m looking for is pronounced “Jenin.”
you ruminate much better ( # 17), kobayashi
Kritic and Kobayashi,
It’s all good. The dogs bark, the caravan passes. Just because posts like this one get fewer comments doesn’t imply they’re less read. As for what comments do get posted, their quantity and quality, connoisseurs like yourselves will take that for what it is, more datapoints for whatever ill meta-theory of discourse and representation it is that we are all, in our disorganized and half-aware way, developing.
Onwards!
The greater point, atleast what I draw from what Hari said was, that Israel is used as a ‘benchmark’ in today’s popular culture/media as an oppressive government with heavy handed/draconian laws disproportionate to reality (considering the neighborhood it lives in). Comparing law and order between Israel and the United States is comparing apples and oranges.
But the post highlights that even Israel (though the conotation is negative), with the situation it faces, has a periodic review process. I don’t think people here have an insidious agenda agains Israel, popular sentiment does seem to run against most of its policies.
The law enacted gives the executive branch wide berth (or a loophole the size of Alaska) in applying its authority. The fact that Congress passed this (where a Democrat could have filibustered) but didn’t, means that the Dems are playing election year politics here and not picking a fight they could possibly lose votes on. If this issue was something they felt could have hit a home run with, you’d bet they’d jump all over it.
Which means the Dems must be damn confident that the Supreme Court will rule against the law, making life easier for democrats (or they have differnt plans if they gain majority in both senate and house). My assumptions, I may be wrong, but thats how I read the tea leaves.
I think it does imply that they’re less read, Siddhartha. But, there’s absolutely no shame in that. As you point out, there is also the question of quality. A single incisive exchange in the comments threads, something that goes beyond the obvious, something far from the jerking knees, can make all the difference in the world. And that’s true whether it’s a four comment thread or a four-hundred comment one.
Without the “boring” posts, it’s safe to say I probably wouldn’t be reading this site.
The dogs bark, my brother, and, indeed, the caravan passes.
Kobayashi –
In that case your cough will only get worse. If you recall, Jenin was not the “massacre” the media led us to believe.
The FDA hasn’t approved this medicine. The manufacturer presented fabricated clinical data.
I don’t think either of us have statistics on what the relationship between the hit count (from unique users) and # of comments is.
Many of those 3-400 comment threads have a small group of commentators making multiple entries (such as myself), too. It can be deceptive. Plus, most of those comments evolve into replies/discussions of what OTHER commentators are saying, not necessarily reading the main article again.
Both fruits, circular in shape, sweet, lend themselves well to juicing, approximately the size of a baseball, contain small pips, and available from Ahmed the grocer across the street from me.
The United States’ military should absolutely be compared to Israel’s. A great many of their struggles are similar. Why do people act as if comparison infers identity? George Bush can be profitably compared to Osama. Doesn’t mean they’re the same person. It does mean there are many points on which they match each other.
As it turns out, I also like comparing apples and orangutangs, but that’s not quite as, if you’ll pardon the pun, fruitful.
Fox, henhouse.
j
I love the posts that generate fewer comments(compared to ones with +200). For one, I can go through all the comments, and most importantly, they are laid out well. No mud slinging, no venom spits! Sometimes, even posts like these turn into battle fields to push ones own point of view and trash everything else. I stay away from those as well….Now don’t push too much by saying “Why are we not getting enough responses for posts like this?”…you may well repent it.
The point isn’t that Israel is considered “oppressive” or not. If I wanted oppressive, I’d have picked, say, Syria. The point is that among electoral democracies, Israel is generally considered “hard.” In the same sense that the Bush administration and national-security hawks argue that the US is insufficiently “hard” — that we are “soft” on terrorism, or on threats, or on whatever it is.
The article by Minow and Blum points out that however “hard” Israel is, it has managed to be so without sacrificing certain standards and safeguards that the US seems to be throwing out the window. That strikes me as a very useful comment. It certainly got me thinking, which is why I posted on it…
If you look at it historically, Congress rarely repeals laws that it has passed. First, political realities change and Congress, which isn’t exactly the most efficient body in the world, does not spend time going back and re-evaluating past laws. If it does, it generally results in amendments and revisions, not outright repeals. Second, bad laws often result in lack of enforcement by the executive or are struck down by the courts, so it’s not really necessary for Congress to repeal laws.
Incidentally, for those of you who work from home, CSPAN-2, as we speak, is airing a live panel discussion on this very issue.
Mr K:
It is easy to comment if one can relate to the topic of the post. People think it takes time and is tougher to comment intelligently to weighty topics so they comment less. It doesn’t mean all the comments on personal posts are intelligent either.
Boy, Wolf
Huh?
I said they were apple and oranges, I didn’t infer their ‘identity’ is the same (nor was that my intention)
Plus, I said ‘Law and Order’, I wasn’t talking about the military itself. The “United States” and “Israel” are in the same/similar boat analogy is used by the Right and Left for various points. At the end of the day, the tactical and strategic realities are not the same on a macroscopic level, nor is the threat level (or type). It may become the same some day, but I’m still waiting on a US-Canadian-Mexican war this century that will result in a Candian-Mexican alliance to regain Amerian Occupied Mexican and Canadian land with an insurgency fighting through the streets of California.
Look, specifically because the comparision between US and Israel is apple and oranges, in terms of what threat level each country faces, is what makes this American law even more ridiculous. Israel’s situation is far more tense and convoluted, yet even their law allows for a review process.
I wasn’t nitpicking on you specifically. I agree with you:
Time to start kissing up to distant aunties and uncles who live in Canada. If you do that, you can get into Canada easier than American soldiers applying for refugee status, or the future draft dodgers that will have no luck getting in easily like the draft dodgers of 30 years ago. Even the most distant relative of a Canadian citizen can be sponsored to get into Canada. And the wait for citizenship is quite short. If we have useful skills for the workplace, we will easily find a job.
Understood, Gujudude, and I agree with your larger point. The truth is that my knee jerks out of control when I hear that particular metaphor. I much prefer “the boy who cried wolf.”
goddammit. i have him cornered, and he finds a way to slip out. slippery character, that mr. k.
Sriram, Thanks again.
Manju – “The FDA hasn’t approved this medicine. The manufacturer presented fabricated clinical data.”
Kobayashi – “Fox, henhouse.”
Only one word come to mind, ladies/gents – Beautiful.
Mr. Kobayashi
That “lozenge” you were looking for can be found scattered by the thousands in farmland, villages and towns throughout s. lebanon..I believe the generic name is “cluster bomb”.
The Sudanese government and its Muslim Janjaweed militias have killed 200,000+ Muslims at last count.
Generic term is unexploded ‘bomblet’/submunition. A cluster bomb is a dispensing container housing the bomblets.
More information on cluster bombs.
With that stand-up comedian anything is possible. Anyways I don’t know if I misread “the article” but when reading this it sort of reminded me of the last scene of Yasmin. http://www.imdb.com/title/tt0420333/
English is not my mother tongue so mind me. I canÂ’t express myself more profound:
I just donÂ’t get it. People died for the rights we have today and itÂ’s so strange that those rights can be thrown in the dustbin that easily. That aside, we have to life with the consequences and perhaps the thought is paranoid but I guess it would definitely suck if you are in the wrong place at the wrong time with this wrong law.
Also, are you still speaking of a democracy if the law protects the government not the people?
This is what I found most disquieting.
People who may think that the bill was necessary would also agree that it is important and virtually unprecedented and calls for a long and healthy debate. It should have been on the front page for days, and every little clause should have been debated. But there was almost no discussion in the mainstream media, and in no way did it seem to have captured any public interest, forget outrage. In this case it was not that Nero fiddled while Rome burned, but that Rome fiddled while Nero burned the Constitution (/rhetorical flourish).
“2.If Supreme Court okays it, but a Democractic Congress(post Nov election) opposes it?…whose view prevails?
If the SC okays it, then Congress can still repeal the law, but that’s doubtful. “
A democratic congress can’t repeal a law without the president signing it into law (unless they get a 2/3rd majority which is highly unlikely although extremely desirable). And you can bet that Bush will veto any such repeal.
In the interest of generating more comment traffic to posts like this, and since I expect that it will become relevant for at least some readers: What is the dating scene in Gitmo like?
Since you ask, take a look.
47 and #48 — yeah, i’d say the whole S&M thing loses its charm when you’re actually being tortured.
Siddhartha,
Thanks for bringing this up. I intervened in the ‘dating’ post yesterday and wondered why we weren’t talking about this instead…to my mind it is a devastating piece of legislation. It permits torture except in cases where ‘serious harm’ is inflicted, allows a tribunal set up by the President or Secretary of Defense to decide who qualifies as an ‘enemy combatant’, and eliminates habeas corpus, a cornerstone of common law for hundreds of years, for these enemy combatants. Theoretically, a newspaper editor or a blogger with objectionable views could now be pulled off the street on the order of the President, called an enemy combatant, and subjected to torture. The Geneva Convention has now become ‘optional’ for the States.
Re: Supreme Court. A commentator I was listening to noted that the Supreme Court judgment would come down to one vote, that of Justice Kennedy, who has said that he would approve such legislation if Bush garnered Congress support for it. Not much of a safeguard if this is true.