Garrison Kiellor on the state of our Union

[mburbank]

One of the folks who also thinks we are in dire straights.




Congress's Shameful Retreat From American Values
By Garrison Keillor
The Chicago Tribune

Wednesday 04 October 2006

I would not send my college kid off for a semester abroad if I were you. Last week, we suspended human rights in America, and what goes around comes around. Ixnay habeas corpus.

The U.S. Senate, in all its splendor and majesty, decided that an "enemy combatant" is any non-citizen whom the president says is an enemy combatant, including your Korean greengrocer or your Swedish grandmother or your Czech au pair, and can be arrested and held for as long as authorities wish without any right of appeal to a court of law to examine the matter. If your college kid were to be arrested in Bangkok or Cairo, suspected of "crimes against the state" and held in prison, you'd assume that an American foreign service officer would be able to speak to your kid and arrange for a lawyer, but this may not be true anymore. Be forewarned.

The Senate also decided it's up to the president to decide whether it's OK to make these enemies stand naked in cold rooms for a couple of days in blinding light and be beaten by interrogators. This is now purely a bureaucratic matter: The plenipotentiary stamps the file "enemy combatants" and throws the poor schnooks into prison and at his leisure he tries them by any sort of kangaroo court he wishes to assemble and they have no right to see the evidence against them, and there is no appeal. This was passed by 65 senators and will now be signed by President Bush, put into effect, and in due course be thrown out by the courts.

It's good that Barry Goldwater is dead because this would have killed him. Go back to the Senate of 1964 - Goldwater, Dirksen, Russell, McCarthy, Javits, Morse, Fulbright - and you won't find more than 10 votes for it.

None of the men and women who voted for this bill has any right to speak in public about the rule of law anymore, or to take a high moral view of the Third Reich, or to wax poetic about the American Ideal. Mark their names. Any institution of higher learning that grants honorary degrees to these people forfeits its honor. Alexander, Allard, Allen, Bennett, Bond, Brownback, Bunning, Burns, Burr, Carper, Chambliss, Coburn, Cochran, Coleman, Collins, Cornyn, Craig, Crapo, DeMint, DeWine, Dole, Domenici, Ensign, Enzi, Frist, Graham, Grassley, Gregg, Hagel, Hatch, Hutchison, Inhofe, Isakson, Johnson, Kyl, Landrieu, Lautenberg, Lieberman, Lott, Lugar, Martinez, McCain, McConnell, Menendez, Murkowski, Nelson of Florida, Nelson of Nebraska, Pryor, Roberts, Rockefeller, Salazar, Santorum, Sessions, Shelby, Smith, Specter, Stabenow, Stevens, Sununu, Talent, Thomas, Thune, Vitter, Voinovich, Warner.

To paraphrase Sir Walter Scott: Mark their names and mark them well. For them, no minstrel raptures swell. High though their titles, proud their name, boundless their wealth as wish can claim, these wretched figures shall go down to the vile dust from whence they sprung, unwept, unhonored and unsung.

Three Republican senators made a show of opposing the bill and after they'd collected all the praise they could get, they quickly folded. Why be a hero when you can be fairly sure that the court will dispose of this piece of garbage.

If, however, the court does not, then our country has taken a step toward totalitarianism. If the government can round up someone and never be required to explain why, then it's no longer the United States as you and I always understood it. Our enemies have succeeded beyond their wildest dreams. They have made us become like them.

I got some insight last week into who supports torture when I went down to Dallas to speak at Highland Park Methodist Church. It was spooky. I walked in, was met by two burly security men with walkie-talkies, and within 10 minutes was told by three people that this was the Bushes' church and that it would be better if I didn't talk about politics. I was there on a book tour for "Homegrown Democrat," but they thought it better if I didn't mention it. So I tried to make light of it: I told the audience, "I don't need to talk politics. I have no need even to be interested in politics - I'm a citizen, I have plenty of money and my grandsons are at least 12 years away from being eligible for military service." And the audience applauded! Those were their sentiments exactly. We've got ours, and who cares?

The Methodists of Dallas can be fairly sure that none of them will be snatched off the streets, flown to Guantanamo Bay, stripped naked, forced to stand for 48 hours in a freezing room with deafening noise. So why should they worry? It's only the Jews who are in danger, and the homosexuals and gypsies. The Christians are doing fine. If you can't trust a Methodist with absolute power to arrest people and not have to say why, then whom can you trust?

[kahljorn]

that was the most retarded article I've ever read. Since when have jews, fags and gypsies been terrorists? Newspapers are ridiculous.

Also bush can't claim non combatants are combatants, a citizen or civilian can't be called a combatant or be held elgible for this treatment unless they are aiding terrorists in hostilities against other civilians or citizens. It specifically states in the law that,

`(C) Such term does not include any alien determined by the President or the Secretary of Defense (whether on an individualized or collective basis), or by any competent tribunal established under their authority, to be-- `(i) a lawful enemy combatant (including a prisoner of war); or `(ii) a protected person whose trial by a military commission under this chapter would be inconsistent with Articles 64 through 76 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949.

Also it's not that they can capture you without a trial, it's that they can capture you before a trial-- if i understand right. It makes no sense there wouldn't be some type of reviewing process for the prisoners. Notice it has the same Geneva laws protecting civilians? Yea, no torture for our sweedish grandmothers and korean grocers.
The 'established tribunal under the authority' part makes it sound like just about any group involved with the government can have a say in if people are eligible to be tortured, like courtrooms, cia and other authority figures mayhaps.

[Geggy]

Uh aren't we supposed to be focusing on the foley scandal?

[sspadowsky]

Originally Posted by kahljorn

if i understand right

No, you don't.

[kahljorn]

Please explain then. We've had two threads about this same story and so far nobody has really explained this law in anywa expressing understanding.

Saying homosexuals are going to be targetted to be tortured for terrorism like homosexuals go around shanking people is ridiculous. Unless more criminals are homosexuals, but that doesn't explain why there aren't more men raped. Maybe it explains pedophilia and pedastry in that regard, though. This article is amazing, I completely change my position.

[KevinTheOmnivore]

I love the argument here:

senators are most certainly corrupt, and the courts will prove it.....but well, if they don't, well the courts are corrupt too! 65 senators (one who actually knows the feeling of torture), the federal courts, and anybody else who thinks it makes sense to pass a bill rather than passing no bill! They've all sold their souls! Rabble rabble! They're all Nazis, and I can say that because I didn't vote for this bill!

Joe Lieberman co-sponsored a better anti-torture bill than this one, but it couldn't get out of committee. That's what happens when you don't take elections seriously-- you lose control over legislation, and you're put in a serious position of compromise. Many senators would've preferred a better bill, but they WOULDN'T HAVE GOTTEN IT.

Your choice isn't this bill vs. really awesome bill. It''s this bill vs. nothing now, and maybe a really watered down bill in the future. But I'm glad this hack can scream from the cheap seats on this. You want better bills? Win the American people, and win elections.

[mburbank]

"that was the most retarded article I've ever read. Since when have jews, fags and gypsies been terrorists?"

Kahl, you're joking, right? That's a reerence to the following famous quote.

"First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me."
- Pastor Martin Niemöller

It's referencing the fact that when oppression begins, it doesn't seem like a huge big deal, and probably doesn't effect you, but if you don't recognize it for what it is, by the time it does effect you it's tooo late. You are free to find that retarded, but that's what Kiellor is talking about.

Kev, you can think of this as 'passing bill' as opposed to 'not passing a bill'. That's one interpetation. I see a constitutional crisis and my country legalizing torture and suspending habeus corpus and the system of checks and balances. This is what people are talking about here when they say you got arrogance when you started eating meat. You like to say you always argue on the merrits, but I think you overestimate yourself. More and more you pretend that the other side of arguments simply doesn't exist. Tell me you can't see the argument that what happened at the end of this congressional term isn't more significant than 'passing a bill'. You want to argue this is hyperbole, do it, but stop pretending it's hysterics about nothing.

OR, if you feel it is hysterics about nothing, explain how what seem to me like significant changes to the charcater of democracy in the united states are no biggie.

Are you arguing that the President does not have the power to have people tortured by any serious deffinition of the word? Are you arguing that he does not now have the right to declare people enemy combatants and make them dissapear until the WOT is over (if ever). Are you arguing that he does hve to prove to someone outside the executive branch that he has just cause to have someone declared an enemy combatant? There's a big gray area about what he can legally do to American citizens, so I won't even ask about that, lets just say kidnapping people in other coutries and whisking them away on executive say so alone with no oversight. Are you arguing that he'd never abuse these powers, and no future president would either, and though we've never based our system of ghovernment on blind trust, it's okay to do it now?

I agree with Kiellor that the people on his list have very casually done something very shameful. That's an emotional response to their actions. No one requires you to agree with it. Here's what I think you should require of yourself, since you are an intelligent decent fellow.

That you give the matter some serious thought.

So you know, I do not think we are teetering on the brink of American Facism. I have more faith in the American pendulum than that, and I hope my faith is not misplaced. I DO think that our elected representatives have shamefully abandoned their duty to the constitution and I hope the courts will rectify it. If you think that standpoint is ridiculous, laughable, absurd, why not explain yourself. I dare say you embarass yourself when you are so didactic. Youb are far too much of a lad for so much hubris. It ill becomes you.

[mburbank]

More:

Kahl, that law has no teeth, because A.) There is no oversight. The President does not have to make a case to anyone that a person he picked up is a combatant of a material suporter of terrorsim. Once the delcaration is made, the person in question has no access at all to our legal system or even a way to communicate with te outside world. If that persons interrogation ends up meeting what are still legal deffinitions of torture, the people who tortured him and those who gave the orders are immune from prosicution, unless the detainee is killed, maimed or raped.

For instance: Suppose an american law stated "It is illgal to punch a complete strangers face in for no reason." Very good. BUT if certain people are not in any way compelled to state what reasons they had, it cannot be argued there was no reason. AND if certain persons are immune from prosecution in matters of face punching people they may have had a reason to punch but don't have to explain their reasons for punching, the law doesn't much matter, does it?

It is what is called a 'fig leaf'. It looks nice enough, but really just covers the naughty bits, it doesn't make them go away.

Kevin, I agree, people of better character need to win, and I hope they do. But your choice between some bill and no bill is ludicrous. Suppose the adminstration asked for legal slavery of all non whites. The congress balked, made a huge fuss, and eventually compromised on a bill legalizing slavery for all non whites and all other holding more than a million dollars in property. Is that bill better than no bill? Yes, a hypothetical.

I would argue that these non hypothetcial bills are not better than no bills. Make your case that they are. These are matters of principal and concience on a national scale. At many points in American history, the majority of elected representatives have been corrupt or weak. At many moments in American history the majority of the public has favored things like slavery and genocide. This doesn't make them okay, or no big deal.

And I'm sorry if you think Kiellor is a hack. I think he's a fine writer who's written a very good politcal book, "Home Grown Democrat". I think by dismissing him, you are denying yourself the pleasures of an authentic American voice. That's all subjective, but people who think Keillor is a 'hack' make me sad.

[KevinTheOmnivore]

Originally Posted by mburbank

Kev, you can think of this as 'passing bill' as opposed to 'not passing a bill'. That's one interpetation. I see a constitutional crisis and my country legalizing torture and suspending habeus corpus and the system of checks and balances.

Max, for a country to legalize something, they generally pass laws, right? In a very basic sense, that's how it goes, correct? All of this outrage is over a piece of legislation, so you can't jump up and down about it at one turn, and then dismiss the legislative aspect to it at the next.

If it's a "constitutional crisis," then the courts should see that, right?

I think your interpretation (to compare, when I state these things they're called "arrogant") is a lot of hyperbole, and not consistent with the bill. It's easy to scream and rant like this author did, it's not so easy to propose alternatives.

So since we can't get anything constructive out of this hack, I'll have to turn to you, Max:

YOU ARE NOW A U.S. SENATOR WHO OPPOSES EXCESSIVE INTERROGATION AND TORTURE. WHAT WOULD YOU HAVE DONE DIFFERENTLY?

This is what people are talking about here when they say you got arrogance when you started eating meat. You like to say you always argue on the merrits, but I think you overestimate yourself. More and more you pretend that the other side of arguments simply doesn't exist.

Max, the other side of the argument believes you're a Nazi and a totalitarian if you don't agree with him. Should I respect that argument?

On the meat thing-- this is, btw, what Max Burbank does now. Kahl highlighted some of the actual bill's text for you, so as to cool the hyperbole and rhetoric that's being thrown around in this thread. You didn't respond to that, but you did take the time to take a personal shot at me. I don't know if it's desparation, or simply the lack of an argument, but this is what "some people" are talking about when they mention your inability to address issues, Max. Now your cheerleaders will jump in here shouting "YeAH, u pizowned him Max!", but that doesn't change the reality of the matter.

Tell me you can't see the argument that what happened at the end of this congressional term isn't more significant than 'passing a bill'. You want to argue this is hyperbole, do it, but stop pretending it's hysterics about nothing.

It's most certainly hysterics, and it is, after all about a bill on Capitol Hill. We weren't a step away from dictatorship two weeks ago, were we? What triggered all of the Third Reich talk? A bill.

As I pointed out in the other thread, I'm not ecstatic about this bill. There have been better versions, but they wouldn't have passed. I think we could've done better, and frankly, if the courts knock this down I won't shed a tear. But the notion that this has codified torture, disabled habeus corpus, and granted dictatorship to the executive is hyperbole, to say the very least.

Are you arguing that the President does not have the power to have people tortured by any serious deffinition of the word? Are you arguing that he does not now have the right to declare people enemy combatants and make them dissapear until the WOT is over (if ever). Are you arguing that he does hve to prove to someone outside the executive branch that he has just cause to have someone declared an enemy combatant? There's a big gray area about what he can legally do to American citizens, so I won't even ask about that, lets just say kidnapping people in other coutries and whisking them away on executive say so alone with no oversight. Are you arguing that he'd never abuse these powers, and no future president would either, and though we've never based our system of ghovernment on blind trust, it's okay to do it now?

`(C) Such term does not include any alien determined by the President or the Secretary of Defense (whether on an individualized or collective basis), or by any competent tribunal established under their authority, to be-- `(i) a lawful enemy combatant (including a prisoner of war); or `(ii) a protected person whose trial by a military commission under this chapter would be inconsistent with Articles 64 through 76 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949. '

If you think that standpoint is ridiculous, laughable, absurd, why not explain yourself. I dare say you embarass yourself when you are so didactic.

Max, you posted this "emotional response" of an article. I dare say it's hypocritical of you to pick at other people's authors/articles, yet back-peddle and make excuses for this one.

I think the author's standpoint is all of the above, and he invites that criticism through his gross exaggerations and rhetoric. I'm not going to defend 100% of the bill, b/c I don't support 100% of the bill. But you, and people such as Mr. Keillor, put people in an untenable position. Either you support fascism and codified torture, or you are a good person. That seems rather 'didactic' to me.

[mburbank]

"Max, for a country to legalize something, they generally pass laws, right? In a very basic sense, that's how it goes, correct? All of this outrage is over a piece of legislation, so you can't jump up and down about it at one turn, and then dismiss the legislative aspect to it at the next."

I don't understand what you're saying here at all. I can't find the passage of an what I believe are unconstitutional laws outrageous? Why? And if I think not passing any law is better than passing a really awful one, that means what, now? Laws don't get passed every day. Most laws don't get apssed. I don't understand what you're saying.

"If it's a "constitutional crisis," then the courts should see that, right? "

Absolutely. Does that mean constitutional crisis are meaningless events that no one should find troubling? And what about what happens between now and when the courts rectify matters?

"I think your interpretation (to compare, when I state these things they're called "arrogant") is a lot of hyperbole, and not consistent with the bill."

I know you think that Kev. I asked you a series of questions about your interpretation of the bill. Don't just tell me where I'm wrong. THAT's th arrognt part. Show me where I'm wrong.

You don't need to put it in caps, Kev. I believe you alrady know what I'd do. I'd propose alternative legislation, and I'd vote against any compromise I thought was awful, like, say, legalizing torture. If I had any method by which I could prevent an awful bill from becoming law, I'd use it, and leave the President to act as he has up to now in wjhat he thinks is a gray area. He would have to think about what consequenbces he might face, as opposed to having a law on the books that said he was immune. That's what I'd do. Does this seem an unfathomable course to you? Am I missing some basic points of civics that you can enlighten me on? Do you not see why I find your method of discourse arrogant?

"Max, the other side of the argument believes you're a Nazi and a totalitarian if you don't agree with him. Should I respect that argument? "

Deliberate sophistry. You choose to diagree with the most extreme aspects of an extreme argument so you don't have to adress your own.

Let me be clear, and quote myself. I DO NOT think America is on the ferge of Nazi style Facism. There is more than one other sie to the argument. You choose to see only the polar side. I asked you a series of questions about the legislation, noe of which compare you in any way to a Nazi. I am, however, starting to feel like comparing you to Non Nazi Sgt. Schultz.

"On the meat thing-- this is, btw, what Max Burbank does now."

If by that you mean making a joke, you're on to me. But just in case you are feeling sensative, let me state categorically, I do not feel in any way the changes I believe I see in your poltical attidtudes and method of expressing yourself is related to your diet.

"Kahl highlighted some of the actual bill's text for you, so as to cool the hyperbole and rhetoric that's being thrown around in this thread. You didn't respond to that, but you did take the time to take a personal shot at me"

You must have posted while I was continuing, as I did adress what I beleiev were the serious faults of Kahls post. A personal shot? The meat eating thing, or the arrogant thing? I don't honestly care what you eat. I stand by the arrogance remrk, and I realte it speciffically to what you're posting. I don't think it's personal, any more than I think you writting posts to me as if I am an idiot. I would argue that on the whole, I treat your posts with a great deal respect than you treat mine. Settle down.

"It's most certainly hysterics, and it is, after all about a bill on Capitol Hill. We weren't a step away from dictatorship two weeks ago, were we? What triggered all of the Third Reich talk? A bill. "

HOW is it hysterics? And since no one argues that this bill is going to be law, WHY is it out of line to be worried by it? I find it ironic that you mention my inability to adress issues. To simply say it's hysterics isn't meaningful. Ellucidate. Make a case. Speak to the actual bill, or the arguments I've made about it.

"I'm not ecstatic about this bill."

You've also stated you think it's better than no bill at all, which I think is ytroubling. Would you care to say why you think that, or will you just say it again?

"if the courts knock this down I won't shed a tear"

I'm relieved. Will you shed any tears about anybody who gets tortured or trown in a hole while the courts are mulling it over, or about a congress that thinks legalized torture is okay for our country? Or does the eventual intervention of the court make all that not worth being upset by? Suppose the law that was going to be found unconstitutional was more agregious? I think you are taking about personal moral lines, and not basic civics.


"But the notion that this has codified torture, disabled habeus corpus, and granted dictatorship to the executive is hyperbole, to say the very least."

Great. Would you care to sate in what ways habeus corps has not been disabled? Would you care to state how giving the executive an unchecked ability to delcare enemy combatants is not a dictatorial power? Would you care to state how this bill does not legalize torture? Or would you just like to say again it's hyperbole? Okay, you're not 'ecstatic' about this bill. I've told you I think it's shameful. What do you think about it, apart from the fact that it doesn't trigger your endorphins?

"`(C) Such term does not include any alien determined by the President or the Secretary of Defense (whether on an individualized or collective basis), or by any competent tribunal established under their authority, to be-- `(i) a lawful enemy combatant (including a prisoner of war); or `(ii) a protected person whose trial by a military commission under this chapter would be inconsistent with Articles 64 through 76 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949. ' "

Better. Now tell me what branch of government is empowered to question the executives interpretation of the Geneva convention, or how a branch of government would aquire any information regarding a prisoner? This section of the law, barring oversight, is a toothless sham.

"I'm not going to defend 100% of the bill, b/c I don't support 100% of the bill."

What parts of the bill do you object to? How strongly? You are on record as objecting to people who passionately disagree with every aspect of it. Good. I have no sense at all of where you stand on it. The article is a starting point. You note you think it's real bad, which is your privilidge, and one I've excercise when I think something you post is real bad.

Here's why the article speaks to me. The author is very upset by where our country is going. I think that's appropriatte. I think not being ecstatic, not being %100 percent behind it, not shedding a tear if the courts eventually knock it down, is kind of tepid, and as I respect your opinion when you actually state it (which you can believe or not) and I am personally shocked when I find intelligent people of good concience such as yourself don't seem engaged by what strikes me as majorly awful stuff, I am interested in why.

I'm 44 years old. I've followed politics since I was about thirteen. I don't claim the levels of unquestionable expertise or ex cathedra infallability Alphaboy does. But as an observer since Ford, as an adult citizen and voter under Reagan, Bush I, Clinton and Bush II, I feel like we are way out in territory of legislative abuse, the abdication of duties assigned by the constitution and moral terpitude than at any previous time in my life. None of the Presidents made me 'ectsatic'. I was not 100% behind any of them. I did not shed a tear over any of their scandals. But I've never, ever, not even during Iran contra, felt anything like what is happening now happened.

Why do you think that is? A change in my diet? Or maybe there's some substance to my fears. Screw Keillors untenable position if you don't like it, How about mine,if you can see past 'what max burbank does now' ? And what is yours?

[kahljorn]

Ah, now that article makes more sense to me- i hadn't read that poem. Still, that was a bad article with the obvious intent of stirring up emotions rather than informing people about anything. It's so hard for me to even believe 90% of the things people say about this bill because I doubt most people have read it. Also I'm used to people exagerrating everything to make the republicans look worse than they are.

No oversight makes absolutely no sense to me. I thought the reason they had this bill wasn't so they could capture anyone they want but capture them anytime and anywhere. Warrantless searches, arrests and such which makes sense to me if you're trying to catch terrorists whom are known to be slippery fish.

So is there seriously no oversight? I thought they had a military trial?
I thought the term MILITARY COMMISION implied trials. I'm reading the law and the second section "Military commision" is talking about military trials and the rights people have who are captured under this law.

Here's the law:
`Sec. 948b. Military commissions generally

`(a) Purpose- This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

`(b) Authority for Military Commissions Under This Chapter- The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.

`(c) Construction of Provisions- The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as specifically provided in this chapter. The judicial construction and application of that chapter are not binding on military commissions established under this chapter.

`(d) Inapplicability of Certain Provisions- (1) The following provisions of this title shall not apply to trial by military commission under this chapter:

`(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.

`(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination.

`(C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation.

`(2) Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by this chapter.

`(e) Treatment of Rulings and Precedents- The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial convened under chapter 47 of this title. The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not form the basis of any holding, decision, or other determination of a court-martial convened under that chapter.

`(f) Status of Commissions Under Common Article 3- A military commission established under this chapter is a regularly constituted court, affording all the necessary `judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions.

`(g) Geneva Conventions Not Establishing Source of Rights- No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.


Now I'm not the best at reading law, but I did see some strange bits in there (no 'findings' are admitted to the trial, do they judge it on actions alone? What the hell does that even mean?) . Still, there IS a trial.

[KevinTheOmnivore]

Originally Posted by mburbank

I can't find the passage of an what I believe are unconstitutional laws outrageous? Why? And if I think not passing any law is better than passing a really awful one, that means what, now? Laws don't get passed every day. Most laws don't get apssed. I don't understand what you're saying.

So then your choice is, presumably, the status quo (which could be just about anything under the sun, right?) over a bill that actually allows for trials of detainees and outlines what is considered unacceptable and a "grave breach" of the 3rd Geneva Convention?

Don't just tell me where I'm wrong. THAT's th arrognt part. Show me where I'm wrong.

Seriously, stop for a second and re-read these three sentences a couple of times. Arrogance=disagreement.

I believe you alrady know what I'd do. I'd propose alternative legislation, and I'd vote against any compromise I thought was awful, like, say, legalizing torture.

ok, so your legislation never makes it out of committee (really happened). This bill comes forward, and you vote against it because it "legalizes torture". I don't believe it does this, to put it lightly, but I'll get to that later.

That's what I'd do. Does this seem an unfathomable course to you? Am I missing some basic points of civics that you can enlighten me on? Do you not see why I find your method of discourse arrogant?

If it takes a little arrogance to get an actual alternative out of you, as opposed to the usual "gotcha, Bushy!", well than call me arrogant.

"Max, the other side of the argument believes you're a Nazi and a totalitarian if you don't agree with him. Should I respect that argument? "

Deliberate sophistry. You choose to diagree with the most extreme aspects of an extreme argument so you don't have to adress your own.

I chose to disagree with the content of the article you posted. Ya know, you post an article on I-Mockery, people pick it apart, you either agree/disagree? It's pretty old hat at this point, but you somehow seem surprised.

This wasn't about what I thought. You made it that way when you didn't like what I had to say. That doesn't change the fact that you posted the commentary of an unhinged hack. I'll pass on his book, thanks.

"I'm not ecstatic about this bill."

You've also stated you think it's better than no bill at all, which I think is ytroubling. Would you care to say why you think that, or will you just say it again?

I said it above, and I've said it before, but this bill acknowledges that their is at least a small degree of due process entitled to stateless combatants. The president can interpret a "non-grave breach" in the Geneva provisions, and the bill painstakingly lists which actions don't fall into that category:

http://thomas.loc.gov/cgi-bin/query/...47wlI:e106690:

1) IN GENERAL- Section 2441 of title 18, United States Code, is amended--

(A) in subsection (c), by striking paragraph (3) and inserting the following new paragraph (3):

`(3) which constitutes a grave breach of common Article 3 as defined in subsection (d) when committed in the context of and in association with an armed conflict not of an international character; or'; and

(B) by adding at the end the following new subsection:

`(d) Common Article 3 Violations-

`(1) PROHIBITED CONDUCT- In subsection (c)(3), the term `grave breach of common Article 3' means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:

`(A) TORTURE- The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

`(B) CRUEL OR INHUMAN TREATMENT- The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.

`(C) PERFORMING BIOLOGICAL EXPERIMENTS- The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.

`(D) MURDER- The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.

`(E) MUTILATION OR MAIMING- The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.

`(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY- The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.

`(G) RAPE- The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.

`(H) SEXUAL ASSAULT OR ABUSE- The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.

`(I) TAKING HOSTAGES- The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.

`(2) DEFINITIONS- In the case of an offense under subsection (a) by reason of subsection (c)(3)--

`(A) the term `severe mental pain or suffering' shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340(2) of this title;

`(B) the term `serious bodily injury' shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title;

`(C) the term `sexual contact' shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246(3) of this title;

`(D) the term `serious physical pain or suffering' shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves--

`(i) a substantial risk of death;

`(ii) extreme physical pain;

`(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

`(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and

`(E) the term `serious mental pain or suffering' shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term `severe mental pain or suffering' (as defined in section 2340(2) of this title), except that--

`(i) the term `serious' shall replace the term `severe' where it appears; and

`(ii) as to conduct occurring after the date of the enactment of the Military Commission Act of 2006, the term `serious and non-transitory mental harm (which need not be prolonged)' shall replace the term `prolonged mental harm' where it appears.

Would you care to sate in what ways habeus corps has not been disabled? Would you care to state how giving the executive an unchecked ability to delcare enemy combatants is not a dictatorial power? Would you care to state how this bill does not legalize torture? Or would you just like to say again it's hyperbole?

You'll have to citewhere it gives the dictator this fiat. This is what I see:

`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who--

`(A) is currently in United States custody; and

`(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Now tell me what branch of government is empowered to question the executives interpretation of the Geneva convention, or how a branch of government would aquire any information regarding a prisoner? This section of the law, barring oversight, is a toothless sham.

And I agree with you to an extent here. It isn't entirely toothless however, because the bill clearly restricts the president's interpretation, and requires that his "interpretation" be within certain guidelines. If your major gripe is that it leaves him with a massive grey area, well what the hell was that area looking like prior to this bill?

[kahljorn]

So you've read thisbill kevin? Would you mind summarizing or giving an opinion on it?

[KevinTheOmnivore]

I have, although it's rather wordy and tiwsted. kahl, that's probably where my primary contention comes in.

If I had to summarize-- I'd say it's a bill with some good provisions, but some questionable gaps.

[Geggy]

I think some people such as journalists fear the law had been passed to give Bush the power to imprison those deemed as enemy combatants/terrorists simply for criticizing the bush administration and their policies. I think that's where the term dictator/fascism comes in.

[kahljorn]

Mind elucidating on the strong points and questionable gaps? Basically what I want to know is how accurate is this media circus people are making of it, because I don't really see any way to (successfully) fight terrorism without taking away some rights from the terrorists themselves.
It seems like the patriot act in this regard to me, wordy and twisty but obviously designed with the claimed intent in mind.

So do people detained as unlawful combatants receive a military trial?

[mburbank]

Kev, the 'Status Quo' is that torture is illegal, the executive branch is not immune, there is such a thing as Habeus Corpus and we are obigated to follow the geneva conventions and wiretapping without a warrant is a violation of the FISA act.

The president is in violation of thse laws. If I break a law and claim I haven't, eventually I will go to court and make my case. No one will rewrite the laws for me and make them retroactive. We are a country of laws, and the President is not above the law.

If legislators believe laws are wrong, they can make new laws. If that's what's going on, so be it. But they are not required to compromise and say, okay, okay, you can have a lnew law that says you didn't break the old law.

If legislators believe the constitution is wrong, there is a lengthy and difficult system for changing it that is lengthy and difficult by design.

"Seriously, stop for a second and re-read these three sentences a couple of times. Arrogance=disagreement. "

No. Here's an arrogant argument. I'm right. Not 'I think you're wrong and here are the reasons why.' Here's another arrogant argument. "If the President does it, it's legal'. Nixon said that.

"If it takes a little arrogance to get an actual alternative out of you, as opposed to the usual "gotcha, Bushy!", well than call me arrogant. "

Sophistry and after the fact argument. If you believe you were engaged in some sort of debate tactic, fine. Perhaps after a few hundred mre words you'll make your arguement, adress the role of separation of powers, oversight and it's realationship to law enforcement and stop just saying "I'm right"

"Ya know, you post an article on I-Mockery, people pick it apart, you either agree/disagree? It's pretty old hat at this point, but you somehow seem surprised. "

Your right Kev. Never on I-mockery has an article been the starting point of a conversation. All we do is discuss the merits of an article. That must be why this thread has taken you so by surprise.

Time magazine once compared Kiellor pretty favorably to Mark Twain, but 'unhinged hack' is good too. I mean, you said it, after all. That's pretty convincing.

"The president can interpret a "non-grave breach" in the Geneva provisions, and the bill painstakingly lists which actions don't fall into that category: "

And who determines the grave breaches excercised against people who whereabouts don't have to be known, who do not have access to lawyers. how have not been charged? Where is the oversight? The status quo meant that when these rights were deprived, laws were being broken. This bill does not exist in a vaccuum. It works in concert with the other new bills. It's nice they have rights. Who is allowed to advocate for them, and how will they do it?

"(other than pain or suffering incidental to lawful sanctions) "

As determined by whom? No lawyers, no xongressional oversight, no charges. Seems like the executive branch has all the marbles here. You'll find this phrase in sections A and B, which now basically say, these things are illegal except for the times they aren't. I was rellived to see they idn't have the brass to include that statement in the section on performing biological experiments. It should be noted they don't feel as strongly about Tprture and cruel and inhuman punishment, sections A and B which DO include this statement. Why do you suppose A and B need it and C doesn't?

"(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who--

`(A) is currently in United States custody; and

`(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

So, the courts can't hear habeus coprus if the 'united states' detains someone as an enemy combatant or is awaiting such determination. Who here is 'the united states' And if it's enemy combatants or people who we are may later determine are enemy combatants, that's... anybody, yes?

"No oversight makes absolutely no sense to me."
-Kahl.

Me either. That's why warrantless wiretapping and holding people indeffinitely without charging them is anethma to me. Both these procedures remove the courts from the process. The purpose of warrants and charges in our system is government is to involve the judicial branch in oversight as a check and balance. Our system of government was designed to try to remove the neccesity of trusting branches and individuals with too much power. You're not supposed to need to believe that the executive would never abuse power, you're supposed to count on his power being checked. It's a fundamental part of 'the American Experiment' and while other modern presidents have abused it, W is the first one who says it isn't good enough. It isn'tt just that I don't trust him, it's that's it's fundamental to the American system that trust shouldn't be involved.

[KevinTheOmnivore]

Kahl, you make a fair point, but there's the question of precedent. I also think we need to do what's best to defeat terrorists, but there is an argument to be made against that distinction. Afte all, are we really bating terrorists if we hypothetically make America less free, less deliberative, and more like, I dunno, a country in the Middle East....?

Also, let's say we win the war on terrorism somehow, but 50 years from now this law is still on the books. if it's as bad as Max would lead you to believe, well than a really rotten executive could potentially twist it around for entirely different aims.

Now, I don't think this bill does that, but despite Max's rantings, I do see his concerns. I'm not a big believer in any kind of torture. I think it yields too few results, and it's not worth the ethical consequences. I know there's a debate to be had, for example waterboarding doesn't present serious physical harm to people, and supposedly helped us get Khalid Sheik Mohammed to talk. But even a lot of his info was proven to be unreliable apparently.

Do I think waterboarding makes us as bad as them? No, but you don't want to get into the equivalence argument. I think we're having two distinct discussions here. one is about the appropriate measures to extract info from those who wish to destroy us. The other is about whether or not this new legislation is a signal that we are willing to take drastic and potentially unethical measures. Once again, I don't believe it allows this.

Max--

"If legislators believe the constitution is wrong, there is a lengthy and difficult system for changing it that is lengthy and difficult by design."

For someone who throws arrogant around like breath mints, that's a pretty bold assumption. So if the courts don't find this unconstitutional,what then for you Max?

You seem to think this has never happened before, that somehow this is different than ever before, and this particular president is the most evil ever. Do I need to go down the list from Adams, to Lincoln, to FDR? Presidents do conroversial things, push controversial legislation, and the court's test it against our constitution. You seem to think what's going on right now is outside the boundaries of the process, but this is the process.

"And who determines the grave breaches excercised against people who whereabouts don't have to be known, who do not have access to lawyers. how have not been charged? Where is the oversight? The status quo meant that when these rights were deprived, laws were being broken. This bill does not exist in a vaccuum. It works in concert with the other new bills. It's nice they have rights. Who is allowed to advocate for them, and how will they do it?"

You're right, a lot of this in in conjunction with prior legislation, and basically allows the president a pass on what has gone on up to this point, particularly at GITMO. If I said again that the bill had holes, would you call me a fascist, or just morally vapid? Maybe a medly of the two?

"As determined by whom? No lawyers, no xongressional oversight, no charges. Seems like the executive branch has all the marbles here."

Not entiely true:

`Sec. 949f. Challenges

`(a) Challenges Authorized- The military judge and members of a military commission under this chapter may be challenged by the accused or trial counsel for cause stated to the military commission. The military judge shall determine the relevance and validity of challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by trial counsel shall ordinarily be presented and decided before those by the accused are offered.

`(b) Peremptory Challenges- The accused and trial counsel are each entitled to one peremptory challenge, but the military judge may not be challenged except for cause.

`(c) Challenges Against Additional Members- Whenever additional members are detailed to a military commission under this chapter, and after any challenges for cause against such additional members are presented and decided, the accused and trial counsel are each entitled to one peremptory challenge against members not previously subject to peremptory challenge.

And....

`Sec. 949i. Pleas of the accused

`(a) Plea of Not Guilty- If an accused in a military commission under this chapter after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the military commission shall proceed as though the accused had pleaded not guilty.

`(b) Finding of Guilt After Guilty Plea- With respect to any charge or specification to which a plea of guilty has been made by the accused in a military commission under this chapter and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote. The finding shall constitute the finding of the military commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

Again, perhaps my biggest problem with all of this is the people who are already in custody. But it is still important to keep in mind where these people came from, who they are, ad what they've done.

You'll say we've wrongly accused people. True. But we've also released people who have gone right back to fighting us. Even in our own justice system, which you use as a basis for your concerns, has many flaws. innocent people go to jail sometimes, and innocent people even get executed sometimes. Does that mean the whole system is rotten?

I know, you want oversight-- but this isn't the first arena where the executive is autonomous. If it over steps the constitution, then the courts will decide, no?

[kahljorn]

Well, as long as there's a trial I don't really see how there's a lack of oversight.
Giving up rights is bad, I don't like it either. I just find it hard to believe sensationalist media that is going to shit on anything that's republican anyway. So far I've seen no rights for any american or even alien citizen changed at all. The only difference I see is that now enemy combatants can be tried as unlawful enemy combatants. Wasn't there war crimes before? Haven't military courts always been outside of the normal judical system?
What's the difference as to how we can hold a terrorist now? Before would people file habeus corpus for them and get them released?

"perhaps my biggest problem with all of this is the people who are already in custody"

I thought it was retroactive? Does that mean they won't get their free trial card?

[mburbank]

"For someone who throws arrogant around like breath mints, that's a pretty bold assumption. So if the courts don't find this unconstitutional,what then for you Max? "

I'm sorry, what's bold about it? If the courts don't find it unconstitutional I'll think they were wrong and live with it, like I did Bush V. Gore. The law of the land is that the Supreme court is the final interpreter of the law. What did you imagine I'd answer, Kev? Armed resistance? Move to Canada? I'll be ashamed, I'll think we've gone astray as a country and I'll acccept it. Concidering that W may well get a chance to appoint another SCJ, I may have to do a lot of tht in my lifetime.

You don't have to teach me a hstory lesson, Kev. I went to college, it's not as special as you might think. I won't mae the argument that W is the worst President ver, I'm not educated enough. I'll leave that to Presidential Historians, who are already seriously debating the possability, as outlandish and bizarre as it might sound coming from me. I know, I know, David Halbertsam and company are all unhinged hacks. I'll just argue that he's gone way further than any of the Presidents from administrations I've lived through and you can argue about what, Clinton and Bush. Again, there are arguments to be made by intelligent people of good will. It doesn't really matter to me if something bad has happened before. The House Unamerican Activities committee was bad. If it comes around again, the hitsorical precedent, surprisingly, wil not make me feel better about it.

Waterboarding, by the way, is a very old method of torture. The K'hmer Rouge liked it a lot. It's historical purpose has been illiciting confessions of guilt.

"Presidents do conroversial things, push controversial legislation, and the court's test it against our constitution. You seem to think what's going on right now is outside the boundaries of the process, but this is the process. "

Agreed. Do you think this means, (since you want to talk history) That slavery, genocide, prison camps, blacklisting, civil rights, all of which faced the tests you are talking about in American History, weren't worth getting excorcised about? Or is the strongest reaction you favor not being ecstatic. It's the right and maybe even the duty of citizens in a democracy to care passionately about it.

"If I said again that the bill had holes, would you call me a fascist, or just morally vapid?"

I'd lean more to morally vapid. I don't think you are a fascist at all, in that I don't think you favor it. Jim Crow Laws 'had holes in them'. TYhe Great compromise 'had holes' in it.

The military judge and the military lawyer are both members of which branch of government? And since they don't have to charge an enemy combatant prior to the end of the WOT, and one of the things a prisoner can not challenge is his incarceration as an enemy combatant, at what point will the prisoner make this challenge? Who has been brought to trial so far, or is planning to be brought? I think the total so far is seven. Everything you quoted applies only to those who reach trial. And no enemy combatant needs to be charged to be held. Are you assuming I haven't read this stuff? I already told you I had. I don't argue that there's enough here for a skilled lawyer to start prying at. But I also don't think it says what you think it says, and I don't think it provides any serious protections. I think it's very, very abusable, and I don't think you need to wait fifty years for that kind of power to be a temptation, especially concidering this administration was using it before it became retroactive law.

"But it is still important to keep in mind where these people came from, who they are, ad what they've done"

You know that for a fact about these people, who have yet to stand trial and who will have evidence used against them they cannot see, and evidence arrived at through... alternative methods here and in countries we know torture people? Bush didn't seem in a real rush to see them brought to justice, just held, until it was election time. And now that he's got the law, he doesn't seem in a big hurry to have any trials again. Some of these poeple are almost certainly deeply evil. Some of them are no dsifferent then when they were fighting the Russians on our dime. And some of tem are totally innocent. We don't know for certain who's who. That's where rights could help.

"But we've also released people who have gone right back to fighting us."

Well, that certainly obviates us of any wrongdoing. I would say you are absolutely right. But if I started out as an inncoent Afghani, probably disposed to dislike the west, and you kept me in a cage for three years and occasionally used 'alternative interogation techniques' on me, you know what I'd do when I got out? Fight you.

"Even in our own justice system, which you use as a basis for your concerns, has many flaws. innocent people go to jail sometimes, and innocent people even get executed sometimes. Does that mean the whole system is rotten? "

Well, I think it means the death penalty is really rotten in y opinion, but that's another thread. As far as the rest of it goes, no, it's not rotten, but it's got lots of problems. SO, if you take that system and remove from it things like the need to charge people, or account for their wherebouts, and you add in the possability hat they can be toprtured, and that coerced evidence they can't see can be used against them, well, you get a lot closer to a line that could be called rotten.

"If it over steps the constitution, then the courts will decide, no?"

One hopes. In the meantime, it is okay with you tat I think what's happening jobs really wrong, right? It doesn't strike you as bizzarely inappropriatte to care?

[kahljorn]

So they won't receive trial until the WOT is over?

[mburbank]

Some probably will, high profile low risk cases. But no one who is declared an enemy combatant has to be charged until the WOT is over, and no charge, no trial.

[mburbank]

Here's an interesting sidelight on one of the few legal cases that have come out of Gunatanamo.


Guantánamo Defense Lawyer Forced Out of Navy
By Carol Rosenberg
McClatchy Newspapers

Sunday 08 October 2006

Newark - The Navy lawyer who took the Guantánamo case of Osama bin Laden's driver to the U.S. Supreme Court — and won — has been passed over for promotion by the Pentagon and must soon leave the military.

Lt. Cmdr. Charles Swift, 44, said last week he received word he had been denied a promotion to full-blown commander this summer, "about two weeks after" the Supreme Court sided against the White House and with his client, a Yemeni captive at the U.S. Navy base in southeast Cuba.

Under the military's "up-or-out" promotion system, Swift will retire in March or April, closing a 20-year career of military service.

A Pentagon appointee, Swift embraced the alleged al-Qaida's sympathizer's defense with a classic defense lawyer's zeal, casting his captive client as an innocent victim in the dungeon of King George, a startling analogy for the attorney whose commander-in-chief is President (George) Bush.

"It was a pleasure to serve," said Swift, who added that he would defend Salim Hamdan again, even if he knew he would have to leave the Navy earlier than he wanted.

"All I ever wanted was to make a difference — and in that sense, I think my career and personal satisfaction has been beyond my dreams," he said.

Swift, a Seattle University Law School graduate, also said he will continue to defend Hamdan as a civilian. The Seattle law firm of Perkins Coie, which provided pro-bono legal work in Hamdan's habeas corpus petition, has agreed to support Swift's defense of Hamdan in civilian life, he said.

Hamdan, 36, who has only a fourth-grade education, was captured along the border between Pakistan and Afghanistan while fleeing the U.S. invasion of Afghanistan, launched in reprisal for the Sept. 11 terrorist attacks. He admits working as bin Laden's $200-a-month driver on a Kandahar farm but said he never joined al-Qaida and never fought anyone.

Still at Guantánamo as an enemy combatant, Hamdan halted his war-crimes trial by challenging the format's constitutionality through civilian courts.

The justices ruled in June that Bush overstepped his constitutional authority by creating ad hoc military tribunals for prisoners at Guantánamo Bay, Cuba, sending the Pentagon back to the drawing board for the trials.

In the end, it developed a system very similar to those struck down, setting the stage for a likely new challenge this session.

In the opinion of Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, Swift was "a no-brainer for promotion," given his devotion to the Navy, the law and his client.

But, he said, Swift is part of a long line of Navy defense lawyers "of tremendous distinction" who were not made full commander and "had their careers terminated prematurely."

"He brought real credit to the Navy," said Fidell. "It's too bad that it's unrequited love."

Swift's supervisor, the Pentagon's chief defense counsel for Military Commissions, said the career Navy officer had served with distinction.

"Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, a former American Civil Liberties Union attorney, calling it "quite a coincidence" that the Navy promotion board passed on promoting Swift "within two weeks of the Supreme Court opinion."

In June, the prestigious National Law Journal listed Swift among the nation's top 100 lawyers, with such legal luminaries as former Bush administration Solicitor General Theodore Olson, 66; Stanford Law constitutional-law expert Kathleen Sullivan, 50; and former Bush campaign recount attorney Fred Bartlit, 73.

Navy Lt. Cmdr. Jeffrey Gordon, Pentagon spokesman on Guantánamo topics, did not respond to a query about the up-or-out system by which Navy lieutenant commanders are retired if they aren't promoted.

[mburbank]

And here's an op ed from another unhinged crank

Military Commissions Act Shames the Constitution and Weakens America
By Stephen Rohde
The Los Angeles Daily Journal

Friday 06 October 2006

In 1798, Thomas Jefferson wrote that "Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume." For 200 years, with rare and shameful exceptions, the writ of habeas corpus, written into the text of the U.S. Constitution even before the Bill of Rights was added, has protected the fundamental right of any person held in custody by the U.S. government to challenge the unlawfulness of their incarceration.

Last week, the Senate passed the Military Commissions Act of 2006 on a vote of 65-34. The House had adopted a nearly identical bill. The president undoubtedly will sign the law, and civil liberties organizations undoubtedly will challenge it in court. In the meantime, great injustice will prevail that may never be cured.

According to Bruce Ackerman, professor of law and political science at Yale University, the law "further entrenches presidential power" and allows the administration to declare even an American citizen an "unlawful combatant" subject to indefinite detention. In a cruel irony, the new law affords less legal protection to the 355 low-level detainees held at Guantánamo Bay, many of whom are believed to be innocent, than the 14 high-level suspects recently transferred there from secret CIA facilities around the world.

"The detainee who isn't charged with anything, he sits forever," Army Maj. Tom Fleener, a military defense lawyer, told The New York Times. "It is an absurd twist."

Largely based on proposals written by the White House and Justice Department, the Military Commission Act is breathtaking in its denial of fundamental rights under the Constitution and international law. The law re-establishes virtually intact President Bush's military tribunals, which were rejected by the Supreme Court as unconstitutional in Hamdam v Rumsfeld only three months ago.

It legalizes U.S. war crimes committed before Dec. 30, 2005. It also prevents people harmed by the U.S. in violation of the Geneva Conventions from filing a claim in a U.S. court and strips legal residents of their right to challenge their detention in court if they are accused of being enemy combatants. It retroactively abolishes the right of Guantánamo detainees to challenge their detention, approves the CIA program that in the past allowed waterboarding and other forms of torture and designates any individuals as unlawful enemy combatants if they provide material support to those engaged in hostilities against the U.S., a concept previously found unconstitutionally vague by the U.S. District Court for the Central District, in Los Angeles. Even worse, the law expands the definition "unlawful enemy combatant" to include anyone determined as such by a tribunal under the authority of the president or the defense secretary. The law denies anyone determined to be an enemy combatant - or anyone "awaiting such determination" - the right to challenge his or her detention, treatment or conditions of confinement in court.

The law not only lacks explicit prohibitions against the sadistic U.S. government abuses since 9/11 but also authorizes the president to define Geneva Conventions violations as he sees fit. There is no clear bar to the Bush administration once again authorizing illegal acts such as waterboarding, death threats, induced hypothermia, use of dogs and stress positions.

Congress has bestowed on the president the unilateral authority to determine interrogation tactics. Moreover, by revamping the War Crimes Act and retroactively applying new provisions, the new law replaces a provision criminalizing "grave breaches" of Common Article 3 of the Geneva Conventions with a list of violations that is less inclusive and less certain than current law. Administration officials, instead of Congress, will be the ones specifying which acts fall within each of these new terms. The problem is compounded by the White House's refusal to explain which practices are barred. In fact, National Security Adviser Steven Hadley refuses to state whether even waterboarding would be prohibited.

Over the past several years, documents obtained by the American Civil Liberties Union and information disclosed by the International Committee of the Red Cross show that federal employees have engaged in appalling acts such as soaking a prisoner's hand in alcohol and setting it on fire, administering electric shocks, subjecting prisoners to repeated sexual abuse and assault, kicking and beating prisoners in the head and groin, putting lit cigarettes inside a prisoner's ear, force-feeding a baseball to a prisoner, chaining a prisoner hands-to-feet in a fetal position for 24 hours without food or water or access to a toilet, breaking a prisoner's shoulders and using abusive methods that contributed to several deaths.

Last year, as part of the McCain anti-torture amendment to the Defense Department authorization bill, Congress required the Defense Department to comply with the Army Field Manual on Interrogations. After a lengthy review, the Army Field Manual was revised. As a result of this review and the requirements of the McCain amendment, the Defense Department brought itself into compliance with Common Article 3 of the Geneva Conventions. But Congress has now created one set of rules for people in uniform and a lower set of rules for civilian contractors and CIA agents.

The new law strips the courts of their constitutional role as a check on the executive branch, including their authority to ensure that the protections of the Constitution and the Geneva Conventions are enforced. Even a detainee who is tortured will not be allowed to seek relief from any U.S. court. Denying access to the courts signals to the world that we fear our own independent judiciary.

The law has little to do with the military commission that will try high-level suspects like the 14 recently transferred to Guantánamo. In fact, the law's primary impact will be on the hundreds of detainees who are being held indefinitely and have never been charged with any war crime and many of whom may well be innocent of having ever taken up arms against the United States. Although the law does allow limited appeals for those who go before a military commission or a Combatant Status Review Tribunal, there is no guarantee that any person detained by our government will be provided either a trial or a tribunal. Even when the government holds a tribunal proceeding, the decision can be based on coerced and hearsay evidence. Moreover, based on the reports from tribunal proceedings in Guantánamo, most, if not all, of the detainees are being held based almost entirely on evidence they may never have seen.

The new law grants immunity, backdated to nine years ago, to government officials who authorized or ordered illegal acts of torture and abuse by revamping the War Crimes Act to replace the prohibition on all breaches of Common Article 3 of the Geneva Conventions with a narrower list of prohibited acts. These provisions help fulfill the goal of White House Counsel Alberto Gonzales to avoid War Crimes Act prosecutions of government officials by advising the president to attempt to suspend Common Article 3 of the Geneva Conventions for many detainees.

The new law also explicitly authorizes the use of evidence obtained in violation of the provisions of the McCain anti-torture amendment, so long as it was obtained before its enactment nine months ago. As a result, evidence that was beaten out of a witness - and evidence obtained in torture cells in Syria, Jordan and Egypt - could be the basis for a conviction of a detainee in an American proceeding.

Congress has never before authorized federal prosecutors to use evidence obtained by torture or abuse in any criminal trial. The new law allows convictions based on statements made by people who may have been willing to invent anything to stop the pain.

During several congressional hearings, the nation's top judge advocates general for the four uniformed services, deeply concerned that what the U.S. does to its detainees other countries may do to our soldiers, all agreed that coerced evidence has no place in any American courtroom and no place in any American military commission. Congress ignored them.

Although the new law restates the McCain anti-torture amendment, as enacted last year, unlike the Senate Armed Services Committee-reported bill on military commissions that made violations of the McCain amendment a war crime, the new law restates the McCain amendment as a prohibition separate from the War Crimes Act. As a result of this change, there is a risk that, if a court reviews these matters, it may infer that Congress did not intend violations of the McCain amendment to violate the War Crimes Act.

Supreme Court Justice Robert Jackson took leave from the court to serve as chief prosecutor at the Nuremberg war crimes trials. When his work was done 60 years ago this week, confident that the rule of law had prevailed, he wrote, "Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a trial, which they, in the days of their pomp and power, never gave to any man. But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength." If the Military Commissions Act is not overturned in court, the future will ask what could the detainees have said in their favor. The world will compare what this government has done to infamous Star Chamber and show trials of totalitarian regimes.

By ignoring the lessons of the past and sacrificing fundamental fairness for an illusion of strength, our government has seriously weakened America, put our own soldiers at greater risk, enhanced the image of the United States around the world as a tyrannical evildoer and cast lasting shame on the promise of our Constitution.