“And it does not employ the phrase ‘enemy combatant'”

In DOJ’s press release on Obama’s rejection today of the term "enemy combatant," that sentence appears at the end of the first paragraph:

In a filing today with the federal District Court for the District of Columbia, the Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase "enemy combatant." [my emphasis]

That’s it. Part of the lede. They’re not using the same phrase Bush used.




They are, mind you, situating their authority to detain people solidly in the AUMF (rather than Article II) and admitting SCOTUS kicked Bush’s ass on these issues on multiple occasions.

 The United States bases its detention authority as to such persons on the Authorization for the Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily informed by principles of the laws of war. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality). The laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006).

But from this purported "refinement" of its stance toward detainees, it proceeds to reassert the role of the executive in judging which detainees to hold.

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. [my emphasis]

The President has the authority … the President determines … the President has the authority.

You see, it’s still the same unitary power, stripped of the baggage of Bush’s vocabulary. And even as they abandon Bush’s vocabulary, they progressively expand the reach of that authority to include just about all those whom Bush already determined were enemy combatants, no matter how nebulous that person’s ties to al Qaeda.

First to those who were part of al Qaeda but did not commit any crimes against the US:

Because the use of force includes the power of detention, Hamdi, 542 U.S. at 518, the United States has the authority to detain those who were part of al-Qaida and Taliban forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognize that members of enemy forces can be detained even if “they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations.” Ex parte Quirin, 317 U.S. at 38; Khalid v. Bush, 355 F. Supp. 2d 311, 320 (D.D.C. 2005), rev’d on other grounds sub nom., Boumediene v. Bush, 128 S. Ct. 2229 (2008); see also Geneva Convention (III) Relative to the Treatment of Prisoners of War of Aug. 12, 1949, art. 4, 6 U.S.T.S. 3316 (contemplating detention of members of state armed forces and militias without making a distinction as to whether they have engaged in combat). Accordingly, under the AUMF as informed by law-of-war principles, it is enough that an individual was part of al-Qaida or Taliban forces, the principal organizations that fall within the AUMF’s authorization of force.

And then–using language with the distinct odor of "enemy combatant"–to those who can be construed to have played a role in al Qaeda’s activitities, up to and including opposing the Northern Alliance forces that al Qaeda was fighting in 2001 before the US invaded Afghanistan, or swearing an oath (which is, after all, why Padilla and John Walker Lindh are in jail now):

Moreover, because the armed groups that the President is authorized to detain under the AUMF neither abide by the laws of war nor issue membership cards or uniforms, any determination of whether an individual is part of these forces may depend on a formal or functional analysis of the individual’s role. Evidence relevant to a determination that an individual joined with or became part of al-Qaida or Taliban forces might range from formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaida (as reflected in some cases by staying at al-Qaida or Taliban safehouses that are regularly used to house militant recruits) or taking positions with enemy forces. In each case, given the nature of the irregular forces, and the practice of their participants or members to try to conceal their affiliations, judgments about the detainability of a particular individual will necessarily turn on the totality of the circumstances. [my empahsis]

Then the definition expands to include other organizations:

Nor does the AUMF limit the “organizations” it covers to just al-Qaida or the Taliban. In Afghanistan, many different private armed groups trained and fought alongside al-Qaida and the Taliban. In order “to prevent any future acts of international terrorism against the United States,” AUMF, § 2(a), the United States has authority to detain individuals who, in analogous circumstances in a traditional international armed conflict between the armed forces of opposing governments, would be detainable under principles of co-belligerency.

Then the definition expands to include other battlefields (which gets you solidly into American-based groups):

Finally, the AUMF is not limited to persons captured on the battlefields of Afghanistan. Such a limitation “would contradict Congress’s clear intention, and unduly hinder both the President’s ability to protect our country from future acts of terrorism and his ability to gather vital intelligence regarding the capability, operations, and intentions of this elusive and cunning adversary.” Khalid, 355 F. Supp. 2d at 320; see also Ex parte Quirin, 317 U.S. at 37-38. Under a functional analysis, individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself. Such activities may also constitute the type of substantial support that, in analogous circumstances in a traditional international armed conflict, is sufficient to justify detention. Cf. Boumediene v. Bush, 579 F. Supp. 2d 191, 198 (D.D.C. 2008) (upholding lawfulness of detaining a facilitator who planned to send recruits to fight in Afghanistan, based on “credible and reliable evidence linking Mr. Bensayah to al-Qaida and, more specifically, to a senior al-Qaida facilitator” and “credible and reliable evidence demonstrating Mr. Bensayah’s skills and abilities to travel between and among countries using false passports in multiple names”).

And finally, as MD points out, the Obama Administration carefully carves out the entire world save Gitmo in which the President’s authority still reigns using Bush’s discredited language.

This position is limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay. It is not, at this point, meant to define the contours of authority for military operations generally, or detention in other contexts.

Now, to be fair, the filing also reserves the right to make new determinations of what these terms all mean. 

Through this filing, the Government has met the Court’s March 13, 2009 deadline to offer a refinement of its position concerning its authority to detain petitioners. The Court should be aware, however, that the Executive Branch has, at the President’s direction, undertaken several forward-looking initiatives that may result in further refinements. Although the Government recognizes that litigation will proceed in light of today’s submission, it nevertheless commits to apprising the Court of any relevant results of this ongoing process.

But it still reserves for the President the power to make these determinations, and it carves out every single category under which any politically charged detainee has already been held, not to mention the entire world outside of one military base on Cuba.

In short, it’s a big, fat, cynical game. A word game, like any other parlor game, giving a tired old concept a verbal facelift. Without, however, changing the concept itself.

The Obama Administration suggests in this filing it is just trying to meet its March 13 deadline. My first and best response to that is the same I used to have–as a professor–when students obviously turned in shoddy work just to meet my hardass deadlines: to tell the lazy student to start doing her work. 

"You haven’t completed the terms of the assignment. No matter whether you got this handed in by the designated deadline or not, you have not done your work. So take this back and do the work assigned in the first place. And don’t turn in this shoddy word game as serious work again."

Thus far, this is just Bush’s policies under new name. And they’re not even clever enough word games to fool most of the people–particularly the international community–these word games were designed to fool. 

90 replies
  1. MadDog says:

    I’d sure like to figure out just how “hands-on” the Obama-provided lawyers (by that I mean folks in the White House Counsel’s office, and at the DOJ like AG Holder) are with this and all the other pending National Security cases versus how much of this has been driven by DOJ civil servants (non-political appointees).

    That is in no way meant to “excuse” the Obama Team, but instead I would make the point that “knowing” who and how this all comes together helps us to identify the depth of the problem.

    Is it systemic within the DOJ, as well as a litmus test of the Obama-appointed lawyers? I suspect the answer is yes.

    • emptywheel says:

      I think that there is a fight within in teh Obama Administration, and the good guys are losing. Add in the stuff Valtin was doing–which I’ll hit on tomorrow or the next day–about the guys Holder picked to review all this stuff. And I gotta say, I’m more convinced taht bmaz and LHP were right on about Holder being a disaster for Obama.

      Plus, I like how he has defined everything so his own little project getting some right white men off for having supported a terrorist organization is now excluded from the definition, as if inventing himself new neutrality on this point.

        • emptywheel says:

          There are. Some aren’t in office yet. Others are losing the fight.

          Shit. It took Colin Powell what? two full years to be ground into humiliation? And it’s been 50 days here?

            • jimhicks3 says:

              1- My Lai
              2- Lying to congress about knowledge of Cap Weinberger having a diary
              3- & that UN thing

          • MadDog says:

            There are. Some aren’t in office yet. Others are losing the fight.

            I remain open to the “possibility” though the difference in campaign rhetoric and position papers versus testimony in places like the Senate Judiciary Committee (Holder, Johnsen, et al) and the Senate Intelligence Committee (Panetta and Blair) leaves me suspicious.

            • bmaz says:

              You are looking at the wrong Johnsen/son. The key here ought to be Jeh Johnson, the Defense Dept. General Counsel, not necessarily Dawn Johnsen. I highly suspect he is who, or one of the whos, that Marcy is referring to as “the good guys losing the fight”. As you will recall, Johnson promised a new day and way at the Defense Department on its legal positions. I think he is being out gunned on this stuff.

              • MadDog says:

                Well the other Johnsen was backtracking pretty well in her responses to the SJC.

                Not voted on yet, so we’ll have to see when she takes office at the OLC whether she was snowing the SJC or us.

              • Valtin says:

                “Outgunned” by whom, how? That’s what I would like to know. How do the Bush attorneys get so much sway? Is this “bipartisanship”? (LOL)

                I don’t have enough experience with the milieu to guess how power is wielded at DoJ. At this point, the goings on cannot be outside Obama’s purview.

                The silence in general on these issues grows ever more deafening on the left.

                • phred says:

                  I don’t know about that Valtin. I caught the interview with Turley on Rachel’s show last night and he looked frustrated and angry (of the tight-lipped as opposed to throbbing temple variety). Maybe I don’t look around enough at the various encampments of the left, but it seems to me that there is increasing anger in the pockets I frequent. And from what I can tell, they’re not silent.

                  I think all the interest in the Stewart-Cramer thing tapped into that anger. Yes, it was specifically about us peasants being pissed off about our hard-earned retirement savings being looted by the banks (both directly by their fraudulent churning ways and now by TARP), but I also think that people really expected Obama to deliver on “change”. He hasn’t yet. The rich executives on Wall Street (except for Madoff) and criminal politicians are not under criminal investigation. We’ve been robbed of our life savings. Our taxes are going to pay off the rich. The war in Iraq isn’t ending. The war in Afghanistan is escalating. And you think the left is silent? Not here anyway. Not at Glenn’s place. Not at Horton’s. Not even on the TV machine with Rachel and KO and Moyers.

                  So what I want to know is this… For all the machinations at DoJ, surely Obama has to know the legal crap that is coming out. If he personally opposes this stuff, then surely he can read the riot act to whatever brass at DoJ exists and get them to stop it. There is presumably some kind of hierarchy there, even with the vacancies. So I just don’t buy the argument that he doesn’t have the personnel in place to do the right thing.

                  I am very worried that rather than having ideological buffoons asserting these powers badly, that we will have smarter craftier people able to make better arguments that continue the erosion of our system of government. I’ll agree with EW that their work isn’t that much of an improvement. But smart people can be a lot more effective at implementing evil policy over time than thick-headed ideologues.

                  In any event, it’s way past time to wait for Obama to do the right thing after he gets all of his magical little chess pieces in place. It is time for Congress to step up. The courts are the only real ray of hope at the moment. So we need to put pressure on the reps from our districts and our Senators demanding accountability or we will be stuck with a king from now on. We need to improve our chances by getting TWO branches to work together to smack down the unitary third.

      • Valtin says:

        oops… just saw this… so my wish will come true… this is what comes from “surfing” during scurried breaks at work…

        Thanks, EW.

            • Leen says:

              ew thank her for me for you. what a great job she did

              #36 Valtin that is what jumped out at me in Bmaz’s statement “outgunned” by which out(of)laws?

              “Of course, we have to protect our tortures and torture allies, so if that means turning the military in the nation against the lawyers and inciting meltdown in a nuclear power, well, at least it was all for the worthy purpose of making sure America adequately sponsors and supports its torturers.”

              Those double standards sure get in the way

              Tavis Smiley is focused on the hold the Obama administration accountable (politely but NOW not later) strategy
              Smiley Holds Obama — And You — Accountable

    • MadDog says:

      I would further make the point that folks shouldn’t assume this is just the result of Bush/Cheney political appointees “burrowing” into civil servant positions at the DOJ.

      Keep in mind that over the course of the last 8 years of the Bush/Cheney Administration, it is highly likely that the DOJ civil servant lawyers who received the best Performance Reviews, and also promotions, were those civil servant lawyers who drank the most Kool-Aid best towed the Bush/Cheney line.

      The rot is deep and likely not easily amenable to “new” leadership even if the “new” leadership were purveyors of “change” (something that is yet not even close to being apparent).

    • Valtin says:

      If we can be conversant with these materials, you’d think the Obama DoJ attorneys can be, too. And they get paid to do it, as well!

      This is an excellent set of observations, EW. It’s Bushland all over again, with only barely a fig leaf of “change”.

      I hope to see some analysis from these quarters on the new task forces on detention and interrogation, also announced the other day — you know, the ones to be headed by Bush DoJ national security attorneys! I can’t be the only guy or gal on the internet to want to put the microscope of investigation on this new governmental project.

      • phred says:

        Thanks for pointing out the task force review of legal detention or prisoners. I thought we had the laws on these things pretty well ironed out. Those laws were broken. We don’t need a task force, we need lawyers on cases.

  2. bobschacht says:

    At this point in his first 50+ days, I think that the Obama administration is here speaking mainly by Bush dead-enders + Greg Craig, while Holder tries to learn how to manage a huge agency full of Bush holdovers without his own team in place.

    In other words, my WAG is that at this point, Holder is focusing on management issues, while Craig is focusing on policy issues.

    But that’s just a hunch.

    Bob in HI

  3. PJEvans says:

    The best I can hope for is that they’re trying to go sideways into ending the whole non-POW-prisoner thing.
    Otherwise, All I can say is that the new guys are creative at not sounding like their the same as the old ones, even if they are the same in several ways (I sent the WH a polite piece of my mind about their statements on Iran this week; they need to learn fast about the Israel lobby and its distortions).

    • emptywheel says:

      They leave that door open, which is important to point out.

      But so long as they’re playing these word games, they’re just reserving teh right to pull shit out of their ass as the political need presents itself.

      • PJEvans says:

        I noticed that.
        I wish they were as honest, transparent, and open as they kept telling us they’d be.

        (I have the feeling that if the GOP really turns into a regional minority party, the Dems will split into two (maybe more) parties, one more liberal/progressive, and the other a more conservative one that’s effectively built from the moderate ex-GOoPers. And Obama and his closer buddies will almost certainly go with the more conservative wing.)

        • bobschacht says:

          (I have the feeling that if the GOP really turns into a regional minority party, the Dems will split into two (maybe more) parties, one more liberal/progressive, and the other a more conservative one that’s effectively built from the moderate ex-GOoPers. And Obama and his closer buddies will almost certainly go with the more conservative wing.)

          You can look to Hawaii’s state leg. as an example. We have the same split between a progressive wing and a blue dog wing, but they’re not so easily identifiable as such. We’ve also got a rabid Republican who turned Democrat just so he could get a better committee assignment. What does it mean to be a Democrat in Hawaii? Not much, apparently.

          Bob in HI

        • Dakinikat says:

          I think we’ve already seen some serious splitting in the democratic party. My guess is that it will continue. We’ve seen serious movement on the part of Evan Byah and the blue dogs this month towards this end. Do you think it’s going to turn into a complete split?

  4. DavidKaib says:

    Unfortunately, I fear what we are witnessing here is the fundamental difference between the presidential wings of the Republican and Democratic parties.

    The Republican presidentialists believe that the president may do anything she pleases based on the Vesting Clause of Article II (all other clauses of the Constitution be damned,) but they are more than willing to make similarly ridiculous claims based on statues and treaties in addition. The Democratic presidentialists tend to only do the latter. (See, for example, the Clinton Admin’s arguments in favor of military action in Yugoslavia / Kosovo.) The difference matters, but not that much.

    Despite this cynicism, I’d still like to see Dawn Johnsen confirmed. I felt better about her than any of the other DOJ appointments.

    This won’t change as long as no one in Congress says anything, which won’t change until we start demanding that they do something.

  5. oregondave says:

    “So take this back and do the work assigned in the first place. And don’t turn in this shoddy word game as serious work again.”

    It would have been good to have had more professors willing to say something like this. This is what doing your job, and actually caring, sounds like.

    • bobschacht says:

      “So take this back and do the work assigned in the first place. And don’t turn in this shoddy word game as serious work again.”

      It would have been good to have had more professors willing to say something like this. This is what doing your job, and actually caring, sounds like.

      Actually, it would have been good to have *Holder* say the same thing to some of the jokers who wrote some of the recent DOJ pleadings.

      Bob in HI

  6. oregondave says:

    And they’re not even clever enough word games to fool most of the people–particularly the international community–these word games were designed to fool.

    But here in the USA — yep; good enough for the Villagers. And, I fear, to fool most of the sheeple.

  7. freepatriot says:

    whoever got me the troll, thanks

    and it’s not even my birthday

    and on-topically, at least Obama is returning to the calvinball I know

    and over-topically, who ya gotta bribe to get a thread about Dr Naismith’s invention (here’s $20, will that cover it)

    y’all better get ready, I ordered 63 Pizzas and a couple of kegs of beer on bmaz’ credit card …

    and btw, it’s bamz’ fault for donatin to norm coleman (ducking and running)

  8. JohnLopresti says:

    I think Mary mapped the symantics for the detainees at Gitmo well in the prior thread. The ICC construct, as I recall, was the key barrier to keeping US close to the Geneva protocols last time the congress argued it. Maybe the slowdown in nomination votes on the floor has opened a delay sufficient for more work for Hil and Obama in the reaffirmation or restatement of Geneva prisoner rights. The politics of 12333 continue pixellated, however; there was a photo of Norm receiving a welcome at the time of the speech before the combined chambers a few weeks ago; I have great hope for his astute from the center way. I notice the guys at DoJ’s names on the current memo re detain authority differ from the ones who pled on the Odah remand. I kept somewhere currently not quite accessible some of the natseclaw disassembling of the fictitious construct the prior WH used to invent a term not found in the accords, but Mary has covered it well with a blend of modern political germaneness. Some folks who designed kangarooms probably are breathing easier since the memo’s publication, and maybe even shared drafts; I know of one deputy rumored to have the energy to endure allnighters to do the diligence, and the memo seems founded in that, plus the online discussion to which I referred, the unlawful/illegal enemy combatant, that pretty much was debunked in several seminars over the past few years. I am not sure about the mention of the lack of any new additions to gtmo, but I am very busy on other projects, though may happen upon some of those files. It would be nice if congress prepares hearings on some of the milestones in this reorientation process to keep/find its voice.

  9. wohjr says:


    Where is Marty Lederman in all of this? Was he subject to a confirmation procedure? I can’t believe that he would be going along with this at OLC? Right???? Please?

  10. freepatriot says:

    we could still trash talk the bracket makers, ya know

    that guy jenkins couldn’t design a decent bracket to save his dick …

    see how that works ???

    there was a FOOKIN SIX OVERTIME GAME yesterday, and you gotta wait for brackets ??? an are ya gonna gimme my $20 back then ???

    I’m gittin tired of Booing the landings at the airport

    I may live in Cali, but in my heart I’m from Philadelphia

  11. Loo Hoo. says:

    Tell your mom how much we love and respect you, Marcy. You have contributed so much…you’re a true Patriot. When all of the facts of our last eight years finally come out, you will be credited in our nation’s history books.

    Such a limitation “would contradict Congress’s clear intention, and unduly hinder both the President’s ability to protect our country from future acts of terrorism and his ability to gather vital intelligence regarding the capability, operations, and intentions of this elusive and cunning adversary.”

  12. Jkat says:

    thanks for your hard work EW .. and the rest of you as well .. y’all are certainly the best bunch of legal buzzards i’ve ever seen at picking over the carcass of dead letter missives like this one …

    and yes i see it …the document is just rouge on a rhinocerous ..

    or like the crusty outer layer of a slowly drying cowpatty … the only thing worse that it is that it covers up …

    oooohhh.. gooey .. eh ??

  13. bobschacht says:

    Hey, EW, please say hi to Mom, and congratulate her on raising such a great daughter!
    – tell her we said so!

    Anyway, I noticed something different(?) tonight on Rachel Maddow: She does their last Friday show *live* so that they can cover Friday evening news dumps! Doesn’t she know that’s not fair to all the other “news” networks? Anyway, she had a pretty amazing rundown of recent Friday news dumps. Good on Dr. Maddow!

    Bob in HI

  14. bobschacht says:

    Of interest to folks here:

    Over on the Great Orange Satan, Patriot Daily News Clearinghouse provides an Overnight News Digest: Obama DOJ Defends Rummy in Torture Case
    Fri Mar 13, 2009 at 08:57:46 PM PDT

    Top Story

    * Obama DOJ Defends Rummy In Torture Case…

    Top Stories Continued
    * Obama DOJ Argues in Rasul that former Guantanamo Prisoners Not “Persons” Under Constitution or Federal Statute Protecting Religious Rights. …

    and much more. I’ve only given the headlines.

    Bob in HI

  15. Mary says:

    Holder being a disaster for Obama

    While I think that bmaz and LHP had good reasons, I don’t really think the problem is Holder. I think it’s Obama.

    He never would commit to doing anything other than the kinds of things he is doing right now, he always whiffled on torture accountability and detainees, he’s never acknowledged that even 1 detainee was held incorrectly (even with several Federal court rulings on detainees who were NOT enemy combatants at all) or was abused. Remember that when Durbin made some comment about GITMO it caused a firestorm – I think Obama learned from that, but only a political lesson.

    In some ways worse than Bush, Obama has picked from a closed, inside circle who will do his bidding. Fundraisers and sychophants. He’s not an idiot and he didn’t make those picks in a void. He knew what he wanted and he got it. IMO

  16. selise says:

    mary @ 43:

    He never would commit to doing anything other than the kinds of things he is doing right now

    well, obama did promise to filibuster any attempt at telco immunity for fisa violations.

    but that doesn’t exactly run counter to your argument.

    more importantly, i agree with valtin’s earlier point about the silence of the left. here’s my favorite thought experiment: if it was a republican doing exactly what obama is doing – what else would be different?

    • greenwarrior says:

      invading iran?

      given that while he was still campaigning he voted for fisa and was up on capitol hill beating the bushes for getting the oversightless bailout passed, i didn’t expect change personally. i voted and worked for him in the primaries and voted for him in the general, but i was far from flooded with optimism.

  17. Mary says:

    To hit a couple of the legal points, (which I shouldn’t do since I’ve only read the stories and not the filings – I need to stop this before it becomes a habit) the Obama position that they are acting under the AUMF basically means that they are finally accepting the S. Ct’s ruling in Hamdi, which was that if they were detaining Hamdi, the only authority for it the court could agree upon would be the AUMF. So now, how much later?, the Executive agrees that is the source of his detention authority.


    So why, then, doesn’t he rely on further powers (and definitions) granted to him under the MCA? Bc the MCA is drafted really, ReaLy, REALLY, badly and is already being struck down in parts and places in the court. While the military appellate process overruled the commission judges on the “guess our CSRT ‘enemy combatant’ rulings must mean the same things as ‘unlawful enemy combatant’ under the MCA” that isn’t something that is likely to survive a close or careful review. And of course, the biggest of the bigger problems is that less than 10% of the GITMO detainees (even after they had winnowed them through the first couple of years) were taken in anything approaching “combat” They were bought off of criminals.

    So Obama’s crew are basically thinking they are smarter and better drafters than the Grahams and Addingtons who came up with the MCA and they can put together something that holds water better. Of course, that leaves the MCA still on the books, still crappy legislation.

    OTOH, where it moves Obama’s crew to is the Hamdi decision. Which is, to Sup Ct decisions, what the MCA is to legislation. A very badly drafted decision, O’Connor’s effort at Judicial-Legislative-Executive kumbayah, that doesn’t hang together as any coherent mechanism. But it does give the wonderful, meaningless line that the AUMF was not a “blank check”

    Well, then, what was it and why weren’t it’s parameters clarified by the MCA? OK, we know why Obama doesn’t want the parameters to be within the MCA – it’s a wounded beast, thrashing and willing to bite anyone in its death throes. So why does he want Hamdi? Remember that, back those many years ago, the supposed ruling of Hamdi was that you couldn’t hold people forever – just, you know, for however long the President had already held Hamdi and however long it might take the President to get around to doing something about it. And of course, that was all only bc Hamdi was a US citizen who had been brought back onto US soil.

    So what Hamdi does is basically give a blank check that it pretends it rejects. And what Obama is wanting to do, as his people have indicated over and over, is set up Star Chambers, “secret courts” to handle the uncharged, disappeared.

    And what someone really needs to do imo is, as Rumpole would say, get up on their hind legs and explain to the courts in no uncertain terms that Congress, whether via the AUMF or the MCA or other means, is prohibited by the Constitution from authorizing the President to round up people, outside of combat situations, and subject them to the punishment of detention and all the punishments allowed by the Army Field Manual and the punishment of disappearing them from their families and shipping them to black sites — the Constitution does not grant any part of the US government powers of attainder (which is exactly what those kinds of powers to round people up and, without due process and fair,open trials, subject them to punishments are – attainder powers) and does not allow Congressional legislation to authorize attainder. And it isn’t a prohibition against government exercising attainder against citizens, it’s a prohibition on attainder, period.

    America’s Constitution does not grant its government the power to detain ad abuse indefinitely, without due process and trial and America’s Constitution goes further and prohibits any attempt to legitimize such actions by Congressionally enacted legislation.

    The way things are going, Obama might as well have kept Addington on staff.

  18. Mary says:

    44 -the point Turley made too. But you could see this coming, the “silence of the left” You could see it with the telecom vote – Obama’s supporters really had a streak very similar to Bush supporters. If he does what he promised not to, and what we would be furious over a Republican doing, it’s ok if it is Obama, we lurve him and, like Bush did over WMDs, he just “knows more” and should be trusted.

    Trust in authority, once it’s the authority you voted in.

    It’s true in other areas as well – if Bush had “cleaned house” by going from one set of Goldman Sachs insiders to another set of Goldman Sachs insiders, they would have seen the problems and issues, but if it is Obama, well, trust him, he’s smart and besides, he “inherited” all this bad stuff, so you can’t blame him for claiming his inheritance.


    I think this is why I’ve never been much into or about politics. I was one of the very few in law school without a drop of polisci in my blood (I’d gone from a heavy biology/chem load thinking of vet school, to a quicko conversion to business to get an accounting degree) I guess I’ve known that people aren’t THAT different, for one party to have sole claim to good and the other sole claim to evil. The parties are just shell games.

    OT, but didn’t I see where Schumer’s going to get to put his legal advisor in as USA for SD NY? That’s reassuring – Schumer being such a good guy.

    • phred says:

      You may be right about the interchangeability of Bush and Obama supporters of the “my guy, right or wrong” ilk. On the other hand, I find that when I talk to friends who are ardent supporters of Obama about his early failings and ominous warning signs, they listen. That’s a big difference from the reichwing-dittoheads. So I remain hopeful, that if we can keep chipping away at mainstream-induced ignorance, that we can bring along more Obama supporters in being willing to criticize him where appropriate.

      I do have to keep reminding myself that Obama is not all bad. He just tends to be bad on things I care a lot about (assertions of state secrecy, unchecked Presidential authority, and relying on Summers’ economic policy). If I fault Obama for anything generally it is a woeful lack of vision. The current crisis gives us an opportunity to really make significant changes on a lot of fronts that would provide for a more sustainable economy and planet, lifting all boats (not just the yachts) in the process. Instead of taking the opportunity to bring the change the public elected him for, he is content to just tinker around the edges. If he stays on this course, we will have lost a golden opportunity.

  19. Mary says:

    More OT – but here is another example of how our torture policies made us “safer”

    The Pakistan meltdown continues, with lawyers everywhere taking to the streets or being locked up. The AP story recites that:

    The conflict is rooted in Zardari’s refusal to accept demands from lawyers and an array of political parties that he reinstate a group of judges fired by former military leader Pervez Musharraf.

    without mentioning that a primary reason for the judges, esp the Chief Judge, being “fired” was that they were ordering an accounting for the people that were disappeared and tortured.

    Of course, we have to protect our tortures and torture allies, so if that means turning the military in the nation against the lawyers and inciting meltdown in a nuclear power, well, at least it was all for the worthy purpose of making sure America adequately sponsors and supports its torturers.

  20. Leen says:

    read post but not comments so excuse me if I am repeating something

    “It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase “enemy combatant.”

    Who defines “substantial”

  21. Mary says:

    And more OT still, but further to EW’s chapters on Chiquita, a report is out claimin that, surprise surprise, Major Banks Supporting Corrupt Regime

    Some of the world’s biggest banks are doing business with corrupt regimes, facilitating state looting and human rights abuses and keeping the world’s poorest poor, according to a new report.

    I guess you’ll have to get into the fine print to see if the include the Republican and Democratic parties in their listing of corrupt regimes.

  22. skdadl says:

    Alternative history: Imagine that the Second World War ended, but then Nuremberg never happened.

    Sometimes I feel as though that’s what our oligarchies/technocracies are planning to do to us. I’m not just pointing fingers at the U.S., either; we have been and still are complicit in horrors in our minor little Canadian way, and yet there is next to no political will here to face just how serious our government’s flouting of international law has been. The level of awareness among citizens is scary-low.

    • Leen says:

      “”David Crane, an international law professor at Syracuse University, said the principle of law used to issue an arrest warrant for [Sudanese President] Omar al-Bashir could extend to former US President Bush over claims officials from his Administration may have engaged in torture by using coercive interrogation techniques on terror suspects,” reported the New Zealand Herald.

      The indictment of Bashir was a landmark, said Crane, because it paved a route for the court at The Hague to pursue heads of states engaged in criminality.

      “Crane also said that the [Bashir] indictment may even be extended to the former president George W. Bush, on the grounds that some officials in terms of his administration engaged in harsh interrogation techniques on terror suspects which mostly amounted to torture,” said Turkish Weekly.”

      I keep pushing, praying and pushing.

  23. Mary says:

    51 – He just tends to be bad on things I care a lot about that, and he is squandering the opportunity he came in with and is basically realigning to make sure that the Dem and Rep parties are indistinguishable on those issues.

  24. Nell says:

    selise: more importantly, i agree with valtin’s earlier point about the silence of the left. here’s my favorite thought experiment: if it was a republican doing exactly what obama is doing – what else would be different?

    First, I’d like to ask that, now that we’ve moved out of the tight coalition into which we were fused while resisting a Republican administration, “the left” not be used to describe everyone to the left of Evan Bayh. (Selise, I don’t mean to pick on you, yours was just the closest reference to hand.)

    There are traditional cleavages between left-wingers and liberals, and the human rights of non-Americans and accountability for crimes committed in the course of imperial wars are a couple of them.

    Second, it would be helpful if commenters gave some examples of whose silence has been loud. As Obama has shown his hand more and more on torture and detention issues, we’ve heard a lot from Scott Horton, Glenn Greenwald, EW, other FDL frontpagers, Digby (to some extent), Spencer Ackerman, and I could go on with a bit more effort… Human rights and civil liberties organizations have of course stepped up, giving credit where it’s due but being frank about the ways in which the new administration’s actions have fallen short of standards we have a right to expect.

    But that certainly doesn’t exhaust the field of opinion. Which liberal bloggers, pundits, and members of Congress would you like to hear more from? It’s fair to say that people who don’t follow these issues closely are going to allow much more time to go by before they get restless.

    If we’ve seen enough to feel the need to rally pressure on the part of allies, and I think with this most recent set of filings I certainly have (the unchanged approach in Rasul v. Rumsfeld is particularly sickening), then it’s going to be important to distinguish who is already on alert and can be helpful in the rallying, who simply needs the alarm bells rung with calm clear explanations of why, and who has to be dealt with more bluntly due to their tendency to hide behind “he’s doing more important things, he can’t afford to be seen as soft on terrorism” and related bullshit.

    • selise says:

      I’d like to ask that, now that we’ve moved out of the tight coalition into which we were fused while resisting a Republican administration, “the left” not be used to describe everyone to the left of Evan Bayh.

      fair criticism. please feel free to pick on me, nell, when you think it’s deserved. i’m probably going to mostly agree with you anyway.

      re the human rights of americans and non-americans. in this i also include economic oppression and what obamaco are doing on that front.

      it would be helpful if commenters gave some examples of whose silence has been loud

      was not meant as a specific criticism of anyone. i was just thinking about when that wto was shut down in 1999 or the ftaa was blocked in 2003. both by nonviolent direction action and tons of organizing. now i’m told that it’s impossible to organize in any way that’s seen to be in opposition to obama because he’s so popular. was just venting and probably shouldn’t have. my apologies.

    • Valtin says:

      Which liberal bloggers, pundits, and members of Congress would you like to hear more from?

      Well, we could start with Jane Mayer, who told everybody that “torture was over” with Obama’s executive orders. Or we could look at the reticence of much of the left you even describe as taking Obama on, such as Greenwald and Horton, in regards to criticizing the abuses allowed by the Army Field Manual, and this even after it was just myself and PHR doing the criticizing, but even after CCR took it up. I’ve repeatedly tried to contact people like Rachel Maddow, but no luck; submitted article proposals to Counterpunch, the Nation, again no dice. Only Liliana Segura at AlterNet’s Human Rights page took notice and gave a platform.

      Or you could look as a case study at the announcement of the task forces by Obama’s administration the other day on detention and interrogations. I know EW is planning to take this up in a few days, and I wrote on it at Daily Kos and my own blog. Daphne Eviatar at The Washington Monthly picked it up, and then… no one. Where were the instincts to even look into the situation? If this was the Bush administration there would have been at least two or three articles about it at Huffington Post, a gnashing of teeth at Daily Kos, a blistering editorial by Greenwald or somebody. After all, these “task forces” are to be headed by long-time Bush national security attorneys, one of whom is associated with Yoo and the OLC gang (Wiegmann), and I found this all out in about five minutes of googling.

      Where’s the instinct? Instead, there is a deadly lulling. FDL/EW is an exception, and it’s easy to think the rest of the liberal-left world is doing its best. But it’s not. They are lulled into complacency, on this issue anyway.

      And members of Congress… ack… don’t get me started. I can’t think of one, not one, who truly is willing to say or do what needs to be done. No profiles of courage there.

      • kovie says:

        Hey Valtin,

        Obviously there’s a small group of people at DKos who’ve been staying on top of these issues who are incredibly upset with Obama’s actions on them, you, myself and a few others among them. And I’ve even noticed that recently, in a couple of diaries on these topics, more people than had previously seemed the norm were being critical of Obama on them, and pushing back on the truly tiresome and excreble gangs of “Leave Britney Alone!” Obamabots who pollute DKos with their Obamaturfing. But yeah, it’s yet to reach anywhere near a critical level of outrage, or even concern. Most people are just not paying attention, or concerned. Not that other issues aren’t important, especially these days. But this is core, and lots of people just aren’t getting it. A function of the essentially shallow and superficial nature of our times, in this country at least, on both sides of the aisle.

        What is most disappointing by far, though, is for someone who’s clearly no vapid know-nothing, namely Obama himself, and who presented and positioned himself for years as a liberal and even progressive constitutionalist, to have so quickly and radically adopted the Yoo/Addington mindset and stance on civil liberties and national security. As I see it, he is either a coward, a fool, a captive, or a man who at bottom believes in and stands for nothing, and that his previously stated beliefs were just words, uttered for public consumption, political posturing, and perhaps even for his own edification, to allow him to cling to the deluded belief that he actually meant what he said.

        He may or may not get away with this, but we shouldn’t let it be easy or cost-free. If he insists on burning his bridges with the left–or with constitutionalists in general, some of whom are on the right–then we should return the favor and burn their anchorages too, on our side.

        • bmaz says:

          You know, I think that many, me included to some extent, imprinted what we wanted desperately to hear and see onto Obama, and it was relatively easy to do so because he was relatively speaking, new on the national scene and a fairly blank slate. If you really go back and dissect what he has consistently said, he is fairly centrist and has been pretty consistent in following through on what he said. He is, above all else, a master politician, and his goals are seen and carried out through that frame, not a moral, legal or Constitutional one. For all the griping I do about him, and I do a pretty fair amount, he is a pretty remarkable breath of fresh air, on the whole, from where we have been. That said, does he need to do a lot better on the areas of privacy, torture and adherence to the moral and Constitutional basis of the rule of law; absolutely. It is our job to move him there on way or another.

          • Raven says:

            tiresome and excreble gangs of “Leave Britney Alone!” Obamabots who pollute DKos with their Obamaturfing

            What is most disappointing by far, though, is for someone who’s clearly no vapid know-nothing, namely Obama himself,

            Uh huh, this schmuck will buy that.

          • kovie says:

            I’m trying to maintain your stance on him, and some of his other actions on other fronts encourage me to do that, e.g. his budget proposal, push on health care (admitedly insufficient but still better than what we have), education, infrastucture, etc. He is no small government head in the sand pony-chasing conservative, clearly. It’s on matters having to do with national security, civil liberties, the constitution in general, and executive power, that trouble me, a lot. Not even just on the specifics of these matters, but on what appears to be his incredibly cynical, craven, cold-hearted, calculating approach to these issues. I’d love to know if, in his heart, he believes that he’s charting the best possible course possible at the present time between political reality and national security needs on the one hand, and constitutional protection and civil liberties on the other, or if he’s just taking the easy way out by siding strongly with the former. Or, perhaps, that he just doesn’t care, that these are all detached intellectual questions that have no bearing in his mind on real-world affairs. He clearly spends an enormous amount of time in his head. I’m just wondering what goes on in there, and how connected it is to his sense of belonging to the world of real-life human beings, and to what extent he even has such a sense. It’s almost like he’s a computer, and not a feeling person, with perhaps a human-like set of subroutines as rough approximations. I’ve never seen him show any strong human emotions in public, other than well-contained hints of anger, and what appear to me to be forced attempts at warmth and closeness. The man is a rock, or at least forces himself to be one.

            Ultimately, he’s what I’ve long seen him as, a cipher, not just to us but quite possibly to himself as well, unknown and unknowable. Which, I think, is what allows him to do these things without any apparent hint of remorse or reservation.

  25. radiofreewill says:

    When it comes to changing course on a major policy boat, like Detention Policy, surely it has to be done by degrees.

    After 8 years of abuse, We’re all understandably still under the sway of our well-founded suspicions of abuse-of-power, carried-over from Bush’s nightmare – our tendency is going to be to project those suspicions onto Obama, and then hope he proves us wrong.

    But, what if Obama intends to do the ‘right’ thing in re-shaping the Big Policies? What would that ‘look’ like?

    It might look like:

    1 – Put ‘place-holders’ on the Bush-generated points-of-controversy to maintain continuity with the previous Administration, and

    2 – Announce a shift away from the unitarily un-tested Bush claims of Inherent Article ll Power and Authority, and towards standards based on global convention – ie, the Law of Land Warfare, etc.

    As a proposition, it’s a small, but responsible, step forward – an act of good faith, in an attempt to improve, or re-establish even, standing with the Global Community of Nations, and restore Our Own confidence in our national moral integrity, as well.

    Under color of years of Our experience with Bush’s smoke-and-mirrors, however, our inclination – well-founded over a long period of time – is going to be to ’see’ Bush the Lawless getting away with Immoral Depravity, again.

    So, if we can agree that Obama’s approach to Big Policy Change is going to be somewhat gradual – by degrees – and if we can further agree that Our Own Tendency, at least for now, is going to be to look for the Ghost of Bush in everything he does, then We might be well-served by employing a ‘fairness’ or balancing test that would allow our Own Attitudes to Change, by degrees, as well.

    Acknowledging Our discontent, and the World’s, as genuine, this problem is going to require a long dance of good faith moves by Obama, US and the Global Community – if we are to restore confidence in the universality of the Rule of Law and Equal Justice.

    We are a long, long way from that goal. However, if we employ a process that honestly faces our problems without pre-judging them, we’ll eventually work through them all, together.

    In order for this process to have a chance, however, it must include the mechanism of transforming prior-formed mis-trust through acts of present good faith – step by step – by everyone involved.

  26. Nell says:

    Congress does indeed need to step up. Jane Harman, of all people, wrote an excellent op ed last month in which she called for the repeal of the Military Commissions Act. That’s an area that could definitely use some noise and pressure. Obama’s people will try to stall that, because they want time to replace it with another equally repellent system, but the time to start pushing on it is now.

    Harman was an early target of the forces now arrayed in Accountability Now, as someone way out of step with her very liberal district, and it made a noticeable difference early on. Don’t know if this is further payoff, or Harman loosening up now that she’s not Intel chair, or rediscovering her ability to be a Congressional irritant now that there’s an administration that won’t sic attack dogs on her, or what…

    • DavidKaib says:

      The Harman Op-ed was a good step, but has she introduced legislation to repeal the Military Commissions Act?

      She has sponsored the Lawful Interrogation and Detention Act, which would close the GTMO detention center and regulate interrogation. It has 5 sponsors total, so it doesn’t appear to be going anywhere. But I don’t see anything from her about the MCA.

      In fact, it looks like there is a bill that does the same as her bill but also repeals MCA, but it has only one sponsor (Schiff.) (This is based on a quick look at these two bills – I haven’t read through them carefully.)

      Regardless, it seems like Harman ought to be sponsoring a bill that does what she had called for, and the rest of Congress ought to be considering it – since they and not the president have the responsibility over making laws concerning detention (under the captures clause).

      • Nell says:

        Harman ought to be sponsoring a bill that does what she had called for

        True, and good catch on the intro/sponsorship of such bills. I hope anyone from the environs of Venice, California and the rest of Harman’s oddly shaped district will encourage her to effect a closer union between mouth and money.

  27. Nell says:

    @rfw: I hear what you’re saying. But speaking strictly for myself, I have a hard time being comfortable with a slow, patient, we-have-all-the-time-in-the-world approach to this even if I were to credit the new team with much more good faith than I do — because there are human beings, hundreds and really more like thousands of them (counting Bagram and the Iraq prisons and CIA prisons) who have had years and years of their lives stolen by us. That’s without even considering the coercion, abuse, humiliation, and torture we’ve inflicted.

  28. JohnLopresti says:

    tx, bmaz, sorry. Today I noticed the mysterious inaccessibility of Randolph’s February 19 2009 ruling in re Kiyemba v Obama, kindof declaring Boumedienne is no problem; K is a Uighur; the linked version is read-only; CCRgovt supplemental filed in Rasul, which references the Kiyemba issue; appellees briefed as well, before RUrbina. These two cases seem of a piece with the current memo document, fitting the new “vision” of due process for the detainees, and shield for govt.

  29. Nell says:

    Also, and this is something that creeped me out during the campaign and continues to during the early months of the new administration: there is just about zero sense on the part of the civil liberties, human rights, or Congressional liberal crowd that Obama is interested in working through these thorny issue “together” with them.

    If he needs a lot more time, and expects to put in weak-tea placeholders in order to buy that time, he’s failed to communicate that to anyone who’s being critical. So it seems he’s fine with a process that’s a ‘black box’. Maybe that’s best for retaining our own independence, credibility, and integrity on these issues. But it isn’t conducive to creating “a process that honestly faces our problems without pre-judging them [in which] we’ll eventually work through them all, together”.

  30. wavpeac says:

    The question that I just cannot get out of my head is “why”? Why is he not protecting the constitution. Just as I feel that the racists of the world know how to secretly talk to each other…just like one drug addict knows another, just as gay folks know the meaning of the rainbow, it seems that when Obama made his statements about Reagan, he was “talking to them”.

    I kept trying to think if his behavior is different than during the election.

    No, it’s consistent. It’s been consistent. And he won. And his behavior continues to be what I feared it would be.

    I don’t have details…but on a big picture level, theoretically, my worry was that he would continue the fascist regime. And it at least seems as if my worst fears are being realized.

    What worries me the most is that this behavior of Obama’s makes sense in a context that I don’t want to believe and that we cannot know for certain. On the other hand, is it possible that there is some very big information that we do not have access to, that would or could explain his current choices and predict his next move.

    I was taught to look for asymmetrical relationships, not just the symmetrical ones. Is there a context in which his behavior actually defends the constitution and the principles of the POTUS? Or is his continuation of Bush policies truly mutually exclusive? (my gut says that they are mutually exclusive but I cannot imagine even, a context in which they are not). What might that context be…can we generate guesses at why his behavior might make sense…what could be going on in the world, that we might not know about that would put his current position back in line with the principles we all believe in? And if we cannot fathom one, what in the world are we going to do about it?

    In my view there is nothing more subversive that what is going on…(wigo) but then I have to admit I don’t know for sure what is going on? Does it make sense in any context?

    • skdadl says:

      I’m probably late in commenting on this, but that report is extremely depressing. Thanks for the link, mind, but this pretty much finished me off:

      The Obama Justice Department extends the argument made by the Bush Justice Department that top government officials have qualified immunity when it writes:

      “Because government officials are not ‘expected to predict the future course of constitutional law’ … decisions that post-date the conduct in question cannot be used to deny qualified immunity.”

      Ye gods and little fishes! Does Obama seriously believe that nothing greater than American law is involved here?

      And what on earth does “the future course of constitutional law” actually mean? To me, that just reads like fogging.

  31. HanTran says:

    Doesn’t this change the grounds upon which detainees can now challenge the action from a fairly well-proven reliance upon “enemy combatant” to the much less tested and more recent language of the AUMF?

    Where does the AUMF find the authority for these detentions if it is NOT in Presidential authority to declare enemy combatant status?

    I think it may be much harder to carve out detainees from the Geneva Conventions via the AUMF then via enemy combatant status.

  32. Leen says:

    Hear Ahlam speak in Washington DC on 17th March

    Last Updated (Thursday, 12 March 2009 00:37) Written by Administrator Tuesday, 18 November 2008 09:28
    Hear Ahlam speak in Washington DC on 17th March

    Last Updated (Thursday, 12 March 2009 00:37) Written by Administrator Tuesday, 18 November 2008 09:28

    In the Hard Way Home film, Ahlam was agonising over whether to accept resettlement in America for the sake of her children, Abdullah and Ruqaya, or stay in Syria and help other refugees.

    She’s now in Chicago. But she’s linked up with Americans campaigning for the refugees, and is speaking at a conference in Washington D.C. on Tuesday March 17th.

    Read more: Hear Ahlam speak in Washington DC on 17th March

  33. Nell says:

    now i’m told that it’s impossible to organize in any way that’s seen to be in opposition to obama because he’s so popular.

    But even there, someone’s doing the telling, yes? Who?

    Obama’s popular, for the things he appears to be doing right if you’re not a wonk: stimulus (however insufficient), making motions on global warming and health care (despite huge corporate snakes in the grass), committing to have all troops out of Iraq by end of 2011 (conveniently after the 2010 elections), and public vows not to torture, to close Guantanamo within a year, and one good-faith example of trying terror charges in the criminal system.

    But you don’t want to look too closely or you get queasy. Human rights and civil liberties people aren’t invited into the Obama process at all. The glass-half-full explanation is that he needs and wants to be pushed on this from the outside. The half-empty explanation is that he doesn’t want to expose himself to screeching by the Kurt Lippold-fronted howler monkeys by seeming to consult the ACLU more than he consults military families.

    Either way: we have to be clear about our goals, frame specific demands, not make it a personal fight but one that is all about living up to our values etc., and move as many of our allies as possible to bring pressure in the service of those goals:

    – Free or charge detainees in real courts STARTING NOW. Two in two months doesn’t cut it. FREE THE UIGHURS.

    – End abuse and torture while prisoners are still held (so end the hunger strike by negotiation and communication, not by force and the restraint chair). This is related closely to the first, most fundamental point above.

    – Repeal the Military Commissions Act in its entirety. It was several horrible things in one: retroactive cover for Bush-Cheney criminality and unwillingness to admit how little evidence there is for holding much less charging the vast majority of detainees, and a “soft on terror” political bludgeon / occasion for pre-emptive Democratic cringing.

    – No back alleys added to the justice system. No “special processes” that involve evidence obtained through torture or duress; no short-changing the established rules of military or civilian law. Prisoners are either prisoners of war, with status hearings, or they are criminal defendants with full due process protections.

    And the one that we know there will be no motion on for quite a while, but that has substantial popular support, more than for any other alternative, and will have to happen eventually:

    – Investigate and prosecute Bush, Cheney, and their functionaries for war crimes and crimes against humanity.

  34. JohnLopresti says:

    Vladek has a substantial article discussing the detentions semantics.

    Harman’s vectors likely are many; I know her district only slightly, though sufficiently to recall a late entrant in the primary garnered 1/3 of the votes, the liberal sector, after a campaign which lasted only a few weeks for the challenger; that occurred at a time when her committee post had worked as a gag, though I am not sure we know much about her contributions. Her district appears much more centrist than progressive, yet, one which listens when a new contestant has cogent arguments, an electorate composition which probably lets Harman appreciate that it is credible that a smart and experienced opponent from the progressive spectrum might succeed in an upset at the polls next go-round.

  35. nextstopchicago says:

    By relying on the declaration of war, I thought they were using definitions from international law, making them prisoners of war subject to the Geneva conventions, visitation from the Red Cross, etc. I think that’s a change.

    Yes, detention still relies on the president’s authority, but that’s always been true of POW’s. And of course, they’re subject to judicial review.

    “who in analagous circumstances in a traditional war” etc. This is rooting the power to detain firmly in international law. I really disagree with what you’ve written.

  36. bmaz says:

    The AUMF is not a declaration of war within that context for starters, and I am not sure what you are saying is subject to judicial review, but that is exactly what Obama has specifically tried to limit by his proclamations as to the Bagram facility discussed above. So I think this is off by a fair amount.

  37. rwcole says:

    One interpretation is the Bush built a jail at Gitmo- and ended up in his own jail- trapped between his own rhetoric, poorly thought out policies, and the political reality of the incalculable political costs of giving up the whole game. Now, perhaps, Obama will end up in the same jail unless he figures out how to hold the truly dangerous and let the rest go.

  38. Raven says:

    In short, it’s a big, fat, cynical game. A word game, like any other parlor game,

    Just like all the bit fat cynical word games every-goddamn where else including here.

  39. geewhizbang57 says:

    It is beginning to look like Obama’s vote for FISA while Senator was not an temporary aberration. He wants the president to have this unconstitutional level of power.

    Obama has some rather frightening similarities to George Bush on this issue. His stunning lack of concern for investigating the many atrocities of human rights, and the dictatorial abrogation of the Bill of Rights under George Bush / Cheney is deeply concerning to me. It hardly matters that Obama is much more likeable and intelligent than George Bush, his policies on these matters are too much of the same thing. He is too concerned with restrictions of his power now that he has it.

    Why is it taking so long to do something about Guantamino? The administration SHOULD be arguing that a miscarriage of justice has occurred under the previous president.

    At the very minimum the people that are well known to be innocent should be released very quickly.

    Unlike the far right we will not go willingly down this path like people did with Bush. If he continues this way, our constitution becomes a meaningless piece of really old paper.

  40. Cujo359 says:

    This is like one of those nightmares where you keep thinking you’re waking up, but you always figure out you’re not because the same insane stuff is still going on.

    Except for the part about being asleep, of course.

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