Why I Will Not Vote For Bush #1: The Constitution

In an effort to provide counterprogramming for the Republican National Convention, I will be writing a short series of posts on what I take to be the most important reasons not to vote for Bush. Three preliminary notes:

First, I am not reflexively anti-Republican. Until about a year ago, of all the Presidential candidates I've supported over the years, the one I was most excited about was a Republican (Anderson, 1980.) I try not to be reflexively anti-Bush, though he has long since worn out the benefit of the doubt that I gave him after the decision in Bush v. Gore, and again after 9/11. There are, I think, very good reasons to oppose him; thus this post.

Second, I describe myself as voting against Bush for a reason. I think John Kerry will make a perfectly good President. Nonetheless, he was not my first (or second, or third) choice in the Democratic primaries, and if he was running against someone else who I thought would make a perfectly good President, I might have to think seriously about who to vote for. But since, in my judgment, Bush has not been anywhere near a perfectly good President, I have no such difficult choice to make.

Third, I do not hold Bush responsible for every silly thing that anyone in his administration has ever said. But I do hold him responsible for his administration's policies, and also for his response to things that members of his administration do, whether or not he himself has ever spoken about the topics in question. He is responsible for hiring and firing his people; for making sure that they do the job he wants them to do; and for exercising oversight over them. The buck stops with him.

That said, on to topic number one: the Constitution.

Candidates' adherence to the Constitution is, as far as I'm concerned, one of the most important issues in any election in which there's a serious question about it. The Constitution provides us with the means to turn officials out of office and replace them with others who reflect our views better. As long as it's in place, therefore, most mistakes can be undone. It protects our most fundamental rights, thereby ensuring that whatever mistakes the government might make, they will not involve imprisoning citizens without due process, or abrogating our rights to free speech, freedom of assembly, freedom of religion, and so forth. It is moreover the law of the land, and every President swears to uphold it; Presidents' records on this score therefore also speak to their willingness to abide by the law, and to our ability to trust them when they give their word.

George W. Bush's record on this score is really frightening. I will not rehearse most of it: John Ashcroft's cavalier attitude towards civil liberties, for instance, or the very real first amendment problems with the President's proposal for faith-based initiatives. About all this I will say only that even without the points I focus on below, in my view this administration has a bad record on constitutional matters. But there are two issues that are way beyond what one might call normal constitutional badness:

(a) The Bush administration has argued, in the Padilla and Hamdi cases (links to briefs; PDF), that the government has the right to detain United States citizens indefinitely, without bringing charges against them or providing them access to counsel, so long as it designates them as 'enemy combatants'. Who counts as an enemy combatant? As the Supreme Court noted in the Hamdi decision (PDF), "the Government has never provided any court with the full criteria that it uses in classifying individuals as such." (p. 8) So there are no clear criteria. And what does the government have to show in order to justify the claim that, for instance, you are an enemy combatant? The government argued that it does not need to show that there is a preponderance of evidence in support of its determination that you are an enemy combatant. "At most, the President’s determination can be reviewed to ensure the existence of 'some evidence' supporting it." (Padilla brief, p. 14; similar claims in Hamdi brief.) So: as long as the government can provide 'some evidence' to support the claim that you fall into a category for which there are no criteria, it can detain you without charges, incommunicado, and without the possibility of judicial review.

Moreover, while the government did argue that there is statutory authority for this power, it also claimed that this power is inherent in the President's authority as Commander in Chief. (See Padilla brief, pp. 44ff.) This means that whatever Congress might think, the President, according to this administration, inherently has the power to detain any individual it deems to be an enemy combatant, without having to show that Congress did anything to grant this power. And to make things worse, while the government concedes that this power lasts only as long as the US is at war, it also maintains both that the war in question need not be declared, and that it is not over when hostilities cease, but might apparently last indefinitely. (Ask yourself when you expect the "war on terror" to be over. Enemy combatants in this war can be held until then.)

Our Constitution states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (Article 1, sec. 9). Moreover, it can be suspended only by the Congress, not by the President. It is one thing to say that the President, as Commander in Chief, has the right to detain US citizens in combat. No one would suggest that a US passport should serve as a sort of 'Get out of jail free' card on a battlefield. It is another thing altogether to say that, once detained, they can be held indefinitely without charges or access to courts, whether they are captured on a battlefield (Hamdi) or in an airport thousands of miles away (Padilla). This is, as the court recognized, unconstitutional; and it should have been seen to be unconstitutional from the outset.

Antonin Scalia, with whom (for once) I find myself in agreement, quoted Blackstone in his Hamdi dissent (p. 2):

"Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper . . . there would soon be an end of all other rights and immunities. . . . To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

Habeas Corpus is fundamental to the rule of law, since it prevents such arbitrary detentions. The Bush administration has tried to eviscerate it. Moreover, once they lost the case, they did not move to try Hamdi for treason or some other crime, as one might have expected; they are working out a deal to free him. But if he was dangerous enough to justify asserting an enormous and dangerous expansion of power to keep locked up, why is it now OK to release him?

(b) In the now famous 'torture memo (PDF), a working group of administration lawyers argued as follows: "In light of the President's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President's ultimate authority in these areas." (p. 20.) It also has a section (p. 53) that reads as follows: "Legal doctrine could render specific conduct, otherwise criminal, not unlawful. See discussion of Commander in Chief authority, supra." This means that, according to this memo, the President, in his conduct of wars, is not bound by any of the criminal laws that Congress has passed, nor by any treaties that are implemented by such laws; and nothing in this document limits the President's supposedly absolute wartime powers to non-citizens. This violates the Constitution, which says (Article 2, sec. 3) that the President "shall take Care that the Laws be faithfully executed", and (Article 6) that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land". It also denies the idea that the President is subject to the law, just like the rest of us are.

It also seems to me to completely undercut the separation of powers. It is one thing to say that Congress should not interfere with the President's tight to conduct wars by, say, passing a law requiring him to use one military tactic rather than another, or to attack an enemy by one particular route. It is quite another to say that the Congress cannot bind the President in any way so long as there's a war on -- say, by requiring that whatever he does, it should not include torture, especially when this prohibition concerns not conduct on the battlefield, but (as in this case) conduct in Guantanamo. This is the same reasoning that, in (a) above, led to the conclusion that the Congress's right to suspend habeas corpus can be usurped by the President in wartime; and I can see no reason why this supposedly absolute power could not be used to argue that during wartime the President can raise taxes without the consent of Congress (wars need to be paid for, after all), or regulate interstate commerce (so that the army gets the supplies it needs more efficiently), and in general usurp all the powers that the Constitution grants to Congress. (And why just Congress? A President with this sort of authority might well decide that the Supreme Court's Hamdi decision interfered with his ability to prosecute the war on terror, and on those grounds assert the right to go against the judiciary as well.)

I said above that I would not hold the President responsible for every silly thing anyone in his administration has ever said. In this case, however, President Bush appointed the person who signed the memo to the U. S. Court of Appeals for the Ninth Circuit. The person who supervised the working group that produced this memo has been nominated to the U. S. Court of Appeals for the Fourth Circuit; his nomination may, however, be derailed by the disclosure of this memo. In any case, neither Bush nor his deputies, when confronted with this memo, seem to have concluded that those who wrote it were dangerously wrong about the Constitution. Instead, they nominated them to judgeships. If they had their way, those responsible for this memo would be able to apply their understanding of the Constitution to us for the rest of their lives.

As far as I can tell, the Bush administration asserts that in time of war, the President is essentially an absolute monarch. He can imprison any one of us at will, and need only show that there is 'some evidence' that we are enemy combatants; once he does so, we have no right to appeal. He can violate laws and treaties whenever he judges that he needs to, and need not inform anyone about it. This is not just wrong; it's dangerous. And why conservatives who care about small, non-intrusive government are not appalled by this -- appalled enough to think of it as a serious election issue -- is beyond me.

Comments

[CJM]

Excellent post, hilzoy. The overriding theme of this administration has not been a swing to the right or a war on terror; it has been the rapid expansion of the centralized authority of the state. Coming from the party meant to represent the ideal of "small government," this is deeply alarming. And I ask again those few sane Republicans out there still planning to vote for Bush: in the name of God, why? Do you want to abolish the estate tax so badly that you're willing to see the gutting of the constitution by executive fiat to do it? Is curtailing abortion rights such a priority that a Republican must fill the next Supreme Court vacancy, even if he fills it with judges who think there's no check on the president's wartime powers? I truly am at a loss to understand.

[von]

Good post, Hilzoy.

[John Kelsey]

Nice post. This summarizes about 80% of my reasons for planning to hold my nose and vote for Kerry this year.

I might be a little more willing to accept the administration's line on the torture memos, if there weren't also substantial evidence of torture actually being used, both officially in Guantanamo, and by the CIA and others in other "undisclosed locations," and also by freelance sadists and hobbyists in Abu Girab, and various unsavory US allies (who presumably have professional sadists on call) who are sometimes given prisoners we want questioned.

--John

[fdl]

The only thing I can add is Consider This As Precedent.

the relationship between executive and legislature is largely defined by precedent. after all, that's one area which the supremes have consistently avoiding treading, due to separation of powers concerns.

so, to those who support this expanded version of presidential powers exercised by this president, consider how you would feel if, say, Hillary Rodham Clinton used such powers in pursuit of domestic terrorists.

Francis

[Anarch]

Let me echo von: Excellent post, hilzoy.

[hilzoy]

Thanks, everyone. I'm particularly relieved that von (and any of the rest of you who are lawyers) approved -- every so often I worry about writing this stuff without any actual legal training. (Though growing up surrounded by law professors did have some effect, I think.)

[Blue]

Since you asked on the other thread why no one with an opposing view really responded...

I thought about responding, but then I read your post again and again. I realized that we begin from such different places and have such different concerns that I really didn't see the point of any post I might make.

You want to discuss legalities, while we are in the middle of a war. That's obviously your right and what concerns you most. The enemy doesn't fit into our legal system and would only exploit it. The enemy would reach out and kill your fellow Americans in the middle of our discussion.

It seems to me that you want to approach these issues from a completely legal perspective, but that is only partially the issue for someone like myself. It's often the case at this blog with so many lawyers that they want to approach the issues from a legal perspecitve instead of a real world/practical application perspective.

The dangers that our country faces today are real world challenges, not legal technicalities to be disected.

That is the reason that I will be voting for Bush. I believe that he understands the real world challenges that we face. I believe he knows who the real enemy is and will take the fight to them.

(Crap, I'm going to get accussed of using the RNC talking points, but its really how I have felt for a long time.)

"As far as I can tell, the Bush administration asserts that in time of war, the President is essentially an absolute monarch."

While legally one cannot make a case for the President being able to behave like a monarch, historically from a real world perspective many presidents have had to act decisively in unique times.

If one feels that we are only at war with AQ, then I can see why you have so many issues. If one feels that we are in the middle of a war with a ruthless enemy that would gladly kill 1000's of Americans given the chance, then your legal concerns seem trivial in comparison.

"He can imprison any one of us at will, and need only show that there is 'some evidence' that we are enemy combatants;"

To me that's just crazy talk. I will admit that I am perfectly okay erring on the side of caution during these unique times. I fly every week and if they want to ground my flight or stop Ted K. from boarding and search my 7 month old son I'm okay with that.

This is my issue with your post... You can argue the legalities all day long, but you would never sway me on those grounds. We are at war with a ruthless enemy that has no problem killing civilians. They will exploit any weakness. They will collude with any willing partner.

You want to argue these issues in terms of tactics in the context of winning a war and protecting Americans... I am ready to talk. You want to discuss legal technicalities, maybe Sebastian will post in the morning.

[hilzoy]

Blue: thanks for answering. For what it's worth, I'm not a lawyer, just someone who really cares about the Constitution. And I don't have a problem with flights being grounded and infants searched either, and my concerns about the flight lists mainly involve asking: why can't they have some sort of information about the characteristics of the people on it, so that if someone named, say, 'Blue' were on it, they could check and see that the possible terrorist named 'Blue' was 6' tall and 55 years old, at which point they could let (I am of course making these details up) 25 year old 5'8" you go through.

The business about imprisoning people on the basis of a government claim that there is "some evidence" that they are enemy combatants is, however, not just crazy talk; it's in the government brief I linked to. And bear in mind that "some evidence" can be, say, the word of an informant who may or may not be trustworthy (maybe Ahmed Chalabi). That's why we have courts: so that both sides can present evidence, and that evidence can be weighed.

It also doesn't seem to me that some of the fundamental freedoms in the Constitution are just "legalities". If you are arrested, whether or not you have any chance at all to show that you're innocent would not, I think, seem like a mere legality to you. Nor is it to me, even though I have not been arrested, a question of mere "legalities" whether or not I live in a country where we have the fairmindedness to let someone present his or her case, and where citizens cannot be arrested on the government's say-so.

Of course you're right that we are at war. But we have been at war before, and we have generally managed without doing away with the liberties that we are supposedly fighting for. It's not as though we can't lock people up without taking the steps Bush has taken: we can imprison prisoners of war, and we can also try citizens for treason and other crimes. What worries me is that we would use this power precisely when we did not have a good enough case against a person to take to trial. And this worry is born out, I think, by the fact that now that the Supreme Court has rejected the Bush administration's arguments, they seem to be releasing one of the people they are holding, rather than charging him with a crime. If it was so important to lock him up in the first place, why is it OK to release him now? And if they had enough evidence to justify locking him up for over two years without giving him the opportunity to contest the charges against him, why not try him?

The freedoms granted to us under the Constitution are, to me, like a sort of incredibly valuable inheritance. Most people do not have them, but our ancestors figured out a scheme of government under which we could, and they have passed them down to us. I do not want to be a part of the generation that squanders them, certainly not without someone explaining to me, in detail, why any of the other things we might do to protect ourselves would not do just as well.

But thanks for your post.

[Blue]

Hilzoy,

I care about the Constitution, but I care about the safety of me my loved ones more... at this juncture.

(I swear I am not an RNC hack. I really feel that way darnit!)

"The business about imprisoning people on the basis of a government claim that there is "some evidence" that they are enemy combatants is, however, not just crazy talk"

Poor choice of words on my part. I meant in comparison to the dangers that I see it is "crazy" to worry about those few that we think are extremely dangerous, but our legal system doesn't allow for them to be detained.

"That's why we have courts: so that both sides can present evidence, and that evidence can be weighed."

Again, according to the dangers the courts can wait. My opinion.

"It also doesn't seem to me that some of the fundamental freedoms in the Constitution are just "legalities"."

To clarify... in comparison to the dangers we face they seem like legalities to me. SEe the example of what happened with the guy in Germany they released.

"If you are arrested, whether or not you have any chance at all to show that you're innocent would not, I think, seem like a mere legality to you."

And that really speaks to my point. I think we can both agree that neither one of us are going to be arrested, nor anyone we know.

"would use this power precisely when we did not have a good enough case against a person to take to trial."

And that could be exactly what saves lives.

"And this worry is born out, I think, by the fact that now that the Supreme Court has rejected the Bush administration's arguments"

And that could be exactly what gets innocent people killed.

"And if they had enough evidence to justify locking him up for over two years without giving him the opportunity to contest the charges against him, why not try him?"

I would have them err on the side of caution at this time.

"The freedoms granted to us under the Constitution are, to me, like a sort of incredibly valuable inheritance."

And I couldn't agree more. But that inheritance means nothing if one is dead. I do not want to be part of the generation that sees thousand of more Americans die in their own country.

[Gromit]

Blue: And that really speaks to my point. I think we can both agree that neither one of us are going to be arrested, nor anyone we know.

The only reason you can feel comfortable in that assumption is because of the very same Constitution that you say is less important than your personal safety, and because of those fundamental freedoms you dismiss as mere "legalities" lacking "real world" relevance.

Blue: But that inheritance means nothing if one is dead. I do not want to be part of the generation that sees thousand of more Americans die in their own country.

Tell that to the thousands who have already died, both abroad and on our soil, defending the liberties you would so casually discard. Tell that to the brave soldiers buried in Arlington, and to Martin Luther King, Jr., and Medger Evers, and many others like them whose names aren't celebrated, who stood up for justice and paid with their lives. I would strongly urge you to reconsider this opinion, to really think about the implications of what you are offering up as negotiable. It is all too easy to trade freedom for security. The difficult task is fighting to maintain both.

[Terry Karney]

Blue, you evince a greater leap of faith in the good faith of the present government than I, on so many levels.

They have said they have the right to disappear people, cast aside any law with which they disagree, as an "inherent" power of the presidency. This is Nixon's arguement that what he told people to do was legal, because he said so.

And they lied... you say you value the resolution of Bush in the war on terror. I see his actions as a liability. Where is bin Laden?

Where is Zarqawi (assuming that he is alive, which there is some doubt about, and has been for months).

They lied in the connections between Al Qaeda and Iraq (Atta was never in Prague). They have spent money... putting the budget in the hole, and why? Because there was a clear and present danger only their wasn't, and they knew it (Condoleeza saying Hussein was holding back because he hadn't accounted for the uranium from Niger, even though they had the CIA telling them the documents were false).

Congress gave him the power to go to war, after inspections and after the exhaustion of diplomatic efforts, and a report to them on that... he did neither and then didn't report.

He appoints a man who thinks domestic terrorists don't count ("The trouble is, 'terrorism' is a very broad word, and it lends itself to a lot of mischief for people who would abuse common sense," Goss said. He then cited bombings of abortion clinics. "To me, that's not the kind of terrorism I'm talking about."

"That's criminal law enforcement," Goss said. "But it would fit most broad definitions of terrorism because the purpose [of those attacks] is to scare people." )

And wants the CIA to be able to break the law whenever the president wants

H.R. 4584 SEC. 102.(c) (1) collect, coordinate, and direct the collection of intelligence and intelligence-related information through human sources, technical means, and by other appropriate or supplementary methods, except that the Agency may not exercise police, subpoena, or law enforcement powers within the United States, except as otherwise permitted by law or as directed by the President;"

These are real issues, and saying that the rule of law goes out the window just because there are people who want to kill us, well I am reminded of the exchange in Robert Bolt's "Man for all Seasons"

More The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.

Roper Then you set man's law above God's!

More No, far below; but let me draw your attention to a fact - I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forrester. I doubt if there's a man alive who could follow me there, thank God....

Alice While you talk, he's gone!

More And go he should, if he was the Devil himself, until he broke the law!

Roper So now you'd give the Devil benefit of law!

More Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper I'd cut down every law in England to do that!

More Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

And so too would I.

TK

[hilzoy]

Blue: you claim that being able to lock people up without evidence that would make it in a court of law is necessary to save lives. I have seen no evidence of that, and it seems to me quite important to know whether suspending important parts of the constitution is really necessary for this purpose -- whether there is no other means that could be taken that would not involve tossing out our civil liberties.

You also write that "I think we can both agree that neither one of us are going to be arrested, nor anyone we know." I am not sure why you think that this is such a good assumption. For all you know, I might be an Arab-American, in which case this would not be such a good assumption at all. As it happens, I'm not. However, I do know, very well, people who were targeted during the last two times that the government decided that it could do away with these sorts of checks: under Nixon and McCarthy.

The relevance of this to the present argument is not that, hey, they're my friends and relatives; it's that because I know the people in question, I can speak to their character and to the justice of their being targeted. In both of the cases I'm thinking of, the people in question were not only not involved in anything remotely threatening to the US; they were obviously not. They are both among the most decent, honorable, fair-minded, play-by-the-rules, and public-spirited people it has ever been my privilege to know; the sorts of people who would never ever cheat on their taxes, let alone seek to overthrow the government. In the Nixon case, the person who made the enemies' list got to be one of Nixon's enemies simply because he testified against two of Nixon's judicial nominations before the Senate (the nominees were dreadful, and were not confirmed.) That is: he exercised not just his right but (as he saw it) his obligation to offer testimony on a matter that he knew something about, in front of the Senate, which is to say not just in a totally legal and above-board way, but in a forum in which it's essential that people with expertise be allowed to testify. For this Nixon decided that the resources of the United States government should be used against him.

This being the case, I am a lot less confident than you that the powers the Bush administration seeks would be used wisely. This is all the more true since people tend to abuse powers more when they do not have to answer to anyone for how they use them; and the point of the powers the Bush administration seeks is to remove the Courts' ability to look at what they're doing and decide when it has gone too far. When you know that no one is able to check on what you've done, you're a lot less likely to cut corners.

[Blue]

Hilzoy,

It was late last night when I posted... I meant to thank you for your thoughtful response.

My second post was done in a hurry. To clarify my point a little more. We have obviuosly been invaded once. I also believe strongly that as we sit here and discuss these issues we have invaders in our cities and others that are plotting to invade our country and kill us. We are under invasion, just not in a way that we are used to.

Gromit,

"Tell that to the thousands who have already died, both abroad and on our soil, defending the liberties you would so casually discard"

That's just rude and thoughtless. I make no decision lightly as I am sure you don't either. It also speaks to the other reasons why I originally didn't want to post on this topic.

You have now attacked me for disrespecting my family that has fought and died in the wars... good job. You have really got me reconsidering my position so that I might agree with you.

I will never understand how you can make such a disparaging comment to someone and actually expect them to consider your position. As your view point continues to diminish in popularity in this country don't say you weren't warned as to the reasons why... the extreme arrogance... and the intolerance shown to others who might disagree with you.

Often times what one dislikes in another is really the very quality that they truly despise in themselves. This seems to be the identity crisis that the left is going thru. They accuse the right of being racist, but they play the race card. They accuse the right of being intolerant. But, if one opposes gay marriage they are relgious nuts. They oppose the War in Iraq, but in so doing support a cruel dictator. The say, "Bush lied, people died" as their lack of unity and resolve puts our soldiers more at risk. This list of contradictions goes on for days.

The left in this country isn't being defeated... it's imploding. Being someone who leans left on many issues this frustrates me greatly.

"It is all too easy to trade freedom for security. The difficult task is fighting to maintain both."

I couldn't agree more with your statement above, although I am not really sure you deserve to know what I think. I know where I am willing to be flexible in order to maintain both.

[Blue]

Hilzoy,

I wasn't making a case for everything the Bush administration is doing is right. I could make a pretty long list about my disappointments with this administration.

I do trust that the administration and the courts will work out the issues that you mention. As I see it you were making a case for why you are not voting for Bush. I was only making a case for why I will vote for Bush.

[Blue]

Hilzoy,

I wasn't making a case for everything the Bush administration is doing is right. I could make a pretty long list about my disappointments with this administration.

I do trust that the administration and the courts will work out the issues that you mention. As I see it you were making a case for why you are not voting for Bush. I was only making a case for why I will vote for Bush.

[Phil]

They oppose the War in Iraq, but in so doing support a cruel dictator.

I was not anti-war, but even I understand that one of these things does not imply the other. Not even close. Despite what Glenn Reynolds thinks.

The say, "Bush lied, people died" as their lack of unity and resolve puts our soldiers more at risk.

Our soldiers are not at risk because of a lack of resolve. They're at risk because there aren't enough of them there and because the people making the decisions aren't the best people to be doing so. If everyone in American held hands, embraced, and sang "Kum Ba Ya! Win this war!" it wouldn't make our soldiers one iota safer.

[Phil]

By the way: US Erred in Terror Convictions. Between this, Hamdi and Moussaoui, the administration and courts are doing a bang-up job of "working out these issues."

[carsick]

Those willing to give up a little liberty for a little security deserve neither security nor liberty.

Benjamin Franklin

[carsick]

As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air however slight lest we become unwitting victims of the darkness.

William O. Douglas, Justice of the U.S. Supreme Court

[Blue]

Whereas, it has become necessary to call into service not only volunteers but also portions of the militia of the States by draft in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection;

Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:

Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the City of Washington this twenty fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the 87th.

ABRAHAM LINCOLN

Section 9, Clause 2 of the U.S. Constitution.

"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or INVASION the public Safety may require it. "

[Moe Lane]

Those willing to give up a little liberty for a little security deserve neither security nor liberty.

The actual quote is "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." (cite) No desire to be pedantic, here, but the differences between the two versions are significant.

[Jadegold]

I do trust that the administration and the courts will work out the issues that you mention. As I see it you were making a case for why you are not voting for Bush. I was only making a case for why I will vote for Bush.

Given the massive failure of this administration, it must be difficult to maintain that faith. At what point do you look at the miscalculations, the deceptions, and decide to reward such an abysmal record?

[Slartibartfast]

Given the massive failure of this administration

Failure has mass?

[Anarch]

If one feels that we are only at war with AQ, then I can see why you have so many issues. If one feels that we are in the middle of a war with a ruthless enemy that would gladly kill 1000's of Americans given the chance, then your legal concerns seem trivial in comparison.

I speak only for myself here and none other, but I grew up out of the country in what is more or less the South East Asian sphere. [Primarily Australia and Hong Kong, with a year in the Philippines.] I've known for longer than almost any civilian here that there are people who would cheerfully kill me simply because I was an American: since I was six, we used to get a very nice letter from the State Department every year, and on special occasions, telling us where not to go if we valued our lives.

You know what? Twenty years on, I'm still here. Nor am I afraid. Funny, that.

Part of the reason is that we paid attention to those letters, much like a resident of a major city knows where not to go after dark. Part of the reason is that I've seen just what bastards the US government (and our governmental policy) can be, and so what might be fear has transmuted to anger. But the vast majority of the reason is that I know, in the most visceral way possible, that it's a lot more complicated than that.

Since I was six, there've been people who wanted to kill me because I was an American, yes, but there have been a hell of a lot more people who've wanted to be my friend because I'm an American. I've been prejudged in every possible way based on my passport, my accent, my skin and, in my youth, my hair (I had almost platinum-blond hair as a child, which is considered very lucky in many Asian cultures) and I've seen firsthand just how ambivalent the rest of the world is about us. They love us, they hate us, they fear us, they respect us, they lust after us, they want us broken and humiliated, they want to take our money and run... all of these emotions and more are present in everyone around the world, in varying proportions. Any policy -- any policy whatsoever, left or right, liberal or conservative, Democratic or Republican -- that attends to only one of those emotions is a recipe for disaster, no matter how well-meaning.

The same applies to the War on Terrorism, or, as I've taken to calling it, the ?o?.

[Don't worry: we'll have an appropriate name eventually. Right after we, as a nation, have an honest discussion about wtf is going on. So don't hold your breath.]

There are people who want to kill us? Great, let's target them. Don't forget, though, that there are people who want to like us, who want to respect us, who are riven with doubt, who bear us no great love anyway, and all the infinite variations between. If our policy pushes those who were ambivalent into those who hate, we've done more than fail, we've actively worked against ourselves. And if this applies abroad, how much more does it apply here at home, where we are supposedly at our most secure and therefore capable of showing off our best?

[Note that this cuts the other way too: if you presume that everyone loves us and wants be our friend, you'll simply permit those who don't to run roughshod over us at the cost of an inordinate number of lives. See, e.g., the simpler liberal foreign policies circulating the blogosphere; or, worse, our actual post-war Iraq policy.]

How does this all tie together? Hilzoy's talked about how the Constitution applies to ourselves; let me address how it's perceived abroad. One of the things people love most about the United States is our civil liberties. Our freedoms. And, because this is where they're irrefutably enshrined, our Constitution. This "war" we're in is not, primarily, a war of guns and blood, it's a war of ideas. Our ideas are the ideas of civil liberties, of representative government, of peace and justice for all. What message do you think it sends to the rest of the world when we compromise those ideas? Do you think those who love us will love us quite so strongly when our ideals are tarnished? Do you think those who are ambivalent will not pause for thought at the equivalencies we will permit* between our ideals and those of our enemies? Do you think those who hate us will not feel a thrill of potency and vindication that they otherwise lack?

There are a million other reasons why I think compromising our ideals in a time of war is a bad idea, but in this, a time not of war** but of a struggle between ideas and conceptualizations of the future, it is more important than ever to show that we can meet these challenges head on and not bend. Our strength is that we can adapt our superficialities while maintaining our integrity; and sacrificing civil liberties over such a comparatively trifling threat is the surest sign of weakness I can imagine.

Will this be harder? Yes. More difficult? Yes. Will it require real, tangible sacrifices of the American people? You bet. Will it require our attention in ways that, frankly, we've been historically unable to muster? Damn straight.

That's why we need insight. That's why we need resolve. That's why we need strength.

And that's why we need someone other than George W Bush.

* Permit, not legitimate. This is a war of ideas and, as such, appearances can be more important than "truth", whatever the heck that means.

** Thousands of people trying to kill us? Is that all? How many people were arrayed against us in WWII? What kind of forces could the Soviets bring to bear in the Cold War? Those were wars. This is a nasty, squalid, asymmetrical military conflict that a sideshow to the real, ideological struggle.

PS: Hilzoy, my apologies for thread-jacking with what, on reflection, appears to be a campaign speech for some unspecified hero. And speaking of taking the money, I gotta run :)

[Blue]

Jade,

"At what point do you look at the miscalculations, the deceptions, and decide to reward such an abysmal record?"

Is that a serious question? Are you interested in my response or are you being sarcastic?

[Jadegold]

Blue: I'm always interested in your response.

What I question, however, is why you'd reward such a massive failure. After all, by most metrics, we are in worse shape than 4 years ago.

Even if we look at Bush's own promises from 4 years back, it's apparent he's been a failure by his own 2000 campaign goals.

For most of his appointment, Bush has enjoyed a GOP-controlled Congress and 9/11 certainly provided him with massive public support and approval. Yet, he seems unable to translate these advantages into tangible success.

[carsick]

Moe
I remembered the rough outline of the quote but the one I posted was from a quotations website. They must have paraphrased or their source material must have.
Good call.
They most certainly do have different meanings.
"Essential" does not equal "little".
I do consider free speech an essential liberty though so...still applicable.

Again, good catch ... and not pedantic.

[Blue]

Jade,

"What I question, however, is why you'd reward such a massive failure."

I would have to say that we use different metrics.

On the WOT... I would say that based on my own personal experience with how war is waged it shows this is no where near a massive failure.

On the Economy... I travel the country every week. From what I see we are no where near a massive failure.

On Compassionate Conservatism... his opponents around the world and at home appear rabid to me. He has consistently had to deal with opponents that were dishonest.

"For most of his appointment, Bush has enjoyed a GOP-controlled Congress and 9/11 certainly provided him with massive public support and approval. Yet, he seems unable to translate these advantages into tangible success."

But, I don't see that as his failing. I see it as theirs. A couple of days ago, talking to Gromit I think I mentioned that I went to the same small college that Zell Miller attended. I referred to myself as a Zell Miller Democrat... and that rings true now more than ever. I am also angry that politicians on the left in the U.S. (and around the world) have put their political ambitions ahead of our security. Their dislike of Bush ahead of our security.

So what you see as failure, I see as an attempt to fight the good fight.

I truly do have a list of things I dislike about the administration. If interested I would be more than willing to share some of those.

[carsick]

Blue has come up with the new Bush/Cheney '04 motto: "no where near a massive failure"

Blue you do realize that it is tough for me to see Bush's failures attributed to his opponents when republicans control both Houses.
At some point he can no longer be thought of as a hapless victim when his party controls at minimum TWO BRANCHES OF GOVERNMENT.

[Gromit]

Blue: That's just rude and thoughtless. I make no decision lightly as I am sure you don't either.

Have it your way, Blue. You would discard or dilute our liberties after great deliberation. This in no way ameliorates your position.

You said to Hilzoy: I think we can both agree that neither one of us are going to be arrested, nor anyone we know.

Insofar as this statement might also apply to me, it is completely false. During World War II, my grandmother-in-law and her family were forced to sell nearly all of their property and belongings at below-market prices and were imprisoned for no crime other than being of Japanese ancestry and living on the west coast of the U.S. It has already happened to someone I know and love. I would rather see that it doesn't happen again.

[Blue]

Carsick,

You know as well as I do that he doesn't have complete contorl over both Houses. He can barely even get judges appointed... and in some cases he can't at all.

Yes, they control both Houses, but its a full on fight to get anything accomplished. His battle isn't only in the Houses it is also in the media. When the MSM is consistently against you it makes getting anything accomplished extremely difficult.

Now, if they could stop a fillibuster... then you would really have a point.

[Blue]

Gromit,

Atleast we seem to agree that War is hell!

[carsick]

If Bush is the victim you are presenting then perhaps you should vote for someone who has more authority in the position of Commander-in-Chief of the world's strongest army and the president of the world's strongest economy.
The MSM underreported the dissent before the war; under investigated the "evidence" leading us to war; and has only been forced to report Bush's mistakes because he makes so damn many of them they couldn't ignore them anymore.

The big fear of the filibuster? Geesh!

[carsick]

He's so weak he has to change the metrics to accomodate not his mediocrity but his failure.

Last week, the Census Bureau released statistics showing that for the first time in years, poverty had increased for three straight years, while the number of Americans without health care increased to a record level.1 But instead of changing its economic and health care policies, the Bush administration today is announcing plans to change the way the statistics are compiled. The move is just the latest in a series of actions by the White House to doctor or eliminate longstanding and nonpartisan economic data collection methods.

In a Bush administration press release yesterday, the Census Bureau said next week it "will announce a new economic indicator" as "an additional tool to better understand" the economy. The change in statistics is being directed by Bush political appointees and comes just 60 days from the election. It will be the first modification of Census data in 40 years.2

This is not the first time the White House has tried to doctor or manipulate economic data that exposed President Bush's failed policies. In the face of serious job losses last year, the Associated Press reported "the Bush administration has dropped the government's monthly report on mass layoffs, which also had been eliminated when President Bush's father was in office."3 Similarly, Business Week reported that the White House this year "unilaterally changed the start date of the last recession to benefit Bush's reelection bid." For almost 75 years, the start and end dates of recessions have been set by the National Bureau of Economic Research (NBER), a private nonpartisan research group. But the Bush administration decided to toss aside the NBER, and simply declare that the recession started under President Clinton.4

Sources:
"Census: Poverty up in 2003," The Olympian, 9/01/04.
Census Bureau press release, 8/31/04.
"Monthly report on mass layoffs dropped," Shawnee News-Star, 1/05/03.
"Inventing The 'Clinton Recession'," Business Week Online, 2/23/04.

[Blue]

" It will be the first modification of Census data in 40 years."

Seems like it was way over do...

The following are facts about persons defined as "poor" by the Census Bureau, taken from various government reports:

Forty-six percent of all poor households actually own their own homes. The average home owned by persons classified as poor by the Census Bureau is a three-bedroom house with one-and-a-half baths, a garage, and a porch or patio.

Seventy-six percent of poor households have air conditioning. By contrast, 30 years ago, only 36 percent of the entire U.S. population enjoyed air conditioning.

Only 6 percent of poor households are overcrowded. More than two-thirds have more than two rooms per person.
The typical poor American has more living space than the average individual living in Paris, London, Vienna, Athens, and other cities throughout Europe. (These comparisons are to the average citizens in foreign countries, not to those classified as poor.)

Nearly three-quarters of poor households own a car; 30 percent own two or more cars.
Ninety-seven percent of poor households have a color television; over half own two or more color televisions.

Seventy-eight percent have a VCR or DVD player; 62 percent have cable or satellite TV reception.
Seventy-three percent own microwave ovens, more than half have a stereo, and a third have an automatic dishwasher.

[Jadegold]

Blue: One should really credit Robert Rector and the Heritage Foundation for their creative work in telling us the poor aren't poor.

[Blue]

Jade,

Posted a little quick... then decided not to worry about it... thought that it was obvious that it was pulled.

I am actually working despite what it may look like from your perspective...

[Phil]

"Various government reports."

Which you can find . . . you know, out there. Somewhere. Google it up, or whatever.

[Jadegold]

Rector has a pretty impressive record of playing fast and loose with the facts.

F'rinstance, Rector once claimed 22,000 people living below the poverty line owned hot tubs. It was later discovered Rector found an obscure survey of 10,000 persons that showed one person, living below the poverty line, owned a hot tub. A little extrapolation--and,voila, the poor are awash in hot tubs.

[carsick]

I know a poor guy down the street who drives a cadillac.
Viola, poor people drive cadillacs*.

It is the old Reagan welfare queen anecdotal argument coming back again. AAaagghhh!

(* Of course I haven't seen the car actually being driven lately - perhaps due to the high cost of repairs on a '77 cadillac with rust induced structural problems.)

[fdl]

Last I checked, having some stuff and being poor did not, in the real world, have much to do with each other. As "Nickled and Dimed" pointed out, being poor means being on the naked edge of disaster, all the damn time. I don't much care whether or not the waitress at the diner has a VCR, AC or a TV. I do care that she spends an inordinate amount on rent, that she needs to go to the free clinic for health care, that her kids' schools suck etc.

I'd also point out that this has nothing to do with the original post. As far as damage to the constitution goes, i'll point out that the LATimes has a searing editorial regarding the kangaroo courts in Gitmo.

It seems that the administration is so terrified that it cannot make its case against the Gitmo "terrorists" that it is reduced to crippling the defense's ability to put on a defense.

in order to avoid being banned, i will refrain from describing precisely how i feel. i'll simply state that i am outraged. how can we sink so low?

Francis

[Terry Karney]

Blue: You keep using the word invasion... this word, I do not think it means what you means.

Because we've not been invaded.

Kuwait was invaged, Afganistan was invaded, Iraq was invaded, Cuba was invaded.

New York City, and the Pentagon were attacked. No invasion was ever planned. None of the people who hijacked those planes intended to hold ground, and control it.

There was no beachead, no loss of government control of the land the hijackers stood on.

That's invasion.

All they did was kill people. Horrible, something which deserves to be prevented, but not something which jsutifies casting aside the rule of law.

TK

[Terry Karney]

Blue: You keep using the word invasion... this word, I do not think it means what you means.

Because we've not been invaded.

Kuwait was invaged, Afganistan was invaded, Iraq was invaded, Cuba was invaded.

New York City, and the Pentagon were attacked. No invasion was ever planned. None of the people who hijacked those planes intended to hold ground, and control it.

There was no beachead, no loss of government control of the land the hijackers stood on.

That's invasion.

All they did was kill people. Horrible, something which deserves to be prevented, but not something which jsutifies casting aside the rule of law.

TK

[Terry Karney]

Blue: You keep using the word invasion... this word, I do not think it means what you means.

Because we've not been invaded.

Kuwait was invaged, Afganistan was invaded, Iraq was invaded, Cuba was invaded.

New York City, and the Pentagon were attacked. No invasion was ever planned. None of the people who hijacked those planes intended to hold ground, and control it.

There was no beachead, no loss of government control of the land the hijackers stood on.

That's invasion.

All they did was kill people. Horrible, something which deserves to be prevented, but not something which jsutifies casting aside the rule of law.

TK