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January 17, 2006

Comments

If you hit somebody with a pie, is that legally assault and bettery? Not to be nit-picking...

I mean you are being pretty zealous pursuing in the illegality of checking out suspect Al Qaeda suspects, which are really trying to destroy us, but impugn the laws when clearly an offense has been committed, minor though it was.

What Jose Padilla did was not a pie in the face.

Does your cousin want a drink? 'cause I'm buying.

Also, if you ever feel like flinging a pie...

In the anxious months after the Sept. 11 attacks

Doesn't that say it all?

I've got your pie right here, Anarch, a hard Cornish pasty!

I liked it when somebody pointed out that Bill Moyers, while in the Justice Dept, was involved in J Edgar Hoover's investigation of Martin Luther King. Way to go, Bill!

But that doesn't count because it wasn't Nixon or Bush.

DaveC, have you developed epilepsy of late?

Remind me what Padilla actually did? Far as I know the worst thing he's plausibly accused of is going to a camp in Afghanistan in the 90s.

DaveC, you sure about Bill Moyers? I see some murky controversy about Goldwater on wikipedia, nothing about Hoover and King.

Wasn't Moyers an assistant atty general when Bobby Kennedy was tring to get some dirt on MLK? Possibly not the smoking gun on Moyers, but certainly on the Kennedys.

Apparently. Padilla filled out a formal application to joim Al Qaeda.

DaveC, have you developed epilepsy of late?

Funny, that is part of my work, doing omputerized EEG's. Most seizures are in young children, and older people, some would say I am old. But I doubt if I have the classic 3 per second spike and wave activity, if that's what you asking. There are various sources of seizures form viral inflammation, to trauma (concussion) that adults have, but it is nowhere near as common as in very young children or elderly stroke victims.

Pardon me for the misspellings, but don't challenge me on any kind of brainwave stuff unless you can tell me the difference in the kind of tests that might detect Wave V versus K-Complex, for instance.

And that by the way, is a very simple, elementary question.

Moyers was a journalist then worked for the Peace Corps then was a special asst to LBJ, far as his bio says.

I think for $59.95 I can get one of those applications with your name on it, DaveC, but maybe they can make a charge of unlawful application filling stick. Given that he's done four years pre-trial, I wonder how much longer he'll be in jail.

That finished my Winter comment quota. See ya in March! My NY resolution was to stay out of the comments. I was doing better than Donald for a while, but WHERE THE HELL IS JOHN THULLEN?

Apropos:

Arbitrary drug classes like benzodiazepenes and barbiturates are specifically excluded from coverage. Congress left no clue as to the legislative intent of the exclusion. Someone seems to have decided that these two drug classes are incompatible with some Biblical teaching. Or maybe the competing drug classes are much more profitable for someone's campaign contributors (as both benzodiazepines and barbiturates are cheap and produced as generics, unlike their likely treatment alternatives). As a result the nation's psychiatrists are going batshit right now, trying to figure out what to do with patients on drug regimens for things like seizures.

John Thullen is in his garage. If he sees his shadow when he emerges, we all go insane.

I think for $59.95 I can get one of those applications with your name on it, DaveC, but maybe they can make a charge of unlawful application filling stick.

Going to get the documents from Dan Rather?

I think that there MUST be something going on here. After all, the Feds haven't rounded up Cindy Sheehan, Tim Robbins, and bob macmanus,

Yet.

I think that the OVP is the place to go for such documents, or maybe our embassy in Rome.

benzodiazepines and barbiturates are cheap and produced as generics

Agreed. Phenobarbitol, for instance, is effective, cheap, and not really widely abused. This is a stupid leftover from the War on Drugs. There needs to be some kind of sunset provisions for olddrug laws.

Well, I don't know any fancy words to describe it, I was just trying to think of a reason you were battering that enter key every time a new thought fired off some synapses. You got a technical medical term for that?

I use the word "thought" in the loosest possible sense, mind.

Comity, please.

By the way, since I am off topic, if you have had a history of seizures: If you are driving at night and it starts raining hard, just park the car. This is not from personal experience, I just am familiar with the activation procedures.

We were driving the other night (rather, Mrs. R was, since I'm photosensitive and slightly susceptible to migraine). The opposite lane was elevated and the railing was slotted and we got strobed. Seemed like a dangerous setup. Is there something stroby about headlights and rain?

Night being for sleeping.

You got a technical medical term for that?

It's the rush of being 1st on the thread. Typically by the time I have read through the comments after a few hours, I start internally questioning everything and either don't comment or make a totally different type of comment. I am not nearly as consistent as many of the ObWi commenters, and though I am sometimes thoughtful, I am often flip, or maudlin, but generally veer off-topic.

Not always quite so soon.

Is there something stroby about headlights and rain?

It bothers everybody, I think. But if you have ever fainted before, it is probably one of the more dangerous situations.

By the way, if you are driving and get a migraine, stop for coffee at the Dunkin Donuts or Krispee Kreme and call somebody on the cell phone to tell them that you will be late.

It's REALLY late. Good night.

Well, I guess that's over. Christ.

Apparently. Padilla filled out a formal application to joim Al Qaeda.

Dayum, so why in hell was my application turned down? I'm so much more qualified than Padilla. (Could it be that I'm actually overqualified?) Of course with Alito about to be on the SCOTUS I've got no chance at all at winning a discrimination suit.

Apparently. Padilla filled out a formal application to joim Al Qaeda.

Dayum, so why in hell was my application turned down? I'm so much more qualified than Padilla. (Could it be that I'm actually overqualified?) Of course with Alito about to be on the SCOTUS I've got no chance at all at winning a discrimination suit.

It's a cliche, but I bet if we just jailed everyone who makes conservative leaning comments on blogs, we'd end up with one or two bad people in custody. Sure there might be plenty of innocent* people in custody too, but in Binary World, the fact that we had one bad one would forgive any harm inflicted on the 'good' ones. Hell, this benefit is so certain that we don't even have to make any effort to ascertain which of the many people we've jailed actually is the bad one, or what the bad one actually did. Since we know at least one is bad, and that the imprisonment of all the others is completely justified by having caught the bad one, we can just let them all rot in jail. Until we felt like releasing them. Which would be never. We'll describe the process as 'bringing them to justice.'

No one could say we weren't being tough in this war. Which is a heck of a lot more important than actually winning.

* I was going to write "completely innocent" but just can't assume that anyone posting conservative comments on blogs fits that description.

CharleyCarp:
Excellent idea. Plus think of all the money we could save bynot investigating things. It could be anti-terror and deficit reducing at the same time!

People do not seem to understand that for every bad idea that we spend money on (Iraq, wholescale wiretapping, etc), we have less money to spend on programs that might actually provide some level of protection (ports, etc....).

I hate when that pesky Constitution keeps getting in the way of our efforts to protect our Constitutional democracy.

Pie, eh?

Does your cousin know Fafnir?

Apparently. Padilla filled out a formal application to joim Al Qaeda.

I've heard that all you have to do is "Draw Tiffy" off the cover of a matchbook.

(Unfortunately for Padilla, his likeness was deemed inadequate by Zawahiri himself, whose collection of cute stuffed animals was the second-largest in Central Asia before being incinerated by U.S. bombs.)

Padilla filled out a formal application to joim Al Qaeda

heh

I've heard that all you have to do is "Draw Tiffy" off the cover of a matchbook.

That is a baseless slur, as Islam believes in aniconism. I'm sure they had a number you could call because 'you may already have won!!', which is why the NSA was doing all these wiretaps.

on the plus side, the ACLU has filed suit against BushCo for this.

So, all that Al-Qaeda has to do is issue official membership cards to the Republicans and we could put them in Gitmo forever? Boy howdy.

Didn't Jefferson and Hamilton fear "the-pie in-the-face" theory more than concentrated executive power?

Cleek, Christopher Hitchens is part of that suit as well (on the ACLU's side).

You know, this hooks right back in to the discussion on the other thread about Iran. All of these arguments fall roughly into the form:

Supporters of the Administration: Problem X (terrorism, nuclear proliferation) is so severe that we must be allowed to do Y to combat it. Y would normally not be allowed, because it involves (invading people's privacy without due process, killing innocent civilians), but it's the only effective way to deal with X.

The rest of us: (A) You haven't actually made an argument showing that Y is necessary, and that normally permissible methods wouldn't be just as effective, but more importantly; (B) based on their past performance, this administration is such a bunch of clowns that nothing they do is going to be effective. As long as they're going to be useless, let them be useless in the most harmless possible way.

Really, wasn't the whole point of the Iraq war (now that WMDs weren't the issue) that it was supposed to somehow organically create America-friendly democracies in all the surrounding countries? That worked out brilliantly, didn't it.

here's a funny little sentence from that CNN article i linked above:

    "A president who breaks the law is a threat to the very structure of our government," Gore said during a speech in Washington. (Watch Gore accuse Bush of breaking the law -- 2:35)

the bolded bit here is a link to a video clip, on CNN's site.

I heard that Padilla has stated that I have no specific recollection of joining the organization.

Padilla: "Well, what I said specifically was that I wracked my memory as to why I might have joined. And the issue that had bothered me for a period of time as an undergraduate and in the ’80s, around the time when I made the statement, was the issue of religion. This was the issue about the administration of the United States that bothered me."

Later, when questioned abotu some inconsistencies, Padilla said, "what I specifically said, as I recall, was, if I had done anything substantial in relation to this group, including renewing my membership, I would remember that. And I do not remember that."

He should have at least one Justice friendly to his position.

John Thullen is in his garage. If he sees his shadow when he emerges, we all go insane.

Ia! Ph'nglui mglw'nafh John Th'llyeh wagn'nagl fhtagn!

hilzoy: Nice to "see" you again. I hope you're feeling better after your surgery.

If you're the cousin of the pie-throwing Bok and she's the niece of the prez of Harvard (is said prez still Larry Summers?) are you related to Larry Summers? Can you introduce me? I've got an argument with his name on it...I promise not to throw any pies at him. In fact, I'd even make him a pie which we can eat while discussing why the plural of anecdote is not evidence.

hilzoy, I am so stupid that I did not express my happiness and relief that you are back before I "went Farber" on the comments. My best wishes to you.

I bet if we just jailed everyone who makes conservative leaning comments on blogs, we'd end up with one or two bad people in custody.

I'm making a list of lawyers who support subversives. (Look at the sniper logo on the web page.) So far I've got CharleyCarp and LizardBreath, but I have granted von and Sebastian exemptions.

hilzoy, I am so stupid that I did not express my happiness and relief that you are back before I "went Farber" on the comments. My best wishes to you.

I bet if we just jailed everyone who makes conservative leaning comments on blogs, we'd end up with one or two bad people in custody.

I'm making a list of lawyers who support subversives. (Look at the sniper logo on the web page.) So far I've got CharleyCarp and LizardBreath, but I have granted von and Sebastian exemptions.

And I am investigating TypePad as well, for making me look foolish.

Dianne: different President. I am no relation to Larry Summers (in fact, I've never met the man, as far as I recall.)

When people complain that ObWi needs more comments by conservatives, I think the idea is to increase the number of conservative commenters, not just the number of comments. But thanks for doing what you can.

And, at least in my case, it was to get more intelligent, rational comments. Posting fits don't really count.

It's a cliche, but I bet if we just jailed everyone who makes conservative leaning comments on blogs, we'd end up with one or two bad people in custody.

Yes. It's a cliche, but I haven't seen the basic point penetrate much of the commentary defending the program. The problem of false positives has been explained often, including IIRC by hilzoy.

In brief, there will be a lot of them. So inevitably two things are going to happen;

1. The FBI or someone is going to waste a lot of time following useless leads.

2. Lots of people who have zero to do with terrorism are going to be investigated, wiretapped, etc., without any justification.

Anyone who starts talking about how this program protects us ought to be asked how much safer we would be if all that time wasn't wasted.

And anyone who defends the constitutionality ought to explain how a program that taps the conversations of lots and lots of innocent people can possibly be legitimate. Isn't the whole point of warrants and the like to assure that we don't do this - that wiretaps, for example, have a reasonable probability of preventing something bad from happening, or of gathering evidence about actual crimes? What are the probabilities in the NSA program? I'd guess they are very small.

So we have the best of both worlds - it's wasteful and illegal.

Well, I guess my bad 24 hours of being an intermediary in a total hatred feud between my mother-in-law and her 2nd husband's daughter is over for the time being. I did this for my wife, and there was a lot of crying yesterday and today and most of it by me. The two opposing parties involved probably never voted for a Repub in their lives by the way, so why the heck am I the referee? Because fundamentally the hard stuff in my life really isnt about politics, a lot of it is about very old people and how they will nurse grudges until their death. My apologies for being goofy on ObWi. I am now going to have lunch with a friend made out of meat, not pixels. Sorry if I was way off topic.

First and foremost, welcome back. I won't presume to speak for everybody, but I have missed your insightful and incisive commentary.

I would try for even more flattery, but I don't want to overload you as you are probably still recuperating.

Per the post. Although this would seem to indicate that all this produces is a bunch of garbage resulting in a waste of time, there is an old saying "garbage in, garbage out."

My personal opinion is that most of what this adminsitration produces is garbage, so no big surprise.

But secondly, by focusing on this, we tend to beg the question. If it had produced some dramatic positive result, would that have made these actions somehow more palatable and justified?

I would hope the answer is still "no."

Unfortunately, I think that for the majority of Americans, even those who initially protested the actions, the answer would be the opposite.

As someone pointed out yesterday in an underreported address, fear cancels out reason.

Hey, DaveC, even if we're communicating through pixels, we're still made out of meat (at least I am).

John,

"If it had produced some dramatic positive result, would that have made these actions somehow more palatable and justified?

I would hope the answer is still "no.""

It gets a "maybe" from me. I still would not approve of ignoring the requirement of obtaining a warrant before wiretapping (pace, Gary), but since we don't know how communications were targeted, having a high percentage of leads check out would suggest that the method was more than mere data mining. For all the President and his mouthpieces say this program was only intercepting communications of terroists, this is incredibly strong proof that it is doing nothing of the sort.

john miller: Thanks. I think that the President of the United States should not break the law, period. (I can entertain the possibility of exceptions involving e.g. the end of the world, when the connection between breaking the law and preventing the end of the world is extremely obvious, but I do not make any exceptions in situations that are not truly extraordinary. And this one is not.) That he broke the law for "calls to Pizza Hut" is just the icing on the cake. And that, in so doing, he has complicated beyond belief all the actual cases against actual terrorists just shows how utterly thoughtless this particular lawbreaking was.

By my count, so far there's been 24 "terrorists" who have been arrested in the US. My list includes: Faris (Ohio), Aref and Hossain (Albany), Wassame (Minneapolis), Portland (6 people), Buffalo (6 people), Padilla, Lindh, Hamdi, Reid. Anyone else? Of these, roughly half had nothing to do with NSA intercepts, and the other half is arguable and, to us, unknowable. Of these 24, only one, Reid, actually committed a terrorist attack, which was unsuccessful. The other 23 are generally charged with some form of conspiracy or support.

You could argue that our superb intelligence has prevented any more attacks. But I look at the sorry lot above and wonder. It's just too easy for even a half-witted terrorist to cause major panic in the US. Remember the 2 yahoos with a rifle and a hole in the trunk? Bringing down the Brooklyn Bridge with a torch? Please. So my conclusion is that the original threat wasn't nearly as pervasive as the administration would have us believe. Even the devil-incarnate Saddam apparently didn't have even one agent in the US to stir up trouble here in the early days of the invasion.

How many billions has it cost us to find these 24? Worse, how much fear has the administration created among us during their pursuit?

DaveC, you're probably going to need to add me to that list, as once again the good Justice Scalia, joined by Thomas and the CJ, have demonstrated (to me) that their fidelity to the Constitution is exceeded, dramatically, by their fidelity to social conservatism.

i'm talking about this case

Welcome back, Hilzoy! I hope recovery is going along well, to swift completion.

OT but within the Big Picture of tyranny vs. separation of powers: Have you seen the Washington Post article on the Guantanamo Uighurs' emergency appeal to the Supreme Court?

They seek a break in the impasse created when U.S. District Judge James Robertson ruled last month that the Bush administration's "Kafka-esque" detention of the Uighurs was illegal but he simultaneously determined that the court lacked the power to overrule the president and free them.

"That ruling doesn't simply hit innocent men now in their fifth year of imprisonment," said Sabin Willett, one of the Uighurs' attorneys. "It goes to whether we have a judicial branch at all. This is that rare question so vital that the Supreme Court should immediately intervene to answer."

Whether we have a judicial branch at all...

CharleyCarp, Sunday's excellent anti-Alito NYTimes editorial The Imperial Presidency in Action lays out Bush's arbitrary decision that the Graham amendment applies retroactively. Is there any way to develop a coordinated response among the lawyers for all those cases already in court? Are we at such a low ebb that Bush saying so will get the cases dismissed, or... what will happen?

friend made out of meat, not pixels.

You fool yourself. Your friend is made of photons and sound waves, nothing more.

For those of you following along by PACER, the Michigan suit against NSA intercepts is No. 06-cv-10204 (E.D. Mich.). My FOIA request goes in tomorrow: we'll see if there's anything there . . .

Nell, the response is coordinated. Scotusblog is the best place to follow the action. The district courts have more or less decided to hold still while the retroactivity question gets duked out in the S. Ct. (in Hamdan) and in the DC Circuit (in Al Odah). The question is already raised in the former (including some very good amicus briefs), but may see some additional briefing over the next weeks. The Circuit has proposed a supplemental schedule in Al Odah that concludes in February. (IIRC. The government files this week, anyway). Naturally, I'd prefer to win in the S. Ct. right away, and get the issue over with once and for all.

In the meantime, the government is being selectively more difficult about access to the prison. I haven't got a return visit scheduled: I'm of the view that lawyers who've never met their clients, or who have clients in very critical condition (either mentally, or physically, as a result of the hunger strike) ought to get the very limited interview slots, at least for now.

Why this picking on DaveC? He's off topic, but if you want silliness I was on the verge of getting into a fight with myself on the Iran thread yesterday and haven't dared show my face there since, for fear I might violate posting rules in attacking one of my various opinions.

Anyway, DaveC, I've decided that staying completely offline is probably out of the question, but I'm going to cut way back, beginning right about now. We can police each other's lack of participation. Cutting us both gives a rough political balance too.

I'm glad you're back, hilzoy. I'd say something on topic, but don't have anything sensible to add and for once I'll let that stop me.

Charleycarp:

Thank you for what you are doing. You represent the best of what our profession has to offer.

I hope soon that your clients can shout the words of MLK, Jr. (quoting an old spiritual): "Free at last! Free at last! Thank God Almighty, we are free at last!"

Why this picking on DaveC?

I see it as largely good natured, but I think there is a underlying frustration because it is taking away the focus from an issue that so many people here are interested in. One problem (and this is not complaining, just pointing it out, oh and lovely to have Hilzoy back) may be the title gave the impression of a lack of serious intent. Again, not calling anyone out.


I want to know which intercerpts Bolton requested (brought up during his failed confirmation hearings).
That Rep. Senator from PA didn't turn against him for any other reason.

Nell & Will, here's an excerpt from the Hamdan docket showing all the amici who've filed briefs on petitioner's side. I think the paranthetical description comes from the clerk's office, not the party filing the brief. If you take a look at this list, and the appendix to the 'More Than 300' brief -- it's the one we've joined -- you see that I'm in pretty good company.

Historians Jack N. Rakove, et al.

International Law Professors in support of petitioner (Commissions - Geographic Requirement).

Urban Morgan Institute for Human Rights in support of petitioner (the Charming Betsy canon).

Norman Dorsen, et al. (Supreme Court Appellate Jurisdiction).

Brennan Center for Justice, and William N. Eskridge Jr. (Presidential Authority Lacking-UCMJ).

David Hicks.

Richard A. Epstein, et al. (Military Commission Authorized By or Inconsistent With UCMJ).

General David Brahms and General James Cullen (Congressional Authorization Lacking).

Retired Generals and Admirals and Milt Bearden (Geneva Conventions - Judicial Deference).

Yemeni National Organization for Defending Rights and Freedoms.

Binyam Mohamed (Torture).

422 Current and Former Members of United Kingdom and European Union Parliaments filed. (International Law - Need for Adherence)

Law Professors Richard I. Aaron, et al. filed. (Presidential Authority Lacking)

Office of Chief Defense Counsel, Office of Military Commissions filed. (Abstention Inappropriate)

Legal Scholars and Historians. (Effect of Quirin)

Specialists in Conspiracy and International Law filed. (Conspiracy - Not a Triable Offense)

Cato Institute. (Requirement of Civilian Jury Trial)

National Institute of Military Justice and Bar Association of the District of Columbia filed. (Barbary Wars Precedent)

Lawrence M. Friedman, Jonathan Lurie, and Alfred P. Rubin.

Center for National Security Studies, et al. (Effect of Detainee Treatment Act of 2005)

Louis Fisher. (Commissions - History)

Louise Doswald-Beck, et al. (Commissions - Fair Trial Standards)

Law Professors Louis Henkins, et al. (Geneva - Enforceability)

American Civil Liberties Union.

Human Rights Committee of the Bar of England and Wales, et al.

American Jewish Committee, et al. (Commissions: Rights of Presence and Confrontation)

Professors Ryan Goodman, et al. (Geneva - Applicability)

More than 300 Detainees Incarcerated at U.S. Naval Station, Guantanamo Bay, Cuba, et al. (Whether Detainee Treatment Act of 2005 Divests Court of Jurisdiction)

Association of the Bar of the City of New York, et al. (Geneva - Common Art. 3)

Ibrahim Ahmed Mahmoud Al Qosi. (Enforceability on Habeas/Mandamus)

Madeleine K. Albright and 21 Former Senior U.S. Diplomats. (Military Commissions - Independence of Judiciary)

Military Historians, Scholars and Practitioners. (Military Commissions and Articles of War)

Human Rights First, et al. (Military Commissions - Torture)

Certain Former Federal Judges. (Separation of Powers: Enforceable at Guantanamo)

International Human Rights Organizations for Constitutional Rights, et al.

Professor Richard D. Rosen, Associate Dean and Director of Center for Military Law and Policy, et al. (Issue of Abstention)

National Association of Criminal Defense Lawyers. (Military Commissions - Structure and Procedures)

Hey, check it out, we made the White House press briefing.

Okay, not really. However:

MR. McCLELLAN: I'm not going to go any further than what I've said.

Q: There are allegations that we send people to Syria to be tortured.

MR. McCLELLAN: To Syria?

Q: Yes. You've never heard of any allegation like that?

MR. McCLELLAN: No, I've never heard that one. That's a new one.

Q: To Syria? You haven't heard that?

MR. McCLELLAN: That's a new one.

Q: Well, I can assure you it's been well-publicized.

MR. McCLELLAN: By bloggers?

Katherine, thanks: I've just posted about that.

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