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You are here: Home / Politics / Activist Judges! / “When the DoJ Does It, Then That Is Not Illegal”

“When the DoJ Does It, Then That Is Not Illegal”

by Anne Laurie|  March 7, 20119:46 pm| 151 Comments

This post is in: Activist Judges!, An Unexamined Scandal, Shitty Cops, Security Theatre

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I have been trying to wrap my head, or at least my vocabulary, around why I am deeply perturbed by Dahlia Lithwick’s exposure of “The Supreme Court’s collective yawn at the case of a U.S. citizen’s detention and mistreatment after Sept. 11“:

… [T]here is very little ruffled fur or uppity dander at this morning’s argument in a case about an American citizen held under brutally abusive conditions for over two weeks as a material witness—even though he was willing to testify and was never charged with anything. The party line here regarding Sept. 11 seems to be this: Mistakes were made. Knit. Purl.
__
Abdullah al-Kidd was born Lavoni Kidd, a U.S. citizen and former football star at the University of Idaho. He converted to Islam after college. In 2003, he was detained under the federal material witness statute , then spent 16 days in federal detention, sometimes naked and sometimes shackled, often freezing and in cells lit for 24 hours a day. Nobody suspected him of wrongdoing. He was simply an acquaintance of Sami Omar al-Hussayen, who was being investigated for ties to terrorism. Even though al-Kidd had cooperated with the FBI previously, the agency sought a material witness warrant based on the (inaccurate) claim that he was about to flee to Saudi Arabia with a first-class one way-ticket worth $5,000. (In fact, he had a round-trip coach-class ticket that he paid about $1,700 for. He was going to study for a doctorate in religion.) Although the authorities claimed they needed to detain al-Kidd so he would testify against al-Hussayen, he was never called to testify, and al-Hussayen was not convicted…

Now please go read Lithwick’s whole article, wherein she describes the Justices’ hearing with great clarity and many further links, because IANAL and your understanding should not be based on my possible misinterpretations and/or influency. Lithwick concludes:

Nobody is here to suggest that these questions of responsibility for the abusive detentions that happened after Sept. 11 are easy. The problem is that, because nobody is ever held responsible for anything, they have been made to look easy. “Hey, we were just doing our jobs,” and “Hey, we were all just freaking out” have become acceptable answers. And if oral argument today is proof of anything, it’s that when it comes to the civil liberties fallout post-Sept. 11, nobody can ever muster the energy to ask the questions.

There’s no judicial language for “Well, our bad?” Not even a bland Reaganesque “Mistakes were made”? Just… ‘Stuff happens’, I guess?

Best I can express it, part of our all-American foundational myth is that, in legal terms, a hundred and forty years ago “there was no such thing as ‘child abuse‘” (because children were parental property, to be used or misused like any other property). Forty years ago, under the law, “there was no such thing as ‘domestic violence’“, because women were the property of their husbands. But now, if I’m understanding Lithwick correctly, the Supreme Court is deciding to bend the arc of justice in the opposite direction: Inconvenient plantiffs don’t get to protest what objective observers would call torture because if the government felt the need to impose these conditions, all further discussion is off the table.

It’s Orwellian in the strictest sense — once the FBI, or the NSA, or whichever arm of the government decides in its majesty that a citizen’s purported rights have become a burden to the State, then the very terms to describe those rights are… disappeared.

And to think we used to mock the Master:

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151Comments

  1. 1.

    The Dangerman

    March 7, 2011 at 9:59 pm

    The Bush Presidency is the gift that keeps on giving (see Gitmo decision today). I’m a little behind on all things 9/11, torture, and Gitmo, but it seems like the decision NOT to treat it like a crime but an act of war is the basis for that recurring gift.

  2. 2.

    burnspbesq

    March 7, 2011 at 10:10 pm

    Dalia’s a little too full of herself here. Snark and hyperbole galore, not very much analysis.

    This is actually a difficult case, in the “hard cases make bad law” sense. With the benefit of hindsight, it’s easy to say that there was no need to scoop up al-Kidd on a material witness warrant, and if the facts recited in the article regarding the conditions of his confinement are true, that’s a separate and independent ground for outrage. That said, those who make the decisions don’t have the benefit of hindsight when they are making them.

    I’d love to see Ashcroft have to defend this case, because he’s a scumbag. But immunity has its uses. It may be that the best balance possible would be to hold that Ashcroft doesn’t have absolute immunity, and remand the case for the district court to determine whether he is entitled to qualified immunity on the facts of this case.

  3. 3.

    JGabriel

    March 7, 2011 at 10:11 pm

    There’s no judicial language for “Well, our bad?”

    There is a legal term for “My bad”, well, Latin anyway: Mea culpa. Don’t know about the rest.

    .

  4. 4.

    burnspbesq

    March 7, 2011 at 10:12 pm

    Ironic that Neal Katyal, who was one of Salim Hamdan’s lawyers, argued this case for the gubmint.

  5. 5.

    jwalden91lx

    March 7, 2011 at 10:12 pm

    Exactly what Dangerman said. Our national Chlamydia.

  6. 6.

    mclaren

    March 7, 2011 at 10:13 pm

    Yes, it’s astounding, isn’t it? The Nixon footage you embedded is exactly the same YouTube Nixon I embedded in a response to a commenter who was claiming that the president of the United States by definition cannot do anything illegal. Because whatever crime the President commits, it’s de facto legal.

    It is absolutely amazing to hear an American make this kind of claim. That’s exactly the same claim the Nazis made at Nuremberg — “We were only following orders. If the Reich ordered it, it must have been legal.”

    Unbelievable.

    Absolutely unbe-f***ing-lievable.

    America has degenerated into barbarism and American citizens have turned into Lord of the Flies.

    Enjoy the paltry few years of bogus illusory “freedom” you have left, folks–as Brad deLong concluded at a 50th anniversary symposium of legal scholars recently, there is no hope for the rule of law in America.

    This is a lost nation, a lost people who have abandoned common human decency and thrown away the most elementary fundaments of civilization. The downward spiral has accelerated out of control and from now on, America’s descent into the abyss is unstoppable.

  7. 7.

    matoko_chan

    March 7, 2011 at 10:13 pm

    Am I your muse? Because that is what I just told mclaren.
    Because I always wanted to be Kalliope or Terpsichore, and you guys keep forcing me to play Melpomene.

  8. 8.

    browser

    March 7, 2011 at 10:14 pm

    The majority opinion was delivered by Clarence Thomas, who just sat there and said nothing.

  9. 9.

    eemom

    March 7, 2011 at 10:18 pm

    I’m taking my lawyer hat off, and putting my popcorn hat on.

  10. 10.

    Superluminar

    March 7, 2011 at 10:20 pm

    @matoko_chan

    Because I always wanted to be Kalliope or Terpsichore, and you guys keep forcing me to play Melpomene.

    Noone’s forcing you not to shut up.

  11. 11.

    mclaren

    March 7, 2011 at 10:21 pm

    @eemom:

    I’m taking my lawyer hat off, and putting my popcorn hat on.

    Because the torture and extrajudicial murder of innocent human beings is so much fun to contemplate.

    Unbe-f***ing-lievable.

    The average American citizen now makes jokes about prison rape, and cracks wise about getting out the popcorn when talk turns to torture and assassination and kidnapping people off the streets in order to hurl ’em into dungeons forever without charges or a trial.

    Just…unbelievable.

  12. 12.

    matoko_chan

    March 7, 2011 at 10:22 pm

    @Superluminar: “refudiate” meh.
    That is all I ever ask.
    I dont think any of you are up to the task.
    Sadly.

  13. 13.

    Superluminar

    March 7, 2011 at 10:23 pm

    @eemom
    You know how I was joking in that other thread, right? It looks like some people took it as a challenge…

  14. 14.

    burnspbesq

    March 7, 2011 at 10:25 pm

    @mclaren:

    Just curious.

    What extrajudicial murder was at issue in al-Kidd v. Ashcroft?

  15. 15.

    Gustopher

    March 7, 2011 at 10:25 pm

    I don’t think detaining him on bad information was a horrible thing — things do happen. And $5000 one way ticket vs a $1600 round trip: either way he had plans to leave the country.

    The treatment he received was horrible, and unforgivable. Those who denied him justice are just as morally culpable as those who carried out the punishing detention.

  16. 16.

    General Stuck

    March 7, 2011 at 10:26 pm

    Chirac is going to be tried soon for some silly French version of a felony, and Berlosconi is likely going to be lawed in Italy for his running a whorehouse out of the state house.

    This is America, and we don’t try former presidents, no matter what. It didn’t start with Nixon or Bush, or Clinton for that matter. It is part of our national ethos to pardon the rascals and move on, or just ignore their crimes, even crimes against humanity. You can fight it, scream about it, take it out back and stomp it, but no one is to blame and everyone is to blame.

    I wrote in my own blog in 2007, after one too many Bush news conferences declaring himself the high sheriff, one too many times, and called for his impeachment pronto, no matter the politics. Of course nobody reads my blog, so it was a diary entry, at best.

    If a sitting president wants to commit political suicide, all they have to do is put on trial the former president, at least if they are of the other party. Obama could do it in a second term, theoretically, being a lame duck. But to do it now, would hand the empire over to wingnut for sure. Anyone who thinks different, is wrong.

  17. 17.

    Superluminar

    March 7, 2011 at 10:27 pm

    @matoko_chan
    I find that, on balance, efforts to refudiate crack addicts are often in vain.

  18. 18.

    The Dangerman

    March 7, 2011 at 10:30 pm

    @General Stuck:

    Obama could do it in a second term, theoretically, being a lame duck.

    Theoretically, yes; practically, no. It took 30 years to royally fuck up this country. It won’t be fixed in 8.

  19. 19.

    burnspbesq

    March 7, 2011 at 10:32 pm

    @Superluminar:

    I find that, on balance, efforts to refudiate crack addicts are often in vain.

    I don’t think there is any evidence that matoko-kun is involved with any controlled substances. “Crackpot” and “crack addict” are not the same thing.

  20. 20.

    WarMunchkin

    March 7, 2011 at 10:34 pm

    I bet Nixon is pretty mad right now, because what he did was a total jaywalk compared to what we have now.

  21. 21.

    Parallel 5ths (Jewish Steel)

    March 7, 2011 at 10:34 pm

    @browser:

    The majority opinion was delivered by Clarence Thomas, who just sat there and said nothing

    Ding! Won the thread in round 8.

  22. 22.

    burnspbesq

    March 7, 2011 at 10:34 pm

    @The Dangerman:

    Theoretically, yes; practically, no. It took 30 years to royally fuck up this country. It won’t be fixed in 8.

    Probably correct, but if you don’t start the journey you will never complete it.

  23. 23.

    matoko_chan

    March 7, 2011 at 10:39 pm

    @Superluminar: I dont do….drugs.
    My bodychemistry is more than adequate.
    C’mon, pick up the gauntlet.
    School me intellectually.
    if you can…..

  24. 24.

    mclaren

    March 7, 2011 at 10:40 pm

    @burnspbesq:

    Just curious: what makes you think I’m referring to Al-Kidd v. Ashcroft instead of Al-Awlaki when I talk about extrajudicial murder?

    The suit thrown out by Judge Bates is infinitely more scary than Al-Kidd v. Ashcroft.

    Judge John Bates’ decision says that an American citizen does not have the right to bring suit to a U.S. court to prevent himself from being assassinated.

    Think about that for a minute.

    Let the full horror of that court ruling sink in. Not only can the president of the united states order you assassinated without even accusing you a crime or bringing charges against you in a court of law…but your father or mother doesn’t even have the right to bring a legal action into an American court to prevent the president from murdering you.

    That’s not just extrajudicial murder, it’s extrajudicial murder with no recourse, no way to stop it, the federal courts will not even accept your legal motion to examine or prevent that extrajudicial murder.

    Now that’s extrajudicial murder. That goes beyond even what William the Conquerer agreed to, when he at least admitted to his barons that he owed them an accounting of why he tortured or killed one of his subjects after the fact. But Bush and now Obama assert that they don’t even owe anyone that much — and a federal court judge has agreed.

    I’m curious, burnspbesq. Does this kind of shit actually work in court? Can you actually put words into other peoples’ mouths and they will actually sit still for that?

    Really?

  25. 25.

    eemom

    March 7, 2011 at 10:40 pm

    @mclaren:

    sorry McPsycho. I’ve paid many, many prices over the years for my stupid decision to go to law school. Including, most recently, wasting my time arguing with equal to worse idiots than you right here on this very blog.

    This thread has the makings of many-splendored hilarity, and goddamn if I’m not gonna enjoy it.

    You know, the thread itself has nothing to do with the outcome of the case, the perversion of the justice system, or any other imminent disaster.

    …..or do you?

  26. 26.

    Parallel 5ths (Jewish Steel)

    March 7, 2011 at 10:42 pm

    @burnspbesq: You scared off mclaren.

    I wonder why he won’t take on an actual lawyer? People funny, boy.

  27. 27.

    gwangung

    March 7, 2011 at 10:44 pm

    You know, you ought to read Korematsu….this is not new…..

  28. 28.

    Omnes Omnibus

    March 7, 2011 at 10:47 pm

    I hope people realize that Constitutional law involves more than simply reading a section of the Constitution and deciding whether or not one thinks that a particular governmental actions complies with one’s interpretation of the section. There are over 200 years of jurisprudence interpreting the document, applying it to various fact patterns, and balancing the requirements of one provision against the prohibitions in another. There is a reason some people spend their lives studying this shit.

  29. 29.

    Murc

    March 7, 2011 at 10:47 pm

    @burnspbesq:

    Those who make the decisions don’t have the benefit of hindsight when they are making them.

    No, but they have the benefit of not fucking lying their asses off about things they damn well should have known better about. There’s a long miles worth of difference between ‘this guy behaved suspiciously, but turned out to be innocent’ and ‘we lied because we can’t do our jobs.’

    In fact, I will go out on a limb here; I say, unapologetically and fiercely, that even if al-Kidd has been actively plotting to blow some shit up and they’d found explosives and an ‘I Heart Osama’ t-shirt in his room, his treatment would STILL have represented a crime that both the people who carried it out and the U.S Government in general should have been called to account for.

    There is some argument for ‘this looks obvious in hindsight’ for tense situations out in the field. There is none when you have a man shackled naked to your floor and are putting the boot in.

  30. 30.

    mclaren

    March 7, 2011 at 10:47 pm

    @The Dangerman:

    It took 30 years to royally fuck up this country. It won’t be fixed in 8.

    30 years?

    No, that’s what so scary. On September 10 2001 we still had habeas corpus. On September 10 2001 the vast majority of the American people disapproved of torture in opinion polls. On September 10 2001, talking about kidnapping U.S. citizens without a trial or charges and hurling ’em into a black hole forever without letting ’em see a lawyer would’ve generated real fury in the average citizen.

    One day later…torture was fine. Assassinating an American citizen without charges? No problem. Kidnapping our own citizens? Fine ‘n dandy. Stopping people in public, on trains, on busses, without any probable cause, searching ’em from head to toe — no problem.

    What’s shocking to me is how incredibly rapidly America has degenerated into a poor imitation of East Germany in just the last 10 years.

    Today, the rule of law in America is dead. Habeas corpus, the foundation of Anglo Saxon jurisprudence since the magna carta…gone. America now has star chambers — we call ’em military commissions. And those star chambers use “evidence” collected by torturing the defendants, and convict the defendant in a secret trial using evidence his lawyer is not allowed to examine.

    We’re done. America is finished. There is no hope for us. We have sunk into barbarism worse than the rule of William the Conquerer, worse than the tyranny of Tamerlane or the “power of God on earth” that was etched into the sword of Genghis Khan.

    And in just 10 short years.

  31. 31.

    celticdragonchick

    March 7, 2011 at 10:48 pm

    @eemom:

    sorry McPsycho. I’ve paid many, many prices over the years for my stupid decision to go to law school. Including, most recently, wasting my time arguing with equal to worse idiots than you right here on this very blog.
    This thread has the makings of many-splendored hilarity, and goddamn if I’m not gonna enjoy it.

    I don’t know whether you are merely playing off cynical faux humor with sickeningly bad taste, or if you are actually as badly broken inside as you appear to be.

  32. 32.

    Parallel 5ths (Jewish Steel)

    March 7, 2011 at 10:49 pm

    @Parallel 5ths (Jewish Steel): Oh, there he is, rt above you. Way to notice stuff, knucklehead.

  33. 33.

    Superluminar

    March 7, 2011 at 10:50 pm

    @matoko_chan
    I certainly would school you (and it’s about time someone started), but you haven’t actually posted anything on this thread that constitutes an argument to be refuted.

  34. 34.

    celticdragonchick

    March 7, 2011 at 10:50 pm

    @mclaren:

    We’re done. America is finished. There is no hope for us. We have sunk into barbarism worse than the rule of William the Conquerer, worse than the tyranny of Tamerlane or the “power of God on earth” that was etched into the sword of Genghis Khan.
    And in just 10 short years.

    We did it in about four years. The other six have merely reinforced that.

  35. 35.

    matoko_chan

    March 7, 2011 at 10:51 pm

    @burnspbesq: why change chan to kun?
    I am curious. Do you think I should “grow up”?
    Or do you think I am a “young man”? That is the conventional use of kun in my cohort.

  36. 36.

    burnspbesq

    March 7, 2011 at 10:52 pm

    @mclaren:

    Just curious: what makes you think I’m referring to Al-Kidd v. Ashcroft instead of Al-Awlaki when I talk about extrajudicial murder?

    Umm, because the al-Kidd case is the topic of this post?

    Did I miss something? I thought al-Awlaki was still alive and well. And last time I checked, a decision by a U.S. District Court was about as non-final as non-final gets.

    Process matters.

    Gratuitously insulting people who are on your side doesn’t necessarily advance your cause.

  37. 37.

    General Stuck

    March 7, 2011 at 10:53 pm

    @mclaren:

    We’re done. America is finished. There is no hope for us. We have sunk into barbarism worse than the rule of William the Conquerer, worse than the tyranny of Tamerlane or the “power of God on earth” that was etched into the sword of Genghis Khan.

    Genghis Khan didn’t offer medicare, you maniac.

  38. 38.

    b-psycho

    March 7, 2011 at 10:56 pm

    @mclaren: If that’s all it took for “rule of law” to die…can we honestly say it ever lived?

  39. 39.

    Dennis SGMM

    March 7, 2011 at 10:57 pm

    @eemom:
    I feel sorry for your eechildren.

  40. 40.

    eemom

    March 7, 2011 at 11:00 pm

    @celticdragonchick:

    yes I’m broken. Broooookeeeen. Please, fix me, O Righteous One.

    I sense in your virtuous disdain, the presence of my true Savior.

  41. 41.

    Omnes Omnibus

    March 7, 2011 at 11:01 pm

    @mclaren:

    Habeas corpus, the foundation of Anglo Saxon jurisprudence since the magna carta…gone.

    Wrong, old bean. While Habeas Corpus is guaranteed in the Constitution, the procedures by which it is enforce have always been a statutory construct. They have loosened and tightened over time; sometimes, as now, severely limiting a federal judge’s power and, at other times, they have been less restrictive. Please feel free to call me an authoritarian, etc., but I am pointing out facts, not saying that I approve of them. As a matter of fact, I think that the rules for Habeas have been absurdly restrictive since the AEDPA in 1996. Nevertheless, Congress has the Constitutional authority to legislatively define Habeas procedures. Because you don’t like something or think it is morally wrong does not make it illegal or unconstitutional. Deal with it.

  42. 42.

    Parallel 5ths (Jewish Steel)

    March 7, 2011 at 11:02 pm

    William the Conquerer

    Who will speak for the silenced Saxon? The mangled Angle?

    What, too soon?

  43. 43.

    General Stuck

    March 7, 2011 at 11:02 pm

    This thread went to hell in record time.

    and @Dennis SGMM: WTF does eemoms children have to do with it. That is pretty piss poor low bringing them into your beef with eemom. Fuck this blog, jeebus h christ on a crutch.

  44. 44.

    eemom

    March 7, 2011 at 11:05 pm

    Y’all are right. I stand corrected. This thread is deeply serious and important.

    A handful of idiots talking out their asses about shit they know nothing about — really, that is ALL that stands between us and North Korea.

  45. 45.

    General Stuck

    March 7, 2011 at 11:09 pm

    I don’t think this country is evil. It sometimes does evil things, depending on what idiotic apathetic voters send into power at any given point in time, and is not the first country to qualify for that dubious category.

    But America is not evil, and is hardly beyond redemption as countries and history go.

  46. 46.

    matoko_chan

    March 7, 2011 at 11:11 pm

    Sillie, sillie Anne Laurie.
    Didn’t you know that “better 99 guilty men go free than one innocent man should suffer” only applies to White Christian ‘Murricans?
    You are such a naif.

  47. 47.

    nestor

    March 7, 2011 at 11:12 pm

    @eemom:

    that is ALL that stands between us and North Korea

    Well, that and everything else.

  48. 48.

    Superluminar

    March 7, 2011 at 11:12 pm

    Does anyone know what Glenn Greenwald thinks about this issue?

  49. 49.

    Mark S.

    March 7, 2011 at 11:13 pm

    Lee Gelernt of the ACLU tries to whip up a little indignation on the bench by reminding the justices of the “bedrock Fourth Amendment principle that a criminal suspect may not be arrested, absent probable cause to believe there has been a law violated.” He describes this as “fundamental to our traditions,” a “defining feature of our country,” and “steadfastly protected by this court for more than two centuries in both good and bad times.”

    I got to hand to Mr. Gelernt. I couldn’t have said that without laughing. And this statement by Scalia should be on his gravestone:

    But the Fourth Amendment doesn’t say you need probable cause.

    Mr. Originaltextualist.

  50. 50.

    Marc McKenzie

    March 7, 2011 at 11:13 pm

    @The Dangerman: And that, Dangerman, is the sad, harsh truth.

    Sure, it would be nice to grab Bush and co. by their shorthairs and give them the boot into a few prison cells, trials be damned. But in the real world–one where Americans have sadly had 30 years of Repub and Right wing bullshoot poured into their ears…it ain’t gonna happen. Plus, Bushco still have powerful allies (let’s not forget about the Four Horsemen of the Supreme Court) who would make sure to snarl up the works for years.

    General Struck is right–for Obama to have pursued this during his first term would have been suicide. And even if he makes the attempt in his (hopefully) second term, Bushco probably won’t face justice for many years.

    That’s just how things are–and no amount of screaming and yelling will change it.

  51. 51.

    Omnes Omnibus

    March 7, 2011 at 11:13 pm

    @Superluminar: Oh, that will really raise the tone of discourse around here.

  52. 52.

    Marc McKenzie

    March 7, 2011 at 11:18 pm

    @General Stuck: No good trying to explain it, General. Folks like mclaren would rather throw up their hands and sit it out while cussin’ and screaming all the way.

    You know, as an immigrant and naturalized citizen, I’ve wondered why I haven’t thrown up my hands like mclaren and just declared that we’re all f***ed. And then I realize that for all the flaws, for all the crap heaped on this country by the Right….it’s still the same country that took my family and me in when we left our country of origin.

    I’m not giving up on the US–because I know that repairing it is going to take time, and I mean years. Funny thing is, I remember President Obama telling us that on the night he won. I guess that mclaren wasn’t listening and still assumes that things can and must be fixed in two seconds or less.

    Oh well…

  53. 53.

    El Cid

    March 7, 2011 at 11:18 pm

    @General Stuck: But his government did actually move beyond ethnic discrimination in hiring and made religion more of a personal than a state matter.

  54. 54.

    mclaren

    March 7, 2011 at 11:19 pm

    @celticdragonchick:

    We did it in about four years. The other six have merely reinforced that.

    Sadly, I have to say you’re right.

  55. 55.

    Omnes Omnibus

    March 7, 2011 at 11:21 pm

    @El Cid: What was his position on Cap and Trade?

  56. 56.

    nestor

    March 7, 2011 at 11:26 pm

    @Superluminar:

    Glenn Greenwald is a big boy who can take care of himself.

  57. 57.

    El Cid

    March 7, 2011 at 11:26 pm

    @Mark S.: Just because the Fourth Amendment specifically requires a “probable cause” before any Warrants may be issued, it doesn’t actually mean that the Fourth Amendment requires a probable cause. Because shut up.

  58. 58.

    El Cid

    March 7, 2011 at 11:27 pm

    @Omnes Omnibus: He had some pretty cool hats, and when he took control of the entire Silk Road, trade fucking rocked.

  59. 59.

    Omnes Omnibus

    March 7, 2011 at 11:28 pm

    @El Cid: So he was in favor? It was a simple question, you lisping Spaniard.

  60. 60.

    General Stuck

    March 7, 2011 at 11:29 pm

    @El Cid:

    Teehee, A progressive conquerer.

  61. 61.

    El Cid

    March 7, 2011 at 11:31 pm

    Respect for the 4th Amendment and habeas corpus and other rudiments of the Consitution etc. waxes and wanes.

    For better than the first half of the 20th century, you could go to most places in the US and insist on your 1st Amendment rights, but you’d still get thrown in jail. There would always be some reason.

    I don’t see any possibility yet of a nascent political desire to reverse damages done to respect for individual rights when the term “terrorism” or “enemy” can somehow be invoked.

  62. 62.

    mclaren

    March 7, 2011 at 11:31 pm

    @b-psycho:

    If that’s all it took for “rule of law” to die…can we honestly say it ever lived?

    Well, we can look back in American history and we can see how our ancestors dealt with these kinds of issues.

    When Chinese coolies who were not citizens brought suit in a federal court to reverse their expulsion from the United States after the passage of the Chinese Exclusion Act of 1882:

    …both before and during the era of “Judicial Justice” the federal courts in California, where almost all of the approximately 10,000 [!] Chinese cases arose, generally protected the rights of Chinese litigants. The greater part of these cases involved petitions for habeas corpus to overturn negative rulings on admission to the United States by officials charged with administering the Chinese Exclusion Act.

    Source: Book review of Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law, by Lucy E. Salyer, Chapel Hill: University of North Carolina Press, 1995.

    These Chinese coolies were non-citizens and under a reasonable construction of the law, they had no standing to petition the court. Yet the federal court acknowledged their basic civil rights even though these Chinese coolies were not even U.S. citizens.

    Fast-forward 130 years and today lawyers like burnspbesq are using weasel-word sophistries to justify the torture or kidnapping or murder without trial of U.S. citizens.

    Think about that for a minute.

    In the 1882, Chinese non-citizen coolies were afford the right to petition federal courts and most of the time, the courts granted their petitions…even though the coolies had no legal standing to petition the court because they weren’t even citizens.

    Yet today, full American citizens do not even have legal standing to challenge a presidential order directing that they be assassinated without even accusing them of a crime.

    You tell me: was the rule of law alive in the 1880s?

    Is it still alive today?

    Examine the historical evidence. Draw your own conclusion.

  63. 63.

    Fucen Pneumatic Fuck Wrench Tarmal

    March 7, 2011 at 11:32 pm

    the only difference between the post st rudy day panic/power grab, and all of the others american history, is that this one has been playing out, from start to now in front of us. the bending of the arc of justice in other cases took decades and centuries to go from inciting incident to regret and embarrassment.

  64. 64.

    eemom

    March 7, 2011 at 11:33 pm

    actually, what is really hilarious is this: someone says “it took 30 years to fuck up this country,” and mcPsycho, the weeping Angel of Despair, responds “30? Naw, all it took was 10.”

    “Wrong, only FOUR!” retorts Celtic twit.

    Just as though this country was not, from the get-go, and without interruption, built on “torture,” “extrajudicial murder,” “barbarism,” and “the power of God on earth.”

    So you will excuse me if I sneer at your pious tears, you fucking frauds.

  65. 65.

    burnspbesq

    March 7, 2011 at 11:34 pm

    @Mark S.:

    Scalia’s statement is, in one sense, laughable. Of course the Fourth Amendment says that warrants may only issue on a showing of probable cause. But I knew exactly what he meant, and he does have a point. The courts have long recognized exceptions to the warrant requirement, and searches pursuant to one of those exceptions generally don’t require probable cause.

    When you practice law for 29 years, severe and irreversible brain damage is inevitable you figure out the code.

  66. 66.

    Omnes Omnibus

    March 7, 2011 at 11:36 pm

    @burnspbesq: A Terry stop, for example.

  67. 67.

    El Cid

    March 7, 2011 at 11:38 pm

    @Omnes Omnibus: There wasn’t much of a grasp of either carbon or oxygen at the time, so I think the best effort at cap and trade would have been silk caps made in China and gold-threaded in Mugal India.

    Given that there was no industrial use of fossil fuels yet, given the lack of industry, I think Temujin might have had a good argument to the effect that Al Gore would one day be fat.

  68. 68.

    eemom

    March 7, 2011 at 11:41 pm

    @Fucen Pneumatic Fuck Wrench Tarmal:

    well, yes. That IS a much nicer way of saying it.

  69. 69.

    Stefan

    March 7, 2011 at 11:41 pm

    I don’t think this country is evil. It sometimes does evil things,

    Just logically, you know what someone who sometimes does evil things is called?

    Evil.

    ” I don’t think I’m a murderer. I do sometimes murder people….”

  70. 70.

    nestor

    March 7, 2011 at 11:42 pm

    @mclaren:

    We have sunk into barbarism worse than the rule of William the Conquerer, worse than the tyranny of Tamerlane or the “power of God on earth” that was etched into the sword of Genghis Khan.

    Nonsense. I can casually worship Satan and still hold down a job.

  71. 71.

    burnspbesq

    March 7, 2011 at 11:48 pm

    @mclaren:

    It would be useful if you understood Article III of the Constitution a bit better.

    The federal courts have only the jurisdiction described in Article III, Section 2. They do not have, and never have had, a roving commission to root out all forms of injustice.

    No jurisdiction, no case. Simple as that.

  72. 72.

    Omnes Omnibus

    March 7, 2011 at 11:48 pm

    @Stefan: Of course, by that logic all countries are evil. Let’s revert to a state of nature. I wonder who is correct, Hobbes or Rousseau?

  73. 73.

    Stefan

    March 7, 2011 at 11:49 pm

    I don’t think this country is evil. It sometimes does evil things,

    I mean, for fuck’s sake, an evil person isn’t someone who does evil things ALL the time. He’s someone who does evil things sometimes — because “sometimes” is enough to earn the title.

    “Sure, most of the time he goes to work, plays with the dog, is nice to kids, volunteers at the PTA….and then, just sometimes, he kidnaps a hobo and takes him to his cabin to torture and murder. But only sometimes. Occasionally. So you can’t really call him ‘evil’ per se…”

  74. 74.

    Omnes Omnibus

    March 7, 2011 at 11:49 pm

    @El Cid: Nice answer. Thank you.

  75. 75.

    Stefan

    March 7, 2011 at 11:52 pm

    Of course, by that logic all countries are evil.

    Yeah, because Iceland and Norway and Denmark and Canada are also running their own state-sanctioned secret worldwide gulag of torture chambers. Hey, everyone does it. Why pick on us?

  76. 76.

    General Stuck

    March 7, 2011 at 11:54 pm

    @Stefan:

    A country is not a person, and logically, it is stupid make that jump and single out America for that label. The truth is there are few, if any, countries of men that have not murdered, or done other evil things state sponsered. So you are making the religious wingnut argument, that man itself is inherently evil by design, because every country is guilty to one degree or another.

    And you are left with either hopelessness borne of pan condemnation, or you can factor in the good deeds for ultimate judgment, and strive to do better.

  77. 77.

    Omnes Omnibus

    March 7, 2011 at 11:55 pm

    @Stefan: Now you are being a relativist. I am sure that each of those counties has done something evil. That is enough, isn’t it?

  78. 78.

    matoko_chan

    March 7, 2011 at 11:58 pm

    @mclaren: it actually took about 50 years…or 235 years if you prefer.
    It has ALWAYS been about race.
    Since the beginning.

  79. 79.

    General Stuck

    March 8, 2011 at 12:01 am

    @Stefan:

    Yeah, because Iceland and Norway and Denmark and Canada are also running their own state-sanctioned secret worldwide gulag of torture chambers. Hey, everyone does it. Why pick on us?

    Some countries let us use their land and airspace to carry these things out. And when you are making grand judgments on the evilness of American for certain things, it doesn’t mean those other countries are not doing other things to their citizens just as evil, even if on a much smaller scale.

  80. 80.

    Omnes Omnibus

    March 8, 2011 at 12:02 am

    @matoko_chan: If you want to talk race, that is an issue where we are making progress. Slow and uneven progress, but progress nonetheless.

  81. 81.

    burnspbesq

    March 8, 2011 at 12:03 am

    @matoko_chan:

    why change chan to kun?
    I am curious. Do you think I should “grow up”?

    Whether you should grow up is ultimately for you to decide. I encourage you to try it.

  82. 82.

    Omnes Omnibus

    March 8, 2011 at 12:05 am

    @burnspbesq: God help me, I got a mental picture of Gielgud in Arthur as I read that.

  83. 83.

    Stefan

    March 8, 2011 at 12:09 am

    Look, if America can’t be considered “evil” because either (a) Mom, he did it too, (b) a country isn’t a person and these labels don’t apply, and/or (c) this whole thing just makes me uncomfortable to think about, then logically, America can’t be considered “good” either.

    Agreed? You can’t at once say “it’s categorically impossible to apply the label of ‘evil’ to us” and then say “it is possible to apply the label of ‘good’ to us.”

    But Stuck didn’t seem to be saying, at first, that these labels can never be applied to any nation (in that case, Khmer Rouge Cambodia wasn’t evil because other countries committed genocide too). He was saying that we’re not evil because we do other things besides just evil things. And I’m saying that that’s not usually considered much of a mitigating argument when the rapist or murderer or child molester says hey, don’t judge me on my worst moment, let’s also look at all the good I’ve done…..

  84. 84.

    Omnes Omnibus

    March 8, 2011 at 12:14 am

    @Stefan: Actually, did anyone on this thread argue that the US is good?

    ETA: As Stuck said, countries aren’t people. One cannot judge them in the same way.

  85. 85.

    mclaren

    March 8, 2011 at 12:20 am

    @Omnes Omnibus:

    Wrong, old bean. While Habeas Corpus is guaranteed in the Constitution, the procedures by which it is enforce have always been a statutory construct. They have loosened and tightened over time; sometimes, as now, severely limiting a federal judge’s power and, at other times, they have been less restrictive. Please feel free to call me an authoritarian, etc., but I am pointing out facts, not saying that I approve of them. As a matter of fact, I think that the rules for Habeas have been absurdly restrictive since the AEDPA in 1996. Nevertheless, Congress has the Constitutional authority to legislatively define Habeas procedures.

    Actually, this is more weasel-word Jesuitical casuistry.

    “In its most general sense, due process of law is another term for rule of law, the principle that government cannot act against people unless it has a legal basis for doing so. This principle does not preclude most government takings of life, liberty and property, but only those that are arbitrary or capricious in nature. More specifically, due process of law requires that in order to deprive a person of life, liberty or property, the government must notify the person that it must do just that, and then must, in a fair hearing, convince an impartial judge or court that the person has violated some previously enacted, but valid, law.

    “In this general sense, due process of law has an ancient lineage. As early as 1215, it was guaranteed by the Magna Carta, one of several documents that now make up the English Constitution. Therein, the King of England promised that `[n]o freeman shall be arrested, or imprisoned, or disseized, or outlawed, or exiled, or in any way molested; nor will we proceed against him, unless by the lawful judgment of his peers, or by the law of the land.’ The principle of due process of law as reaffired in the Petition of Right (1628), for it said that English freemen could `be imprisoned or detained only by the law of the land, or by due process of the law, and not by the king’s special command without any charge.'”

    Source: Encyclopedia of American Civil Liberties, Vol. 1, ed. Paul Finkelman, pg. 462.

    The language of due process going back 900 years to 1215 is plain and unmistakable. A citizen could “be imprisoned or detained only by the law of the land, or by due process of the law, and not by the king’s special command without any charge.”

    There is no possibility of arguing, as omnes omnibus is attempting to do, that this or that matter of procedural minutia can possibly make legal a presidential order to murder a U.S. citizen without even charging him with a crime.

    It therefore follows (as the night follows the day) that a court cannot deny a petition by a U.S. citizen to block such an illegal presidential assassination. Claims that the defendant Al-Awlaki (in the case of a motion to stay the president’s executive order for extrajudicial assassination)
    or Al-Kiss (in the case of a petition for redress to a federal court for civil damages against Rumsfeld, who ordered the torture of the defendant) has no legal standing cannot stand, for as we have seen, in more than 10,000 petitions, federal courts granted judicial relief to Chinese coolies who were not even citizens and did not even have legal standing to petition the court.

    Does anyone else find it striking that the only two people on this thread with law degrees are nonchalantly using sophistries and jejune verbal calisthenics centering around trivial casuistries involving matters of nitpicking procedure, in order to legally justify extrajudicial torture and murder which has been recognized as prohibited by law since 1215?

    The two people on this thread with law degrees are offering infantile word-games so transparently shallow, in defense of atrocities so grotesque, that even Julius Streicher or Pol Pot would be embarrassed to be associated with these kinds of vacuous verbal gymnastics.

    Years from now, after a lot of American citizens have been knelt down in front of slit trenches and shot in the head by guys wearing official U.S. uniforms, we are going to see people like burnspbesq and eemom shuffle into court wearing orange jumpsuits and leg irons, and we’ll listen to them explain that “I was only following orders” and “it was legal because the government ordered it.”

    I don’t think the courts are going to look on those excuses with any more sympathy than it looked on the pleas of Herrmann Goering or Rudolf Hess or Baldur von Schirach.

  86. 86.

    El Cid

    March 8, 2011 at 12:25 am

    @Stefan:

    in that case, Khmer Rouge Cambodia wasn’t evil because other countries committed genocide too

    For example, the US which conducted constant aerial bombardment of peasant areas beginning under LBJ and then Nixon carpet bombing the peasantry into the hands of the formerly marginal lunatic Khmer Rouge, which never would have taken power had the US not destroyed agricultural production which led to a famine which maybe killed as many people as the Khmer Rouge did actively. But, you know, why quibble.

  87. 87.

    nestor

    March 8, 2011 at 12:28 am

    @mclaren:

    Jesuitical casuistry

    I had to look that up.

    You learn something every day.

  88. 88.

    General Stuck

    March 8, 2011 at 12:28 am

    @Stefan:

    But Stuck didn’t seem to be saying, at first, that these labels can never be applied to any nation (in that case, Khmer Rouge Cambodia wasn’t evil because other countries committed genocide too).

    I was saying no such thing, I said this country does and has done evil, so I am not dodging or excusing anything and my use of not “being evil” was not to deny that fact, but to push back on scorched earth in toto condemnation as those acts being the prevailing nature of this country. I don’t think it is, and that does not diminish the evil stuff we have done one bit.

  89. 89.

    mclaren

    March 8, 2011 at 12:30 am

    @burnspbesq:

    It would be useful if you understood the difference between procedural grounds for dismissing a case, and the fundamental rule of law. In the 1880s and 1890s federal courts granted the petitions of more than 10,000 Chinese coolies who were not even citizens and did not even have legal standing to petition the court because those courts understood (as you do not) that the fundamental rule of law trumps mere matters of procedure. When procedural tricks and minutia are used as a transparent excuse to deny equal protection of the law to anyone, the supreme court has long held that

    “The legislative power of a state can only be exerted in subordination to the fundamental principles of right and justice which the guaranty of due process in the Fourteenth Amendment is intended to preserve, and a purely arbitrary or capricious exercise of that power…is wholly at variance with those principles.”

    Truax v. Corrigan, 257 U.S. 312, 1921.

    burnspbesq goes on to embarrass himself by falsely asserting:

    No jurisdiction, no case. Simple as that.

    If that were true, all the federal courts would have uniformly rejected the petitions by those 10,000 Chinese coolies who were not even citizens and did not even have legal standing to petition to court. Instead, the federal court accepted 10,000 of those petitions and granted the vast majority of them.

    It would be a little more comforting if the lawyers on this thread actually had some minimal knowledge of the law, and the federal circuit court and supreme court precedents which bear on the law in these cases.

  90. 90.

    El Cid

    March 8, 2011 at 12:30 am

    @mclaren:

    Years from now, after a lot of American citizens have been knelt down in front of slit trenches and shot in the head by guys wearing official U.S. uniforms, we are going to see people like burnspbesq and eemom shuffle into court wearing orange jumpsuits and leg irons, and we’ll listen to them explain that “I was only following orders” and “it was legal because the government ordered it.”

    An interesting question is whether or not something is wrong when it’s done to one or two or three or several dozen people, or if it has to lead to being done against millions.

    I don’t think the number of those affected has much bearing on whether or not a particular or particular type of governmental authority action is right or not.

    In discussions of overall impact, clearly; but it doesn’t make it a more moral act if something is done to a smaller versus a larger number of people. It would just leave more people better off if a smaller number were affected.

  91. 91.

    matoko_chan

    March 8, 2011 at 12:33 am

    @Omnes Omnibus: so fucking what?
    we still live in a Martin Luther country, not a Martin Luther King country.

    But soon there will be a great leap forward, a giant step for americans if you will.
    tick…tick….tick…..

    ;)

  92. 92.

    Cam

    March 8, 2011 at 12:33 am

    @eemom: Full of sweetness and light, aren’t you? +6 or just really bitchy tonight?

  93. 93.

    Omnes Omnibus

    March 8, 2011 at 12:33 am

    @mclaren: Where, in this thread, did I mention al-Awlaki? I was specifically referring to your statement about Habeas Corpus. The law, in general, is more complicated than you appear to believe. You may now began your torrent of abuse.

  94. 94.

    Omnes Omnibus

    March 8, 2011 at 12:36 am

    @matoko_chan: Imperfect progress doesn’t count as progress?

  95. 95.

    Steeplejack

    March 8, 2011 at 12:37 am

    @matoko_chan:

    I’ve always thought of you as Anemone, the muse of anime.

  96. 96.

    mclaren

    March 8, 2011 at 12:40 am

    @General Stuck:

    General Crackpot Fake Name has successfully diverted all of you with a classic red herring.

    Courts do not decide whether defendants are “good” or “evil.” Courts only decide the legal guilt or innocence of defendants.

    And judges are not even charged with deciding that much, in America, at least where jury trials are empaneled. In a typical American court, the judge is charged with determining whether the evidence is sufficient to warrant bringing the defendant to trial, whether the lawyers who are arguing the case are doing so in accordance with proper legal procedure, and whether the evidence brought into the courtroom is being presented according to the rules of evidence and as allowed by legal precedent.

    No prosecutor has asked any court to bring charges against Anwar Al-Awalaki or against the plaintiff in the civil suit, Al-Kidd. No judge has ordered either of these two men tried in a court of law. No jury has ever heard their case.

    These two men have been kidnapped or ordered assassinated wholly outside the rule of law, without evidence, without charges, without any kind of legal proceeding whatsoever, on the mere say-so of George W. Bush (Al-Kidd) and Barack Obama (Al-Awlaki), ordering actions (in the words of the Magna Carta of 1215) “on the king’s special command without any charge.”

    Issues of good or evil are wholly irrelevant. The sole question here is whether George W. Bush and Barack Obama have acted in gross illegal violation of more than 900 years of Anglo-Saxon law and in contradiction to the fundamental rule of law which forms the basis of Western jurisprudence and Western civilization, going back to the Orestes cycle of blood vengeance dramas by Aeschylus in 458 B.C.E., the conclusion of which presents us with Apollo creating the jury system in order to break the cycle of blood vendetta.

    Without the jury system, we are back in the jungle. That is the issue. Western civilization has recognized this since at least 458 B.C.E., when the highest form of technology was a bronze sword.

    The only question before us is therefore whether we shall throw away 2500 years of civilization because a couple of dozen guys wearing dirty robes in caves in Waziristan have frightened us so badly.

    That, and only that, is the issue here.

  97. 97.

    FlipYrWhig

    March 8, 2011 at 12:42 am

    @matoko_chan:

    My bodychemistry is more than adequate.

    Suddenly it’s all clear.

    matoko_chan is Charlie Sheen.

  98. 98.

    mclaren

    March 8, 2011 at 12:44 am

    @Omnes Omnibus:

    Sir, the law may be complicated, but justice is simple. It consists in doing what is right. And almost everyone on this thread understands, I think, full well that kidnapping and torturing people without even charging them with a crime is wrong. Ordering a U.S. citizen to be murdered without even charging them with a crime is wrong.

  99. 99.

    Omnes Omnibus

    March 8, 2011 at 12:47 am

    @mclaren: And yet Habeas Corpus is law. It is administered through rules and laws set out by courts and legislatures. You have yet to explain in what way Habeas Corpus has been destroyed.

  100. 100.

    General Stuck

    March 8, 2011 at 12:49 am

    @mclaren:

    The only question before us is therefore whether we shall throw away 2500 years of civilization because a couple of dozen guys wearing dirty robes in caves in Waziristan have frightened us so badly.

    Civilization has waxed and waned and has been thrown away and recovered at various times during those 2500 years, by various humans and countries TNTC. I think El Cid pointed this out earlier in the thread. But of course your coconut views reality through a looking glass permanently focused on Dante’s Inferno, and Obama.

  101. 101.

    nestor

    March 8, 2011 at 12:52 am

    @mclaren:

    Western civilization has recognized this since at least 458 B.C.E., when the highest form of technology was a bronze sword

    Bronze swords kick ass.

  102. 102.

    Omnes Omnibus

    March 8, 2011 at 12:58 am

    @mclaren: You are now arguing justice. Earlier, you were arguing law. The concepts are related but not interchangeable. If someone tells you that an act is legal or constitutional, that person is not necessarily saying that the act is moral. The person is not necessarily advocating that act. The person is simply saying that in his/her judgment the act is not forbidden by current law. Weirdly, lawyers tend to have a better idea of which acts are legal and which are illegal than non-lawyers. Lawyers tend not to give moral advice. People must decide on their own whether or not an act is moral.

  103. 103.

    mclaren

    March 8, 2011 at 12:59 am

    @Omnes Omnibus:

    To the contrary: I have explained clearly and plainly how habeas corpus has been violated, and I have cited a Supreme Court precedent to back up my assertion.

    “The legislative power of a state can only be exerted in subordination to the fundamental principles of right and justice which the guaranty of due process in the Fourteenth Amendment is intended to preserve, and a purely arbitrary or capricious exercise of that power…is wholly at variance with those principles.”

    Truax v. Corrigan, 257 U.S. 312, 1921.

    People like you and burnspbesq make shallow arguments which involve using the AUMF (a mere resolution passed by congress) to invalidate the 5th and 6th and 8th and 14th amendments of the constitution. As Truax v. Corrigan assures us, this is a legally invalid argument and cannot stand. The supreme court has long since ruled that no mere resolution passed by congress can wipe out the fundamental requirement of due process of law.

    And clearly when Al-Kidd was kidnapped and drugged and flown to a third world country to be tortured mercilessly without charges and without a lawyer, any reasonable person must understand that his basic rights of due process were violated. That is elementary.

    Likewise, when Barack Obama ordered the assassination of U.S. citizen Anwar Al-Awlaki without charges or a trial, that was also a violation of due process.

    Habeas corpus means “you are to have the body.” It is the fundamental requirement that a person have the right to dispute his inmprisonment, and if the state cannot produce sufficient evidence to charge him with a crime, he must be released. The United States acted against both Al-Kidd and Al-Awlaki without charging either of these two men with any crime. Neither of these two men ever had the opportunity to even present a motion to a court challenging the state’s right to imprison them (Al-Kidd) or deprive him of life (Al-Awlaki). That’s denial of basic habeas corpus rights.

    In North Korea, that kind of thing doesn’t raise any eyebrows. If King Jong Il doesn’t like you, the state kidnaps you and tortures you and shoots you in the head.

    In America, we’re supposed to do things differently. We’re supposed to be a little better than North Korea.

  104. 104.

    Yutsano

    March 8, 2011 at 12:59 am

    @Steeplejack: I call foul good sir. Ed could run circles around that one without even lifting a finger And don’t even get me started on Einie.

  105. 105.

    matoko_chan

    March 8, 2011 at 1:00 am

    @nestor: Dude the Golden Horde kicked ass. You should read at the Mongoliad.

    but….im curious about the engraved text. Chenggis was into shamanism, big time. It was a huge part of his success.

    the “power of God on earth” that was etched into the sword of Genghis Khan.

    that sounds terribly monotheistic.
    Source?
    mclaren? anyone?

  106. 106.

    mclaren

    March 8, 2011 at 1:02 am

    @Omnes Omnibus:

    You are now arguing justice. Earlier, you were arguing law. The concepts are related but not interchangeable.

    Actually, I’m arguing both. More to the point, I’m making the argument that justice trumps the technical minutia of procedural law, and I’ve cited federal court cases aplenty which support my claim.

  107. 107.

    matoko_chan

    March 8, 2011 at 1:04 am

    ANNE LAURIE: When the DoJ Does It, Then That Is Not Illegal
    MCLAREN: When Obama Does It, It IS Illegal.

    I’m so confused.
    ;)

  108. 108.

    mclaren

    March 8, 2011 at 1:05 am

    @matoko_chan:

    Google is your friend. You really want to type the phrase into google before you embarrass yourself by asking these kinds of questions.

    The seal used on [Genghis Khan’s] correspondence identified him as “God in heaven, the Kah Khan, the power of God on earth. The Seal of the Emperor of Mankind.”

    Source: University of Berkeley curriculum, The Life and Times of Chingis Khan.

  109. 109.

    matoko_chan

    March 8, 2011 at 1:12 am

    @mclaren: im not embarrassed, just curious.
    That doesnt seem very shamanistic. I’ll have to read about it…tyvm for the link.

    ANNE LAURIE: When the DoJ Does It, Then That Is Not Illegal
    MCLAREN: When Obama Does It, It IS Illegal.

    I think you are both confusing illegal with unjust.

    Like the Prophet (PBUH) famously said, a nation can survive without god, but a nation cannot exist without justice.

    America has become an unjust nation.
    Is there a cure?

  110. 110.

    Steeplejack

    March 8, 2011 at 1:12 am

    @Yutsano:

    I confess I am sort of nonplussed. I am as much a rageaholic as the next man, assuming the next man is bitter, middle-aged and grossly under-employed, but Matoko_chan just doesn’t get to me. I think her IQ mania borders on 1920s eugenics, but she occasionally makes a good point. And it’s just as easy to skip over her posts as it is the ones by any of the other boneheads (myself included) here at Balloon Juice.

    I do find that automatically picturing Edward when I see her name is a big help, though.

  111. 111.

    mclaren

    March 8, 2011 at 1:12 am

    @matoko_chan:

    I’m so confused.

    You are indeed confused. This is the classic post hoc, propter hoc fallacy. Merely because if A therefore B, it does not follow that if not A, therefore not B.

    The claim that everything the DOJ does must be legal is invalid because it claims that if A therefore always B, which does not follow. The rule of law is superior to the DOJ, as we know because various attorneys general have been sent to prison for violating the law, and Richard Nixon was voted to be impeached for committing high crimes and misdemeanors (though a trial in the senate was never held because Nixon resigned).

    The reverse claim is equally invalid: not everything Obama does is illegal. I have identified 6 specific acts Obama has committed as president which are federal felonies. That’s a far cry from “whatever Obama does, IS illegal.” Obama can commit one or more illegal acts without everything he does being illegal, or even the vast majority of his acts being illegal.

    But we do not hold people legally accountable for the majority of their actions: a holdup guy who shoots a liquor store owner can’t argue “of all the things I’ve done in my life, I only did that one that was illegal.” Likewise, in order to convict someone of a crime it is not necessary to prove that all their actions in their entire life were illegal. Proof of one illegal act is enough.

    In addition to learning how to use google, you might want to take a refresher course in high school logic.

  112. 112.

    celticdragonchick

    March 8, 2011 at 1:12 am

    @Omnes Omnibus:

    I wonder who is correct, Hobbes or Rousseau?

    Easy.

    Hobbes. Hands down.

  113. 113.

    Omnes Omnibus

    March 8, 2011 at 1:13 am

    @mclaren: Truax v. Corrigan isn’t a habeas case. It isn’t a criminal case. When arguing law, one can’t simply pull a quotation that sounds good from a random case. Sorry, it does not work that way.

    With that, I am going to bed.

  114. 114.

    Mnemosyne

    March 8, 2011 at 1:13 am

    @Stefan:

    Yeah, because Iceland and Norway and Denmark and Canada are also running their own state-sanctioned secret worldwide gulag of torture chambers.

    I guess you never heard of Maher Arar if you think Canada is squeaky-clean when it comes to “terrorists.”

  115. 115.

    mclaren

    March 8, 2011 at 1:15 am

    @matoko_chan:

    America has become an unjust nation.

    Is there a cure?

    Aeschylus depicted Apollo giving us that solution at the end of the Orestes trilogy.

    It’s called a trial by jury.

    When the criminals who resided in the White House are tried and convicted for their crimes, America will cease to be an unjust nation.

  116. 116.

    Odie Hugh Manatee

    March 8, 2011 at 1:18 am

    @Omnes Omnibus:

    This thread is just wanktastic! Here a wanker, there a wanker, everywhere a wanker. I’m not a wanker so I feel left out of the wanktastic time the wankers are having.

    For some reason that’s just fine with me.

    I’m off to kill zombies in L4D2 since reading them here isn’t as much fun.

  117. 117.

    El Cid

    March 8, 2011 at 1:19 am

    @General Stuck: Actually, I was more pointing out that our Consitutional rights have been honored as much as, if not more, in the breach.

    Overall, you get Constitutional rights when you fight for them, or in the case of the 1st Amendment, practice them without yielding to authority’s demand that you don’t. In combination with lots of other factors.

    Pointing out that respect for apparent fundamental Constitutional rights rises and drops is not a prediction that one fall will be followed by a rise. We don’t know.

  118. 118.

    mclaren

    March 8, 2011 at 1:20 am

    @celticdragonchick:

    Yes, Jared Diamond has cited a lot of anthropological evidence showing that in isolated primitive tribes, the murder rate goes through the roof. It’s about 10 times what it is in the worst drug slums in Sao Paolo or in the murder capital of Colombia. The high murder rate in isolated primitive tribes is due to the cycle of blood vengeance. Some guy kills someone’s brother to avenage an insult, that victim’s father kills the murderer, the other victim’s son kills the other guy’s father…and it goes on and on and for generations, year after year, decade after decade. See Guns, Germs and Steel for details.

    One good piece of news: per capita violence has steady dropped throughout recorded history. Stephen Pinker has an excellent article about that called “A History of Violence.”

    Mankind has become exponentially more peaceful over just our lifetimes, and evidence suggests the process is continuing.

  119. 119.

    matoko_chan

    March 8, 2011 at 1:20 am

    @mclaren: nope. I answered my own question.
    You and Anne Laurie are both confusing the Law and Justice.
    The law is supposed to deliver justice.
    But there can be bad laws that do not deliver justice.
    So illegal and unjust are not equivalent.

  120. 120.

    mclaren

    March 8, 2011 at 1:21 am

    @matoko_chan:

    …There can be bad laws that do not deliver justice.

    So illegal and unjust are not equivalent.

    We can certainly agree on that.

  121. 121.

    Seth Owen

    March 8, 2011 at 1:22 am

    @Mnemosyne:

    Canada, however, actually held an inquiry, published the results and apologized for its role in the episode. Squeaky clean? No. Filthy dirty? Also no.

  122. 122.

    matoko_chan

    March 8, 2011 at 1:24 am

    @mclaren: Jared Diamond is a huckster, a commercial whore, and a western culture chauvinist.
    If you bought his book you were robbed.

    Check this out mclaren….why are there no muslim Madama Butterflies?
    Because…..wait for it……there is no prostitute class in islamic cultures.
    Cultures are different.

  123. 123.

    matoko_chan

    March 8, 2011 at 1:25 am

    @mclaren: Then….. what you MEANT to say is that Obamas actions are unjust, not illegal.

  124. 124.

    mclaren

    March 8, 2011 at 1:27 am

    @matoko_chan:

    Or one from column C: both.

  125. 125.

    mclaren

    March 8, 2011 at 1:30 am

    @matoko_chan:

    Because…..wait for it……there is no prostitute class in islamic cultures.

    Drugs and prostitution soar in Iran.

    BBC News, 6 July 2000.

  126. 126.

    matoko_chan

    March 8, 2011 at 1:31 am

    @mclaren: No, sorry. The DoJ is empowered by LAW to interpret. So Obama’s actions cannot be “illegal” ….they can only be unjust….in this timeslice.
    You are wrong.

  127. 127.

    matoko_chan

    March 8, 2011 at 1:32 am

    @mclaren: Doubtful. The BBC dont have good sources there. Do you believe everything on FOXnews?
    And my opera reference was to half muslim warbabies.
    Seen any of those?

  128. 128.

    The Republic of Stupidity

    March 8, 2011 at 1:40 am

    @General Stuck:

    T

    his thread went to hell in record time.

    Yeeeeeeeeeeeee gawds…

    Truer words have rarely been spoken…

    I’m only up to Comment #43 and have another 80 to and already this thing has come completely unraveled…

    Like a freight train on a dirt road, I say…

    The tone here at BJ has grown decidedly darker over the last few months…

    Just sayin…

  129. 129.

    matoko_chan

    March 8, 2011 at 1:45 am

    crickets?

  130. 130.

    Jason In the Peg

    March 8, 2011 at 2:17 am

    What exactly is the difference between these two quotes?

    This:

    actually, what is really hilarious is this: someone says “it took 30 years to fuck up this country,” and mcPsycho, the weeping Angel of Despair, responds “30? Naw, all it took was 10.”

    “Wrong, only FOUR!” retorts Celtic twit.

    Just as though this country was not, from the get-go, and without interruption, built on “torture,” “extrajudicial murder,” “barbarism,” and “the power of God on earth.”

    So you will excuse me if I sneer at your pious tears, you fucking frauds.

    And this:

    it actually took about 50 years…or 235 years if you prefer.
    It has ALWAYS been about race.
    Since the beginning.

    Because I’m not seeing any.

    eta: WTF with the block quotes? They appear in edit to be good. Perhaps that’s where my answer lies?

  131. 131.

    El Cid

    March 8, 2011 at 2:21 am

    In reading Bob Herbert’s column about the Congressional hearings by Rep Peter King (R-NY) on “WHY IZ THE MOOZLIM TEH EEViL?” I encountered this factoid I didn’t know and I think would rather not have known:

    Mr. King was able to concoct the anti-Muslim ugliness in his 2004 novel, “Vale of Tears,” in which New York is hit yet again by terrorists and, surprise, the hero of the piece is a congressman from Long Island.

  132. 132.

    Mnemosyne

    March 8, 2011 at 2:28 am

    @El Cid:

    Fun fact: Peter King has been a huge supporter of the Irish Republican Army, especially when they were bombing London in the 1980s. After all, the IRA is all white people, so they can’t be terrorists by definition, amirite?

  133. 133.

    The Republic of Stupidity

    March 8, 2011 at 2:41 am

    @El Cid:

    Yeaaaaaaaaaaaah…

    T’anks for pointin’ that out…

    I’ll hafta make sure I read King’s magnum opie…

    As soon as I’m thru w/ Those Who Trespass and The Apprentice…

    And I quote…

    It is set in northern Japan in winter 1903, and centers on a group of travelers stranded at a remote inn due to a smallpox epidemic. It has been described as “a thriller … that includes references to bestiality, pedophilia and rape.”[2] It is the first and only novel that Libby has written.

    And if I’m not mistaken, most likely the LSAT novel Scooter will ever write…

    What IS it w/ righties and the diddling of the kiddies?

  134. 134.

    matoko_chan

    March 8, 2011 at 3:12 am

    un bel di vedremo
    I like Callas voice so much.

  135. 135.

    El Cid

    March 8, 2011 at 3:46 am

    @Mnemosyne: Correct. But did he write a novel in which a Congressman from New York heroically saves a small Catholic school from Unionist thugs by shipping them boxes of guns?

  136. 136.

    El Cid

    March 8, 2011 at 3:48 am

    @The Republic of Stupidity: I didn’t mention Horatio Alger’s proclivity for getting in trouble for sexual misconduct with children, in the Boboblog thread.

  137. 137.

    Martin Gifford

    March 8, 2011 at 3:53 am

    @Marc McKenzie:

    General Struck is right—for Obama to have pursued this during his first term would have been suicide.

    It wouldn’t have been suicide if it had been handled skillfully. But who cares anyway? You are saying that Obama put his political career ahead of doing the right thing and correcting course for America. Yikes.

    That’s just how things are—and no amount of screaming and yelling will change it.

    Banal waves of the hand won’t change it either. If people accurately describe and skillfully respond to the reality of America’s ongoing decay, then things would change for the better. To fight for the president’s impotence is to go in the wrong direction.

  138. 138.

    Xenos

    March 8, 2011 at 4:48 am

    @mclaren:

    Actually, this is more weasel-word Jesuitical casuistry

    As a protestant who deliberately went to a Jesuit law school, I take that as a compliment.

    As to the substance of your comment, standing is a very complex issue. I disagree with the rulings about standing that have come out of the conservative USSC over the last couple decades. While the examples you give here have some disturbing ramifications, they are well within the standards for determining standing that the most liberal USSC justices have argued for in our lifetimes.

    The coolie labor cases make for an interesting illustration of these issues, but immigration law comes out of a completely different section of the constitution and one should be very wary of construing anything back and forth between criminal law and immigration law. Among attorneys, that sort of thing indicates a lawyer who is seriously out of his depth and is in the process of making a fool of himself. It is akin to yelling about the admission of hearsay evidence in an administrative hearing.

  139. 139.

    Xenos

    March 8, 2011 at 4:54 am

    @El Cid:

    I didn’t mention Horatio Alger’s proclivity for getting in trouble for sexual misconduct with children, in the Boboblog thread.

    There is a reason why the NYC chapter of NAMBLA is named in honor of Horatio Alger. A useful fact to point out to the glibertarian pull-yourself-up-by-the-bootstraps types.

  140. 140.

    joe from Lowell

    March 8, 2011 at 8:35 am

    “It is never a good think to make a prosecutor flinch.”

    Great jumping chocolate Jesus on a pogo stick! How can a anybody say that?

  141. 141.

    Snarki, child of Loki

    March 8, 2011 at 8:52 am

    @The Republic of Stupidity:

    What IS it w/ righties and the diddling of the kiddies?

    Bumper sticker from 2006:

    GOP: come for the corruption, stay for the pedophilia!

  142. 142.

    Barry

    March 8, 2011 at 9:41 am

    @burnspbesq: “Those who make the decisions don’t have the benefit of hindsight when they are making them.”

    First, as has been pointed out, the people allegedly not having the benefit of hindsight are also lying – that puts things beyond a reasonable doubt right there.

    Second – holding him naked and chained? That, again is not a hindsight issue.

    Third – what things did the Bush/Cheney cabal do under this supposed pressure that they did *not* want to do? All I saw was them doing what they wanted, and claiming necessity.

  143. 143.

    Mnemosyne

    March 8, 2011 at 9:57 am

    Also, too, I think this entire thread is based on Anne Laurie misunderstanding what m_c was saying in her own inimitably incoherent way. She was pointing out that the Bush administration took the precaution of changing the law before they started out on this path so, until the courts decide otherwise, all of this stuff is actually legal. You know, the same way it was perfectly legal for African-American protesters to be dragged away from Woolworth’s counters and beaten by police for breaking Jim Crow laws.

    Legal =/= just, and conflating the two doesn’t do anyone’s argument any good.

  144. 144.

    Paul in KY

    March 8, 2011 at 10:24 am

    @matoko_chan: I read a biography of ‘The Oceanic Khan’ and I don’t remember anything about an etching on his sword.

  145. 145.

    Stefan

    March 8, 2011 at 2:45 pm

    I guess you never heard of Maher Arar if you think Canada is squeaky-clean when it comes to “terrorists.”

    I have indeed heard of Maher Arar — and that case does not prove the fact that Canada is running a secret illegal network of torture gulags just like the US, does it? Some units in the RCMP conspired with the US to kidnap and torture Mr. Arar, and when the facts came out the Canadian public was appalled, it caused a huge scandal, and Mr. Arar was apologized to and compensated by the Canadian government. It’s the exact opposite of the result in the US.

  146. 146.

    Marc McKenzie

    March 8, 2011 at 5:17 pm

    @Martin Gifford: (Shakes head sadly)

    Martin, let me put it this way…I stand by what I said. And while I understand your point of view, and accept it and respect it, I’m afraid I disagree with you.

    But first off, don’t put words in my mouth.

    That’s what you’re doing with this line:

    “You are saying that Obama put his political career ahead of doing the right thing and correcting course for America. Yikes.”

    Nope, I never said that, and I’m damned sure I didn’t imply it. Perhaps I should have made a flowchart, but I’m assuming that you’re an intelligent person with just another point of view.

    Look, it would be very nice to pursue Bushco and fling ’em all into jail. It would be thrilling to see them perp-walked into court, to see the judge throw the book (or books) at them, and then use a few choice words to describe what horrific human beings they were.

    But we don’t live in that world.

    “Banal waves of the hand won’t change it either. If people accurately describe and skillfully respond to the reality of America’s ongoing decay, then things would change for the better. To fight for the president’s impotence is to go in the wrong direction.”

    What “banal waves of the hand”? What if Obama had done exactly what you wanted and the end result was that BushCo still walked? And what about the time it would take? Do you really think that putting former Presidents and their cabinets on trial–for that matter, do you think the trial is going to happen in a snap?

    Balls no.

    And what would you charge BushCo with? What would be decided on? And more importantly, what if their defense lawyers went to the Supreme Court to throw the whole thing out?

    Honestly–and I’m not trying to be harsh to you–did you consider these factors or no?

    Or let me ask you this–would it have been better for Obama to let things in the US get worse and to not have done all the things he has done as President (and he has done quite a bit, but if you choose to ignore them, then that’s your choice) just to go after Bush and Company right from the get-go? Or would it be better, as General Stuck said, for him to wait until his second term to do that? After all, he cannot run for a third term.

    The only thing that worries me would be the s**tstorm the Repubs would raise, and Lord knows what they’ll do. If they are still in charge of the House after 2012, and if–God forbid–they end up in control of the Senate, then they would seriously do everything in their power to bring down Obama and his administration. And if you think I’m full of it for thinking about that, well, go right ahead, but it would tell me that you might not have noticed what the hell the Repubs have been saying and doing over the past two years.

    “To fight for the president’s impotence is to go in the wrong direction.”

    Excuse me? Have you really looked at what the President has done over the past two years? Please try and do so. And also remember–he’s the President, not the King of the US. He can only do so much. Yes, GWB ran around as if he was a blend of God and Sonny Jesus, but he was wrong.

    As I’ve said before in previous comments on previous posts…I’m all for honest, constructive criticism of this President. I’m sure he’d welcome it too.

    This President is a pragmatist, a practical man. Why that’s somehow a bad thing is beyond me, but that’s just how I see it. If you disagree, well, that’s fine.

  147. 147.

    Chuck Butcher

    March 8, 2011 at 5:41 pm

    Aw fer cripes sakes. The Amendments have been enforced in ways that no one who can read would consider reasonable for a long time. Perhaps you recent phenom folks would like to address RICO in light of the 4th. Maybe you’d like to explain some of your stance that the 2nd means the government has the right to arm itself in light of the millitia clause. Perhaps you’d care to explain HUAC and SSC in Congress in light of the 1st. Fuck me running – has any history been taught in the last 50 fucking years?

  148. 148.

    Chuck Butcher

    March 8, 2011 at 5:46 pm

    @Chuck Butcher: Since I have no permission to edit, maybe y’all will show me where the Framers intended Negroes, propertyless, etc to be included in the protections.

  149. 149.

    Martin Gifford

    March 8, 2011 at 5:50 pm

    @Marc McKenzie:

    But first off, don’t put words in my mouth. That’s what you’re doing with this line:

    “You are saying that Obama put his political career ahead of doing the right thing and correcting course for America. Yikes.”

    Nope, I never said that…

    You said: General Struck is right—for Obama to have pursued this during his first term would have been suicide.

    Look, it would be very nice to pursue Bushco and fling ‘em all into jail. It would be thrilling to see them perp-walked into court, to see the judge throw the book (or books) at them, and then use a few choice words to describe what horrific human beings they were. But we don’t live in that world.

    We don’t live in that world because people like you and Obama don’t fight for that world.

    What if Obama had done exactly what you wanted and the end result was that BushCo still walked?

    Then – at the least – a precedent of putting BushCo on trial will have been established and future presidents would be more careful.

    And what about the time it would take?

    What about the time it takes to take other criminals to trial? You are saying we cannot do the right thing because it will take time. Repbulicans don’t make all these excuses. They just push for what they want even if it is obviously immoral and illegal. Obama had morality and legality on his side and still all these excuses.

    And what would you charge BushCo with?

    Torture, outing a spy, starting wars on false evidence. BTW, I’d prosecute the Dems too.

    And more importantly, what if their defense lawyers went to the Supreme Court to throw the whole thing out?

    Oh my God, what if the bad guys tried to defend themselves? That would be a disaster!

    Honestly—and I’m not trying to be harsh to you—did you consider these factors or no?

    Not really. I just looked at what the right thing to do was. Democrats are the biggest excuse-makers imaginable. Things continually degrade and the Dems make excuses for not stopping it.

    Or let me ask you this—would it have been better for Obama to let things in the US get worse and to not have done all the things he has done as President (and he has done quite a bit, but if you choose to ignore them, then that’s your choice) just to go after Bush and Company right from the get-go? Or would it be better, as General Stuck said, for him to wait until his second term to do that? After all, he cannot run for a third term.

    False dichotomy. He could have gone after Bushco and done many good things – many more than he has done. Also, you are dreaming if you think he is going to do anything against Bushco in his second term.

    The only thing that worries me would be the s**tstorm the Repubs would raise, and Lord knows what they’ll do. If they are still in charge of the House after 2012, and if—God forbid—they end up in control of the Senate, then they would seriously do everything in their power to bring down Obama and his administration. And if you think I’m full of it for thinking about that, well, go right ahead, but it would tell me that you might not have noticed what the hell the Repubs have been saying and doing over the past two years.

    Wow. The Republicans will get angry and cause trouble unless we let them do immoral things and break the law, so we shouldn’t do anything. The Republicans are so powerful and mighty and the Dems are so weak and vulnerable, so we shouldn’t do anything.

    This President is a pragmatist, a practical man. Why that’s somehow a bad thing is beyond me, but that’s just how I see it. If you disagree, well, that’s fine.

    Doing the right thing is normally the most pragmatic, practical thing.

  150. 150.

    Marc McKenzie

    March 8, 2011 at 6:11 pm

    @Martin Gifford:

    You know, some days I seriously want to weep for the human race.

    After reading this, I feel this is one of those days.

    Let’s start from the top:

    “You said: General Struck is right—for Obama to have pursued this during his first term would have been suicide.”

    Yep, that’s what I said–just not the way you stated it.

    “We don’t live in that world because people like you and Obama don’t fight for that world.”

    Excuse me? What the hell makes you think he isn’t fighting for it? And is that the best you can spew out–this adolescent swill that’s on the level of a baby showing his pee-pee?

    “Then – at the least – a precedent of putting BushCo on trial will have been established and future presidents would be more careful.”

    Sure…like Nixon, right? Surely, Bush should’ve learned from Tricky Dick. Sadly, people have short memories and sooner or later, someone will feel that they can get away with it.

    “What about the time it takes to take other criminals to trial? You are saying we cannot do the right thing because it will take time.”

    No, I am saying that it may take several years. Are you even aware that most trials do not start right away? And if you think that I am saying to scrap it all, you’re dead f**king wrong. All I am saying is that it is going to take a lot of time and effort, and that sadly, most people will not want to be in this for the long haul.

    “Repbulicans don’t make all these excuses. They just push for what they want even if it is obviously immoral and illegal.”

    Yep, that’s why they’re bastards. Now…did you want Obama to act like them? Because it seems to me that folks like you want him to act like a liberal version of GWB. But I could be wrong.

    “And what would you charge BushCo with?

    Torture, outing a spy, starting wars on false evidence. BTW, I’d prosecute the Dems too.”

    Oh, another “things would be better if I would’ve done it” types. Oh well.

    You know what? I can’t respond anymore. You’ve decided to pursue a line of thought that sounds nice and neat but has no basis in reality. You’re the classic Frustrati–you wanted it all in two seconds or less, you wanted Obama to go Shuge Knight on GWB, and you’re all about revenge, not justice, and you’re all p’od that Obama hasn’t done every freaking thing you wanted.

    Well, too bad. Of course, you’re welcome to sit things out or to rage and scream and yell how everything’s sh*t, but that won’t change things.

    We’re done here. I had hoped to have a good discussion on a disagreement, but if you’re resorting to this nonsense, then I’d rather not shoot my blood pressure into the stratosphere.

    “Doing the right thing is normally the most pragmatic, practical thing.”

    Yeah…easy for you to say that, but things are not that way, not in the real world. Am I excusing this? No. But I’ve lived long enough and seen enough to realize that it’s far easier to say things like this, but it is very hard to carry out. It’s just an ugly thing about human nature.

  151. 151.

    Martin Gifford

    March 9, 2011 at 6:44 pm

    @Marc McKenzie:

    Your words help me understand why America is so screwed up. The current crop of Republicans push for evil, and the current crop of Democrats give a million excuses and rationalisations for letting it continue.

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