Dictatorial powers for Clinton ?

The passage by the US Congress of a bill that among other things abolishes habeas corpus for terrorism suspects, allows interrogation methods that would normally be classed as torture, and allows the President to declare legal residents of the United States to be enemy combatants has produced a predictably partisan divide. All but two Senate Republicans voted for the Bill (Lincoln Chafee opposed and Olympia Snowe did not vote), and most pro-Republican bloggers seem to have backed it with marginal qualifications.

Those of us who fear and distrust the Bush Administration naturally find it easy to see what harm could be done with powers like this. The Administration’s supporters, on the other hand, seem confident that only the likes of David Hicks and Jose Padilla have anything to fear.

So, for those who support the bill, it might be useful to consider the standard thought experiment recommended to all who support dictatorial powers for a leader on their own side. Think about what the other side might do with these powers.

For concreteness, suppose Hillary Clinton* is elected in 2008** with a Democratic majority in Congress, and appoints someone like Janet Reno as her Defence Secretary, and that some rightwing extremist takes a potshot at her. Suppose that the unsuccessful terrorist turns out to have drifted widely through the organisations that Clinton famously called the Vast Right Wing Conspiracy, ranging from organisations with a track record of association with terrorism, like Operation Rescue and the militia movement, to those of the mainstream right, not engaged in violence, but prone to the violent rhetoric of people like Ann Coulter.

The bill, as it stands, would give the Clinton Administration essentially unlimited powers over non-citizens legally resident in the US (or anywhere else in the world) and over US citizens found, by the Clinton Administration, to have provided material support for those involved in the attack. Given unlimited powers of search and seizure, and unfettered use of “aggressive interrogations”, it would be easy to find evidence of some criminal offence even in cases of people who had no connection whatsoever with the original case. The Bush Administration has set plenty of precedents for the kinds of shifting jurisdiction that can keep people locked up for years without ever facing trial.

Moreover, but in the wake of a domestic terror attack, it would be just about impossible to resist a demand for additional powers, drawing on precedents established by Bush. Ambiguous provisions of the existing bill could be clarified in ways that negated most of the protections currently given to US citizens.

And, although I may be corrected on this, there doesn’t appear to be any notion of prohibiting retrospectivity or of a statute of limitations. There would be nothing to stop the Clinton Administration revisiting cases of the 1990s, and applying the newly broadened definitions of enemy combatant to anyone who, for example, made threats against the government or government officials over those cases.

* I’ve picked her since she seems to be the Democrat most hated and feared by Republicans, and has regularly been accused by them of grave crimes, up to and including murder. I have no reason to suppose that, in the real world, she’s anything other than the opportunistic centre-rightist she appears to be.

** A standard response is that the side introducing the powers does not plan to allow a change of government. I don’t think this is true – everything I’ve seen from this lot suggests that they are commonly incapable of thinking through the consequences of their own actions.

68 thoughts on “Dictatorial powers for Clinton ?

  1. It will be an interesting test for US democracy over the next decade to see what happens with these powers. I guess alot depends on who is in the White House in 2009 onwards.

    These expanded powers should be reversed, and hopefully that will be done in a few years time. Or if that is not possible whoever is in the White House may refuse to use them, if they are wise enough. The worrying possibility is that they will start to be aggressively used. Imagine the outcome of an intelligence community where a lack of squeamishness about torture was a requirement to get promoted ?

  2. As the crisis in the US society widens ,and living standards fall,all parties will seek more powers to deal with the social crisis they face,
    All this seems par for the course in the next act of that great drama..”The Decline and faLL of the US empire “

  3. JQ, note the subtle difference between “…does not plan to…” and “…plans not to…”. The former is negative, an omission, and the latter is positive, a commission.

    I think it is absolutely accurate to say that the current lot do not plan to etc., etc., and that this is 100% consistent with your views of short termism. Your argument only rules out their planning not to etc., etc.

  4. Re the Restrictions of Freedom Legislation

    Which USA party has initiated the most items of ‘hard nosed’ social policy in the last 25 years?

    When a party is in power has one party decreased the use of extra-legal operations significantly compared to the other party?

    Is the Restriction of Freedom Legislation going to form a significant plank in the democratic policy in the forthcoming elections?

    My own opinion is that we will not see the dawn for 20 years. We will be very lucky not to see more draconian legislation
    enacted.

    We stood by while our policy elites trained us to respond to scare tactics. All they have to do now is press the right buttons.

  5. For my part was astonished and appalled at Guantamo revisited legislation being passed again. Howardism has spread to the US? Whoops, forgot. That’s where it came from in the first place.
    Follows the same trend globally; locales retreating into conservatism as their former rights and prerogatives are stripped back by global capital. All this aided and abetted by new technologies abused for surveillance and the power abused by anehtically-blinded mass media.
    Many neo-libs and flying squadders jeer at Cassandras like myself, as to the rise of dystopias. But this writer is glad he’s older rather than younger. The yuppies will get a nasty shock when they inherit the mess that eventually emerges to show its real nature, that they are so enthusiastic about now.

  6. At the risk of repeating myself, I will repeat myself and re-post what I posted on Weekend Reflections:

    “There is an interesting and also scary discussion on the recent passage of new anti-terror legislation by the US Congress here, at Economist’s View. How long will it be before we realise that far from needing the Americans to protect us, we need someone to protect us from the Americans. Looks like a DIY job to me.”

    I was glad to see the alarm and in some cases anger with which this piece of legislation was greeted by (I assume) mostly American commenters. Several actually used the words “Fascism” and “Fascist” – words you seldom see on US blogs. And, no doubt, PMLawrence will be tickled by the historical analogy with late republican Rome. Blogging, however, will not be enough to stop this.

  7. John,

    As I understand US constitutional law, ex post facto laws (what we would call retrospective laws) are unconstitutional. They get around the problem of the need to do retrospective fixes on misdrafted legisaltion with some clever fudges, but essentially, if I recall correctly, the US federal government cannot do retrospective laws.

  8. Whilst I appreciate our concern for the USA, I believe the situation re legislation restricting freedom in Australia is of the same order.

    Our legislation is more or less supported by both major parties.

    We have some effective debate which is trying to give some practical limits eg the recent Senate? Inquiry that recommended some better definitions for sedition etc.

    My own view is that energy is better spent say Blogging to help the development of an anti ‘scared’ Australian response.

    In practical terms demonising Bush et al is likely to be less effective than reducing the need here in Australia to worry about whose list of ‘risks’ you are on, or when the books you read are guilt by reading. When political jokes are risky to tell etc etc etc what are the triggers for you being held with no one able to tell of the imprisonment

    I thought the case of the 80 year old who yelled rubbish to Blair some little while ago was instructive. I believe that he was initially threatened with the anti-terrorist legislation. Luckily for him no one took the threat seriously so his plight was publicised. There was nothing in the legislation to have stopped him dropping out of sight for some time.

    Is our legislation any different?

    Let me declare my self interest I enjoy calling out rubbish.

  9. Obviously Hicks will not get a fair trial under this legislation. It is a moving of the goal posts to obtain a conviction where normal evidence would not obtain one. It specifically targets the Guantanamo Bay detainees and uses innuendo, conjecture and evidence obtained under dubious means to gain convictions.

    This legislation would not be tolerated if imposed on a US citizen. Terrorists like Timothy McVeigh the Oklahoma bomber would be afforded more rights than Hicks. The Americans obviously think Australians are second class citizens that should be treated differently. It is amazing how the Australian government can accept such double standards

    Military Commissions Act of 2006 -S.3930

    http://www.congress.gov

    Put S.3930ENR in bill number under search (Sepos don’t allow links to legislation for some stange reason)

    Hicks lawyer David Mcleod says “the military commissions will again be tested in the US Supreme Court�.

    “It’s almost assured that the Supreme Court of the United States will strike this military commission down as illegal in the same way as they did the first time,”

    http://www.abc.net.au/news/newsitems/200610/s1752972.htm

    Will it be deemed illegal and if so where would it leave hicks? In limbo for another 5 years no doubt.

  10. “Moreover, but in the wake of a domestic terror attack, it would be just about impossible to resist a demand for additional powers, drawing on precedents established by Bush.”

    The precedents were set by that darling of the left, Franklin Delano Rossevelt, decades ago, so you need not try and shift the blame onto George Bush.

    The difference between leftists like FDR and not-so-leftists like George Bush, is is that Bush and his crew haven’t used the powers they have to pack thousands of people they KNEW to be innocent off to concentration camps the way Roosevelt and his crew did in WWII.

    Bush and company also haven’t used their powers to try American citizens, and captured foreign terrorists in secret and then have them executed. Too bad you can’t say the same for leftists like Roosevelt.

    If people are worried about this sort of thing, the obvious answer is to make sure that leftists don’t get into positions of political power, they’re sure to abuse (like ordering children into concentration camps…executing captured saboteurs is o.k.), in the first place.

  11. If someone had told me 10 years ago that torture would soon be considered a proper subject for debate in liberal democracies I would have called them mad.

    I can hardly believe it when I here folk like Ruddock say that sleep deprivation dosesn’t constitute torture. Imagine being forced to stay awake for 100 hours or so. I’ve had personal experience of prolonged sleep deprivation, for reasons I won’t go into, so I can verify that it is a cruel form of suffering. I’d much rather have my legs and arms broken than go thru that again. It is also interesting to see RSL folk reject Ruddock’s foul view.

  12. “I can hardly believe it when I here folk like Ruddock say that sleep deprivation dosesn’t constitute torture.”

    Captured terrorists aren’t getting their beauty sleep?

    Boo hoo.

  13. [From a directive of the German High Command, “The Fight Against the Partisan Bands”, 6 May, 1944.]

    “All guerrillas captured in enemy uniforms or civilian clothing or surrendering during combat are to be treated on principle, as prisoners-of-war … the guerrillas must hear of this.”

    After years of mandating treatment of partisans as illegal combattants to be brutalised as German soldiers saw fit, even Hitler saw the error of his ways.

    Did Hitler suddenly turn soft? Of course not. He belatedly recognised that Germany’s bestial treatment of captured partisans was having the appalling effect of encouraging more to join the partisan bands.

    Eventually, even Hitler strove to stop playing the Sorcerer’s Apprentice. But too late!

    Boo Hoo.

  14. Dave,

    I think you mean captured terrorist suspects. Unless governments now have sufficient insight to determine guilt without the burden of relying on the traditional processes.

    Regards,
    Terje.

  15. Terje, please don’t feed the trolls.

    Dave’s comments give us some useful insight into the kind of thinking that drives support for these policies, but interaction with him is unlikely to be useful.

  16. Habeas corpus rights cannot be abolished for people who do not have them to begin with. Only US citizens and legal residents have habeas corpus rights in the US. If any nation believes that its citizens are being wrongly held by the US, then that nation should bring action with the US to release them.

  17. Milano, the main effect of the new law is to remove habeas corpus rights previously held by legal residents.

    As regards your second suggestion, what action did you have in mind, apart form asking nicely?

  18. “Only US citizens and legal residents have habeas corpus rights in the US.”

    “Amendment VI of the Constitution of the United States

    “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

    Where does it say that this applies only to US citizens?

  19. “Dave, I think you mean captured terrorist suspects.”

    I meant exactly what it sounded like. I have no sympathy for terrorists, and couldn’t care less whether or not they’re getting enough sleep to be bright eyed and bushy-tailed terrorists.

    “Dave’s comments give us some useful insight into the kind of thinking…”

    There’s a term for that: “rational thinking”. You should try it sometime. Perhaps, after you learn a little bit about the precedents behind some of the things the Bush administration has done, or wants to do (extremely watered down methods routinely employed by American socialists, i.e. the liberal Democrats, when they’ve held power). You might also study up on terms like “ex post facto law” before you start engaging in silly fantasies about retroactive application of laws.

  20. UUmm, Dave, a spot of rational thinking will lead you to the conclusion that there is a difference between a known terrorist, one whose fingerprints are on the bomb, who has been filmed talking to other terrorists, etc etc, and some bloke they think might be a terrorist but appear not to have decent evidence.

    I assume you are intelligent enough to see the difference?
    Maybe not. Your ignoring of the word “suspect” in your reply above suggests that is the case.

  21. “From a directive of the German High Command, “The Fight Against the Partisan Bandsâ€?, 6 May, 1944.”

    “Did Hitler suddenly turn soft? Of course not. He belatedly recognised that Germany’s bestial treatment of captured partisans was having the appalling effect of encouraging more to join the partisan bands.”

    Crapola. In the case of the French Resistance, the Germans continued to routinely execute captured partisans well after the Normandy invasion of June 1944 (for example, 15 captured FFI partisans were executed outside of Caen on June 7, 1944).

    The Germans quit executing captured FFI partisans for two reasons.

    1.) By late summer of 1944 they’d been pretty much driven out of France, so they weren’t capturing too many French partisans.

    2.) The partisans started executing captured Germans in reprisal.

    “By late summer 1944, many German soldiers had surrendered to the FFI, and the FFI was in a position to act. When it became known to the FFI that the Germans had executed eighty partisans and planned to execute more, the FFI announced that it would carry out eighty reprisal executions. The International Committee of the Red Cross (ICRC) sought to intervene and obtained a postponement pending an agreement by the Germans to grant the FFI legal combatant status. After six days without a German response, the FFI executed eighty German prisoners. It appears that no further FFI fighters were executed after that.”

    http://www.crimesofwar.org/thebook/reprisal-killing.html

    As per usual, the left wing loons don’t have the slightest idea what they’re talking about.

  22. One sign of an undisciplined mind is the inability to distinguish between intentiions and results.

  23. Katz, although the legislation may be ruled unconstitutional under Amendment VI, the Constitution gives the Congress the power to suspend habeas corpus in an emergency. In effect, the Military Commissions Act declares a permanent state of emergency. The informed opinion (Jack Balkin and others) is that (with the exception of some provisions affecting US citizens) its validity will be upheld.

  24. My reading of Balkin would tend to suggest otherwise:

    http://balkin.blogspot.com/2006/10/has-congress-unconstitutionally.html

    Balkin concedes that Congress has the power to abridge habeas corpus:

    “Article I, section 9 of the U.S. Constitution states that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.””

    Such an act takes authority away from the judiciary and gives it to the executive branch of government.

    Thus there are circumstances under which limits on executive power embodied in, among other provisions of the Constitution, the 6th Amendment, may be annulled.

    However, Balkin concludes:

    “The text of Article I, section 9, does not, at least on its face, commit this question exclusively to Congress. Article I, section 9 does not expand Congress’s powers, it places limits on them. Nor do the other prohibitions in Article I, section 9 appear to be nonjusticiable. Certainly the courts have regularly passed on whether Congress has passed an ex post facto law.

    “If Congress’s decision to suspend the writ were in all aspects unreviewable, Congress could suspend the writ forever, by declaring that the United States was in a permanent state of emergency. More importantly, it could suspend the writ for only a small class of persons who were politically powerless and politically unpopular.”

    Thus, Balkin states that the declaration of an open-ended state of emergency is in itself justiciable.

    Balkin is thus implying that Congess may have gone beyond its constitutional powers in its implicit definition of what may legally be defined as a state of emergency.

    Thus if the situation of the US is found not to be one constituting a state of emergency, then Congress may have no right to pass legislation pursuant to that alleged condition.

    And even if Congress does have that right, it has no right to pass legislation without a trigger clause that sets limits on the duration and scope of the alleged state of emergency.

  25. “One sign of an undisciplined mind is the inability to distinguish between intentiions and results.”

    I don’t know what your intent is, bud. Mine is to crush our enemies by being every bit as ruthless as the French resistance was.

  26. Dave,
    The point is that these are merely accused terrorists, not proven or convicted terrorists. Someone, somewhere, in the US government has made a decision to call someone a terrorist. The evidence has not been presented to a court, tested in front of a jury – anything. If someone in the US government said “Dave Surls is a terrorist”, under this legislation there is nothing you could do about it and you could be arrested and imprisoned indefinitely.
    That, I submit, is simply wrong – although it may have superficial attractions.
    If your intention is to “crush our enemies” that’s fine – but lets make sure that they are our enemies before we crush them.

  27. Dave Surls: “well after the Normandy invasion of June 1944 (for example, 15 captured FFI partisans were executed outside of Caen on June 7, 1944).”

    The Normandy invasion was on 6 June 1944. To this left wing loon, the day after wouldn’t seem to me to be “well after”. Moreover, the scene around Caen on 7 June was chaotic fighting of the sort depicted in Saving Private Ryan. It would be hard to detect much about any policy regarding executions of partisans or indeed uniformed soldier prisoners from what was going on there. I don’t doubt that German forces were well capable of atrocities right up until VE day, but perhaps you could have chosen a more cogent example before descending to personal abuse. Or maybe avoided personal abuse altogether. Which all begs the question: do right wing loons know what they’re talking about?

  28. D Surly, terrorist of the blogosphere. Be careful the rodent might have you extradited to an island of the US.

  29. Hal9000,
    Right wing loons are like left wing loons and no wing loons. Their political positions should not be used as an example of any entire class. Or should the politics of the leftwrites lot, for example boasting about theft from employers, be taken to be identical to those of our good host here? Clearly nonsence.

  30. PrQ,
    I like to think that we can all be reasoned with. That’s why I have been engaging in the Thread of Doom over a catallaxy for so long. Perhaps in one or two cases it is not possible, but I have never been afraid to give it a try. Even GMB is now debating with some restraint – the personal abuse continues, but the language has now moderated and he very rarely abuses me. If nothing else, it forces you to address and examine your own beliefs – and can provide some fun along the way.

  31. ‘The Normandy invasion was on 6 June 1944. To this left wing loon, the day after wouldn’t seem to me to be “well afterâ€?.’

    That’s nice. The Germans continued to execute captured partisans after that date.

    What was your point again?

    Mine was is is that the Germans didn’t quit executing captured French partisans because Hitler realized that executing partisans was creating more partisans. They quit executing captured French partisans for the reasons I gave (and my secondary point was that the Germans didn’t quit executing captured partisans after May 1944 as was implied in the initial post).

    IOW, the entire argument presented by Katz was a bunch of nonsense…as lefty arguments usually are.

  32. “Where does it say that this applies only to US citizens? ”

    and those who have a legal right to be in the US. Terrorists captured in Iraq and Afghanistan do not have habeas corpus rights. That is what is being recognized by the legislation.

  33. “The point is that these are merely accused terrorists, not proven or convicted terrorists. ”

    true

    “Someone, somewhere, in the US government has made a decision to call someone a terrorist. ”

    and you believe that this is done at someone’s whim? Someone just doesn’t care for the way somebody does their hair?

    “The evidence has not been presented to a court, tested in front of a jury – anything. If someone in the US government said “Dave Surls is a terroristâ€?, under this legislation there is nothing you could do about it and you could be arrested and imprisoned indefinitely.”

    Again, we go back to the fact that you have to be considering that the US has some malevolent purpose in deciding that out of millions and millions of people around the world, Dave Surls has been determined to be a terrorist simply for some mean purpose on the part of US government agents. What would be the gain in this? Do you believe that whoever it is in the US government who makes these determinations does so out of personal animosity for people they don’t actually know? To what purpose?

    “That, I submit, is simply wrong – although it may have superficial attractions.
    If your intention is to “crush our enemiesâ€? that’s fine – but lets make sure that they are our enemies before we crush them. ”

    Why do we all have to know for sure that they are our enemies? Should every US citizen be consulted on every case of a suspected terrorist held by the US government? And if so, why? What would be the reason for such action?

  34. AR, I managed to extract a commitment of polite behavior from the Catallaxy comment cartel, but it lasted only a few weeks. Attempting to reason with this kind of person generally produces the kind of trainwreck you can see over there. I’d prefer to keep my comment threads for discussion with people who are already reasonable, such as yourself.

    Milano, have you followed the numerous cases of people being seized and tortured on the basis of mistaken identity (Maher Arar is most notorious but there are many ohters) or village vendettas (many of those shipped to Gitmo from Afghanistan and subsequently released)? Call it animosity, call it whim, call it stupidity, all are at work and the result is the same in every case.

  35. No, I haven’t actually seen many cases of people being seized and tortured on the basis of mi’staken identity.

    I see no basis at all for a claim that the US is picking people up at random. It simply doesn’t make any sense.

  36. Milano, I don’t think self-confessed ignorance is a good basis for participation in debate. The fact that something “doesn’t make sense” to you, and isn’t reported on Fox News, doesn’t mean that it isn’t happening and isn’t well-documented by more reliable media. Go back and find out what it is you’re defending, and then you might be able to make some useful comments.

  37. Actually, I’m not defending anything. Nor is there much reason for defensiveness on your part. If you have some evidence that the US is simply picking people at random out of the millions it could detain and lock up, I’m more than willing to look at it.

  38. “Where does it say that this applies only to US citizens? �

    and those who have a legal right to be in the US. Terrorists captured in Iraq and Afghanistan do not have habeas corpus rights. That is what is being recognized by the legislation.

    Regardless of how persons come under the judisdiction of the US Constitution, they are subject to its laws and beneficiaries of the rights guaranteed under it.

    And as Balkin says (see above):

    “The text of Article I, section 9, does not, at least on its face, commit this question exclusively to Congress. Article I, section 9 does not expand Congress’s powers, it places limits on them. Nor do the other prohibitions in Article I, section 9 appear to be nonjusticiable. Certainly the courts have regularly passed on whether Congress has passed an ex post facto law.

    “If Congress’s decision to suspend the writ were in all aspects unreviewable, Congress could suspend the writ forever, by declaring that the United States was in a permanent state of emergency. More importantly, it could suspend the writ for only a small class of persons who were politically powerless and politically unpopular.�

    It isn’t the fact of suspension of habeus corpus which may be unconstitutional, it is the trigger invoked and the open-ended nature of the suspension which may well be justiciable.

    Thus all persons may well be equally protected against Congress’s abouse of its powers under Article I, section 9.

  39. No, they aren’t. That is precisely what Congress determined in the new legislation.

  40. milano803 Said:

    “I see no basis at all for a claim that the US is picking people up at random. It simply doesn’t make any sense.”

    If you go into a third world country and offer 20 years income for a terrorist, there is a high probability you will find one, even if there are no terrorists.

    There is documented admissions by the Americans that they are paying
    bounties of $US5, 000 or more.

    http://www.commondreams.org/headlines05/0531-10.htm

    It is alleged that a $5000 bounty was paid for Hicks procurement.

  41. bounties for nameless hapless individuals? Or bounties for named suspects? This rather makes my point. If all the US wanted was warm bodies to fill prisons like GITMO, there wouldn’t be any bounties, it would just pick up the first 300 men it found.

  42. “No, they aren’t. That is precisely what Congress determined in the new legislation.”

    As Balkin says, this is a question that may well be answered by the Supreme Court.

    Pay attention and read Balkin’s argument Milano.

    Balkin suggests that Congress may have gone beyond their powers in the way it framed the suspension of habeas corpus.

    Your bland assertion above may well be a misstatement of facts, based more than likely on wishful thinking.

  43. The legislation removes supreme court oversight. It basically says that this isn’t up to the SC.

  44. milano803 Said;

    “bounties for nameless hapless individuals? Or bounties for named suspects? This rather makes my point.�

    I fail to see your logic as IMO this endorses my point.

    Do you agree or disagree with this philosophical statement?

    Money corrupts.

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