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. I know what the Military Commissions Act says Milano:


    `(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

    Saying something and doing it are two different things.

    Here’s what the Supreme Court said recently on this precise point:

    ‘ … interpreting a law to “entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions.”‘


    In other words, the Supreme Court asserts that is has the last word on the issue as to the justiciability of any legislation.

  2. The USSC’s ruling in Hamdan v. Rumsfeld ignored the basic separation of powers in US government. The court injected itself into a role that was never given to it constitutionally.

    US law recognizes that the executive plays the leading role in wartime, as commander in chief. This is by design and recognizes that the executive can act with a speed, unity and secrecy that the other branches of government cannot match. Congress is slow and deliberate, also by design. Making it a great policy body but not a great action body.

    Bush invoked his constitutional authority to fight an enemy that does not wear uniforms, targets civilians and violates every rule of civilized warfare. Wartime decisions, which often must be made under pressure of time and unique circumstances, do not always fit the general rules passed beforehand by legislatures. War is dangerous and unpredictable and best handled by a president who can act with “decision, activity, secrecy and dispatch,” in the words of the Federalist Papers.

    Congress has an important role but one exaggerated by critics of the war on terrorism. It could easily have blocked any aspect of the administration’s terrorism policies simply by removing funding or political support. It could have closed Guantanamo Bay in a day, if it wished.

    What makes this war different is not that the president acted while Congress watched but that the Supreme Court interfered while fighting was ongoing. Its effort to inject the Geneva Convention into the war on terrorism — even though the treaties do not include international conflict with non-states — smacks of judicial micromanagement. The Supreme Court has never before imposed its preferred interpretation of a treaty governing warfare on the president during war, and Geneva has never been understood to give enemy combatants rights in our courts. USSC justices used to appreciate the inherent uncertainties and dire circumstances of war, and the limits of their own abilities. No longer.

    But the Supreme Court didn’t have the last word. Congress and the president enacted law putting the court back in its traditional place, allowing for the usual combination of presidential initiative and general congressional support.

  3. econowit, my point is that if the US were simply looking for warm bodies to fill up GITMO, there wouldn’t be any bounties offered. The US would simply pick up the first random 300 men it encountered.

  4. “In other words, the Supreme Court asserts that is has the last word on the issue as to the justiciability of any legislation. ”

    congress and the president just said it doesn’t. The constitution has always said it doesn’t.

  5. “Can you show where either John Yoo or I am incorrect?”

    That’s more like the Milano I’ve been reading. You mean:

    “Can you show where either John Yoo or I are incorrect?”


  6. Is that a “no” then?

    Many people think that the word “Supreme” in Supreme Court means that it is somehow supreme over the other two branches of government. It isn’t. It simply has a different role, one that congress can limit. In this case, that’s exactly what congress did.

  7. milano803,

    On the face of it the US simply paid someone else “to pick up the first random 300 men it encountered”, because they are lazy and can afford to do so. They have had 5 years to prove otherwise.

    It is ludicrous for you to infer that the offering of large mass marketed bounties in third world countries, doesn’t add corrupt incentives to the procurement process over and above acquiring them up by conventional means.

  8. Why would the US pay to pick up 300 random men when it could have done so itself, faster and more cheaply? The fact that it can afford to have done so, doesn’tt mean it did. And I don’t find mobilizing 150,000 US troops to fall easily under the term “lazy”.

    If all the US wanted was 300 random muslim men, the military wouldn’t have even had to have left the US to pick them up.

  9. “Why would the US pay to pick up 300 random men when it could have done so itself”?
    I don’t know ask them, they seem to do a lot of strange and covert things?

    “faster and more cheaply”
    Do you honestly think it would be faster and cheaper for them to do it themselves by mobilising US troops?

    “And I don’t find mobilizing 150,000 US troops to fall easily under the term “lazyâ€?.
    Well it is less lazy than having them sit around on their backsides draining the payroll doing SFA.

  10. Yes, it would be faster and cheaper for the US to do it itself. The US troops are already there.

  11. They didn’t have many troops or control back in late 2001 to make it faster and cheaper, when they picked up Hicks.

    And in any case now with the troops there it is debatable whether it is faster and cheaper as you allude to. How long would it take and how much would it cost for a US troop on base pay and loading including all sundry costs to find a suitable candidate (given he is in a hostile foreign country that he probably doesn’t want to be in with a language barrier)? Would that be cheaper and quicker than a using a 3rd world peasant given the incentive of undreamed of wealth a mere $5000 would bring him? Doubt it milano803.

  12. I’m pretty sure that the US Dept of Defense has functions outside of filling GITMO.

  13. PrQ,
    Please do not interpret my earlier comment as a critisism of your comments policy in any way – on two bases:
    1. It is your blog and your to do with as you want.
    2. You may reall that, in respect of GMB I agreed with your decision to kick him off and, given the way he was writing at the time, it was correct.
    Jason has his own, unique, attitude and it certainly has caused some problems over at catallaxy – but it also has given us an opportunity to thrash out a few monetary policy issues at some great length.

  14. back to the point, though
    Milano803 – one of the real problems with this legislation and detention without trial is the precedent it sets. What is to stop a future President, with the support of Congress from declaring a “War on (insert term here)” and then locking up everyone who the President, on his (or her) sole authority, declares to be in some way associated with (insert term here)?
    The basic provisions of Habeus Corpus and the associated rights to protect against arbitrary detention should not, IMHO, ever be suspended for any reason. If an executive function is worried about how a judicial function can exercise oversight then there is a problem more basic than one that can be dealt with through the suspension of basic rights.

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