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Power without constraint It is not just in the UK that the steady drum beat of the state encroaching on ancient liberties can be heard. There is some good discussion on 10 Zen Monkeys regarding the horrendous Military Commissions Act in the USA. However I do find the lack of concern about the effects on non-US subjects a bit disconcerting given the propensity of American courts to try and apply their laws extra-territorially.
Naturally these laws have been sold as only applying to The Bad Guys… just as RICO was sold as just being a tool to go after organised crime and yet it ended up being used again anti-abortion activists. Regardless of what the politicians say when they are selling a prospective law, once enacted, legislation gets used against anyone it can be used against, not just the targets intended at the time the laws is passed.
I must say that anyone without a US passport who is politically active and less than flattering about US government’s policies should serious reconsider taking that holiday in Florida or going to visit American friends.
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Given that ukgov has just prevailed in preventing revisions to the Extradition Act 2003, and US agents appear to have kidnapped suspects not just off the streets in Pakistan, but from countries as civilised as Italy, I’d say we have more to worry about than that.
I must say that anyone without a US passport who is politically active and less than flattering about US government’s policies should serious reconsider taking that holiday in Florida or going to visit American friends.
Or if your a vocal critic of any US ally, say the fluffy govt of turkmenistan…..
Typical CIA clandestine operation – they probably used a CIA Amex card to pay for the hotels …
..the lack of concern about the effects on non-US citizens..
We’re a bit picky about that particular noun, Perry.
-B.
“must say that anyone without a US passport who is politically active and less than flattering about US government’s policies should serious reconsider taking that holiday in Florida or going to visit American friends.”
That’s a gross exageration. Seems that if you’re not an enemy combatant (i.e. terrorist) there is not much to worry about. (And even then not, as they are unlikely to find you out).
The outcry agains possible abuses would be much more credible if there were some actual abuses to point to such as arrests of innocent people.
Yes, but he’s a Brit and this is a UK blog, so the default term is “subject.” We could nitpick if he were refering to US citizens as “US subjects,” but I think he’s talking primarily about inhabitants of the UK who may be affected by US policy.
The point is that there could very easily be such cases very soon. (Another point is that there may already be such cases we are unaware of since all of this is very hush-hush.)
Potential abuse is good ground for not passing a law in the first place. We stack the deck in favor of verdicts of innocence (proof “beyond a reasonable doubt”) in our legal system for this reason: because of fear that innocent people might be unjustly prosecuted. Taken to its logical extreme, your argument is the same as saying “Fear arrest? Don’t commit a crime!” Which is, of course, good advice – by not being a criminal you do dramatically reduce your chances of arrest. But you do not completely eliminate them as the government has been known to both make mistakes and abuse its power in the past. That is why due process is important: to make sure that people arrested are properly tried before being thrown in the slammer. This law does away with a lot of that and is therefore scary and to be opposed. The potential for abuse is huge.
I intentionally use that noun, both for the UK and in particular for the USA. Let me explain why.
In most nations, the state which issues your passport loses interest in you when you move overseas. They claim a territorial jurisdiction over the geographical extent of their country, a pecuniary interest in economic activity there and regulate the actions of all who live therein, but when you leave that area, by and large your state regards you as someone else’s problem now. They generally stop taxing you and stop taking much interest in your affairs.
Not so for a US national. Almost uniquely amongst nations, they claim a pecuniary interest in the money Americans make regardless of where you live and regardless of where you make it. You are subject to a host of extraterritorial regulations over who you can trade with and where you can go, even if none of that action crosses US borders at any time. In short, the US state claims jurisdiction not just over America but over Americans, regardless of where they are.
Sorry, but in reality to own a US passport is to be a subject of the US state which even 10,000 miles of separation for 20 years absence cannot relieve you of.
Yet. Give it a few years. Just as RICO was only used against the mafia and drug kingpins initially and now is used against white collar boardroom conspiracies and anti-abortion activists.
And look how being an ‘enemy combatant’ can be defined! You do not have to take up an AK-74 and pop off a few round at the nearest marine, you just have to be said (by the authorities of course) to have provide ‘material support’ to the enemy. Does that include such things are perhaps fubnded a lawyer who was opposing legal powers being used against an alleged terrorist? Is that ‘material suopport’? Who knows, because the state gets to define that and once they do, you have no recourse to do much about it. And you don’t think that is pregnant with potential for abuse???
“And you don’t think that is pregnant with potential for abuse???”
I concede that it is pregnant. But personhood starts at childbirth. Abortion is available. A potential abuse isn’t an actual abuse.
I beleive the spirit of freedom and civil rights in the US is mighty powerful, and it will stop or correct potential abuses.
So far I don’t perceive anything abusive in the Bush Administration. It is enemy combatants that they have been detaining. For example: the US citizen (forgot the name), who was caught in Afganistan, actually fighting against the US.
I’m much more alarmed by the incompetence of the US and UK intelligence and security organs in their fight against terrorism than by the danger to civil liberties. I’m not speaking about potential things, but about actual ones.
And look how being an ‘enemy combatant’ can be defined! You do not have to take up an AK-74 and pop off a few round at the nearest marine, you just have to be said (by the authorities of course) to have provide ‘material support’ to the enemy. Does that include such things are perhaps fubnded a lawyer who was opposing legal powers being used against an alleged terrorist? Is that ‘material suopport’? Who knows, because the state gets to define that and once they do, you have no recourse to do much about it. And you don’t think that is pregnant with potential for abuse???
To have law without definitions, or at very best definitions lacking specifics, law takes on a quality not to the good of the rights of the individual. It becomes another of all too many weapons of the state. How unassailable are those who would by deadly force create laws that get to define and dispose of any “enemy” contrary to previous constitutional promises. Slippery slope? More like already sliding faster…….
“who is politically active and less than flattering about US government’s policies …”
I haven’t heard about any detentions among the BushHitler crowd that is very numerous and vocal in the US. Neither harassment of any kind.
So, this alarm is very, very unrealistic. It’s not about something that is happening.
JGalt:
“‘material support’ to the enemy…”
And what if you render material support to the commitment of a crime, say murder ? (Like driving the getaway car)? “material support” is a term well defined in criminal justice, and I don’t see why it should not apply here.
So far I don’t perceive anything abusive in the Bush Administration.
Even if Bush were an angel, it doesn’t matter, because what about the next president? Or the one after that?
Governement always expands to fill the limits imposed on it. Always.
Let’s go ahead and let them have the power to define what is criminal and who is providing material support.
How could it possibly be abused? Just think of all the good a president named Gore could do with that power to protect us. Abuse? It’s for our own good.
Asset forfeiture without trial, Kelo Ruling, no-fly-listing-without-explanation… I could go on and on. Your faith in The System is not well founded.
“Even if Bush were an angel, it doesn’t matter, because what about the next president? Or the one after that?”
Well, he could repeal these “abusive” laws. Or he could abstain from actually abusing people.
If they’re so terrible, some candidate should stand up and cry: “I will repeal these laws” and get himself elected. This is the probable scenario, not your scare story.
“I could go on and on…”
Well, go on… you have to seek very hard to find something, though you’ll find in the end (nobody’s perfect).
Take these “10 top abuses(Link)” compiled by ACLU. I’m not very scared by them.
Jacob,
I haven’t heard about any detentions among the BushHitler crowd that is very numerous and vocal in the US.
Well, they are American citizens. Perry’s point is that the Act deprives non-citizens of their last few constitutional protections in the United States. I observed that the same non-citizens (i.e. me, not Perry, who has a claim to citizen’s rights) may find themselves under torture or in a kangaroo court, even without venturing into US territory, because the Federal government has ambitions to a universal jurisdiction superseding the laws of other states when that suits it.
Neither harassment of any kind.
There does seem to have been some of that. (Genuine harassment, that is, rather than irritating people by openly disagreeing with them, which seems to be sufficient for many on both sides of the culture wars to cry “harrass”.)
One does wonder where the examples of habeas corpus for captured enemy soldiers fighting out of uniform are. Certainly it’s not a protected “ancient liberty” by any means, whether in the American Civil War, or indeed in 1950’s Johnson v. Eisentrager. Nonresident enemy combatant aliens captured and held abroad have no right to habeas corpus nor any trial other than a military tribunal, according to that ruling.
Indeed, the recent act gives non-state military combatants (especially those out of uniform) considerably more liberty and privileges than they have ever enjoined in the USA’s history. For one thing, all cases are still reviewable by the US Court of Appeals for the DC Circuit and then the Supreme Court of the United States. (Of course, those rights were granted only in an attempt to satisfy the Court’s earlier rulings.)
The law facially cannot be applied to resident noncitizens, or anyone in the country. That’s the entire reason that the enemy combatants captured were taken to Guantanamo.
“I must say that anyone without a US passport who is politically active and less than flattering about US government’s policies should serious reconsider taking that holiday in Florida or going to visit American friends.”– Completely backwards there, Perry. If you’re in the USA, then a noncitizen is immune from this act. The hypothetical legal danger most certainly comes from being snatched from outside the US and held outside US territory. Going to the US is actually safer, under the act.
“Perry’s point is that the Act deprives non-citizens of their last few constitutional protections in the United States.”
Untrue. The danger is much more in being captured outside the United States than within.
John Thacker:
Does the world “outside the US” include international airports?
In time we will all be Americans.
It could be worse.
We could all be Chinese.
“Yet. Give it a few years. Just as RICO was only used against the mafia and drug kingpins initially and now is used against white collar boardroom conspiracies and anti-abortion activists.”
The law targets criminal behavior. To the extent white collar boardroom conspiracies fit the criteria that make them identical to mafia and drug kingpins, and that can be substantial, the same law should apply to them.
Anti-abortion activists are terrorists when they target doctors for murder or bomb clinics. Why should that behavior be immune?
“Asset forfeiture without trial, Kelo Ruling, no-fly-listing-without-explanation… I could go on and on. Your faith in The System is not well founded.”
Asset forfeiture without trial is a heinous travesty. Local and state jurisdictions have turned it into an incom line in their budgets.
Kelo is being reversed legislatively all over the country at the state level by very tight new delimitation of the power of eminent domain. So there the system is self-correcting and faith is well-founded – separation of powers and federalism do work in the end.
The No-Fly list is an abortion beginning to end, starting with the fact that namy of the names tend to be Arabic, and Arabic names come out of a small, small stock of personal names, and furthermore do not have stanadrad spellings in Englsih – the whole situation is designed for misidentification. Even explanations to people kept from flying are not much good if you still can’t fly becauee you can;t challenge to determination, and I don’t know of any mechanism for tha. There may in fact be one; I just haven’t heard of it.
“Does the world “outside the US” include international airports?”
No.
“The No-Fly list…”
I don’t get why it’s a “no fly” list.
I would say that if the FBI (or homeland security) don’t have lists of suspects they are criminally negligent. And naturally, you don’t make those lists public.
When a suspect (listed) tries to fly you have do double check him that he is clean, it would be criminal not to. But, once checked, a rigorous body check, he is clean and can fly.
I didn’t say that security organs act always wisely, reasonably or correctly. They fumble and make mistakes. They can be a nuisance. But I don’t think they are abusive or oppresive, and surely not intentionally so.
Yes, yes, Fascism is always descending on America and landing in Europe. Been going on forever.
Jim: The law [RICO] targets criminal behavior.
That’s a sliding abnegation of the rule of law that’s frequently adopted by populist politicians. It is a particular favourite of Blair:
Criminals (witches, communists, paedophiles, terrorists, Jews, bourgeois counterrevolutionaries, bad employers, racists, rainforest despoilers…) are too difficult to catch doing real bad things, and the real bad things are a bit hard to prove, anyway. It is even hard to prove sometimes that the real bad things are really bad, or really happened, or are really attributable to anyone on the suspect list — but… We know about THEM. and THEY behave in such-and-such a way. So if someone seems to behave like that, they need to prove their innnocence or we’ll know they are one of THEM, and as wicked as wicked can be. And deserving of the most serious punishment, because hiding that you are one of THEM, rather than confessing and begging for mercy for your wickedness, is the wickedest thing of all.
Though, Jim, I am comforted by much of the rest of your remarks.
Jim, there is a piece of Ireland that is regarded as American soil. It resides within the grounds of Shannon airport. The only place I know of, outside of the continental USA, that has US Immigration officials checking potential entrants to the USA.
I don’t know if I count as “politically active”, but having read how their immigration service treats visitors. and noting how much personal data would have be sent over (and then disseminated to any and all commercial/criminal interests who ask for it) even before you get on the plane, I’ve decided I do not need to go there.
Much as I like America, it ain’t that attractive a destination.
The only place I know of, outside of the continental USA, that has US Immigration officials checking potential entrants to the USA.
Most major airports in Canada, as well as the Bahamas, Bermuda, and Aruba operate US border preclearance” facilities as well. However, it is incorrect to regard these as American soil. From the article: “Although U.S. officials may question and search travellers, they do not have powers of arrest (either for customs or immigration violations, or for the execution of outstanding warrants). Local criminal laws apply, and are enforced by local officials.”
Does the world “outside the US” include international airports?
Clearly not to international airports inside the US. Those are US territories.
Both from the way the law is written and ample Supreme Court precedent, it only applies to combatants captured by US military forces. The determination of status is completely appealable, by the Court of Appeal for the DC Circuit and then to the Supreme Court.
People arrested at airports are subject to the US justice system. Those people clearly can be handled with the normal legal system and must be. The law does not change that.
The existing Geneva conventions are written for soldiers in a regular army. The habeas corpus-like provisions that exist in the laws of war all involve the home country. Those provisions do not work well in the case of large private armies, particularly terrorist groups which refuse to negotiate prisoner exchanges (not least because they murder all the prisoners whom they capture.) Despite this, the US has made an effort to turn over the Guantanamo Bay captives to their home countries. However, many European countries refuse to accept all their citizens (France accepts theirs, of course, and locks them in prison promptly), and the US is prohibited by law from returning others to their home countries, if the US suspects that they would be tortured. (and in these cases we mean seriously, with permanent physical damage)
At the same time, it would make a mockery of the justice system to hold trials in the normal justice system of many of these captives. (It would also violate the Geneva conventions to put them on trial at all, were they not unlawful combatants.) The normal evidentiary standards are essentially impossible to uphold in times of war. But none of the existing systems deal well with military engagements against large non-state actors with no leadership to negotiate with. (Outside of the old traditional method of hanging spies and unlawful fighters, or the WWII standard of military commissions without habeas corpus.)
Guy,
“Criminals (witches, communists, paedophiles, terrorists, Jews, bourgeois counterrevolutionaries, bad employers, racists, rainforest despoilers…) are too difficult to catch doing real bad things, and the real bad things are a bit hard to prove, anyway…etc.”
The behavior it targets is conspiracy. That is a separate crime. Common example: woman wants her husband dead, can’t be bothered to do it herself, or is too cowardly, or her moral scruples won’t allow her (to do it herself), so she hires someone. That someone will be guilty of the murder, but she is guilty of another but related crme.
Besides, you don’t have to catch people ” doing real bad things” to prove they have done them. They tend to leave evidence or witnesses.
John Thacker:
Are you sure? I don’t have the necessary legal knowledge to go through the text of the act itself, but I’ve read in some fairy reputable sources that resident noncitizens can also find themselves without recourse to habeas corpus. For example (emphasis mine):
Is this commentator mistaken, or is it true that the new law applies to aliens captured on the US soil?
“…the Act deprives non-citizens of their last few constitutional protections in the United States.”
That’s a feature, not a bug.
We’re getting heartily sick of people who come over here and then try to screw us while hiding behind the protections which their own damn countries refuse to allow them.
And if we can be used as target practice all over the world just because we’re Americans, you can be damn sure we’re going to go after those who try to kill us. Anywhere they try to hide.
F.E.T.E.
As a former resident alien in the US, I’ve always known we didn’t have the same absolute rights as US citizens. No surprise, no change.
Now that I’m a citizen, I can commit even murder, be convicted and imprisoned and serve my sentence…and NOT be deported at the end.
Hain’t no one I want to kill, so don’t worry.
Is this commentator mistaken, or is it true that the new law applies to aliens captured on the US soil?
Ivan– the commentator is mistaken. It is true that a particularly torturous reading of the law could possibly lead to that conclusion– essentially, if the Executive Branch violates the instructions contained within the law and wrongfully classifies detainees, and the Court of Appeals for the DC Circuit and the Supreme Court lets them get away with it.
However, it would be blatantly unConstitutional to apply it to aliens captured on US soil, or permanent residents at all. That is because the very decision on which the government relied originally, Johnson v. Eisentrage, set up a firm sliding scale declaring the points which argued in favor of habeas not being applied:
1) The persons were German nationals who never lived in the United States
2) The German nationals were accused of violating the laws of war, not the domestic law of the United States
3) The German nationals were tried by a US military tribunal (and not a civilian court.)
4) The German nationals were held outside of the permanent territory of the US.
Clearly these points do not apply to someone seized within the US. The recent Rahul case saw the Supreme Court saying that all the factors invoked by Justice Jackson in Johnson had to be present in order for habeas to not apply. (That itself was controversial to the dissenters, because Justice Jackson presented the rights of aliens as part of a “sliding scale” and was simply listing all the many reasons why the German prisoners would be at the bottom of the scale.) That is the reason for the current law– several of the Justices (Breyer and Kennedy) considered that the lack of a sufficiently regular and fair military trial system combined with the ability to appeal those trial results (and appeal the status declaration) made it unConstitutional, but suggested that it could be with those safeguards added. Hence the law.
In short, applying the law to aliens on US soil would violate repeated Court rulings as well the law itself giving that right. Also, the Courts (who have the right of review of any status declaration according to the law) and the Congress (which is to be notified of all prisoners held according to the law) would have to go along. Of course, even the best laws and protection are not worth anything without the proper spirit of execution, as certainly the Soviet Union’s constitution showed, so of course any Administration could lie, violate the law, and then conceal it from the other branches.
Err, I mean Rasul, not Rahul. Wrong name of the recent case. Also Hamdan.
In Hamdan, Justice Breyer essentially stated that the only problem was that Congress had not given the right to hold the commissions. Justice Kennedy’s concurrence concluded that the problem was that the military commissions were not regular and conducted according to the Uniform Code for Military Justice that governs courts martial, and that they could not be properly appealed. The recent legislation was essentially to address these two objections.
However, Justices Breyer and Kennedy also made it clear (as did the other Justices) that the holding of those accused of normal crimes of the United States (not war crimes such as the terrorists), those within the country, and so forth, would not be permissible.
John Thacker,
Regretably, torturous readings of the law are something this admin has developed to a high art form.
Again, it is unfortunate the scope that this administration has interpreted in to “war crimes”.
There is plenty of reason for concern.
Regretably, torturous readings of the law are something this admin has developed to a high art form.
Rather hard to argue against a nullity like that. If you’re referring to the original military trials, surely they’re a reasonable reading of the Johnson v. Eisentrager precedent. And certainly the assumption that those specifically listed as not covered by the Geneva Convention are not covered is not torturous.
Again, it is unfortunate the scope that this administration has interpreted in to “war crimes”.
As in fighting without a uniform and targeting civilians? Or do you have any actual examples besides just sweeping generalizations? (Certainly there are people who have been picked up for being in the aftermath of a battlefield, but that’s hardly unknown in the history of war either, and those people have generally been released.)
There is plenty of reason for concern.
Yes, but only in the same sense that would occur without this law. The law has safeguards and in all technical aspects extends more protection to captured enemies than the previous laws or policies implemented by the USA.
Rather obviously, any Administration could violate the spirit or intent of laws (see also the Clinton Administration’s use of “extraordinary rendition,” certainly an effort to get around the spirit of the law). In that sense no law has enough protections if it’s just ignored. The law itself is an entirely reasonable one that adds, not subtracts, formal layers of oversight to the Executive’s war powers and gives prisoners of the armed forces more, not less, protection.
This is the core provision of the law that began this ‘war’.
So how does this end? Only when all “nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
By these criteria, there IS NO END!
You are calling for a PERMANENT SUSPENSION of all peacetime protections of the Constitution!
Added to that is the US Patriot act which doesn’t need to be renewed again for another four years and, among other things, it creates a new crime of “domestic terrorism.”
‘Domestic Terrorism‘ means activities that (A) involve acts dangerous to human life that are a violation of the criminal laws of the U.S. or of any state, that (B) appear to be intended (i) to intimidate or coerce a civilian population, (ii) to influence the policy of a government by intimidation or coercion, or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping, and (C) occur primarily within the territorial jurisdiction of the U.S.
So now, we bring the ‘War on Terror’ into the US where it usurps authority from our civil laws and constitutional protections on the grounds that it is part of the war on ‘Terror’. And note that what qualifies it, is if this president or his delegates decide that something “appears to be intended…” There’s a sure fire check on caprice, no?
To any other readers who may be inclined to accept your blithe reassurances, I suggest a careful reading of the descriptions of the acts and and the acts themselves.
Here are some starter links.
Authorization for Use of Military Force
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
§ 2331. Definitions
And you are at least partially right. The president doesn’t always rely on “torturous readings of the law” to defeat our constitutional framework. Sometimes he just tells the law to F off.
This president makes comprehensive use of ‘signing statements‘ to preinterpret what the law means and how he will treat parts of it that he doesn’t like.
Here is a sample extract from one of his signing statements.
In other words – ‘The constitution says I can do whatever I please and neither the legislature’s law or the court’s rulings will stop me.’
One branch of government unilaterally deciding that the other two branches don’t have jurisdiction. A usurpation of the other two branches by claiming for itself, all of the three branches powers. The attorney general is the new Supreme Court. With executive approval, of course.
If you can’t see how the executive’s frequent insistance it has constitutional authority that cannot be challanged before the Supreme Court is dangerously close to imperial fiat …
Here’s another
By unilaterally declaring a right to withhold information, we don’t even know what there is that we don’t know. There is no way to apply the constitution to situations when the executive decides that it will not comply.
Leaving this secret, unaccountable executive form of government aside for a moment, what this selective approval amounts to is a unilateral line item veto with no established procedure for congressional override. If there were, then provisions that he line item vetoes could be overwritten by the same super majority that can override any other veto. This practice directly defeats the constitutionally fundamental balance of powers.
And in response to your incredibly naive last paragraph, what these laws do is take previously illegal conduct that was being actively perpetrated and now legalize it with a few qualifications.
We had a Constitution that contained a loop hole for war. This administration has invented a war against an enemy that by its definition can never be defeated. So now our government is pursuing an unchallanged application of war powers domestically and internationally which even if held to the law, is part of war powers with no end. Forget Iraq, this is a permanent state of war for the rest of our nation’s history.
John Thacker, you should have studied more history. A little bit of Rome, perhaps. Then you would not be so cheerfully optimistic about this steady trend.
Your alarm bells should have gone off when the war was first declared. A declaration for an unachievable goal against a vague and amorphous enemy. This war can only ever end unilaterally, and I don’t see that on the horizon.