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Your Boy Isn't The Only One Who Gets Use Of The Magic Ring
Orac doesn't just write about science. There's often something smart and interesting about politics or culture on his blog. Take this piece about presidential powers. He makes exactly the right point:

Would the right trust President Clinton with the power given to Bush last week?

He's talking about the Military Commissions Act of 2006, authorizing the president to establish military tribunals for "enemy combatants," which Orac calls "a category that, given the murky language of the act, is not clearly limited to noncitizens, to be a deeply disturbing turn of events."

David Wallechinsky gives a brief rundown on what the Act does -- gives the president:

...the right to interpret, without Congressional oversight, the Geneva Conventions, to waive the right of habeas corpus, to authorize the use of information gathered through torture, and to, in effect, establish a separate judicial system that will be run out of the White House, willfully giving up powers that until now were reserved for the legislative and judicial branches of the government.

...The text of the Military Commissions Act of 2006 (formerly known as the "Bringing Terrorists to Justice Act") is smooth and fair-sounding, but it is filled with loopholes created by a combination of vaguely-defined phrases and carefully parsed definitions. For example, the section banning torture contains an exception, namely "pain and suffering incidental to lawful sanctions." This is a phrase that is used in the United Nations Convention Against Torture to refer to practices that are internationally accepted, such as imprisonment. However, there is nothing to stop the Bush administration from redefining that clause, as it has so many others.

One of the many disturbing aspects of the Act is that the president now has the right to declare any foreign citizen, including a legal resident of the United States, an "unlawful enemy combatant" if that person is suspected of giving money to an organization that supports terrorism, with the term "terrorism" defined by the president.

...Then there is the question of whether the Act gives the Bush administration permission to detain American citizens. Section 948a of the Military Commissions Act of 2006 defines "unlawful enemy combatant" as "an individual engaged in hostilities againtst the United States who is not a lawful enemy combatant." Does the phrase "an individual" include U.S. citizens? Apparently we will have to wait for President Bush to make that decision.

Orac writes:

Personally, I do not trust President Bush, a future President Hillary Clinton, or any other President with the power to label people an "enemy combatants" and throw them in jail in essence indefinitely. It clearly goes past the line of powers that the President should be given, even in a time of war. It's not unlike what I discussed earlier today regarding laws in Germany against Nazi symbols. This administration may not use this law much; the next administration may not use it much; but some administration in the future will be tempted to push this law to the limit.

That's the problem with all the power being grabbed by the executive branch during this administration. The guys currently in The White House have to think about what it would be like if the other team got the magic ring. Don't they consider that? Or do they have the place all locked up thanks to Diebold?

Posted by aalkon at October 4, 2006 10:16 AM

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Comments

There is a pretty good book that addresses similar issues

Reassessing the Presidency: the Rise of the Executive State and the Decline of Freedom

The power grab you lament is just the latest in a long line of increasing executive power. But for some reason, I think your concern for freedom is tertiary.

Would you not be lauding a President who unilaterally took huge swathes of "public" land out of service and deemed it unusable for either developement or industry? I'd rather think you would applaud that. So don't pretend to be a defender of liberty against this particular Executive on this particular issue, else you will be a hipocrite when the shoe is on the other foot.

Posted by: Jon at October 4, 2006 7:17 AM

Jon, don't make assumptions about me. I'm neither anti-development nor anti-industry. In fact, I'm a fiscally conservative capitalist who doesn't think public money should go to NPR, and who thinks all but the poor should pay for their children's schooling. You can't afford to send three children to school? Have two.

Posted by: Amy Alkon at October 4, 2006 7:32 AM

Just as long as the Falwellians know that when Hilary gets elected she's going to use those expanded surveillance and police powers to turn us all into her lesbian sex slaves. In the meantime, however, if al-Qaeda steals my credit card number, will I get deported to Syria and "coerced" to death?

Posted by: Paul Hrissikopoulos at October 4, 2006 12:12 PM

In total contrast to every other endeavour of this administration, the business of centralizing unlimited power in the executive progresses with breathtaking energy and efficiency.
What absolutely kills me is that this is being done under the colour of conservatism. Hardly, unless hearkening back to the king or emperor that never ruled qualifies.

Posted by: opit at October 4, 2006 12:34 PM

God knows we can trust the analysis of the Huffington Post on a legal issue they could use as a club against the President. Because HuffPo is notoriously clear-minded, thoughtful, neutral, and studious about legal issues.

Yes sir, no reason at all to take Wallechinsky's analysis with so much as a molecule of salt, let alone the small salt mine I'd suggest.

(It "gives the president" these unholy powers... if we (irony alert!) redefine "gives" to mean "would sort of let him claim those powers if he himself redefined a bunch of words, which I'll say he did in other cases even though that's not obvious to people who aren't already drinking my particular flavour of kool-aid".

And nevermind that those pesky courts just keep getting in the way and telling him what he can't do, which is why the act got passed at all.

I guess we'd prefer that terms and powers not be defined? Evidently, since defining them raises the horrible spectre of Bush using his magic powers to uncontestedly(?) redefine those very terms and grant himself unstoppable power.

Because Congress couldn't pass another bill, you see, addressing that, and the courts couldn't say anything. Because he'd have redefined things, and you just can't do anything about that, no sir.

Jesus Christ. Normally I prefer not to use terms like "Bush Derangement Syndrome", but this sure reads like the exact counterpart of "UN Black Helicopters! Bill Clinton will stage a coup in 2000!" from 1998.)

Now, if the Bill actually DID do what the HuffPosters wanted to claim it "might sorta if redefined tend to kinda" does, that would, as Orac says, be a matter of concern. And it's a matter of some (more slight) concern, for us non-hyperventilators, that it's not clearly stated exactly who it applies to.

(Of course, a citizen who was actually engaged in hostilites against the US wouldn't have to worry about being detained as an enemy combatant... he'd have to worry about a possible death-penalty treason case.)

Opit: When did Bush say he was a "conservative"? He didn't run on an especially conservative platform; he was blasted by his own party for not being conservative enough in the 90s, when he was Governor of Texas.

And "unlimited power"? "breathtaking energy and efficiency"? Show us the data, bwana, or admit that's breathless hyperbole.

Christ, the only centralisation of power that I recall being news was the formation of the TSA, and that was hardly energetic or efficient... or unlimited. It's a standard bureaucratic mess.

Posted by: Sigivald at October 4, 2006 2:11 PM

Impossible to apply the new "enemy combatants" judicial processes to American citizens without tripping over about a hundred different Constitutional landmines, upon any one of which the ACLU would happily fall.

Besides, isn't this legislation meant to implement the Supreme Court's recent decision which roundly criticized this administration for depriving enemy combatantas of the rule of law afforded them under various international treaties ratified by Congress?

Relax people. This legislation actually curtails executive powers. For George and John (I refuse to acknowledge the possibility of a Hillary administration!).

One last thought on the alarmist warning that the new law grants the President "the right to interpret, without Congressional oversight, the Geneva Convention."

Uh . . . interpreting and implementing due process guarantees is what police officers, prosecutors, and public defenders do every day out on the streets. Shockingly, they manage to muddle through without the "benefit" of congressional oversight.

Posted by: snakeman99 at October 4, 2006 2:31 PM

“Impossible to apply the new "enemy combatants" judicial processes to American citizens without tripping over about a hundred different Constitutional landmines, upon any one of which the ACLU would happily fall.”
If you do not have a right to writ of Habeas Corpus, and no right to a fair trial by peers, how are you going to challenge this legislation after you have been 'lawfully' designated as a unlawful enemy combatant and thrown in a hole somewhere, with an appointment with a slanted board and a gallon jug?

section 948d, subsection c:
"(c) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter."
So, this executive branch, which has "joked" in public that "it would be easier if this were a dictatorship--and I were the dictator," has claimed that our troops never torture and defined waterboarding so that it isn’t torture, and has placed an Attorney General who has described the Geneva Conventions as ‘quaint,’ this executive branch is now the one that can find evidence against a person, arrest and hold them without habeas corpus, who decides whether or not they can do whatever the president decides short of rape, biological experiments, torture, and cruel and inhuman treatment (defined by the president and the president alone, so those options are still on the table anyway). The judicial branch is not involved.

Besides, isn't this legislation meant to implement the Supreme Court's recent decision which roundly criticized this administration for depriving enemy combatantas of the rule of law afforded them under various international treaties ratified by Congress?
Now torture is defined as non-torture ;waterboarding, cold room, 40-hour standing position, etc have all been defined as torture up until this point. If this is meant to implement a rebuke, it’s not working.
. “h . . . interpreting and implementing due process guarantees is what police officers, prosecutors, and public defenders do every day out on the streets. Shockingly, they manage to muddle through without the "benefit" of congressional oversight.”
Un-shockingly, they often screw it up, and though not under congressional oversight, they are all most definitely under oversight. A police officer cannot shoot a black man, say, hey, he wasn’t doing anything but he looked suspicious to ME, and that’s my interpretation of the law, and get away with it. There are review boards for police, and they can be brought to trial as citizens. Same thing with officers of the court. The reason I’m not relaxing about this legislation is that the president is making himself the law, or rather, re-writing the law so it means whatever he wants it to. You’re damn right I want congressional oversight.
And before anyone brings up Lincoln having suspended Habeas Corpus being a precedent: His suspension was within the boundaries set by that same constitution:
"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."
No current civil war in the U.S., no invasion, so no precedent.


Posted by: cat brother at October 5, 2006 11:34 AM

Cat -

If you're concerned about army men coming into your home and spiriting you away to some hole in Tripoli, I have some bad news for you - they could theoretically do that to you right now, regardless of this new legislation. I really don't see the President rubbing his hands together, emboldened with a barely-colorable legal argument for doing so to American citizens.

"There are review boards for police, and they can be brought to trial as citizens. Same thing with officers of the court."

You are proving my point. Don't you think the implementation of this scheme will necessarily include levels of executive supervision?

Posted by: snakeman99 at October 5, 2006 11:59 AM

Also, keep in mind accused enemy combatants will now have the right to at least two appeals from any conviction, including an appeal to the D.C. Circuit.

So there's your judicial oversight right there.

Posted by: snakeman99 at October 5, 2006 12:06 PM

Also, keep in mind accused enemy combatants will now have the right to at least two appeals from any conviction, including an appeal to the D.C. Circuit.

So there's your judicial oversight right there.

Posted by: snakeman99 at October 5, 2006 12:11 PM

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