To the Truman Mausoleum
Glenn Greenwald continues to chronicle the ways in which the Obama administration appears determined to defend the very worst theories of executive power concocted by the Bush administration. It’s worth reiterating the full dimensions of my “Barastroika†coinage in that light.
Mikhail Gorbachev was not a good guy. He made beneficial changes to Soviet domestic and foreign policy, but he hoped to rationalize and perpetuate a version of the Communist system. He employed and fostered violence in the Baltics and the Caucasus in hopes of preserving the Soviet empire. He escalated the Afghan war before taking four years to wind it up. he tried to cover up the extent of the Chernobyl disaster. He was the best and most humane leader the Soviet Union was going to produce in the mid-1980s, but he remained invested in the system that produced him, and bounded by its values. The heroes remained the dissidents, the refuseniks, the protesters and the human-rights activists in Russia and elsewhere. Gorbachev was necessary to the moment but not sufficient.
Daniel Larison has pointed out many times that Barack Obama is a thoroughgoing believer in and product of the American imperial state. I suspect he’s the least inhumane president the US political system was capable of producing in 2008. But Obama is neither going to tear down master’s house nor toss out master’s tools. He is master for frak’s sake. He’ll go somewhat less far toward dismantling the national-security state than we push him to go. This is not saying “A plague on both their houses†(exactly) or “not a dime’s worth of difference.†It’s not saying progressives and civil libertarians should destroy the Obama presidency in the name of a perfection he never intended to try to obtain. It is saying that there’s no excuse for making excuses when Obama is halting or outright malign. So long as the GWOT-era prerogatives propounded by the Bush Administration go unrefuted the United States remains an authoritarian country in principle, and to the extent the Obama administration asserts those prerogatives itself, it is the problem.
Comment by Dan G. —
March 3, 2009 @ 5:18 am
But, but… he fought ZOMBIES!
Comment by Hesiod —
March 3, 2009 @ 9:56 am
I’m sorry, but Greenwald is demagiiguing in this instance.
The most recent complaint concerns the Obama’s DOJ’s insistence that there is such a thing as separation of powers, and that the Courts should not have the power to override the President’s deicison (in some cases following a statutory procedure enacted by Congress) to classify national security secrets.
Lawyers have an old saying: Bad facts make bad law.
The Obama adminstration had a bunch of leftover stink bomb cases from the previous regime that, bleive it or not, have some legitimate constitutional questions at issue.
Comment by strasmangelo jones —
March 3, 2009 @ 11:01 am
The most recent complaint concerns the Obama’s DOJ’s insistence that there is such a thing as separation of powers, and that the Courts should not have the power to override the President’s deicison (in some cases following a statutory procedure enacted by Congress) to classify national security secrets.
Hesiod, I’m hoping for your sake you wrote this while acting as a partisan apologist for a Democratic administration, rather than as an idealistic proponent of the notion that there can be no possible judicial checks on executive power.
Comment by Jim Henley —
March 3, 2009 @ 11:04 am
I was betting on Joe to play the shill role here. I’m obscurely disappointed.
Comment by strasmangelo jones —
March 3, 2009 @ 11:08 am
Meanwhile, of course, Obama’s doubling the size of the prison at Bagram air base, best known as the place where our government tortures taxi drivers to death. Ah, hope and change.
Comment by Thoreau —
March 3, 2009 @ 12:08 pm
I don’t care who plays the shill role, I’m just grateful to Jim for taking the heat while I’m on the road.
Comment by Hesiod —
March 3, 2009 @ 12:53 pm
Hesiod, I’m hoping for your sake you wrote this while acting as a partisan apologist for a Democratic administration, rather than as an idealistic proponent of the notion that there can be no possible judicial checks on executive power.
Neither. One doesn’t have to be an opponent of all judicial review of executive decision sto believe that there really is a seperation of powers and that the Judiciary should have some restraints on it that prevents it from interfering wth legitimate executive decisionmaking.
The Gvt filed a brief (quoted selectively by Greenwald) that cites decisions ging back 50 years highlighting this fact.
It’s not “idealistic.” It’s recignizing that we do have a constitution that creates a seperation of powers between the three branches.
I may not like the fact that Obama has to argue this legitimate legal point in a stinker of a case — but it is what it is.
Comment by Eric the .5b —
March 3, 2009 @ 2:01 pm
Well, joe did imply that if the Obama DoJ kept pushing the issue (as it has), he’d start to worry. And he did downgrade from You Naderite poseurs refuse to admit it’s a fait accompli! to being merely “optimistic” about the Iraq War and genuinely shutting down the torture and abduction network. So, yeah…
Funny how to these guys, the Constitution and separation of powers only exist when they can be spun to enhance the power of their president.
Think they can work in some sort of federalist line for bonus laughs?
Comment by Timothy —
March 3, 2009 @ 2:02 pm
You know, Hesiod, you seem to be saying that the Constitution demands that we allow the executive branch to wantonly violate the 4th Amendment rights of US citizens if it cries “NATIONAL SECURITY! TERRORISTS!” at us. This sounds strikingly familiar… like I might have heard it before… Oh right, I did, from John Yoo.
Comment by strasmangelo jones —
March 3, 2009 @ 2:09 pm
You know, I expected some serious cognitive dissonance to show itself once Obama started openly claiming the powers and policies of the Bush administration, but Democrats have gone so fast from criticizing this stuff under Bush to defending it under Obama that it’s given me whiplash.
Comment by Hesiod —
March 3, 2009 @ 2:11 pm
Funny how to these guys, the Constitution and separation of powers only exist when they can be spun to enhance the power of their president.
Think they can work in some sort of federalist line for bonus laughs?
That would be funny if that had anything to do with what I wrote.
Comment by Neel Krishnaswami —
March 3, 2009 @ 2:16 pm
BTW, the Al Haramain case is unbelievably horrible.
The government accidentally mailed the charity documents proving that it was illegally spying on it. When they got sued, they claimed that because these documents were classified, they were inadmissible in court.
It’s inconceivable to me that anyone genuinely thinks that the government has a good case here, or that letting them get away with it is a good precedent. You’d have to be on board with the idea that the Feds can mail you the proof that they’re jacking you up, and you still don’t get your day in court unless they say it’s okay.
Comment by Hesiod —
March 3, 2009 @ 2:16 pm
You know, Hesiod, you seem to be saying that the Constitution demands that we allow the executive branch to wantonly violate the 4th Amendment rights of US citizens if it cries “NATIONAL SECURITY! TERRORISTS!†at us.
No I’m not. Go read the Brief Obama’s people filed. That is not the argument they are making. They actually sttarted the clearance process to allow the opposing attorneys the security clearance to see the documents. They actually got approved all the way up the chain, until the NSA said those folks don’t have a legal “need to know.”
The Obama people are essentially arguing that just because the last guy was an asshole, doesn’t mean this court should jettison seperation of powers doctrine.
This sounds strikingly familiar… like I might have heard it before… Oh right, I did, from John Yoo.
Ummm…no. The Obama people, as I said, cited 50 years of Supreme Court and Court of Appeals precedent wich is very straight forward. This predates the “unitary executive” theory.
Comment by Hesiod —
March 3, 2009 @ 2:21 pm
The government accidentally mailed the charity documents proving that it was illegally spying on it. When they got sued, they claimed that because these documents were classified, they were inadmissible in court.
That’s a dramatic oversimplification of what happened, of course. A) The Gvt isn;t being sued. The Gvt does have, I think, an indemnity agreement with the private corp that did get sued, though.
B) They sent this document after the case was initiated. It is not uncommon for some documents that are not meant to be sent, or are protected by certain legal privileges (Attorny/Client) are accidentally included in large document productions in response to discovery. Court’s generally recgnize this, and bar the use of the document under most cercumstances.
It’s inconceivable to me that anyone genuinely thinks that the government has a good case here, or that letting them get away with it is a good precedent.
That’s actually my point. They don’t have a good case here. They look horrible. But, bad facts make bad law applies. Which is why the bad facts of this case should nt be used to gut legitimate seperation of powers issues that have been around for 200 years.
You’d have to be on board with the idea that the Feds can mail you the proof that they’re jacking you up, and you still don’t get your day in court unless they say it’s okay.
National security is in a different category. It just is. It’s been that way for decades. It’s not going to change.
Comment by Thoreau —
March 3, 2009 @ 2:38 pm
Getting this right is so incredibly important to Hesiod that he’s willing to err on the side of state power because erring the other way would mean that, well, we erred. And getting this right is just far too important.
Comment by strasmangelo jones —
March 3, 2009 @ 3:07 pm
I’m sure Hesiod was just as deferential to executive branch powers under the Bush administration.
Comment by abb1 —
March 3, 2009 @ 3:20 pm
Jim has a much better angle than you guys. There is no “argument” here, good or bad. People and (especially) institutions take as much power as they can, and that’s all there is to it.
Comment by strasmangelo jones —
March 3, 2009 @ 3:29 pm
People and (especially) institutions take as much power as they can, and that’s all there is to it.
Who’s been saying any different?
Comment by Hesiod —
March 3, 2009 @ 4:36 pm
Getting this right is so incredibly important to Hesiod that he’s willing to err on the side of state power because erring the other way would mean that, well, we erred. And getting this right is just far too important.
Judicial power is also state power, asshat.
Comment by Hesiod —
March 3, 2009 @ 4:39 pm
I’m sure Hesiod was just as deferential to executive branch powers under the Bush administration.
I’m not being deferential to executive powers. I am pointing ACCURATELY pointing out the legal position taken by the Obama DOJ in this case (as opposed to the alarmist and disingenuous position taken by people like Greenwald).
They are not asserting unitary executive. They are not asserting that that the executive should never be subject to constitutional constriaints.
I read their damn brief. Unlike the rest of the yahoos here, apparently.
Comment by abb1 —
March 3, 2009 @ 4:43 pm
Right, right. It just seem kinda pointless to get involved into this discussion about amendments, and judicial precedents and stuff. It’s bullshit.
Comment by Hesiod —
March 3, 2009 @ 5:06 pm
Obama releases all the Yoo, Bynee memos from the previous regime to the public? Crickets here.
Obama forces the CIA to come clean on torture tapes? Crickets.
Obama argues that Judges shouldn’t have the power — under the Seperation of Powers set up by the Constitution — to override a Presidential Executive Order on de-classifying national security material — OBAMA’S JUST A FASCIST LACKEY OF STATE POWER!
This is why Libertarians never win elections. At least you aren’t all incessantly whining about slight increases in marginal tax rates any longer.
Comment by abb1 —
March 3, 2009 @ 5:06 pm
Who cares, Hesiod, what they are asserting; on that level it’s a pure power struggle. Roosevelt, for example, tried court-packing – what was he asserting? He was asserting that he was a popular president with a popular program, and nothing else.
Comment by Hesiod —
March 3, 2009 @ 5:10 pm
I submit that people are reading far too much into the short term tactical legal manueveriung of DOJ lawyers who are desperately trying to avoid millions of dollars in indemnity damages against the taxpayers. [And which will open up a huge can of worms with all the other predatory/opportunistic lawsuits that will follow].
This is not a titanic struggle between the executive and the judiciary. fighting for state power supremacy.
Comment by strasmangelo jones —
March 3, 2009 @ 5:33 pm
Judicial power is also state power, asshat.
I’m sorry, did I miss the part where the Ninth Circuit spied on the Muslim charity? It’s the executive that’s stomping on our rights here, and it’s the judicial branch’s job to protect us when that happens.
Comment by strasmangelo jones —
March 3, 2009 @ 5:35 pm
This is not a titanic struggle between the executive and the judiciary
Of course it isn’t – it’s just an attempt by the White House to protect its ability to spy on anyone it likes, whenever it likes, without oversight. It’s a conflict between the government and the governed. It’s you who tried to frame it as a “separation of powers” matter.
Comment by Hypatia —
March 3, 2009 @ 6:01 pm
Hesiod: please learn the correct spelling for separation. it is NOT “seperation”.
Comment by Timothy —
March 3, 2009 @ 6:19 pm
DRINK!
Comment by Hesiod —
March 3, 2009 @ 8:35 pm
Freed Scott. Not the executive. You lose. WE’D
Comment by Hesiod —
March 3, 2009 @ 8:37 pm
Aaargh. Dredd Scott dammit. Hate iPhone autocorrect.
Comment by Hesiod —
March 3, 2009 @ 8:40 pm
No. It’s not an attempt bythe white house to violatethe 4th amendment and spyin people. It’s an attempt to avoid millions of dollars in judgments by using whatever legal arguments are available. Sometimes a cigar is just a fucking cigar.
Comment by Hal —
March 3, 2009 @ 8:50 pm
As a democrat, I do find this all very disappointing, regardless of whatever the “reality” may turn out to be. This is why we don’t open these doors: they’re oh so very tricky to close.
Sucks, and I don’t have much to say in apology.
But I was thankful for Jim’s extra effort to deal with equivalences n’ such. Much appreciated.
Comment by Seward —
March 3, 2009 @ 10:03 pm
Since we’ve gone off topic with that statement…
My main complaint is with the irrational, byzantine nature of the U.S. tax system. It is both primitive as compared to other nations and basically a target of lottery politics (which makes it costly). Obama has nothing to change this and doesn’t plan to do anything to change this. So we’ll continue with the byzantine system we have today.
As for not winning elections, I’m not quite sure why one would see this a bad thing. After all, Bush won elections in 2000 and 2004.
Comment by strasmangelo jones —
March 4, 2009 @ 12:37 am
It’s an attempt to avoid millions of dollars in judgments by using whatever legal arguments are available
Er, what? Earlier in this very thread you claimed the administration acting on principle – a legal principle related to separation of powers so weighty and important that it didn’t matter that a bunch of innocent people got spied on by the government and are now being denied recourse to any justice after the fact by that very government. That’s just how big and important and awe-inspiring that legal principle was, just a handful of comments ago.
But now you appear have no illusions whatsoever that this has anything to do with principle – your story is now that the Obama administration is simply trying to save itself some cash, and will do so at any cost, even at the cost of establishing a precedent that makes the resident of the oval office effectively omnipotent and his victims utterly devoid of legal recourse.
Now, if it were the Bush administration making this argument – and as others here have noted, the Bush administration did, in fact, make this argument – I’m betting you’d be more willing to entertain the possibility that new and unchecked powers granted to the White House were not some peripheral effect of this exercise, but in fact the whole point.
Comment by Thoreau —
March 4, 2009 @ 12:40 am
I googled for “unprincipled partisan shill without the faintest shred of a soul” and the top Google hit was for Hesiod.
Comment by Jim Henley —
March 4, 2009 @ 12:42 am
Not fair. I know for a fact that Hesiod has a soul.
Comment by joe from Lowell —
March 4, 2009 @ 9:42 am
What I’ve learned from this thread: it isn’t possible to disagree with Jim Henley without being a shill.
Only people who agree with him actually believe things.
Comment by joe from Lowell —
March 4, 2009 @ 9:48 am
Damn, the gap in the intellectual content of the two sides in this debate is astounding. If I may:
The most recent complaint concerns the Obama’s DOJ’s insistence that there is such a thing as separation of powers, and that the Courts should not have the power to override the President’s deicison (in some cases following a statutory procedure enacted by Congress) to classify national security secrets.
Lawyers have an old saying: Bad facts make bad law.
vs.
I was betting on Joe to play the shill role here. I’m obscurely disappointed.
or
One doesn’t have to be an opponent of all judicial review of executive decision sto believe that there really is a seperation of powers and that the Judiciary should have some restraints on it that prevents it from interfering wth legitimate executive decisionmaking.
vs.
Funny how to these guys, the Constitution and separation of powers only exist when they can be spun to enhance the power of their president.
or (this one’s my favorite):
They don’t have a good case here. They look horrible. But, bad facts make bad law applies. Which is why the bad facts of this case should nt be used to gut legitimate seperation of powers issues that have been around for 200 years.
vs.
It just seem kinda pointless to get involved into this discussion about amendments, and judicial precedents and stuff. It’s bullshit.
Pretty dramatic.
Comment by joe from Lowell —
March 4, 2009 @ 9:51 am
Oops, new favorite.
Comment by Hesiod —
March 3, 2009 @ 5:10 pm
I submit that people are reading far too much into the short term tactical legal manueveriung of DOJ lawyers who are desperately trying to avoid millions of dollars in indemnity damages against the taxpayers. [And which will open up a huge can of worms with all the other predatory/opportunistic lawsuits that will follow].
vs.
Comment by Thoreau —
March 4, 2009 @ 12:40 am
I googled for “unprincipled partisan shill without the faintest shred of a soul†and the top Google hit was for Hesiod.
You people are pathetic. You’re so certain the administration’s reasoning is wrong that you can’t even articulate a legal theory to back up the outcome you want. Quick, start whining about activist judges.
Comment by dhex —
March 4, 2009 @ 10:05 am
“BTW, the Al Haramain case is unbelievably horrible.
The government accidentally mailed the charity documents proving that it was illegally spying on it. When they got sued, they claimed that because these documents were classified, they were inadmissible in court.”
it’s like they read catch 22 and decided that it would make a great stage play. and being theatrical experimentalists, they realized there was no better stage than the legal fabric of american life.
Comment by joe from Lowell —
March 4, 2009 @ 10:48 am
If a defense contractor was being sued, and accidently faxed over plans for the next generation of nuclear submarines to the plaintiff, does that mean the judge should order them released in open court and entered into the publicly-accessible transcript?
Try to think about the ideas and doctrines this case raises, and not just political personalities and the horrible facts of this case.
Bad cases make bad law.
Comment by strasmangelo jones —
March 4, 2009 @ 11:09 am
Quick, start whining about activist judges.
Again: what? It was Hesiod, your fellow Obama apologist, who invoked the specter of the activist judiciary when he claimed the Obama administration was only trying to protect its right to (unchecked, unreviewable) classification power from an overreaching judiciary.
(This was before, of course, Hesiod apparently abandoned that line of reasoning entirely in order to adopt the stance that it would cost millions of dollars if these wronged citizens win, so the government is only using every sophistry it can to prevent that.)
Joe: I know you like Obama. I know you really, really, really like Obama. Really, I get that. And you know, just to back up what Jim said toward the end of his post, I think it’s pretty obvious that he’s in many ways better than Bush. I think his economic plan has a chance at helping some of the more immiserated in this country. I think his environmental policy, while pathologically and perhaps disastrously timid, is far better than the Bush policy of pretending that science doesn’t exist. It’s not a matter of “not a dime’s worth of difference.”
But seriously: get a grip. Even before the election Obama had voted to give himself the unchecked power to spy on anyone in the country. He’s currently doubling the size of a torture camp that’s already much bigger than Guantanamo. His Defense Department has already made the laughable assertion – denounced by Amnesty International – that conditions at Guantanamo itself are up to Geneva Conventions standards. He’s escalating a pointless and disastrous war in Afghanistan that’s already killed thousands of people and will probably kill a lot more before it’s through, while expanding that war into nuclear-armed Pakistan. And someone needs to call him on this shit.
Now, it’s pretty clear that that’s not going to be you. And that’s fine: there were plenty of Republicans who were staunch advocates of civil liberties, limits on executive power and a humble foreign policy during the 1990s who suddenly and mysteriously changed their minds in January of 2001. But it’s a bit much for you to act like criticism of Obama from those few who genuinely do care about this stuff is some kind of personal affront.
Comment by strasmangelo jones —
March 4, 2009 @ 11:12 am
If a defense contractor was being sued, and accidently faxed over plans for the next generation of nuclear submarines to the plaintiff, does that mean the judge should order them released in open court and entered into the publicly-accessible transcript?
Joe, what you want to establish is the precedent that the president can spy on you at will, mail you the evidence that he’s spying on you, and then, when you try to submit that evidence in court, claim “that evidence is inadmissible – it might be blueprints of a submarine!”
Comment by joe from Lowell —
March 4, 2009 @ 11:24 am
Again: what?
OK, I’ll explain it again: you people keep frothing on about how terrible this argument is, and how the law must obviously come out a certain way, and you can’t even articulate a legal argument in support of that position.
Joe: I know you like Obama. And I know you can’t articulate, or even follow, apparently, legal reasoning, so you make every argument into a soap opera about political personalities. I’ve put forward an argument; any time you’d care to try to address, that would be awesome. But I’m not going to hold my breath, because like most people on this site, you are only capable of thinking in terms of political personalities and liking them.
Economic plans? Environmental issues? Afghanistan? WTF are you talking about? Would it be so incredibly difficult to try to discuss this legal issue as a legal issue, touching on various separation of powers doctrines, instead of it turning into a venting exercise for your feelings about a particular political figure?
Comment by joe from Lowell —
March 4, 2009 @ 11:31 am
Joe, what you want to establish is the precedent that the president can spy on you at will,
Actually, sj, what I’m trying to do is talk about the constitutional doctrine of separation of powers, and the scope of the executive’s power to take actions related to its Article 2 powers. Under longstanding case law, and based on Article 2, the power of the president is at its greatest extent when acting on a national security matter, in an area where Congress hasn’t passed any laws.
But I guess that just all went over your head. I know for YOU, all of this constitutional blather is just an excuse to get to the outcome you want in a particular case, but some of us actually have principles when it comes to the Constitution, and let our opinions about individual cases flow from that.
Since you asked, I think the President’s power to classify information should be curtailed, and I’m glad that there is a Democrat-sponsored bill wending its way through Congress which would do exactly that. That’s the correct way to address the abuses of the classification power that the Bush administration engaged in, and the systemic problem it demonstrated. You probably didn’t follow that either, though.
Comment by every other commenter on the board —
March 4, 2009 @ 11:33 am
This is a trick!
Bush Bush Bush. Obama Obama Obama. Partisan Partisan Partisan.
It just seem kinda pointless to get involved into this discussion about amendments, and judicial precedents and stuff. It’s bullshit.
And stuff.
Comment by strasmangelo jones —
March 4, 2009 @ 11:45 am
you can’t even articulate a legal argument in support of that position
No one’s been articulating the argument against spying on people without a warrant, and then declaring evidence of said spying inadmissible in court because this argument has been made many, many times. We’d assumed that you hadn’t been asleep, under a rock, in a cave, for the last four years. Or for that matter, for the last two hundred.
But if you like, I will do so, spelling things out very slowly as I go:
Some of us – a crazy crazy fringe, I know – have this belief that there should be fundamental restrictions on what kinds of power a government can have over those it rules. We’ve come to call a set of those restrictions “due process”: a framework the government has to follow before it can do things like lock people up, send them off to other countries in burlap sacks, or spy on them.
In order to spy on a citizen in this country, it’s been traditionally held (by crazy fringe groups, like the ACLU) that the government should first obtain a warrant from a separate and independent part of the government, whom we’ll call “judges.” We set up this process not merely to annoy the government, but to make sure it doesn’t spy on people without a good reason, since the power to spy on people is a really important power, and can be easily abused.
If that power is abused, some people also think that the people who’ve been wrongly spied on should be able to punish the people who wrongly spy on them – you see, if nothing bad ever happens to the people who illegally spy on people, there would be nothing to prevent them from doing it again, ever! So we have a process whereby the people who’ve been wrongly spied on can go to those “judges” we mentioned before and get them to review their case and punish the government if it’s done something bad with its spying power.
Now, here’s where it gets tricky! Lets say the people who got spied on have evidence that they’ve been spied on, or are looking for evidence that they’ve been spied on, but the government uses another power – a power to declare things Officially Secret – to say that the evidence against it is Officially Secret, and can’t be used in court. Why, if the government could do that, then nobody could ever stop the government from spying on them at all! Hmm!
Comment by every other commenter on the board —
March 4, 2009 @ 11:56 am
So, in other words, no, you cannot articulate an argument why the president can be ordered to declassify information by a judge, and changed the subject.
About what I expected.
Duh, Article 2? What’s that?
Comment by every other commenter on the board —
March 4, 2009 @ 11:57 am
Maybe you should talk about Afghanistan again. That’s about as relevant.
Comment by strasmangelo jones —
March 4, 2009 @ 11:58 am
Joe, you do realize that your argument in 46 is the exact same logic as that argument that goes, “I have no problem with gays or even gay marriage, but that it’s just wrong wrong wrong for gays to be granted rights through the courts instead of the legislature”?
Comment by strasmangelo jones —
March 4, 2009 @ 11:59 am
I’m not sure why Joe’s stopped using his handle.
Comment by every other commenter on the board —
March 4, 2009 @ 11:59 am
Why, if the government could do that, then nobody could ever stop the government from spying on them at all! Hmm!
Which is why there is a bill in Congress addressing that very issue.
Strong on high-horsedness, weak on information, current events, constitutional doctrines.
Comment by joe from Lowell —
March 4, 2009 @ 12:00 pm
D’oh!
Comment by strasmangelo jones —
March 4, 2009 @ 12:04 pm
Duh, Article 2? What’s that?
I wondered what Al Gonzales had been up to not that he’s got all this free time.
Comment by joe from Lowell —
March 4, 2009 @ 12:05 pm
Joe, you do realize that your argument in 46 is the exact same logic as that argument that goes, “I have no problem with gays or even gay marriage, but that it’s just wrong wrong wrong for gays to be granted rights through the courts instead of the legislature�
In the sense that they are both arguments about the right way to change the law, yes, I do. “Barry Bonds is the greatest hitter of all time” and “Mark Bellhorn is the greatest hitter of all time” are both similar arguments, too. But, you see, one of those arguments is arguably correct, and one is wrong.
In the case of gay marriage, the Massachusetts Constitution includes protections from discrimination on the basis of sexual orientation. Since the courts are empowered to strike down or change laws that conflict with the state constitution, then the courts are a proper venue for that fight.
On the other hand, there is no law limiting the president’s power to classify information, nor requiring that the executive branch submit classified information to court review. You do understand that branches of government have to be authorized to exercise powers, right?
There should be such a law. There will be, I predict, passed out of this Congress. But as of now, there isn’t.
Comment by joe from Lowell —
March 4, 2009 @ 12:07 pm
I wondered what Al Gonzales had been up to not that he’s got all this free time.
All political personalities, all the time.
You should try to be less partisan, and base your political opinions on principles, instead of just picking sides based on which politicians you like and dislike.
Comment by strasmangelo jones —
March 4, 2009 @ 12:07 pm
weak on information, current events, constitutional doctrines
Joe, I’m getting a little tired of arguing with you because the stink of bad faith is so heavy in the air here. The reason we have courts and a bill of rights is to defend the rights of the minority from majoritarian rule – that is, when Congress and the President won’t protect them. We shuldn’t have to rely on a legislature to fix this, and we don’t have to. See also: gay marriage, Roe v. Wade, Brown v. Board of Education, and every other progressive court decision in the last hundred years.
Comment by joe from Lowell —
March 4, 2009 @ 12:08 pm
But thanks for expressing what could be fairly described as the Platonic ideal of an ad homenim fallacy.
You must be wrong, because Alberto Gonzales said the same thing.
Comment by strasmangelo jones —
March 4, 2009 @ 12:08 pm
You should try to be less partisan, and base your political opinions on principles, instead of just picking sides based on which politicians you like and dislike.
Repeat this to yourself thirty times a day, Joe.
Comment by strasmangelo jones —
March 4, 2009 @ 12:10 pm
But thanks for expressing what could be fairly described as the Platonic ideal of an ad homenim fallacy.
Meet comments 38, 39, and 46.
Comment by joe from Lowell —
March 4, 2009 @ 12:10 pm
Joe, I’m getting a little tired of arguing with you because the stink of bad faith is so heavy in the air here.
Then try to make a good faith argument about my legal reasoning being wrong.
Except, you can’t. Hey, look, Alberto Gonzales.
The reason we have courts and a bill of rights is to defend the rights of the minority from majoritarian rule – that is, when Congress and the President won’t protect them. The courts must act within the scope of the law, too. Even when doing things you like.
Comment by joe from Lowell —
March 4, 2009 @ 12:11 pm
All done, sj. Until you can come up with a legal argument, buy-bye.
Comment by strasmangelo jones —
March 4, 2009 @ 12:12 pm
Anyway, this is getting tiring, so I’ll leave Joe to argue with himself.
Comment by joe from Lowell —
March 4, 2009 @ 12:12 pm
Meet comments 38, 39, and 46.
None of them say that an argument is wrong. FAIL.
You can use the Google to find out what the term ad homenim means, if you’re interested.
Comment by joe from Lowell —
March 4, 2009 @ 12:13 pm
Anyway, this is getting tiring, so I’ll leave Joe to argue with himself.
I coulda refuted joe’s legal argument any time I felt like it.
I just didn’t feel like it.
Comment by strasmangelo jones —
March 4, 2009 @ 12:14 pm
Joe, for god’s sake, you have no legal argument.
Comment by joe from Lowell —
March 4, 2009 @ 12:15 pm
LOL.
You know, when I wrote “Article 2? What’s that?” I thought I joking.
Comment by strasmangelo jones —
March 4, 2009 @ 12:23 pm
Tell you what, Joe: write yourself up an actual rationalization for the existence of a presidential classification power so broad it’s able to prevent incriminating evidence of torture and illegal spying from being admitted in court against the very government that tortured and spied in the first place. Then send it to yourself eight years ago, so you can get a job in the Bush DOJ.
Comment by dhex —
March 4, 2009 @ 12:32 pm
i think we can all agree that, if nothing else, when the state mistakenly mails you evidence that it is breaking the law to fuck with you, scan that shit and get it up on torrent sites ASAP. and then get some congresscritter to read that shit into the congressional record, also ASAP.
i share your expressed hope, joe, that the bill coming down the pipe will set more stringent boundaries for executive claims to secrecy. anything that chips away at the easy on-ramp to “executive lawlessness” (or whatever we’d like to call it) and leads to a slightly less imperial presidency is a good thing. as we see from john yoo + co’s 2nd rate impersonation of lovecraft, america should probably not have called up what it could not put down.
in the meantime, the above case is but more eggs for the omelet.
Comment by Thoreau —
March 4, 2009 @ 12:39 pm
Well, if designing the next generation of nuclear sub were actually a crime, then yes. But since it isn’t a crime, it’s a ridiculous analogy. Now, since warrantless wiretaps on US soil are indeed crimes, if the government gives somebody evidence of that crime the recipient has both the right and the patriotic duty to publicize that information.
General comment: I spent 8 years listening to people say that they aren’t necessarily in favor of what’s being done but, well, this is national security we’re talking about, and judges should be mindful of their limited role in these matters. I knew the bullshit for what it was back then, I saw the utter lack of merit in it, and I’m not about to suddenly change my view of that bullshit simply because it’s uttered by somebody else. If refusing to believe the same bullshit from a different mouth is ad hominem, well, so be it.
Comment by Neel Krishnaswami —
March 4, 2009 @ 1:16 pm
dhex: the classified documents in question have been disallowed as evidence.
The al-Haramain charity’s lawyers are now arguing that because government officials have admittted in public statements that yeah, they were spying on them, these facts no longer constitute “secrets” and should be admissible as evidence.
They’re willing to take appropriate steps taken to keep sensitive information private — for example, they’re getting security clearances and classified info will be kept out of the record.
The court has agreed to this, and ordered the Feds to cough up the evidence. The government is refusing to obey this order, with the argument that the fact that they have publically disclosed this information doesn’t matter — if they stamp a document “secret” they can always claim national security privileges for it.
Really, the attempt to try and find technical defenses for the government is funny: the government’s case is fractally awful, in the sense that it has a new kind of meretricious cruelty at every level of resolution.
Comment by Jim Henley —
March 4, 2009 @ 1:25 pm
BTW, Joe’s explicit attempt in 44, and Hesiod’s implicit efforts since the beginning of the thread, to pretend that the only issue before us is the narrow legal matter asserted by the government in the one specific case covered by the one linked Greenwald case is, as most thread participants recognize, a dodge. Stras’ paragraph
in 42 is entirely in the spirit of the original post. Efforts to pretend that this is all just some negative waves emanating from cranky libertarians ignores the fact that genuine progressives and other non-libertarians – the Newshoggers crew; A Tiny Revolution; Nell; er, me – have specified numerous non-technical shortcomings of the Obama administration on civil liberties, rule of law and executive overreach.
It’s fun to pretend that if this brief contains (self-interested) references to old precedents that a judge has already ruled do not apply (and judges interpret judicial precedent outside Unitary Executive wet dreams), this somehow means that the broad complaint that Obama has already taken steps to perpetuate major aspects of the American imperial state is invalid. But, well, it doesn’t mean that.
Comment by Seward —
March 4, 2009 @ 1:42 pm
I don’t think it matters whether Obama is better, worse, etc., this is a power which the government simply should not have. Why? Well, the significant historical abuse of the state secrets doctrine seems to be reason enough. Indeed, in its first recognition by the courts back in the early 1950s it was birthed in abuse. It is not the sort of power that governments can be trusted with.
Comment by joe from Lowell —
March 4, 2009 @ 2:03 pm
sj,
If I were actually the partisan you want so desperately to believe I am, your yammerings about my argument being superficially similar to something a Republican argued would matter to me.
But since they don’t, perhaps there’s a conclusion you can draw.
BTW, if the closest you can come to making a legal argument is to observe that someone else made an argument that sounds like that, then you’re probably not in a position to judge the validity of any given decision or filing.
Comment by joe from Lowell —
March 4, 2009 @ 2:08 pm
dhex,
i share your expressed hope, joe, that the bill coming down the pipe will set more stringent boundaries for executive claims to secrecy. anything that chips away at the easy on-ramp to “executive lawlessness†(or whatever we’d like to call it) and leads to a slightly less imperial presidency is a good thing. as we see from john yoo + co’s 2nd rate impersonation of lovecraft, america should probably not have called up what it could not put down.
I think that’s a fine sentiment. The reason this is coming up now, and why it’s so important to have a legislative fix now, is because for 40-odd years, the broad discretion given to the president in regards to the classification of information was “good enough.” Yes, there were problems and abuses, but not to the degree that changing the law to restrain the president needed to be a major priority. There was an assumption of good faith on the part of the president, and the presidents we had didn’t abuse it too badly – until this last one.
Comment by joe from Lowell —
March 4, 2009 @ 2:12 pm
Thoreau,
Well, if designing the next generation of nuclear sub were actually a crime, then yes. But since it isn’t a crime, it’s a ridiculous analogy. Now, since warrantless wiretaps on US soil are indeed crimes, if the government gives somebody evidence of that crime the recipient has both the right and the patriotic duty to publicize that information.
That’s not the standard. The issue before the court isn’t about the recipient’s “right and patriotic duty,” but the government’s responsibility to provide information to a court.
As for the as homenim charge, you whiffed on that, too. It isn’t an ad homenim to hold a certain position; it’s an ad homenim to claim, as strangey up there did, that this position must be wrong because Alberto Gonzales argued it.
Comment by joe from Lowell —
March 4, 2009 @ 2:16 pm
Tell you what, Jim: I’ll tell you what arguments I’m making, not vice-versa, mmm-kay?
This post, Hesiod’s comments, and my comments were, in fact, about this particular case, and the issues it raised. I didn’t write a word about “cranky libertarians.”
But it is notable that, rather than try to argue this particular case, your immediate response is to dredge up a bunch of other issues that have no connection to the subject being discussed EXCEPT that they make Barack Obama look bad.
I have to say, that really does make it look like you’re much less interested in the merits, logic, and doctrines behind the administration’s actions than in making some broad political point about Barack Obama.
Comment by Eric the .5b —
March 4, 2009 @ 2:18 pm
*catches up*
Joe’s devolved into talking to himself, and Hesiod’s pretending that he doesn’t know that we’re completely aware that Blues (or Reds) would be rolling their eyes at something so pedantic as “separation of powers” concerns if they stood in the way of what their team wanted to do.
That’d be the difference between progressives/liberals and, well, Blues.
Comment by joe from Lowell —
March 4, 2009 @ 2:18 pm
BTW, 77 comments in, and nobody has even bothered to put forward a legal argument to rebut Hesiod’s.
Comment by joe from Lowell —
March 4, 2009 @ 2:21 pm
Oh, look, Eric wants to talk about political parties, too.
*rolls eyes*
Yes, Eric, separation of powers is just a trick those nasty partisans are playing on you.
Apparently, discussing separation of powers when the judiciary and executive disagree about what the executive should do is out of bounds.
Trying to discuss law on this blog is like trying to explain to a cat why he should take his pill. The cat has no idea what you’re talking about, and wouldn’t care if he did.
Comment by Eric the .5b —
March 4, 2009 @ 2:25 pm
I have to admit:
juxtaposed with:
is terribly cute.
Is this where he starts accusing Jim and others of being secret racists, or will he concoct some broad political point that’s behind all our Defeatist Naderite Posing?
Comment by Seward —
March 4, 2009 @ 2:28 pm
Something else struck me; it is, if I am correct, often justified as the sort of power that the British monarchy had and that this somehow was transferred to the U.S. Presidency. That it was apparently a power of the British monarchy ought to make it suspect by itself.
Comment by joe from Lowell —
March 4, 2009 @ 2:32 pm
Why is it terribly cute?
Jim himself wrote about numerous non-technical shortcomings of the Obama administration on civil liberties, rule of law and executive overreach. and the broad complaint that Obama has already taken steps to perpetuate major aspects of the American imperial state.
Did you miss that, Eric? The part where Jim wrote an entire post about exactly the subject I discussed? I guess you did.
Comment by joe from Lowell —
March 4, 2009 @ 2:33 pm
I guess I “concocted” those quotes, too.
Comment by Eric the .5b —
March 4, 2009 @ 2:34 pm
Now this is why I prefer joe over Hesiod. Hesiod just got all “Blow-back? That’s a crazy idea, Rep. Paul!” and sulky, while joe has the style to go big and baldly suggest that folks here don’t care about the legal principles that the Blues here are citing out of pure (if shaky) convenience.
Comment by joe from Lowell —
March 4, 2009 @ 2:36 pm
When you can’t rebut an argument, characterize it.
“shaky”
“convenient”
“blue”
“partisan”
“like Gonzalez”
etc etc etc.
85 comments, still no response to Hesiod’s separation of powers argument.
Comment by Seward —
March 4, 2009 @ 2:36 pm
joe,
There was an assumption of good faith on the part of the president, and the presidents we had didn’t abuse it too badly – until this last one.
It was the scene of terrible abuse from its inception; now what really happened is that abuse took decades to come to light. Of course I realize that this an eye of beholder sort of thing, but the fact that the very first time the courts ruled on this issue was a case where no actual state secrets existed ought to tell us something about what this doctrine has allowed.
Comment by joe from Lowell —
March 4, 2009 @ 2:38 pm
Seward,
Are you actually saying that George Bush didn’t abuse the state secrets doctrine in new ways? That he didn’t expand its application?
Just looking at the number of documents he classified, and the number of times he invoked it in court, should make it clear that there was a pretty significant break.
Comment by Eric the .5b —
March 4, 2009 @ 2:41 pm
Oh, hey, joe.
Just that it was very well done – snarking indignantly about people characterizing your argument at the start of the comment, then finishing the same short comment with a characterization of their arguments.
It’s the sort of style you’re known for.
Comment by dhex —
March 4, 2009 @ 2:43 pm
“The al-Haramain charity’s lawyers are now arguing that because government officials have admittted in public statements that yeah, they were spying on them, these facts no longer constitute “secrets†and should be admissible as evidence.”
it did strike me that the lawyers for haramain went out of their way to narrow what kinds of information/secrets they would be exposed to in exchange for getting security clearance.
i still get the feeling this case is water under the bridge. what compels the doj to comply if they simply refuse to?
Comment by Seward —
March 4, 2009 @ 2:44 pm
joe,
No, I am not suggesting that. I am suggesting that arguing that it wasn’t abused “too badly” is hogwash and nonsense. They abused it badly just as one would expect of an unchecked power, a power which denies sunshine to a government activity. Where sunshine does not exist in government functions, guess what follows.
Now obviously again this is a bit of an eye of the beholder deal, but this is just a power government cannot be trust with, no matter who is in office.
Comment by joe from Lowell —
March 4, 2009 @ 2:45 pm
Thoreau likes to write about being accused of being a Republican shill.
I count 16 accusation of partisan shilling on this thread.
15 from the libertarians, 1 ironic one from me.
I think you can safely retire that one, T.
Comment by joe from Lowell —
March 4, 2009 @ 2:46 pm
I didn’t characterize his argument, I repeated it.
But nice crawfishing on the accusation that I made up a position and assigned to Jim.
Don’t worry; nobody noticed that you did that.
Comment by Seward —
March 4, 2009 @ 2:48 pm
joe,
In other words, IMHO, previous administrations abused it badly and the Bush administration just one upped them.
You know, one of the things that modern liberals are known for are their efforts to put sunshine on government activities; I’ve never seen any really compelling reason why this shouldn’t apply to national security.
Comment by joe from Lowell —
March 4, 2009 @ 2:50 pm
Seward,
Without getting too deep into the semantics of the word “too,” my point was that the problems with the doctrine and the president’s application – which, I acknowledge, were there from the beginning – recently expanded in scope to the point that it became imperative to address them.
Of course, one could accurately say that any abuses are too much. My point is that we could “muddle through” before Bush, but can’t now, because he turned the dial to eleven.
Comment by joe from Lowell —
March 4, 2009 @ 2:53 pm
Seward,
From the Wikipedia “state secrets doctrine” page:
That’s a bit beyond “one-upping,” by my lights.
Comment by Seward —
March 4, 2009 @ 2:53 pm
joe,
…recently expanded in scope to the point that it became imperative to address them.
And I would argue that they have been imperative to address since this doctrine came into use. It is a terrible doctrine, the abuse of it has been recognized for some time now (decades), and we’ve reaped the rewards for continuing on with it.
Comment by joe from Lowell —
March 4, 2009 @ 2:54 pm
I’ve never seen any really compelling reason why this shouldn’t apply to national security.
I agree; that’s why I support the legislation in Congress – but that’s not to say the doctrine should be thrown out in its entirety.
Comment by Seward —
March 4, 2009 @ 3:04 pm
joe,
Well, if a judge can see the material, and the President can no longer argue that they shouldn’t see it, it isn’t really a “secret” any more, is it? At least not from the government, as opposed to the head of state. At that point it would be a government secret, not a state secret.
Whatever the case, the basic problem here is unchecked discretion (something which libertarians despise in a government); and that is what the state secrets doctrine allows for.
Comment by Seward —
March 4, 2009 @ 3:06 pm
joe,
RE: the wikipedia article, that seems like the natural course of progression one would get from something like this; it grows and grows and grows exponentially and then one sees a sudden burst. It was a flawed doctrine from the start.
Comment by Eric the .5b —
March 4, 2009 @ 3:14 pm
Don’t know what “crawfishing” is and too busy to look it up, I’m afraid, but thanks.
At the risk of being critical, I don’t think you’re managing to sell the idea that Jim’s expressed concerns are an irrelevant and somehow sinister “real” reason for his position on this. Otherwise, though, you’re in great form.
Comment by joe from Lowell —
March 4, 2009 @ 3:27 pm
Seward,
One can have a state secrets doctrine that isn’t unlimited, but I take your point about the unchecked nature of the doctrine to date making the Bush-era abuses inevitable. There always need to be checks on government power, or executive power.
Eric,
Crawfish walk backwards.
At the risk of being critical, I don’t think you’re managing to sell the idea that Jim’s expressed concerns are an irrelevant and somehow sinister “real†reason for his position on this. I haven’t the foggiest idea what you’re nattering about, and I don’t much care. You accused me of assigning a position to Jim – that he is more interested in this case as part of a narrative about the broad complaint that Obama has already taken steps to perpetuate major aspects of the American imperial state than in the merits of the case itself – which Jim openly and explicitly makes himself.
Comment by Seward —
March 4, 2009 @ 3:38 pm
joe,
Well, crawfish walk forwards; they escape from predators by going backwards.
Comment by Eric the .5b —
March 4, 2009 @ 3:52 pm
Hmm, not sure what I’ve moved backwards on. Your compliment may have been misguided, joe.
Comment by Eric the .5b —
March 4, 2009 @ 4:04 pm
Oh, very nice, joe. Double points for referring to one of the very sentences where he specifically argues – unanswered – against the Blue argument you’re boldly touting as unassailable and unassailed. Excellent form.
Ooh, I’m sure that’s points off, but not many, and you’ve got a pretty good lead. Really, I’d call the thread for you, but we should really give Hesiod some more time.
Comment by joe from Lowell —
March 4, 2009 @ 4:14 pm
Well, crawfish walk forwards; they escape from predators by going backwards.
Don’t worry, Eric, it’s just your lunch I enjoy eating.
Oh, very nice, joe. Double points for referring to one of the very sentences where he specifically argues – unanswered – against the Blue argument you’re boldly touting as unassailable and unassailed. Excellent form.
More crawfishing. Point out that Jim said exactly what I stated he said? Prove your accusation that I put words in his mouth to be completely unfounded? Hey, look over there!
You are a masochist, aren’t you?
Comment by joe from Lowell —
March 4, 2009 @ 4:17 pm
you’re boldly touting as unassailable and unassailed
Since he didn’t write anything about my/Hesiod’s argument, I still haven’t the foggiest idea what you’re talking about.
I suppose in Eric-land “Gee, it must be fun to say that” counts as an imposing rebuttal. Actually, given your capacity for plausible argument as demonstrated over the years, yes, it does.
Comment by abb1 —
March 4, 2009 @ 4:25 pm
I don’t see why this has to be framed in terms of ’shortcomings’ of any particular administration; this is a much more general phenomenon.
If Obama (or any other) administration was attempting to implement policies I do like, I would want them to put forward the most ridiculous legal arguments if necessary, to dig dirt on their opponents; whatever it takes to succeed.
Politics is the game, all these legalities, legal arguments are just some of the cards in the deck.
Comment by Eric the .5b —
March 4, 2009 @ 4:36 pm
Easy there, big fella. Just being ahead is no call to dwell on the scoring. You’re getting every point you deserve for trying to cast a statement of value on the issue as a statement by Jim that he didn’t care about the merits of the case.
No buttering up the officials!
Comment by Eric the .5b —
March 4, 2009 @ 4:39 pm
Well, remember, it’s more complicated than that. The partisans have to act like they care deeply about the legalities and the points of law (or an interpretation of them) when their leaders find that useful. When’s it not useful, they have to argue that such concerns are irrelevant.
Think of it like the biathlon – two different activities that are necessary to carry out the whole. Or maybe more like a swimmer turning around and swimming back the other way after reaching the end of the pool.
Comment by Jim Henley —
March 4, 2009 @ 4:56 pm
Joe: Please name a couple of things that the Obama administration has done to discourage you about their commitment to really reining in the abusive doctrines and practices of the Bush era (and maybe before), under the broad penumbra of what Americans insist on calling “national security.” If there are no such things, feel free to say, “None.”
Eric: Please name a couple of things that the Obama administration has done to encourage you about reining in the abusive doctrines and practices of the Bush era (and maybe before), under the broad penumbra of what Americans insist on calling “national security.” If there are no such things, feel free to say, “None.”
Comment by D.A. Ridgely —
March 4, 2009 @ 5:18 pm
I have no problem with separation of powers arguments, per se. I do wonder, however, whether any of those making that sort of constitutional argument would go further and state (for the record, as it were) that if the Supreme Court rules on point that the president does not have the specific power asserted, the president should ignore the ruling and continue to exercise the power deemed unconstitutional by the Court?
Comment by Eric the .5b —
March 4, 2009 @ 5:19 pm
Jim:
Not “None”, to be sure. The most recent concrete thing was letting Ali Al-Marri out of the brig and into the federal court system.
The administration’s announced that they’re going to stop extraordinary rendition and torture. I now take that less seriously than I did at the time of the announcements, but it’s at least publically admitting that it’s wrong, which might be of some value even nothing else comes of it.
Even if the government’s going to be seize people off the street and put them in captivity at will, if we’re really treating them as POWs instead of people we can merrily torture and kill, that’s at least pulling a notch or three back on the reins.
Comment by Thoreau —
March 4, 2009 @ 5:32 pm
Well, at least it’s for a good cause, right?
Comment by abb1 —
March 4, 2009 @ 6:12 pm
That’s what politics is all about, everybody understands that. Why pretend that the politicians you like are any different?
Comment by Eric the .5b —
March 4, 2009 @ 6:24 pm
To be fair, I don’t think Thoreau likes many or any politicians.
Comment by GinSlinger —
March 4, 2009 @ 7:25 pm
Andrew Jackson made just that argument!
joe needs to go back and read Federalist 51 again. The key phrase you’re looking for, by the way, is not “separation of powers,” but rather “checks and balances.”
If the Federalist Papers are admissible as arguments to the SCOTUS, does that count as a legal argument?
Comment by Kolohe —
March 4, 2009 @ 7:31 pm
“On the other hand, there is no law limiting the president’s power to classify information,”
This is not quite correct, but close enough for government work as they say.
Comment by Kolohe —
March 4, 2009 @ 7:38 pm
For instance Natl Security Act of 1947 and Atomic Energy Act of 1950.
If the Federalist Papers are admissible as arguments to the SCOTUS, does that count as a legal argument?
fwiw, Yoo rode Hamilton hard and put him away wet in his ‘carte blanche’ oct 2001 memo.
Comment by Kolohe —
March 4, 2009 @ 7:51 pm
As an aside, I thought the Pentagon Papers case made more or less clear that the goverment can pretty much classify whatever it wants, but if it gets out into the public anyways, tough noogies.
Comment by McGanahan Skejellyfetti —
March 4, 2009 @ 8:47 pm
So, Joe just keeps denying all legal arguments against Hesiod are legal arguments against Hesiod. What a douche bag.
“mmm-kay?”
And now we have complete douche bag confirmation!
Comment by GinSlinger —
March 4, 2009 @ 10:28 pm
And Bush said he talked to God. So?
My point stands, the “separation of powers” doctrine of the US Constitution is actually better known as “checks and balances.” I think that it’s fair to say that we have a long legal history in this country of the judiciary checking both legislative and executive.
Comment by The Angry Optimist —
March 4, 2009 @ 11:33 pm
Joe and Hesiod’s narrow legal argument goes *Kablooey*
Comment by The Angry Optimist —
March 4, 2009 @ 11:47 pm
Yeah, so? I suppose that makes you a big fan of Korematsu.
Tell me joe, since you have invoked Article II as the sole basis for the justification of this action by the Administration, what in Article II allows this kind of behavior?
Hint: It ain’t in Article II. So cite some cases and actually make a legal argument.
Comment by Nell —
March 5, 2009 @ 8:37 am
Marcy Wheeler (Emptywheel) and some of her co-bloggers and commenters (several of them lawyers) had a productive discussion on the Obama DoJ’s most recent filings in the al Haramain case, joined by a couple of the lawyers for al Haramain.
Emptywheel makes a good case that Glenn Greenwald and a couple of other reports on the recent filing have misinterpreted and overreacted to it, but EW herself is overall very critical of the govt position in this case — as any serious civil libertarian would have to be.
I recommend the post and comments to Hesiod and Joe. Threads with no comments for a day or two are not revived, so if you want to respond to something I recommend doing so as an OT-noted comment to a current thread — or wait until the al Haramain topic comes up again, which probably won’t be long now.
Two earlier EW posts make the linked post more easily understood: ‘The al-H Stall Timeline’ and ‘Some Clues to What “Inaccurate” Information Bush Provided in al-H’. Search on ‘al-Haramain’.