The President’s major reasons for temporarily suspending programs of torture and secret detention are: 1) we already tortured these guys as much as we want to for the moment, thanks very much; 2) the Supreme Court annoyingly decided to get in the way. Oh, also, 3) the people supervising and committing the torture were “just following orders” and the President doesn’t want any chance that they might be held accountable for that.
Not anything truly brave like, “We made a mistake, and we’re going to correct it”. Lots of qualifiers, half-truths, omissions and double-standards. As usual.
I’m just curious. If it’s necessary to employ torture, secret detention, limited or no rights to counsel, and to keep the accused from seeing some or all of the evidence against them, in order to deal with people who commit terrorism, then why shouldn’t we do the same in the domestic U.S. justice system? Doesn’t the President believe that we should do anything to bring murderers to justice in our own country? Anything to stop the kind of corporate malfeasance that leads to massive companies crashing into economic failure and destroying the lives and fortunes of thousands upon thousands of Americans? Shouldn’t we act without restraint against those who sexually abuse children or rape women? Why not have secret evidence for those crimes? Why not restrict the access of those accused of such crimes to counsel? Why not allow police to use “alternative questioning” in order to find out the truth about such crimes? Is it just a matter of degree? Kill ten people as a serial killer and sure, you’ve got all your rights. Kill thousands as a terrorist and that’s it, no more rights? What’s the magic number? Thirty? Fifty? Eighty? Maybe Congress can add that to the list of specifics that the President would like legislated before the November elections when it may get more difficult for him to get things rubber-stamped.
What does the President mean when he talks about how he is defending “liberty”? I’d really like to hear a reporter just ask him that: could you define “liberty” in the United States? I wonder what he’d say if he was asked why there are specific provisions for the rights of those accused of crimes in the U.S. Constitution, what the meaning of those provisions might be, what on earth the authors of the Constitution were thinking when they put that stuff in there.
Um, Timothy, a lot of those things you posited as reductio ad absurdum, we already do. They’re still absurd, of course, but they’re also real.
For example, coerced testimony, limitations on the right of cross-examination, faked evidence, and even torture were hallmarks of the “Miami method” for prosecuting child-abuse cases. Janet Reno’s penalty for perpetrating this was becoming attorney general. The drug war has spawned an entire industry dedicated to confiscating the property of people never convicted (or even charged) of any crime via civil forfeiture. Search warrants are served with tanks, these days, and there’s no chance of any kind of penalty if the cops get the address wrong and kill the wrong family. The full majesty of the law will still be brought to bear against anyone who foolishly thinks they have a right to self-defense against home invasion, of course.
This is not an apology for W — he deserves impeachment and prison for his part in our torture system — but rather a worry that an invocation of the Constitutional virtue of due process might not carry as far as it ought given an actual legal practice that is rather more ambiguous in its relationship to due process.
Sure, but no prosecutor gets up and says, “I’m doing all these things even though it’s against the law because I think it’s necessary.” Unless it’s a comic-book, the movie Walking Tall or various other pulp fictions. More importantly, even people who violate due process (and fictions which ambiguously explore violation of due process like Homicide) tend to act like the boundary areas between rights and justice are at least morally ambiguous.
W. is proud that he has contempt for the boundary areas.
Although I’m in agreement with Tim’s position on this, it isn’t clear to me that the Court’s have clearly held that the Constitution’s guarantee of procedural rights to citizens of the United States extends to prisoners of the United States. The Supreme Court’s recent finding moved in that direction, but, if I’m not mistaken, even military tribunals give the accused much more restricted protections than civilian citizens expect in civilian courts.
I don’t actually disagree with Timothy; he’s 100% right — here’s a quote from George W. Bush’s speech where our President brags about ordering the torture of Abu Zubaydah (via Matthew Yglesias) :
Oh, that too. I’m just saying that the President’s defense of his previous orders to date make it unclear why he would believe in Constitutional restrictions in the first place. His main defense of what he’s done is first expediency, and only secondarily that it’s previous legality was ambiguous. If it works to reduce terror, he says, I will do it. So if it’s just expediency (and conceding ad arguendo that what he has done reduces terror, which I doubt), why not just ignore Constitutional provisions wherever they seem to interfere with brutally expedient methods?
We do. All presidents do so, have done so, and will continue in future. I’m not sure you have a realistic grasp of our nation’s system Timothy, or that of most other nations either. You seem to be standing in a field during a storm complaining about falling water. Maybe some day things will be something like your vision in some country some where, but not soon.
I’m talking about routinely doing so as a matter of declared policy rather than as a single ad hoc response to a momentary crisis, and moreover, when confronted on it, maintaining as a matter of principle that the executive office is entitled to act expediently as the executive sees fit even when the Constitution or the laws specifically say otherwise.
If that’s no big deal to you, then the next question is why bother with a Constitution or laws at all?
To come at this from another direction: it’s become very clear that some of those caught up in our net and detained and tortured in Afghanistan, Gitmo and Iraq were either wholly or largely innocent of involvement in terrorism.
One of the reasons the Constitution lays out the rights of the accused as it does is that the American revolutionaries lived in a world where monarchical states often held people for crimes that they did not commit and made it impossible for them to demonstrate otherwise. All states make mistakes in their pursuit of justice; the rights of the accused are designed to protect both the accused and the accuser from being locked into injustice. In Vietnam, we had fictional body counts because the generals needed to prove they were doing something; in this war, we can end up with many “bad guys” hauled in, interrogated, and tossed into a dark cell somewhere just so officers and CIA agents can prove that we’re making inroads against the “bad guys”.
It is one thing to have a single case, or even a few cases, where there is an ad hoc agreement that it’s going to have to remain off the books. Things happen on an ad hoc basis in warfare that you can’t expect to fall under the neat and tidy laws of everyday life. It’s entirely another to have the President of the United States order that a massive system of off-the-books detention and torture be built, and to insist it must be built no matter what any law says or any treaty commitment might say.
“If that’s no big deal to you, then the next question is why bother with a Constitution or laws at all?”
You mistake my reading of reality for approval of that reality. Knowing that this is in fact how things are is part of my distrust of powerful centralized government. The rosy stories of benign great leaders masks a harsher reality. The theoretic constraints of civil and common laws are observed when it is convenient.
The only real constraint is politics. The only real rule is that one must get elected. I’m not a skilled predictor of political outcomes (insert Tetlock references, Sunstein caveats and the insights of Scott Page) but I suspect that Bush and his team will benefit from his actions politically. This is the real reason that Democrats are squealing. None of them actually give a hoot about governance or constitutional virtue.
I don’t approve. But this is our reality.
They’re observed not only when they’re convenient, but when there are consequences for the failure to observe them.
“Is it just a matter of degree?”
I think it just a first step. He is trying to establish a benchmark to which he can point later when he starts doing the things you list. GWB will tell any lie and break any law to get his way. His attitude is “keep advancing.” In order to do that he has to tell lies or keep secrets or adjust his aim. His moves now are done with the fear that the Dems might regain control of the House and investigate him and his fellow felons. But even if they do, he will find a way to keep advancing.
I’m not familiar with the case law, but are the Bill of Rights’ due process provisions really only held to apply to US citizens? The fourth amendment refers to “the people” which I suppose might be construed as “the citizen body of the United States”, but the fifth referrs only to a hypothetical “person”, and the sixth to “the accused,” while the eighth, on cruel and unusual punishment, is entirely in the passive voice, which I would take to mean that it restricts the powers of the state without reference to the objects of that power.
FDR and A Lincoln are 2 presidents that have done much worse than Bush in regards to the constitution.