As for the other point, learning to have a complex engagement with the ambiguous choices of individuals under morally extreme circumstances is one thing. Writing into law a blanket justification for those choices in advance of their being made is entirely another. Knowing that somewhere out there in a war zone, a man may torture another and I might afterwards myself feel ambivalent about what happened is one thing; authorizing all men on my side in that war zone to employ interrogation methods that I think constitute torture is another thing.

TIM: “I readily acknowledge that under cover of darkness, in dire circumstances, sometimes people are going to do things that they deem necessary in the moment, and sometimes I’d probably judge them to have done the right thing.”

Discuss.

He has no such right under the current bill, and should not–since the same right accorded to the taxi driver will benefit the actual terrorist, who can then attempt reprisals. (Messages routed through his defense lawyer, doubtless.) As a matter of policy, the US military ought to check up on these accusations (and I presume it has an administrative procedure of some sort), using the same sort of standards used against Italian farmers accused of acting as German spies, or Vietnamese farmers accused of being Viet Cong or Viet Minh in disguise. These, I trust, were entirely run by the American military, with no oversight by the legislature or the judiciary. You are correct that it is liable to abuse. I would advocate a system of rigorous internal checks within the military–which I gather either exists already, completely or in good measure. (We do release people who have been falsely accused, you know. Some of them even talk to journalists, which is where we get some of the information on which this debate is based.) The alternative is also liable to abuse, and with graver consequences.

I note, incidentally, that habeas corpus derives from English common law, and is presumably not present in the vast majority of liberal democracies around the world. I am not up on my latest UN and EU conventions; do they in point of fact have an equivalent? And what is the name? (A quick google-search finds various British Euroskeptics saying that the UK is losing habeas corpus by entering into the EU, which indicates the possibility that habeas is not a given across the puddle.) All this to point out that to say that “one essential component is a habeas right of some kind” might lead one to believe that the European Union and Japan are lacking the essentials of a justice system.

You don’t have to reproduce the US judicial system; but if a war on terror involves detaining and incarcerating men and women in circumstances where their guilt or innocence is not immediately evident (e.g., they are not soldiers in uniform captured during military action), you’ve got to have the essential components of a justice system in place. And one essential component is a habeas right of some kind; another is overview from some authority exterior to the authority that confined the person in the first place.

I guess you can’t talk with Sen. McCain either. Ah, well.

And incidentally, if the habeus corpus of US citizens is not at issue, than forestalling appeals is not eliminating that right; whatever other problems it may have.

“I quoted the passage of the law identifying the people to whom it applies, and since it manifestly does not except U. S. citizens, I do not see how you can claim that it “explicitly” does any such thing. If you want to say that it does so implicitly, in light of other related laws already in existence, then you may have an argument.”

“JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.”

I do not see how this can be read as other than an explicit exclusion of all US citizens from the jurisdiction of these military commission, relying on no other law to make the point.

“A person who, like me, says that military interrogations need oversight and the possibility of having their mistakes corrected or rectified is simply not proposing that we “give the protections of US civil law to all people detained as enemy combatants.” That’s just stupid.”

It would indeed be stupid. I have been asking all along for modulated proposals, discriminating among the different potential subjects of the military commission law. My point is that the indiscriminate critiques leveled at the law allow for these extreme interpretations; and the repeated refusal by my interlocutors to make more discriminating critiques—and, indeed, the tenor of their language—has made it sound like this is what they were advocating. I would welcome such fine-tuned critiques. The excerpts of Ackerman presented by DNexon were very welcome.

“Someone who claims as key justifying precedents for current action the deportation of the braceros and the internment of Japanese-Americans during WWII probably shouldn’t make that argument.”

Well, it doesn’t play well to this audience. Note, however, that I am focusing solely on constitutionality here; not on prudence or morality.

“I made no comment about that, though — as you would know if you had been paying any attention at all — I did make a comment about the Alien and Sedition Acts, which are now universally considered to have been unconstitutional. Perhaps you want to defend them now as lying at the very heart of the American jurisprudential tradition to which you strive to be faithful? It would complete your Trinity of precedents.”

I do try not to answer every point raised; brevity is the soul of wit, etc.; and sometimes I think I address points implicitly. However, since you ask, I take the Sedition Act to be unconstitutional; to the best of my knowledge, the Alien Act has not been declared unconstitutional; and the following review – http://www.questia.com/PM.qst?a=o&se=gglsc&d=5001369695&er=deny –
argues that while it was badly worded, it was more than arguably constitutional. I would say that the general amount of power given to the executive by the Alien Act to deport aliens is constitutional, although the exact wording should have been modified so as to bear up under judicial scrutiny. But this is an argument for a better legislative clerk.

“Well, first of all, I do not believe that the entire world is under U.S. military interrogation, though perhaps Secretary Rumsfeld is working on that. But in any case, I would remind you again that there are some intervening positions between granting enemy combatants “the protections of U. S. citizenship” and granting them virtually no protections and absolutely no legal redress for any mistreatment.”

Then propose them, specifically, rather than making unmodulated statements of principle, which do not disavow straw-man extremes.

“Good grief, withywindle, we could fill the barns of Iowa with all the straw men you’re making. Why have I even been bothering to respond to you?”

Dunno. Me, I’m playing hooky from work.

Concerns about the temporary impact of “forum shopping” are not a justification for indefinitely eliminating a right long considered, both in English common law and by our founders, to be an essential protection against tyranny. They are not a rationale for precluding any redress for those whose rights — under dispostive international law — may have been violated.

You forgot the other rationale: that devious terrorists and their sympathizers would clog our courts with Habeas Corpus petitions and in so doing cripple our justice system.

Thank you for confirming that you are not, in fact, worth discussing these matters with.