I agree with David.Frum I believe that the President of the United States has the right to confer on his agents "a license to kill" foreigners he deems enemies of the US. If so, he should be able to indefinitely detain him. I think that I solved the problem. Please forward to the US Supreme Court!.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

I started making some of these arguments here, but Rosa makes them (and more) far more articulately and with a lot more expertise than I could possibly muster. TSElvis, I'm curious about your reactions to this diavlog.

I believe that the President of the United States has the right to confer on his agents "a license to kill" foreigners he deems enemies of the US. If so, he should be able to indefinitely detain him.

You forgot to add "POTUS and only POTUS has the right..." You wouldn't want other foreign leaders to think they could do the same thing, would you? There is also a good case to be made for limiting this authority to GWB for life, even when he's not president. He was such an exceptional man that he is probably the only patriot qualified to make such important decisions. I would quibble with the "foreigners" part though. Why should a terrorist get special privileges just because he's homegrown? I think we can just assume that President Bush wouldn't harm anyone for no reason, and if a US citizen ends up in circumstances of rendition or extreme prejudice, then it must mean that person did something really really bad. God Bless America.

I can't believe I'm relieved to see David Frum, but Ann Althouse and Robin Givhan will do that to ya.

Both sides made some good points, but I'm going with Frum on the question of whether Boumediene made legal sense. It's interesting that Rosa, who has much more legal experience than David, seemed to be the one trying to veer the debate away from legal questions (i.e., is the detention of people in GTMO constitutional?) to policy (i.e., is the current practice a good idea?). Rosa's attempt to distinguish GTMO detainees from WWII prisoners of war held on U.S. soil is reasonable (though Frum made some nice points in rebuttal), but why is this distinction relevant in determining whether someone has a constitutional right to habeas? Rosa doesn't say. If German POWs on U.S. soil didn't have a constitutional right to habeas, why should Al Qaeda suspects held in non-U.S. territory have it? There may be good policy reasons for making a distinction (e.g., giving GTMO detainees a statutory right to judicial review), but not terribly convincing ones for arguing that the distinction is constitutionally required.

Picking up your on last point, what if the distinction is constitutionally available and has a good policy basis?

Quoting AemJeff: Picking up your on last point, what if the distinction is constitutionally available and has a good policy basis?

Then by all means Congress should enact a law implementing that policy. The Supreme Court's duty is to determine whether an act is permitted under the Constitution and existing law, and to strike down those that are impermisslbe. Something can be a bad policy but still constitutionally or legally permissible. For instance, there's nothing in the Constitution that bars the federal government from halting its funding of highways; it would just be an insanely dumb policy. You'll note that Frum made clear in this diavlog that he had problems with GTMO. However, those concerns were whether GTMO made sense as a policy matter, not whether it was unconstitutional.

Quoting Thus Spoke Elvis: Both sides made some good points, but I'm going with Frum on the question of whether Boumediene made legal sense. It's interesting that Rosa, who has much more legal experience than David, seemed to be the one trying to veer the debate away from legal questions (i.e., is the detention of people in GTMO constitutional?) to policy (i.e., is the current practice a good idea?).

Rosa's attempt to distinguish GTMO detainees from WWII prisoners of war held on U.S. soil is reasonable (though Frum made some nice points in rebuttal), but why is this distinction relevant in determining whether someone has a constitutional right to habeas? Rosa doesn't say. If German POWs on U.S. soil didn't have a constitutional right to habeas, why should Al Qaeda suspects held in non-U.S. territory have it? There may be good policy reasons for making a distinction (e.g., giving GTMO detainees a statutory right to judicial review), but not terribly convincing ones for arguing that the distinction is constitutionally required.

I have to agree. This was a very dissapointing analysis from a law professor. Rosa seems to be arguing not from a legal point of view, but from a fairness point

I can't believe it, but I actually agree with GWLaw and Elvis. Though I totally agree that some restrictions on this administration's monkey business with regards to detainees is a good thing, I thought she would have come armed with a stronger LEGAL argument. Perhaps too many sippy cups made her lose focus. There was a lot of interupting from both sides of the screen. To penalize Rosa because she is simply more effective at it than Frum (who does it all the time) is a bit unfair. I didn't think either was being disrespectful (they actually were surprisingly civil.) I also heard 4 different points each time she "repeated" the same thing, but maybe that's just because I share her viewpoint. What's up with the lemonade though? Is Frum a recovering alcoholic or something. Everyone knows you bet for a case of beer! All in all, good diavlog. Hopefully we'll get Balkin to weigh in on the detainee decision.

Rosa says it all right here.

There is a little something to the contention made by TSE, gwlaw, and uncle eb that David was making a more persuasive legal case. On the other hand, I found one aspect of his argument particularly weak -- he kept pointing to presidents in the past like Lincoln, Wilson, and FDR, acknowledging that what they did was wrong, but then also trying to use them as precedent for what the Bush Administration has done. I'd also say that whether or not David was making a better legal argument is moot. In the first place, the law has been wrong before, and has needed to be changed. The Constitution is not chiseled in stone. In the second place, it's clear that Rosa's argument, whether more of a policy appeal or not, is the correct one. I particularly liked the point she made about not letting a few thugs cause us to abandon our principles and our justice system. Just because one can read the letter of the law and twist it to suit does not mean that this is the proper course of action. And finally, she's entirely right that if we'd played by the

Quoting bjkeefe: An unrelated point: Given that David Frum is not an American citizen, I find it especially dissonant when he asserts that non-Americans enjoy no Constitutional protections. Maybe he should have to explain to us by what right he speaks on these matters. By his own reasoning, he does not enjoy First Amendment protection for his fear-mongering.

Press Here
http://instantrimshot.com/ (h/t bjkeefe)

Brendan, good points. To clarify, from a moral standpoint I think Rosa cleaned his clock (especially the great dingalink that TS provided), but considering her legal expertise I was surprised that she didn't provide more push-back from the legal side. Great point on Frum's alien status. It would have been interesting to hear his thoughts on a hypothetical where he (or better yet his wife) was picked up outside of the States and declared a "belligerent" by the Obama administration, with no right to challenge that designation and no time limit on the length of detention. I have to wonder, after 9/11, with the world (largely) on our side, if the Geneva Conventions failed to account for the circumstances of the "new" world we live in, wouldn't that have been a perfect time to update our international laws to better fit with more complex war scenarios?

Quoting uncle ebeneezer: To clarify, from a moral standpoint I think Rosa cleaned his clock (especially the great dingalink that TS provided), but considering her legal expertise I was surprised that she didn't provide more push-back from the legal side.

I did get that, and I'm sorry for not acknowledging it more clearly. Speculating on Rosa's approach: Maybe it was the case that, in a strictly legalistic sense, Frum's argument is not so easy to overcome. Or maybe she felt as I do, that it's ridiculous to pretend that the legalistic argument is the only one that matters, even if you're a lawyer and legal scholar. It'd be like going back and forth on the rights of slaveowners, c. 1850 -- allowing such an argument to proceed grants too many questionable premises. In some sense, it sounded like David's argument boiled down to saying that the Constitution says that the President can invoke emergency powers that suspend whatever parts of the Constitution he likes, so no matter what he does after that, it's Constitutional. He said something similar about Congress's authority to pass any law, but I think he glossed over the "necessary and proper" part.

I have to wonder, after 9/11, with the world (largely) on

I agree with THS Elvis that this was a superb diavlog--one of the best--with two sharp people going at the argument fervently and civilly however fervent and that Frum is impressive.The discussion was so rich that it bears re-listening to and some considered reflection on the arguments, but I don't know who has that kind of time. A few quick thoughts and impressions: I agree with those that give the argumentative nod to David Frum. Though isn't he wrong to say that foreign non citizen belligerents or alleged non citizen belligerents on American soil necessarily don't have habeas rights? It has been a bit since I read Boumediene, but I recall it being common ground that habeas rights obtain in principle for those folks. And I heard Rosa to say that David was dead wrong on this point. My general impression is that Rosa Brooks gave the game away in her explanation that but for the time that had passed and but for there not having been expeditous process for the Guantanamo detainees she had no doubt that the razed legisaltion would have survived a constitutional

Great post Basman. I'm still having trouble believing that US constitutional rights can now be bestowed on anyone anywhere US forces/representatives work by the simple act of attacking and being apprehended by them. I've seen those famous photos of US soldiers ridiculously weighted down with equipment. Hope they have room for evidence kits and chain of custody records. The only ones having their clocks cleaned here are Americans abroad.

Quoting basman: Here from Jack Goldsmith's book The Terror Presidency lauded by so many as a searing indictment of Bush lawlessness, as in part paraphrased and in part quoted by Gabriel Schoenfeld:

"...future historians may yet 'come to view President Bush as we now view Lincoln and Roosevelt,' his constituional lapses like theirs, 'regretable but relatively unimportant episodes in the larger arc of liberty.' "

I think that is a reasonable speculation.

Implicit in that speculation is the assumption that all of us not named Malkin will come to agree that what the Bush Administration did was wrong. And then we'll all say, "Never again!" Until the next time.

I'm having trouble following the argument that Ms. Brooks addressed the issue from only a policy standpoint and failed to address the legalities. She certainly did the former, but in the dialog I heard she clearly did the latter as well. I heard Frum's argument that anyone the government grabs anytime and anywhere is a POW just like WWII refuted, and his claim that the current prisoners should just be assumed to be worse people than "normal POWs" and therefore undeserving of any legal right to contend that claim refuted. She pointed out that the treatment the current prisoners are receiving is different than past POWs (indefinite detention = permanent imprisonment). She also pointed out that it is the Bushies that are trying to change the legal playing field here as elsewhere, in this case through the newspeak of trying to create new legal classes of people outside the framework of law by calling them a new name - unlawful combatant. This no more changes the true nature of their status than renaming torture "alternate interrogation" changes it. The court, as she pointed out, is not creating a new right, it

Quoting Thus Spoke Elvis: Then by all means Congress should enact a law implementing that policy. The Supreme Court's duty is to determine whether an act is permitted under the Constitution and existing law, and to strike down those that are impermisslbe. Something can be a bad policy but still constitutionally or legally permissible. For instance, there's nothing in the Constitution that bars the federal government from halting its funding of highways; it would just be an insanely dumb policy. You'll note that Frum made clear in this diavlog that he had problems with GTMO. However, those concerns were whether GTMO made sense as a policy matter, not whether it was unconstitutional.

My understanding is that Boumediene isn’t directly a ruling on the permissibility of holding prisoners at GTMO, but on the assumptions the administration makes about what the location means regarding its legal responsibilities toward those prisoners. I also take the view that implicit in the decision is the idea that the administration has acted in bad faith – a view that it seems to me Rosa was making somewhat more explicitly. There’s obviously been a historical willingness to tolerate

Actually Mr. Frum's is more the correct interpretation. Mrs. Brooks at several points refers to Guantanamo Bay as sovereign territory of the United States, when in fact is is Cuban territory that we lease; not sovereign U.S. territory. So essentially the Court has opened the door which Mr. Frum refers to. Foreign individuals captured on foreign soil and held in detention in foreign lands have been given the right to petition Federal Courts for habeas corpus hearings. Perhaps the court will draw the line at Guantanamo Bay but it seems like a power grab to me and once you get hold of that wand the sky is the limit.

Quoting piscivorous: ... but it seems like a power grab to me and once you get hold of that wand the sky is the limit.

I think that's the problem that most of us on this side have with the Administration's actions here. One reason to have a multi-branch government is to provide a means to counterbalance power grabs by any particular branch. The Court seems to be functioning in that capacity at the moment.

Firstly, I think it's disingenuous not to admit how many political and moral arguments go into SCOTUS rulings, and then to declare one or all out of bounds, or call it confusingly "legalistic". Law students and practitioners make both. The first is called "public policy", and the second is why there's "battery" and "murder", or even crime and tort. Legal reasoning is just a methodology that endeavors to be distinct from moral and political reasoning. But, again, there's that big legal bully, "unconscionable" that can, like the bomb in rocks, paper, scissors, obliterates all arguments. Secondly, separation of powers, based on Montesquieu's arguably too flattering opinion of the English government (and, as I recall when I read The Spirit of the Laws in college, no one thought the separation of powers section controversial; the response was like reading the Bible for a devout literalist), has this annoying history in America where Americans just conveniently forget which branch of government was odd man out last time. There are ample, and glaring precedents why each branch should not be preeminent. And, there are arguments for what each branch does well. There's even arguments for different coalitions in American political history. All three branches, though, are political, and each conducts itself

I suppose you could read it that way but I have a hard time believing that the context of the comment would lead to your interpretation. None of the three branches are beyond the quest for power as is shown by the very concept of "Judaical Review." The Constitution does not directly give to the courts the specific power of "Judaical Review" it is a power bestowed upon the court by the Court itself in Marbury v. Madison.

Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and

Quoting piscivorous: I suppose you could read it that way but I have a hard time believing that the context of the comment would lead to your interpretation. None of the three branches are beyond the quest for power as is shown by the very concept of "Judaical Review."

The Constitution does not directly give to the courts the specific power of "Judaical Review" it is a power bestowed upon the court by the Court itself in Marbury v. Madison.
so to make my point clear, even for the brain dead, it is the Court that is grabbing power here and I believe the President Bush should follow the precedence set by President Lincoln and tell them to get bugger off and don't be messing with the powers of the Commander and Chief as well as the powers expressly given to the Congress

But this is how the process works. Having been granted to authority to make rules is not the same as being immune to constitutional tests on those rules. However judicial review became an accepted part of the process, it has done so, and it's unlikely not to be so any time soon.

Good for Rosa for having the patience to refute Frum's fascistic arguments, and good for the SC for standing up to its extremist right wing and making a series of decisions spanking the Bushies. Also, today the court by the same 5-4 margin abolished the death penalty for cases that do not involve first degree murder. Invoking the "cruel and unusual punishment" clause of the Bill of Rights, the Kennedy court took another big step toward ending executions. This follows two major decisions in recent years banning death sentences for juveniles and the mentally retarded. The civilized margin on the Court, however, is just one vote. We are one justice away from having the kind of Supreme Court that David Frum wants. John McCain is committed to giving the radical right wing precisely what they want -- another Scalia, Roberts, Thomas or Alito. The two oldest justices on the court are Stevens and Ginsburg. Stevens is approaching 88 years old, Ginsburg, a cancer survivor, is 75. Both are liberals. Go Obama!

the specific power of "Judaical Review"

Is that a special publication, or the power to decide which food is kosher? Sorry, I know lampooning simple typos is petty, I couldn't help but laugh. Substantively, what you, and conservatives argue, would lead to rule by the mob through the government, not limited government checked by a written constitution. At the least what you advocate would mean replacing America's constitutional model with something closer to Britain's. I don't believe this is conservatives' intent. I remind you, too, that political opinion turns against each of the branches every generation, and conservatives have also ridiculed the presidency under Jackson. Progressives have condemned congressional power also. I would refer you to Bruce Ackerman's The Failure of the Founding Fathers for the account of how Marbury vs. Madison averted a popular revolt. I would also refer you to Montesquieu's The Spirit of the Laws. Also, again, because it's pithy (http://en.wikipedia.org/wiki/Judicial_review): While American constitutional law derives many of its forms and traditions from the common law, it is important to note that the constitutional order of the United States was very different from that of the United Kingdom. As the Marbury court observed, the Constitution's written nature and formal enumeration of

BJ Keefe: I don’t follow your comment. I guess your wry sardonicism escapes me. I am not named “Malkin”—another talisman for self congratulatory righteousness I guess—and yet I don’t find your implication in Goldsmith’s statement. Goldsmith thinks that the Bush administration was wrong in so many ways, which is why he wrote the book. Plenty critical he is, but not self righteously so. He provides context for the mistakes and that includes his analysis of Cheney trying to swing power back to the office of the presidency rooted in his view of what was best needed to fight terror as he saw the danger. He also provides balance and that is why a serious conservative intellectual like Schoenfeld is admiring of a book that is so critical of Bush and so many of his failed policies. To me you display a kind of inverted presentism. As opposed to imposing the lenses of the present on the past and judging the past thereby, you foresightedly project those same lenses on the future and conclude what history must write: as though foresight rooted in the present, like hindsight, is 20 20. Oh to have your

basman: The point I was trying to make is that if we're someday going to look back at the Bush Administration and view their actions as "regrettable but relatively unimportant episodes in the larger arc of liberty," in the same way that we now look back at FDR and Lincoln, the first step we'll have to take is to say, now, or sometime soon, "What Bush & Co. did was wrong." I'm not saying you're defending them, but there still are many people who are. As long as we're continuing to entertain the notion that their actions are debatable, we aren't going to get back on track, we won't have regained our liberty, and so we won't have the luxury of looking back at it as a mistake. Put another way, until we all admit it was wrong, what's to stop the next president from doing the same thing? And the next? And the next? It's awfully early, then, for Goldsmith to be making "no big deal"-style predictions about how these past eight years are going to be viewed when you've got the first baby steps of getting back on track being called "the

More than "a staggering abuse of power," this is the conservative blueprint for a new, radically redefined kind of America. The Republican base rejects the authority of the Court, and it rejects the authority of Congress, leaving an imperial presidency that cannot be challenged. The first quoted paragraph below is a fairly standard rundown of Bush Administration abuses. I wonder: Would the conservatives in this forum dispute anything in this description, except the first sentence?

We have witnessed a staggering abuse of power by President Bush. Even former Bush Justice Department officials now charge him with trampling the Constitution. Bush has claimed the prerogative to declare an endless war without congressional approval, to designate someone an enemy without cause, to proceed to wiretap them without warrant, arrest or kidnap them at will, jail them without a hearing, hold them indefinitely, interrogate them intensively (read torture), bring them to trial outside the U.S. court system. He claims that executive privilege exempts his aides — even the aides of his aides and his vice president's aides — from congressional investigation. He claims the right to amend or negate congressional laws with a statement upon signing them.

Eight years

Part of your argument seems to be "Rosa's justification for the Boumediene decision isn't the same as the Kennedy's opinion, so she's not persuasive." I don't follow what you mean when you argue that Frum is technically wrong, but psychologically persuasive. You may be right in the former, though I don't see why, as a practical matter, there can't be room for justifications to decision that aren't in its literal text.

Technically, even if habeas corpus is theoretcially availble in any particular case, resort cannot be had to it under common law and American statute law if other suitable remedies lie, based on the principle that the prerogative writs are a remedy of last resort.

Wouldn't the fact the Administration has apparently withheld other "suitable remedies" for six years in some cases make a good argument for a "remedy of last resort?" I also wonder why it seems smug to you to assert incompetence on the part of this administration. Even if they were "panicked" by the implications of 9/11, there's been plenty of time to formulate a coherent response. Their lack competence certainly seems like a justifiable hypothesis at this date.

Without getting into a point by point debate, as I find some of the examples more compelling than others, just about every abuse you mention was used by the executive branch for the first 20+ years of the Cold War. Kidnapping, harsh interrogation and indefinite detention of suspected enemies? Check. Claims of the ability to fight a war without congressional approval? Wow, Korea truly is the "forgotten war." Domestic wiretapping? There's a reason Congress passed FISA. Just sayin'...at least most of Bush's actions and positions are similar to others taken by Presidents in both hot and cold conflicts in the 20th century. You could also make a compelling case that his so-called abuses are far less offensive (the internment of Japanese immigrants during WWII was pretty awful). I'm not saying that you can't disagree with these policies or think they're unlawful; I'm just disputing the idea that the abuses of the Bush Administration are of a kind unseen in American history.

These prisoners have not yet been found guilty Ms Brooks, please don't refer to them as 'criminal dirt', you may prejudice the juries. You surely wouldn't use this term for an alleged drug dealer or a burglar awaiting trail would you? If not, you must be saying that these prisoners are somehow different, essentially agreeing with Frum.

Quoting Thus Spoke Elvis: Without getting into a point by point debate, as I find some of the examples more compelling than others, just about every abuse you mention was used by the executive branch for the first 20+ years of the Cold War.

Kidnapping, harsh interrogation and indefinite detention of suspected enemies? Check.

Claims of the ability to fight a war without congressional approval? Wow, Korea truly is the "forgotten war."

Domestic wiretapping? There's a reason Congress passed FISA.

Just sayin'...at least most of Bush's actions and positions are similar to others taken by Presidents in both hot and cold conflicts in the 20th century. You could also make a compelling case that his so-called abuses are far less offensive (the internment of Japanese immigrants during WWII was pretty awful). I'm not saying that you can't disagree with these policies or think they're unlawful; I'm just disputing the idea that the abuses of the Bush Administration are of a kind unseen in American history.

I don't think you'll find anyone saying that the law was never broken before Bush became president. The precedent of John Wayne Gacy didn't legitimize the actions of Jeffery

Quoting bjkeefe: I'd also say that whether or not David was making a better legal argument is moot. In the first place, the law has been wrong before, and has needed to be changed. The Constitution is not chiseled in stone. In the second place, it's clear that Rosa's argument, whether more of a policy appeal or not, is the correct one. I particularly liked the point she made about not letting a few thugs cause us to abandon our principles and our justice system. Just because one can read the letter of the law and twist it to suit does not mean that this is the proper course of action. And finally, she's entirely right that if we'd played by the spirit of our existing framework in the first place, instead of the Bush Administration trying to dodge it, and tried those whom we captured in the federal courts, we'd have likely gotten a bunch of convictions and this would be a non-issue by now.

I can only assume you are not a lawyer. Which is fine, but you have to realize this is a separation of powers argument not a

Quoting Wonderment: The two oldest justices on the court are Stevens and Ginsburg. Stevens is approaching 88 years old, Ginsburg, a cancer survivor, is 75. Both are liberals.

Go Obama!

Is this penance for that piece you quoted excoriating Obama's support for the telecom bill? Are you expecting anything more than very centrist appointments by Obama?

Quoting gwlaw99: When the court overrules the executive in favor of giving the legisture oversight it is one thing, but when the court grabs power from both the executive and the legislature it is quite another.

Why? My naive, non-attorney view of tripartite government is that each branch independently asserts its rights and prerogatives, and that overstepping by any one will, one hopes, be balanced, eventually, by the actions of the others. If the Court has gone too far here, then congress may choose to write legislation in response. But it's not a vote, each branch doesn't simply cast its ballot and if at least one other branch comes to the same conclusion, then that view prevails. If the Court believes that both the Executive and the Legislature have acted outside their constitutionally prescribed bounds, then the Court should act - regardless of whether the other two branches come to a different conclusion.

Quoting TwinSwords: I don't think you'll find anyone saying that the law was never broken before Bush became president. The precedent of John Wayne Gacy didn't legitimize the actions of Jeffery Dahmer.

Still, I think most people who are informed on the matter agree that Bush has pushed the boundaries unlike anyone else in American history. The actions of Lincoln were in the context of an invading army within miles of Washington DC and poised to decapitate the federal government. The actions of FDR, while unforgivable and extreme to all but your political allies, were in the context of an actual war and had a very narrow time frame, unlike the police state of unlimited duration that your party advocates.

Read almost any serious book discussing the foreign policies of Truman, Eisenhower, Kennedy, Johnson, Nixon, and Reagan, or the history of the CIA. We've had domestic spying, we had political assasinations and harsh interrogations, undeclared wars, and even helped overthrow several governments that weren't anti-communist enough for our sensibilities. Bush's actions during a declared military conflict should hardly seem to be "a staggering abuse of power" to anyone who recognizes that history began before the date

Oh yeah, the US "leases" Guantanamo. Of course, the actual government of Cuba has not accepted any lease payment for 50 years, but rather, during that time has consistently demanded that what you admit is its own "sovereign" territory be returned to it, and has made clear that the territory is militarily occupied by a foreign power. The U.S. authorizes complete jurisdiction over the territory and in no sense is Cuban law or authority allowed to apply, yet you claim and argue, presumably with a straight face, that the territory is just "leased" by the U.S. And Mr. Frum similarly ridicules Ms. Brooks and the Supreme Court for an opinion that is "not law." Of course, "law" as Mr. Frum understands it, would hold that the U.S. can arrest, imprison, and torture any human being anywhere in the world who is not a U.S. citizen for an indefinite period of time and that person has absolutely no right to challenge that detention in any way...that "is law." http://abunooralirlandee.wordpress.com

Quoting piscivorous: Actually Mr. Frum's is more the correct interpretation. Mrs. Brooks at several points refers to Guantanamo Bay as sovereign territory of the United States, when in fact is is Cuban territory that we lease; not sovereign U.S. territory. So

Quoting Abu Noor Al-Irlandee:
And Mr. Frum similarly ridicules Ms. Brooks and the Supreme Court for an opinion that is "not law." Of course, "law" as Mr. Frum understands it, would hold that the U.S. can arrest, imprison, and torture any human being anywhere in the world who is not a U.S. citizen for an indefinite period of time and that person has absolutely no right to challenge that detention in any way...that "is law."

The scope of constitutional rights and statutory rights is not always identical. For example, a person doesn't have a constitutional right to minimum wage, but Congress has passed laws to give people such a right. Frum is making an entirely reasonable argument, supported by 200+ years of U.S. legal jurisprudence, that foreigners outside U.S. legal territory have no constitutional rights. That doesn't mean, however, the rights cannot be granted to such persons via statute or treaty (e.g., the Geneva Conventions). As I understand it, Frum's problem is with the court's ruling that detainees have a constitutional right to judicial review. He's not arguing that Congress couldn't, if it wanted to, extend a statutory right of review to detainees.

Quoting Abu Noor Al-Irlandee: Of course, "law" as Mr. Frum understands it, would hold that the U.S. can arrest, imprison, and torture any human being anywhere in the world who is not a U.S. citizen for an indefinite period of time and that person has absolutely no right to challenge that detention in any way...that "is law."

This is a good distillation of what I view as the problem with the policies Boumediene is intended to address. The Administration and many of its supporters seem to see no limits on the ability of the US to project power in pursuit of our security. That's not an option I think we ought to sanction. Even in the face of threat there must be a balancing between our security needs and a recognotion of human rights. Allowing the arbitrary designation of "enemy" status and justifying extraordinary means to secure ourselves against such "enemies" is not a balanced approach.

Look,

Is this penance for that piece you quoted excoriating Obama's support for the telecom bill?

That wasn't me. I haven't commented on the Telecom bill, though he certainly deserves plenty of criticism for that and his several other flip-flops.

Are you expecting anything more than very centrist appointments by Obama?

Well, depends what you mean by centrist. He will nominate people consistent with the liberal end of the court as currently constituted: Ginsburg, Stevens, Breyer. The court now has 7 of 9 (yes, sev-en) judges named by Republican presidents. Obama can surely manage a David Souter, which is more than enough to save the country from the radical right.

If anyone is interested, I am in the midst of my work day, but find the recent comments about Boumediene engaging and would like to take further part.in the discussion. I will need a good few hours before I can do so. Itzik Basman

Cheney's thug Addington and torture mastermind John Yoo testified today before a Congressional subcommittee chaired by Rep. Jerome Nadler of NYC. Here's a tidbit from the Addington squirm and weasel:

Rep. Debbie Wasserman Schultz (D-Fla.) questioned Addington about his visits to Guantanamo Bay, and whether he discussed interrogation techniques with officials there.

Addington said he did not recall.

"It is hard to fathom you would not have recollections on specific conversations on types of interrogations methods," Wasserman Schultz said.

"Is there a questioned appended, ma'am?" Addington said.

"I don't believe that you do not recall whether you discussed specific interrogation methods. So I will ask you again . . . "

"As I said to you," Addington said. "I don't recall."

.... he denied that he had pushed Guantanamo Bay officials to "do whatever needed to be done."

Let me clarify two things: I misread your comment the first time around and thought you said I had excoriated Obama. You were actually referring to an article I quoted. Sorry about that. Second, no matter how harshly I criticize Obama for flip-flops or anything else -- and I fully intend to go on criticizing him for the next 8 years -- I would never ever under any circumstances support the alternative, John McCain. I fully intend to campaign vigorously for Obama, urging voters in key states to make the right choice.

If you watch C-Span, you'll see there was no "squirming" from Addington, merely contempt.

If you watch C-Span, you'll see there was no "squirming" from Addington, merely contempt.

Dont' ruin my sensory impressions with mere reality, please.

Quoting Wonderment: Dont' ruin my sensory impressions with mere reality, please.

No need to be in the doldrums, Wondy. Addington's co-witness John Yoo did kinda squirm, which should've been more than enough to make your day.

Good I like a good cheep lease; and yes lease is the relationship from both the legal point of view and international relations point of view. Just because you find it hard to believe doesn't make it any different.

Prof. Rosa Brooks was great in clarifying the Boumédienne decision regarding Habeas Corpus. However, Frum seemed shockingly uninformed for a graduate of Harvard Law School. Prof. Brooks made clear that Habeas Corpus is inapplicable to prisoners of war captured on the battlefield, but that many prisoners at Gitmo were not captured on any battlefield. Three cheers for her clarity and persuasiveness. Frum simply introduced red herrings about (1) the prisoners not being US citizens, (2) German soldiers who were mess cooks being POWs in WW2 and (3) US military bases in foreign countries being analogous to Gitmo. He just didn't know his brief...bizarre and annoying. He is simply not a conceptual thinker. I think the left vs. right approach is good, but hopefully blogging heads will match the intellectual opponents' handicap better next time

Quoting eliotc: Frum simply introduced red herrings about (1) the prisoners not being US citizens, (2) German soldiers who were mess cooks being POWs in WW2 and (3) US military bases in foreign countries being analogous to Gitmo. He just didn't know his brief...bizarre and annoying. He is simply not a conceptual thinker.

Huh? If you thought those things were "red herrings," you might want to re-watch the diavlog or read Boumediene, because both the majority and dissent took these arguments seriously. Look, the pre-Boumediene rule appeared to be that the Constitution does not cover U.S. actions towards foreigners outside its legal territory. That's what points #1 and #3 you mention are in reference to. Additionally, even if you want to make the argument that GTMO is effective U.S. territory, history suggests that foreign POWs detained in the U.S. haven't been thought to have a constitutional right to judicial review of their detention, which is what point #2 is in relation to. It's fine if you don't support Frum's position, but there's no reason to degrade it as ill-informed.

Gitmo is US governed and therefore indistinguishable from sovereign territory and the people held there are not POWs. In fact the POW non-status is the impetus for all of this.

Quoting mactbone: Gitmo is US governed and therefore indistinguishable from sovereign territory and the people held there are not POWs. In fact the POW non-status is the impetus for all of this.

The phrase "POWs" is a tricky one. The Administration argues that the detainees at GTMO don't constitute "POWs" as that term is used in the Geneva Conventions, which would entitle the detainee to all sorts of protections under the terms of the treaty (incidentally, those Conventions were only crafted after WWII -- WWII detainees received lesser rights proscribed by earlier agreements). But that doesn't mean that a detainee still isn't a POW in a more general sense than used by the Geneva Conventions. Why all of this matters is a bit unclear for constitutional purposes. Why didn't non-citizen enemy detainees held in America during WWII have a constitutional right to habeas, but have such a right when held at Guantanamo? Is Rosa arguing that because detainees have rights under the Geneva Convention, they must also have those rights under the Constitution? If she's not making this (strange) argument, then I don't see the point she's making, especially since Congress passed a law limiting detainees ability to

Riveting diavlog. The Bloggingheads equivalent of a page-turner.

Quoting Wonderment:
I fully intend to campaign vigorously for Obama, urging voters in key states to make the right choice.

Well, duh!

Interesting discussion but a little bit legalistic and detached from reality for me. Why does Brooks find it so easy to take the side of the detainees? What about showing some concern for the people (like us) who are at risk if they're set free? I guess our survivors will get to take the murderers to Federal court for us. It's amazing to me how arrogant Books and people of her ilk are. It's all very fine for her to sit--warm, dry, and safe--and carry on an intellectual discussion of whether a detainee has Habeas rights. I sure hope she's not Obama's Secretary of Defense. What's also going on here, though, is this: once these folks get to Federal court, the nightmare is that they will claim they've been tortured. And they will claim to have been tortured for no reason. Once that happens, and Federal law (rather than military law) has jurisdiction, people could go to jail.

Your strained anti-intellectual contempt for books and "ilk" (one of the most devastating words in English for being critical of a class of a people) is practiced and convenient. Your trust in elected officialdom and their "ilk" is equally repulsive. From one of whose ilk who believes the right to habeus corpus should be universal, all I want is to see properly indicted suspects tried in public court for the world to see, as Saddam Hussein was tried, and American procedures publicly displayed throughout the world. Further, as the scion of an NSA family and former intelligence analyst, I'm always amazed by the inordinate respect laypeople have for secrecy-when its extolled by the temporary leaders whose decisions often have nothing to do with the intelligence they receive from career professionals. Very rarely have I ever witnessed an officer conclude upon the facts, but always upon some interest, which other officers contradict. I used my power to refuse to help officers, as did others, liberally. "Excuse me, General, and who are you? Do you have the right clearance to be in my working area? I'm working right now! Please talk to my supervisor about that request!" I have the same

I have come back late to this party as the discussion is on the dwindle. I’m not sure the guy before you is not college educated and I’m not sure all the umbrage--and dare I say arrogance-- is necessary. I think you are conflating some terms when you speak of habeas being universal for all properly indicted suspects being tried for the world to see. For thes purposes, criminals are one class of folks; war guys are another class, falling into a slew of sub classes. Interestingly, you might want to ask yourself whether your properly indicted suspects—ie criminals in the criminal justice system—can and do invoke habeas rights. And when you come to understand that they don’t, you might want to ask yourself why not. War guys are not indicted. They are treated in whatever fashion either the laws of war provide or the laws of the land accorded to them provide, if they are not technically prisoners of war. The latter laws of the land can be judged unconstitutional and were in the case of the Gitmo detainees, but would not have been, according to Rosa Brooks, if the

I have come back late to this party as the discussion is on the dwindle. I’m not sure the guy before you is not college educated and I’m not sure all the umbrage--and dare I say arrogance-- is necessary. I think you are conflating some terms when you speak of habeas being universal for all properly indicted suspects being tried for the world to see. For thes purposes, criminals are one class of folks; war guys are another class, falling into a slew of sub classes. Interestingly, you might want to ask yourself whether your properly indicted suspects—ie criminals in the criminal justice system—can and do invoke habeas rights. And when you come to understand that they don’t, you might want to ask yourself why not. War guys are not indicted. They are treated in whatever fashion either the laws of war provide or the laws of the land accorded to them provide, if they are not technically prisoners of war. The latter laws of the land can be judged unconstitutional and were in the case of the Gitmo detainees, but would not have been, according to Rosa Brooks, if the

bjkeefe: Sorry to be so late in getting back to you, and I don’t know if you are still checking this thread but, in the hope that you are, a couple of comments: I don’t think it is cogent to say point blank Bush & Co were wrong. The issue is measuring and specifying the wrongness, contextualizing it, being fair and balanced and not making sweeping blanket condemnations, which respectfully, and I do respect you, I read you to be doing. And by my lights you give that game away when you—and it is gracious—assure me that you are not accusing me of trying to defend Bush & Co. You reject that their actions as erroneous is debatable. And you say that if we can even conceive of that debate there will no be reclamation of liberty. That does not sound to me like the starting point of wisdom. Let us be slightly analytic. All administrations make errors. And all administration do good things. But I reject any sweeping dismissal of Bush as simply and irreducibly evil or bad or mistaken—I have toned down each class of condemnation. Nuance dictates the kind of treatment that—agree with him or

Itzik: Sorry to be so absolute about this, but my mind is made up. The most I would have been willing to concede is that in the time right after the 9/11 attacks, it was understandable that panic was afoot and overreaction ensued. Not admirable, not excusable, but understandable. I say "would have" because I am imagining a different administration who calmed down, saw the error of their ways, and made both amends and adjustments. The Bush Administration, of course, has done neither. Instead, they have stayed committed to the same policies. They have never shown any respect for adhering to real American principles. They have exaggerated the threat purely to maintain their grip on power, and while in power, have done so many other egregious things that they've used up all benefit of the doubt. If they're not 100% bad, they are 99 point so many nines that it makes no practical difference. What's worse, they've done all of this in as secretive a manner as possible. I think it's a good bet that far worse things have been done in my country's name that will take years to come out, if indeed they ever do. What's even worse is that there won't

Quoting mrsalty: Interesting discussion but a little bit legalistic and detached from reality for me. Why does Brooks find it so easy to take the side of the detainees? What about showing some concern for the people (like us) who are at risk if they're set free? I guess our survivors will get to take the murderers to Federal court for us. It's amazing to me how arrogant Books and people of her ilk are. It's all very fine for her to sit--warm, dry, and safe--and carry on an intellectual discussion of whether a detainee has Habeas rights. I sure hope she's not Obama's Secretary of Defense.

What's also going on here, though, is this: once these folks get to Federal court, the nightmare is that they will claim they've been tortured. And they will claim to have been tortured for no reason. Once that happens, and Federal law (rather than military law) has jurisdiction, people could go to jail.

You are right, I'm scared shitless too. Lock 'em up and fry their balls, even if it's a case of mistaken identity. You can't tell me Cat Steven's ain't a terrorist! Moonshadow indeed!
Unless of course you come after me... I'll

Brendan, I think this is the defining schism between the point of view that I believe you and I largely share and that of the folks here like TSE, Basman, and gwlaw99 who argue the other side. (None of whom am I accusing of arguing in bad faith.) I think there's a lot of evidence for the view that this administration holds a view of executive power that's far outside historical norms. I think it's also true that evidence of incompetent decision making (I'm not talking about Katrina) and a degree of political intransigence that leads many of us to conclude it (the Administration) shouldn't be judged (at this late date) by the same standards that have been applied to others, in the past. Elvis is largely correct when he argues that other administrations, particularly during wartime have made decisions at least as bad as those made by Bush 43. Roosevelt and Lincoln are obvious examples, and I think both are responsible for individual transgressions greater than anything the current administration can be blamed for. The first problem with that argument is that it was wrong then, and doesn't justify actions now. Another problem is

Firstly, I did speak too glibly trying to save time with shorthand. What's involved is not the indictment process, but a foreign combatant's right to seek a writ of habeas corpus. Legally, Justice Souter and three other justices used Rasul v Bush as a precedent. Justice Kennedy referred to the historical and international precedent of Ireland. Both CJ Roberts and Justice Scalia returned to Johnson v. Eisentrager for precedent. Legally, based on what I know of stare decisis, jumping back to find a precedent when a more modern and proximate one is available is far less conservative and more activist an argument than even Justice Stevens commits. Politically, there is the issue of Stevens' use of international precedent. Stevens' use of international precedents is closer to the political argument about internationalizing habeas corpus. To be fair, though, the original argument I read was intended as a means of undermining dictatorial regimes' abusive powers in, say, DPRK. I would never argue that that factual argument applied here. Philosophically, I do not distinguish between any of the government's powers, whether social, legal, or economic. I do think, like the ancient Roman constitution, executives need defined dictatorial powers under extraordinary conditions, but that, like that example, the emergency would exhaust the executive's tenure. The Romans

I'm not sure if I would interpret separation of powers so in so dao a way, but at least you're not trying to subsume judicial functions under the executive or legislative. I would also argue that the process doesn't need to stop. The executive and legislature can keep trying to get a habeas corpus ruling "The People" will accept. In 2006, Congress tried, and now SCOTUS has replied. What, GOP conservatives can't roll with the punches? The anti-Kennedy, anti-international precedent meme is silent now, but that's what's going on with Scalia's dissent. But, even with Roberts' and Souter's opinion, there's a good issue to debate: stare decisis. Souter takes Kennedy's Rasul v Bush; Roberts goes back to Johnson v Eisentrager. Who's being more activist? Roberts jumps back half a century? Kennedy uses Ireland for a precedent? What happened to the Geneva Convention? At least the Geneva Convention requires some sort of assent, even if it's not a democratic vote, and it makes a nice soundbite on TV and around the world. But, Ireland? WW2 precedents? Holy moldy Legalisms, Batman! Kill the Law Profs!

Baltimoron: Souter with Breyer and Ginsburg concurring *sort of* used Rasul as a precedent. It was a case about the reach of statutory habeas rights and that statute was repealed. So Souter agreed with the dissent that the constitutional reach of habeas to G. detainees was technically a legal question of first instance. They then disagreed about the analogous import of its reasoning. Souter said technically it was not “controlling” but that the obiter dicta and the historical analysis compelled the result in Boumediene. But all of this is far from the point you made in your post. The point in your post was a universal right of habeas. Boumediene turned on that question not at all but on whether for the purposes of habeas rights Guantanamo was sufficiently within America to accord those rights. Absent that predicate, the majority would, heavily arguably, not have ruled the way it did. The different approaches were Scalia (with all other dissenters concurring) — a de jure analysis of sovereignty and the majority a de facto or functional analysis hinged on the idea of control. I before suggested that I thought a policy impulse

I respect and enjoyed your legal analysis of Boumediene. It's possibly the most rigorous I've read on bhTV since I started listening last year. However, I would assert that SCOTUS has both a judicial, as well as political and foreign policy function. Habeas corpus, one of the most important rights in English common law, intersects in the Executive's war powers and the foreign policy implications of the Geneva Conventions. I see vast consequences, both judicially and foreign policy-wise, when Justices Scalia and Kennedy disagree so viscerally on the question whether international precedents are valid in SCOTUS rulings, so much so that moderates like Souter and Roberts look for, as you argue, weaker precedents without the baggage. kennedy's use of international legal precedents is a soft way to generate a domestic political consensus to sway moderates opposed to international legal treaties like the Geneva Conventions. It's the quiet politics of jurists influencing each other across borders through paper decisions versus the efforts of diplomats and legislators to write law in new forms. It's the old concept of sovereign states operating through big conferences versus Anne-Marie Slaughter's "disaggregated transnational networks" in "A New World Order". I bring up the

I, for one, would very much like to see Brink Lindsey and David Frum debate this issue directly with each other. Bloggingheads higher ups: consider this an OFFICIAL REQUEST!