How Civil Liberties Die


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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113 Responses

  1. Avatar ThatPirateGuy says:

    At least the two parties found something they Can agree on.

    I hate bi-partisan concensus. It looks like our representatives correctly think that most Americans don’t care about these issues. Only us crazies do.Report

    • Avatar Chris in reply to ThatPirateGuy says:

      Interestingly, the Democratic vote in the House was 50-50 (actually 93-93) yay-nay. As usual,  the Democrats are split between the civil liberties side and the national defense side.Report

      • Avatar Michelle in reply to Chris says:

        As usual, a large percentage of Democrats are pussies. This vote should have been a no-brainer.Report

        • Avatar Chris in reply to Michelle says:

          100% is a large percentage.Report

        • Avatar Mike in reply to Michelle says:

          A large percentage of Democrats (if you consider 50% large) may indeed be pussies. After all, they caved on this legislation rather than stand up for civil liberties, knowing full well that standing up for civil liberties ALSO would have meant much worse repercussions in the form of handing the retard wing ammunition to run “democrats hate the military”, “Obama refused to fund the military”, and similar ads for the next year since this legislation was a small piece of a much larger bill, a veto of which would have been a veto of authorization for the entire DoD’s funding.

          On the other hand, by the same vote measurement, 100% of Republicans are fucking assholes.


  2. Avatar E.C. Gach says:

    If I hadn’t already withdrawn my personal support for President Obama, not preventing this from becoming law would certainly force me too.

    It should be a wake up call for all self-respecting “liberals.”

    Now if only Ron Paul could take Iowa and New Hampshire.Report

    • Avatar ThatPirateGuy in reply to E.C. Gach says:

      I am here to turn in my self-respect card as I am not waking up.

      Do you honestly expect me to not do everything in my power to keep te republicans from getting the whitehouse? They are for this and for torture. Since both parties are going to pull this crap I am going to vote on the other issues.Report

      • Avatar E.C. Gach in reply to ThatPirateGuy says:

        Other issues such as?Report

        • Avatar ThatPirateGuy in reply to E.C. Gach says:

          Separation of church and state, abortion, gay rights , climate change, science in schools, competence in general.Report

          • Avatar ThatPirateGuy in reply to ThatPirateGuy says:

            And last but not least the supreme court.Report

            • Avatar E.C. Gach in reply to ThatPirateGuy says:

              All the issues you’ve noted the President has little power to affect accept via the Supreme Court. 

              The hope that there will be another vacancy within the next four years, and that a Republican Congress will confirm an Obama appointee, does not seem worth the larger range of concessions.Report

              • Avatar ThatPirateGuy in reply to E.C. Gach says:

                He got two through. There will be between 1-2 vacancies next term.Report

              • Avatar ThatPirateGuy in reply to ThatPirateGuy says:

                Since we all know that Ron Paul will not be nominated why should I settle for any of the republicans who will do this x 2Report

              • Who said anything about Republicans?  Vote Libertarian or Green, whichever most closely suits your preferences.Report

              • Avatar North in reply to James Hanley says:

                Maybe if the libertarian party ever started looking like anything other than the cat herding exercise it has always been I’d consider it. For some of us the marginal cost of a protest vote is far too steep.Report

              • Avatar Jason Kuznicki in reply to James Hanley says:

                North, I don’t understand this comment at all.

                I’m putting on my Robin Hanson hat here — the one that allows me to say outrageous but manifestly true things with impunity — and I’ll tell you this:  The marginal cost of voting Nazi is basically nil.

                That’s right, it is.

                I don’t mean to say that I’m cool with Nazis.  I hate Nazis.  They killed several members of my family (and some of my family killed some of them, and I’m glad that they did).

                But even voting for the Nazis — who are the very worst party I can possibly imagine — carries almost zero marginal cost.

                Your vote for them advances their cause basically by nothing.

                Your vote for them hurts other parties basically to no degree at all.

                The only real costs in play are those of feeling disgusted with yourself for having voted for them.  But given that your pro-Nazi vote doesn’t matter and will not be the deciding vote in any reasonable scenario, it is puzzling to feel this way.

                Isn’t it?Report

              • Avatar ThatPirateGuy in reply to James Hanley says:

                My vote won’t actually mean anything I am in tn my state is going for the guy with R after his name.

                The 2 grand I am thinking of donating and the volunteering will.Report

              • Avatar North in reply to James Hanley says:

                Jason, I’m in a semi-swing state; Minnesota. This is a two party system, not more. I grew up in a country with a 3+ party system; I can tell the difference. My withholding my vote and support from the Dems is a enabling act for the GOP. It isn’t as big an enabling act for the GOP as a direct vote for them would be obviously but it enables them regardless.

                I guess I’m looking at it backwards from the way you’re presenting it. The way I see it; regardless of where my vote goes; Libertarian, Green, Nazi, National Yogic Flying Party; if I as a Dem voter protest vote instead I’m supporting the only actual alternative party.

                Since that is a party which is directly, unabashedly and increasingly imicidal to my direct personal well being as an individual (whereas the Dems have been a craven but mushy defender of my well being) is the only beneficiary of my not supporting the dems, the marginal cost of protest voting is too high for me to consider.

                Is that any clearer?Report

              • Avatar Mike in reply to James Hanley says:

                So in addition to not understanding the first thing about economics, Kuznicki doesn’t understand the first thing about electoral math, eh?

                I’ll give you a primer. The first problem is that in most states, and definitely for the Presidential election, the votes do not require a majority winner with a runoff. Whoever gets a plurality wins.

                This means that if you have only two parties, someone may get a “majority” and win, but if you add a third party, the act as a spoiler unless they’re a party that somehow pulls exactly 50-50 from both sides. We have plenty of recent examples of this from the past 2 decades – in 1992, Republicans take it as an article of faith that Perot spoiled the election and enabled Clinton to win (and that he damaged Dole’s chances, at the very least, in 1996). In 2000, polling indicates that Ralph Naderites split enough of the vote to make Florida into the madhouse that it was, and probably cost Gore the presidency.

                So, is it a “waste” to vote Libertarian, Green, or another third party? Well, if you believe strongly enough that a certain party out of the “main two” needs to lose, then yes. Unless I truly believed that the difference between the two parties was 100% meaningless, AND believed that allowing one side or the other to gain complete control of the country is also meaningless, then the responsible thing to do is vote in the way most likely to stop the worst party from winning. Voting Libertarian isn’t going to help the situation, because I know from both historical record and modern polling that they have precisely one snowball’s chance in Gehenna of gaining even a single electoral vote, much less actually ascending a candidate to the Presidency of the United States.

                If I’m a “libertarian true believer”, would I vote libertarian? Maybe. But as a rational thinker who believes that the worst thing to happen to this country is for (likely example!) it to endure four years of a President Gingrich, the responsible thing to do is not to split the vote. Voting Libertarian increases the chances of Gingrich gaining the necessary plurality in my state, rather than decreasing it.


              • Avatar Jason Kuznicki in reply to James Hanley says:

                Most people don’t live in swing states.  I certainly don’t.  I could vote for anyone at all, and Obama would still carry Maryland.

                Even people who do live in swing states are overwhelmingly unlikely to make a difference.  This isn’t about electoral politics at all.  It’s just about plain probabilities.Report

              • Avatar Mike in reply to James Hanley says:

                Even people who do live in swing states are overwhelmingly unlikely to make a difference.  This isn’t about electoral politics at all.  It’s just about plain probabilities.

                The voters in Florida in the year 2000, or Minnesota in the year 2008, probably disagree with you.Report

              • The voters in Florida in the year 2000, or Minnesota in the year 2008, probably disagree with you.

                There’s not one voter in either of those states that can truthfully say their vote made the difference, or that the outcome would have been any different if that voter had cast a different vote.Report

              • Avatar Will H. in reply to James Hanley says:

                Ah, yes, that elusive Third Party in American politics, the Pissing In The Wind Party.

                Vote Pissing In The Wind for 2012!Report

            • Avatar Jaybird in reply to ThatPirateGuy says:

              If either party was likely to nominate someone other than an Ivy-Leaguer who formerly worked with the Prosecutor’s Office, I’d be more likely to see a difference between the two parties.Report

          • Avatar Mike in reply to ThatPirateGuy says:

            I would argue that civil rights / antidiscrimination in general (whether race, color, appearance, age, gender, sexual preference) ought to be considered important. Of course, most “libertarians” fall into the mindset of “why should the state care, let people be racist/bigoted assholes if they want, let them have whites-only businesses or refuse to hire women or gays or engage in school/workplace bullying and ostracization with no repercussions.”

            I suppose that’s why I’m not a libertarian, really. The extreme end of “libertarian” thinking takes us right back to the days of the 1940s or 50s where things were GREAT if you were a white male who wanted a stay at home wife, but fucking lousy if you were of any other color or happened to be female.Report

        • Avatar Jaybird in reply to E.C. Gach says:

          Gay marriage, Medicinal Marijuana…Report

    • Avatar Michelle in reply to E.C. Gach says:

      I’d have a hard time voting for Paul because of his adherence to Ayn Rand economics, but his consistent defense of civil liberties (and his willingness to vote against the Patriot Act) have me hoping he’ll pull out a win in at least one or two primaries. I’d say that I can’t believe Obama caved on this stand, but since he’s caved so often, I’m not even surprised. If a constitutional law professor cannot stand up for basic civil liberties, what’s the point in voting for him?Report

      • Avatar Mike in reply to Michelle says:

        The more the “Libertarians” hold to the lie that they are compatible with the conservative nutwing running the Republican party and “Tea Party” these days, the more crap like this is going to get passed.

        Obama did the only thing a President could do in this situation, politically. The bill passed with overwhelming (read: over 66%, therefore veto-proof) majority. If he vetoed it, it was attached to the military spending re-authorization bill – in other words, all the ammo the “omg we luv the troops spend all the tax money on military amurrika haz the bomb” right wing kooks would need to start running ads about how “Obama hates the military.”

        This is how the right wing operates, and how they’ve traditionally pushed through the worst of their insanity. You can’t have any more “patriotic” a set of hostages to hold ransom for your insane power grabs than the troops.Report

        • Avatar E.C. Gach in reply to Mike says:

          The President could do the right thing, or the politically expediant one.  He seems to be making his choice.Report

          • Avatar Mike in reply to E.C. Gach says:

            “Do the right thing”, get steamrolled anyways, AND hand the opposition (who want to do far worse things) some heavy duty ammunition for a soon-to-come election.


            Argue for changes in the bill (which he got), accept that this isn’t a winnable fight on the “meta” level, and live to fight another day and hopefully be in office to repeal this crap once the election is over.

            Not so “easy” when we put it in the proper context is it?Report

            • Avatar E.C. Gach in reply to Mike says:

              Why would he want to repeal it?  He supports it.

              Why else threaten a veto and then take it away?  As many have explained, President Obama and the admin never had a problem with the civil liberties langauge, they had a problem with the part of the bill where it appeared that Congress was excersizing it’s authority to mandate how the executive branch proceed in certain areas.

              It remains, as far as I can tell, that if you associate or strongly support terrorists, you will be treated as a terrorist, and without due process.  Is that in dispute here?  Or are you accepting that as the necessary cost of keeping Obama in office so he can, well, continue to abuste civil liberities, but to a lesser degree than his opponets supposedly would?Report

          • Avatar James Hanley in reply to E.C. Gach says:

            Ditto this, E.C.  While presidents normally shouldn’t pick a veto fight they can’t win, there are times when it’s better to be known for losing in a good cause than surrendering without a fight.  If standing against evisceration of the Constitution isn’t worth standing in a losing cause, then it’s hard to imagine what issue might be for Obama.Report

  3. Avatar BlaiseP says:

    In the wake of 9/11, America’s civil libertarians flinched.  America did what it’s always done when it gets scared.   It did the same in the Civil War, when Lincoln suspended habeas corpus.   World Wars 1 and 2, same dreadful story:  internment camps, rampant prejudice against hapless persons of German ancestry.   The litany of abuses is long and getting longer but it’s a continuing pattern in American and British history.   The royal family changed its name from Saxe-Coburg-Gotha to Windsor in response to WW1.  Plenty of people changed their names here to avoid persecution.

    Long ago, when Sun Microsystems ruled the Internet roost, its chairman Scott McNealy had this problem summed up.   “If I could embed a locator chip in my child right now, I know I would do that. Some people call that Big Brother; I call it being a father.”   In response to concerns about privacy, he famously retorted:  “You already have zero privacy.  Get over it.”

    Allow me a bit of advocatus diaboli.   If the price of a free society is a measure of vulnerability,  what is that measure beyond which even the civil libertarian will cease to complain about the need for security?Report

    • Avatar Jason Kuznicki in reply to BlaiseP says:

      If the price of a free society is a measure of vulnerability…

      I reject the premise.  Empowering the state in this way makes us more vulnerable, not less — more vulnerable to tyranny, which has always been worse than terrorism.Report

      • Avatar BlaiseP in reply to Jason Kuznicki says:

        That may well be true.  It does not answer the question.   The first thing the 9/11 hijackers did once they had control of those aircraft is turn off the transponders.Report

      • Agreed.  It’s not a matter of eliminating vulnerability, but trading off vulnerabilities.

        I wanted to support this with some statistics on the number of people killed by the police in the U.S.,  but found that while it’s easy to find reports on how many police officers were killed in 2010, Google doesn’t seem to return any results showing how many citizens were killed by the police that year.  That in itself is disturbing.  However this site reports over 500 killings just by Taser in the last decade, and an article in the Fort Worth Weekly claims over 100 Taser deaths just in the first quarter of 2005.  Let’s take those numbers with a grain of salt and cut them in half, but then recognize that’s only the Taser related deaths we’re talking about, and haven’t even touched on shooting deaths, botched drug raids, wrongful convictions resulting from intentional dishonesty by police and prosecutors, etc.Report

        • Avatar Michael Drew in reply to James Hanley says:

          Are these facts related to the actual thing Jason refers to in his category “empower the state in this way” (my italics)?  I mean, no one is denying that the state is pretty damn empowered in myriad ways.  But what is at issue here is, like, what is actually at issue here.  It’s not all of a piece, else why worry about this in particular?  All that happened before this.  If the issue is that the state is too empowered, to include domestic law enforcement feeling to free to employ the force they have at their disposal (a result of whatever combination of incentives and constraints they actually face on a day-to-day basis), then we already had that on the table.  If the only salient issue is that this makes it all incrementally worse, then all the conceptual distinctions disappear into that framework.  But if that’s not the deal, then what do data about taser deaths at the hands of domestic law enforcement officers that occurred before what is at issue here even went into effect (i.e. still to this very moment) as I type) have to do with this?Report

          • Michael,

            I actually would argue that it is all of a piece, just different manifestations of an over-extensive police authority.  Guy shocked 12 times by a Taser and dies–he’s been denied due process rights. Prez claims power to kill American citizens without a trial or charges–denial of due process rights.  Congress grants authority to indefinitely detain American citizens without habeus corpus–denial of due process rights.

            The conceptual distinctions perhaps do disappear, and that doesn’t bother me, because all of these abuses are ultimately motivated by the same underlying thought, that being protected from bad guys requires and justifies surrendering our basic civil liberties.  Had we as a citizenry been vigilant against police abuses all these years, and had the courage to say we want our rights even if it makes the state/local government’s exercise of police authority more difficult, we might today be in a position where the citizenry would take that stand against the federal government.Report

            • Avatar Michael Drew in reply to James Hanley says:

              Fair enough.  My question, again, was whether the thing Jason refers to where he says “empower the state in this way” is this undifferentiated power you regret, or the specific development going on here.Report

              • Ah, well obviously I can’t speak for Jason,  but I think the thing he refers to is properly understood that way.  That doesn’t mean we can’t talk about this one specific thing, of course.  But I was responding to the more generalized concept of the vulnerability of a free society, hence I went in a more general direction myself.Report

        • Avatar BlaiseP in reply to James Hanley says:

          The smell of burning Straw Men fills the air.   As a Liberal, I am sick of every abrogation of our civil liberties answered with much waving of hands and shouting “We’re at WAAAAR” as if it were any justification.   It is not.   But some measure of justifiable domestic security just might exist, even for the civil libertarians.   I donate to the ACLU, I put my money where my mouth is.   If government has exceeded its mandate, you have not given any measure of that mandate.

          I observe policemen will use the weapons they are given:  if we want less police violence, our courts and legislatures would act on this problem.  Yet I don’t think even the most ardent Libertarian would advocate for a complete elimination of law enforcement:  there is that Force and Fraud business you Libertarian lot keep whinging about to keep them occupied, far more occupied than they are at present.

          It’s that Force business which chiefly concerns me.   You may not have just one side of the argument.    Terrorism is Force used against civilians, completely unjustified by any measure.   Equally unjustified are the draconian and idiotic responses to that terrorism, the Newspeak of Homeland Security and Guantanamo:  read your Bakunin, terrorism provokes the state, thereby alienating the people.   If we are to write down the names of the fallen in the Litany of Grievances, six of my friends were murdered in the South Tower on 9/11.    Thousands of innocent Iraqis were murdered in response to 9/11 in a war conducted upon the basis of a pack of lies.   Even now, many are imprisoned without trial and we are all spied upon by a feckless and paranoid government, our every keystroke sedulously pored over by the likes of the data gathering apparatus behind the Carrier IQ rootkit and the like.

          I know you consider me a moron.   This is not an echo chamber.    If we are to hear Madison’s name in this debate, nobody changed his tune quicker about the power of the Federal Government faster than James Madison after the War of 1812.   Something about having your house burned down will do that to any man.Report

          • Avatar James Hanley in reply to BlaiseP says:

            The smell of burning Straw Men fills the air.

            Um, where?

            But some measure of justifiable domestic security just might exist, even for the civil libertarians.

            Oh, there!Report

            • Avatar BlaiseP in reply to James Hanley says:

              Ah.  I see.   I strongly suspect you are actually a Marxist, James, hoping and wishing and dreaming and praying that government will simply wither up and die away and lions shall lie down with lambs and they shall all eat grass together.

              C’mon now.   Admit it.   You’re a parody of a Libertarian.   Even they stipulate to Force ‘n Fraud.Report

              • Avatar E.D. Kain in reply to BlaiseP says:

                So glad everyone is getting along.Report

              • Avatar James Hanley in reply to BlaiseP says:


                OK, I’ll be more clear.

                Your comment seems to suggest that someone here is arguing against “reasonable measures” of security.  Nobody is.  Your statement that “some measure of justifiable domestic security just might exist, even for the civil libertarians,” is trivially true, but your post as a whole implied that perhaps there was some disagreement with that.  That implication was the straw man.

                You read a claim by a libertarian that government has gone much too far, and your response is to defend government going at least a little way–but who has denied that it should go a little ways?Report

              • By the way, Blaise, it didn’t escape my incredibly sharp-eyed notice that you once again took a non-extreme claim (cops shouldn’t be killing so many people) and transmuted it into an extreme claim (“withering away of the state”).

                It seems clear to me that you are the type of person who cannot restrain himself from blatantly lying about his debate opponents.

                Is there anything I can do to encourage you to attempt an honest substantive criticism of my claim?  Or is douchebaggery a dominating trait for you?Report

              • Avatar BlaiseP in reply to James Hanley says:

                Niggler, please.   Your response to my Devil’s Advocate question about how we ought to respond to the Death of Civil Liberties was a diatribe about the abuses visited on folks under color of law.   How does that answer my question.   That’s a straw man.   I put forward the proposition we will always be faced by the seeming trade-off between Security and Liberty.   Our liberties require some measure of protection:  nobody screams louder for his lawyer than some Get Tough Law ‘n Order Legislator in the drunk tank.

                When I point out the problem of civil liberties has been ongoing for many centuries, that even in the Land of the Free, once trouble starts our government breaks out in a rash of arseholes and clamps down on our civil liberties and starts fondling our undercarriages, you might find it in your argumentative heart to agree with that much of my argument.    It’s not a recent problem.  It’s a constant.Report

              • Avatar Jason Kuznicki in reply to BlaiseP says:

                Your response to my Devil’s Advocate question about how we ought to respond to the Death of Civil Liberties was a diatribe about the abuses visited on folks under color of law.   How does that answer my question.   That’s a straw man.

                I’d call it possibly a red herring, but not a straw man.  The straw man is an attempt to characterize someone else’s position unfavorably.  The red herring is just changing the subject to something else, usually inflammatory, without any apparent logical purpose.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                You’re probably right.  I’ll stipulate to Red Herring.  It wasn’t an answer to the question, as asked, which was clearly advertised as advocatus diaboli.   Dragging police abuse into this argument was a Straw Man insofar as there are remedies for it in law and police procedure.   There are none for FISA courts and warrants.   That much of the Fourth Amendment is gone and we are highly unlikely to regain those rights in law.

                No two people will agree on how much domestic security we truly need.   I have previously said the worst evils are perpetuated with the best of intentions.   If all my remarks are to be subjected to this level of pilpul sophistry,  two or more can play that game and it’s played a lot around here.    I don’t indulge in sloppy thinking but once it gets stupid and personal, I say things people don’t soon forget.Report

              • Avatar James Hanley in reply to BlaiseP says:

                By the way, I’m sure nobody will be surprised to know that I read “Niggler, please” incorrectly on first pass, and thought for a second that this debate was going to go in a whole new direction!Report

              • Your response to my Devil’s Advocate question about how we ought to respond to the Death of Civil Liberties was a diatribe about the abuses visited on folks under color of law.   How does that answer my question.  


                My view is that the abuses visited on folks under color of law is part of the Death of Civil Liberties.  Is that so obviously wrong?  You may object to my moving too far afield from the specific issue at hand–federal statutory elimination of habeus for terrorism suspects–but in what way is my statement wrong?

                Let me reconstruct the initial stages of the discussion:

                Blaise: If the price of a free society is a measure of vulnerability,  what is that measure beyond which even the civil libertarian will cease to complain about the need for security?

                Jason: I reject the premise.  Empowering the state in this way makes us more vulnerable, not less — more vulnerable to tyranny, which has always been worse than terrorism.

                James: Agreed (with Jason). It’s not a matter of eliminating vulnerability, but trading off vulnerabilities.

                That is, we don’t actually gain “security” when we limit our civil liberties in the name of “security,” but actually end up losing security in a different area; we limit our vulnerability to terrorists, but increase our vulnerability to government.  (I’m not sure how that’s even controversial, standing by itself.)

                And then I provided an example to show how that tradeoff works, namely that in the case where we have tried to reduce our vulnerability to criminals, we have gained an increase in vulnerability to abuse under the color of law.

                Now I perhaps could have explained that more clearly.  But I think were you not so eager to just damn me out of hand, you might have responded with a reasonable question like Michael Drew’s.  But even though you did not do that, you might have read my two responses to him.  And even then, if I failed to clearly make my point in those responses, I don’t think anyone who wasn’t intent on reading in bad faith could mistake my argument for a claim of “let’s not provide any measures of security at all.”

                If I were to take your response seriously, I would have to conclude that you think the choice is between no police or allowing police to Taser people to death with impunity.  Certainly you ignored the possibility that I might be somewhere in that big in-between range.  But I didn’t accuse you of that, because that would be pretty damn silly, wouldn’t it?Report

              • Avatar BlaiseP in reply to James Hanley says:

                Do you understand the phrase “advocatus diaboli” ?   Devil’s Advocate?   I am trying to find out where a reasonable measure of security might be found.   From Jason I get a reasoned response:  habeas corpus is his bright line.   I put Lincoln’s suspension of habeas corpus into my initial comment, that and several other examples of America’s miserable civil rights track record to demonstrate this isn’t a recent phenomenon.    And what do I get from you?   Straw men, merrily blazing away.Report

              • Avatar James Hanley in reply to BlaiseP says:


                When a person makes a claim of a straw man, it is incumbent upon them to actually point out what the straw man is, and to explain why it’s a straw man.  Otherwise it’s just a cheap rhetorical trick that can’t be taken seriously.

                For example, your implications that I want government to wither away and that I don’t stipulate to force and fraud are straw men because a) they are positions I have explicitly refuted on this blog, and b) there is no logical relationship between thinking the police kill too many people without due process and  wanting there to be no state at all.

                So if there’s actually a straw man in my argument, you should be able to show it, not just claim it.

                And of course accusing others of using straw men while engaging in them yourself is pretty funny.   Pots and kettles and all that good stuff.Report

              • Avatar James K in reply to BlaiseP says:

                A reasonable measure of security?  OK, how about this: For airport security we go back to before 9/11 except for 1) locks on the airplane cabins and 2) not advising people to just go along with what hijackers want.

                As for outside airports: Take the Constitution seriously.  This includes (but is not limited to):

                1) Police who bust into the wrong house need to have this as a “performance issue”, reviews need to be done to prevent repeats.

                2) Any officer who discharges a weapon need sot be subjected to a proper investigation by an independent body to ensure the action was justified.  Unjustified shootings need to be considered a serious matter – a firing offence in most cases.

                3) Police who break the law need to be subject to penalties at least as severe as non-police civilians.

                4) No person shall be taken or imprisoned, or be disseised of their property, or liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed but by lawful judgment of their Peers, or by the law of the land.

                In short, your government should endeavour to be better on civil liberties than the one your ancestors rebelled against.  Is that sufficiently specific BlaiseP?Report

              • Avatar BlaiseP in reply to James K says:

                Um, that’s all fine and good.   Now here’s my point, allow me to revisit it, however tiresome it may seem in repetition:

                When times are good, the nation observes a modicum of decency, repealing bad laws against discrimination, convicting state governors of corruption, ensuring the niceties of due process are observed, the appeals courts go on striking down unconstitutional rulings and the Innocence Project goes on in its good work of freeing manifestly un-guilty people from Death Row.

                But let a handful of criminals hijack some airliners and kill a bunch of innocent people, the Land of the Free becomes Anything But.   Now here is my question:   given this unfortunate tendency, indisputably repeated many times in our history,  from the Alien and Sedition Act to this National Defense Authorization Act, how do we oppose this sort of thing without falling into simplistic assertions about the need for security?    For this security business cuts both ways:   we must also be secure in our persons, houses, papers and effects and I never said we shouldn’t be.


          • Avatar Jason Kuznicki in reply to BlaiseP says:

            But some measure of justifiable domestic security just might exist, even for the civil libertarians.

            It does.  I’m not calling for anything terribly radical here.  I’m asking for habeas corpus to be respected.  It’s an ancient part of the common law, one that is fundamental to any attempt at limited government.

            What exactly do I want?  When the executive locks you up, I want it to have to explain itself, publicly, to an independent and skeptical body, the judiciary.  I want the executive to have to make reference to specific laws and offenses in doing so.  I want it to have to present evidence.  I want the detained to have access to counsel.

            I can understand how, from you point of view, you might imagine that I’m trying to pare everything of the government down until nothing remains.  That’s absolutely not my intent here.  I only want to keep what we formerly enjoyed.  That’s all.Report

            • Avatar BlaiseP in reply to Jason Kuznicki says:

              Oh, I never thought any such thing about you, Jason.   It’s Henley’s obtuse bleating which provokes me to these mean-spirited Steerpike-esque bouts of pricking and poking until he yells like a cat.

              I’m with you on habeas corpus.   That’s my personal bright line.  I’d also establish the right to a speedy trial as another such bright line.   Adams said, others have said the same thing in different ways, “when tyranny arrives, it comes promising security.”   Therefore, I must insist on my previous statement: a certain measure of vulnerability is not only necessary but entirely tolerable.  It is the price for a free society.   For tyranny is only the substitution of one form of lawlessness for another.

              The cardinal sin of this War on Terror is the central contradiction in terms embodied in that bit of Newspeak.   We cannot wage war on a methodology without lowering ourselves to the level of the terrorists.   The crimes of 9/11 were all on the books:  air piracy, murder, the list goes on and on.   When New York State put the Blind Sheikh on trial, we still believed in our own justice system.   With the advent of Guantanamo and the secret prisons, we ceased to believe.   Let me amend that statement:  our government ceased to believe in itself.   Therein lies the greatest of all the tragedies which befell us, a lack of faith in itself we see in our history, over and over, a lesson we simply do not remember.   It’s not when times are good that we need the Bill of Rights, but when times are bad.   That’s the true measure of any society.


            • Avatar Michael Drew in reply to Jason Kuznicki says:

              In a system with three branches which are supposed to compete for power, thereby checking each other, you know you are already past a point of critical breakdown when you are relying on the branch you wish to be constrained in this way to resist attempts by one of the other branches to remove the checks on it from the the third of the three.  If the second (in this case the legislature) were not independently launching these bids to remove this constraint on the first by the third (I realize in the Constitution they are numbered II, I, and III respectively, but now I’m here), then this constraint on the first would not be about to be eliminated, and you would not be relying on the first branch to check this elimination by the second branch of a check on the first (the most fundamental check we have) by the third.  I don’t understand how we don’t put at least as much blame on the second branch, the legislature here, for initiating this elimination of a check on the first as we do on the first for failing to stop the elimination of a check on itself.  That’s exactly what you’d expect any given branch to do in a system of competing branches. How can we not at least agree on a 50-50 apportionment of blame here between the executive and the legislature, for not living up to their assigned roles – for the legislature, not competing vigorously at restricting the power of the other branches, especially the other lawmaking one; for the executive, failing to uphold the spirit of the Constitution (which applies to the legislature as well) .

              And by the by, this isn’t the first time this kind of thing has happened.  Truman actually did veto a bill that would have one something similar with respect to communists (to his credit).  Isn’t this a powerful argument not that our system is somehow uniquely broken in some way in our own time, but that the whole set-up is not actually as great in practice as it is in theory and has always been advertised to be in practice?Report

              • Avatar Jason Kuznicki in reply to Michael Drew says:

                And by the by, this isn’t the first time this kind of thing has happened.  Truman actually did veto a bill that would have one something similar with respect to communists (to his credit).  Isn’t this a powerful argument not that our system is somehow uniquely broken in some way in our own time, but that the whole set-up is not actually as great in practice as it is in theory and has always been advertised to be in practice?

                Yes.  I know you hate it when I quote Hayek, but the opening lines of Law, Legislation, and Liberty seem appropriate:

                “[The American founders’] chief aim was to provide institutional safeguards of individual freedom; and the device in which they placed their faith was the separation of powers.  In the form in which we know this division of power between the legislature, the judiciary, and the administration, it has not achieved what it was meant to achieve.  Governments everywhere have obtained by constitutional means powers which those men had meant to deny them.  The first attempt to secure individual liberty by constitutions has evidently failed.”

                Hayek proposed a further subdivision, in which there would be two legislatures.  One would direct the bureaucracy and the other internal apparatus of government, issuing specific directives and setting policies only applicable to them, without any power to administer the ordinary citizens.  The other legislature would only have the power of issuing general laws applicable equally to all citizens, but would lack the power to issue directives to them or to make any partial laws — laws, for example, that give special tax breaks, or that favor one economic sector (or race or religion) over another.

                I’m not sure it would work, but I do think Hayek’s solution points up a key part of the problem, namely, that ordinary, private citizens and businesses are too often seen as the mere instruments or objects of public policy.Report

              • Avatar Michael Drew in reply to Jason Kuznicki says:

                I don’t hate it.  I just was unimpressed when you entered a discussion in which everyone else was really trying to hash what they think of democracy under a post in which you raised the topic, and the most you’d say was that you agreed with this quote or that, as far as it goes.

                That’s an interesting proposal.  I’m not sure I see how it changes the dynamic at all.  The issue is a public passion for protection from a strong leader, expressed in legislative majorities that grant the executive greater power rather than trying to take it away from them.  If the administrative legislature were still democratically composed, it seems that could equally occur in it, whether it had a narrower portfolio or not.  This is pretty specific area of the law, after all.  it;s going to fall somewhere.

                Also, the question of special tax breaks seems to me to be a substantive limitation that could apply just as much to our legislature as it, if we made such a change in the constitution, as it could to the “general” legislature.  It seems like it would just have to be substantive limitation (which would either be observed/enforced or not, depending on political and legal exigencies) in each case.

                I suppose if you made it so that each house had to approve the other’s acts, though could not itself legislate on the areas of the other’s domain, you could effect just more general veto points and achieve a greater deterrent to action in general, which would take the form of more of what we commonly call gridlock.  But a general lessening of action doesn’t seem to be the kind of thing Hayek imagines to be the mechanism for constraining the powers (and does he propose this cross-approval requirement?).  Instead, this seems to imagine that splitting up areas of responsibility would produce more narrowly targeted laws.  iIdoubt this would be the case.  In fact, increasing the number of independent legislatures would seem at first blush to be likely to lead simply to the kind of expansion of authority we’ve seen in the one bicameral one that we have, only happening in two bodies side by side.  More legislatures, more laws about more things, would be my initial prediction.Report

              • Avatar Chris in reply to Michael Drew says:

                My suspicion is that the two party system renders the checks and balances of your first two branches (legislative and executive) significantly less effective. The reason is that the party’s motives are different from the branch’s motives, and this is true regardless of whether a party currently controls the branches, because in a two party system, you always know that it’s only a matter of time before you have control of them. The Republican party is better served by a powerful Republican president than by a powerful mixed legislature (I imagine if they thought they could have a supermajority, they wouldn’t care about the executive, because screw the executive, we can outvote any veto). The same goes for the Democrats. Checks and balances, it seems, only work when power isn’t as entrenched as it is. Entrenched power has no reason to exercise them.Report

              • Avatar BlaiseP in reply to Chris says:

                Consider this possible etiology:   America’s usual response to some new problem is yet another law enforcement bureaucracy.   The FBI arose as a response to interstate crime during Prohibition.   Prohibition ended, the FBI did not.  The CIA arose as in response to the Cold War.   The Cold War ended, the CIA did not.   The Church Commission supposedly cleaned house at CIA but it did not:   the CIA went right on doing what it had always done.  The NSA and NRO are mere extensions of the CIA apparatus.   Homeland Security, well, you can fill in that blank for yourself.   Got a problem?   Establish a new agency to deal with it.

                Though Congress is supposed to have oversight of these agencies, history has shown they have failed to rein them in closely.   The FISA Act of 1978 (signed by Carter, no fan of the CIA)  pried open the door for the subsequent USA PATRIOT Act and all that followed.   It may well be, as you’ve pointed out, the Two Party System may have led to this fecklessness but I contend the Congress, especially the Senate, has refused to do its job, defending the nation against every bout of paranoia which comes along.

                In the Federalist Papers 63, more than likely Hamilton writing:

                 Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only as they relate to the representatives of the people. To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

                It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them. Report

              • Avatar Michael Drew in reply to Chris says:

                We could have two parties driven in a zero-sum struggle for their political survival by an imperative to provide the public with liberty, which force each other to pay a price when they have erred in a way that make them subject to claims that they have failed to do so to the greatest extent possible.  We would have that if that is how the public felt about liberty.  And then the legislature would be forcing the Executive to restrict our liberty less, and it would have to at least try to appear to do so.  That is the country the Founders thought they were writing a constitution for.  But it is not the country we have.  The country we have is better described by my first sentence here, except with the word security in place of the word liberty, and the word could removed.  We have seen the enemy, and he is us.Report

              • That is the country the Founders thought they were writing a constitution for.

                Indeed, as foreseen by Hamilton, in Federalist 8.

                 But it is not the country we have.Safety from external danger is the most powerful director of national conduct.  Even the ardent lover of liberty will, after a time, give way to its dictates.Report

              • Avatar Chris in reply to Michael Drew says:

                See, I don’t think most people even notice a loss of “liberty,” except at the airport, and then most of us don’t fly that often. So far, these things have, as they usually do, affected people who aren’t like us. Even this particular act will only affect Muslims and a few unfortunate brown people (silly Sikhs, dressing like terrorist Muslims! you brought it on yourself), so people aren’t likely to care.

                That’s what’s so brilliant about a slow, creeping erosion of civil liberties: by the time anyone notices, because it actually affects them in a visible way, it will be too late. Until then, people aren’t worried about liberty because they haven’t seen any taken away yet.

                Relatedly, this is one of the reasons why folks like the FFA, or our own Scott, gets upset about portraying the people we want to see as not like us as, in fact, a lot like us. “If this were accurate, it would show some militant Muslims too” helps keep the people this does affect looking different from me.Report

              • Avatar Jaybird in reply to Chris says:

                See, I don’t think most people even notice a loss of “liberty,” except at the airport, and then most of us don’t fly that often.

                We saw a similar phenomenon with OWS and the militarization of the Police Force.

                For so long, the police only treated *THAT* side of town like that. When the cops started treating college students the way that they have been acting for the last howeverfartoomany years, everyone was shocked.

                The cops were saying “this is standard procedure!” and, of course, it was… it’s just that we were used to that only being used on *THAT* side of town.Report

              • Avatar James Hanley in reply to Chris says:

                Indeed, Chris.  It’s the boiling frog problem.  Or, since that example isn’t really true, it’s the lack of a step function in the erosion of civil liberties.  A big step function would provide what Thomas Schelling called a focal point.  Small repeated increases don’t have that effect.Report

              • Avatar Chris in reply to Chris says:

                James, it’s not even the boiling frog problem, really, because in these cases, the vast majority of us aren’t really in the pot. Instead, the pot is on the stove, the water heating up, and a few Others being thrown in here and there, but to date, we’re all standing outside the pot, figuring it’s better to boil a few Others than have them roaming loose among us. The problem is, without putting a stop to the erosion of civil liberties for the Others, eventually it will be just as easy for us to be thrown into the pot ,and by that time, the water will be boiling vigorously.Report

      • Avatar Burt Likko in reply to Jason Kuznicki says:

        I reject the premise.

        Hear, hear. We are still strong enough, rich enough, and smart enough that the choice between liberty and security is a false one. We can have both. We should have both. We should demand both. And any politician, of either party, who suggests or acts as though it is a mutually exclusive choice has demonstrated their inability or unwillingness to meaningfully deliver the benefits of government, and should be treated accordingly at the polls.Report

        • Avatar Michael Drew in reply to Burt Likko says:

          I agree with this if by liberty you mean “essential liberty,” in Franklin’s phrase.  The core of liberty, such as what might be being given up with this law.  And when you refer to “liberty” here as a unitary thing we either have or don’t have, it seem this must be what you have.  Also with “security” – you must mean “as much security as we should want to have,” or some such construction.  Certainly, you don’t mean to suggest that the alternative to having “security” is simply not having any security – surely if that were the case, then we would actually give up essential liberty in order to have some security if the alternative were only to have none.

          But what I have to pause over is the question of what is enough of each.  The precise problem here is that each of these is a quantity that can vary marginally.  What I am not sure I understand is whether you are denying that we might encounter somewhere a tradeoff between some quantity of security and some quantity of liberty.  It seems to me a near certainty that somewhere such a trade-off exists.  And if it does, the that makes the simple assertion that “we can have both liberty and security” somewhat meaningless.  The thing to maintain is that we can have all the security we have always thought of as guaranteed to us, and still be as secure as we should care about being.  I actually have no idea if this is true or not.  But I do agree with trying to hold our elected officials to trying to deliver them to us regardless.  Unfortunately the reality is that not enough of us really care enough about the liberty side to make that an operative political imperative.

          In other words, Hobbes wins.Report

  4. Avatar Dand says:

    this isn’t a reply to your post but this sites rss seems to be brokenReport

  5. Avatar E.D. Kain says:

    Jason – I’m not surprised. I’d only note that Obama may have read the writing on the wall here. He doesn’t have a safe veto. The NDAA has such wide support, congress could very well override a veto. Maybe that’s a fight not worth taking politically right now. Or maybe Obama is just compounding his already terrible record on civil liberties.

    My only quibble is this: this isn’t how civil liberties die. They’ve been dying a long time already round these parts. This is just decay.Report

    • Avatar Renee in reply to E.D. Kain says:

      To echo E.C. above – Obama never opposed indefinite detention.  The Veto threat was exclusively about executive prerogative.  The bill was changed  — to give more authority to the exec.  That’s why he signed it.  Let’s not pretend that he had reservations about the civil liberties aspect.Report

    • Avatar 62across in reply to E.D. Kain says:

      E.D. has it right here with his quibble. This is just the latest in a long series of death rattles for civil liberties.

      I’d add, that if you consider that most of the country is either indifferent to or cheerleading for this strategy for terrorism suspects, this latest event is less a case of the executive seizing power than it is having power handed to it.  This makes this profoundly sadder to my mind. This isn’t tyranny; it’s capitulation.Report

    • Avatar E.C. Gach in reply to E.D. Kain says:

      My general feelings on this issue spring mostly from the particular circumstance of my age and politics.

      I can vagueling remember fighting in middle school at lunch (I ran with a really dorky crowd) about Al Gore, George W. Bush and the merits of Nader’s third party candidacy (that was seventh grade).

      That following summer, 9/11 occurred, and from then on I was immeshed within the liberal narrative that tragic circumstance had given an already suspectedly hawkish conservative the means not only to enable his neocon friends, but to support and widdle away at a plethora of civil liberties, a project which Congress not only authorized by gladly supported.

      With my politics developing in those times and under that narrative (ranging from family discussions, to documentarys watched, to inundation with Daily Show satire) Obama seemed at the time, naively, to be someone who might actualy turn back that tide, and cast the ring back into Mt. Doom.

      Alas, he has not. Strike 1. He has largely accelerated what occured under Bush. Strike 2. Now he is a short time away from putting it officially on the books and into law with his own pen and under his own name. Strike 3.

      Whatever the flaws in my own forsight and reasoning, then or now, I see, for better or worse, this episode as a largely personal rebuke.

      On the level that E.D. is talking about, there is enough blame and enough hisotirical presedent to go around. This did not happen over night, and it did not happen because of one man. As the nation’s President, he has simply continued in a long tradition of executive excess.

      But as a liberal President, and as a Democratic President, and as MY President, who I supported, volunteered for, and defended for the a large part of his first term, I feel both brutally betrayed and embarrassingly ashamed.Report

    • Avatar Jason Kuznicki in reply to E.D. Kain says:

      My only quibble is this: this isn’t how civil liberties die. They’ve been dying a long time already round these parts. This is just decay.

      “This Is One Example of the Gradual Process by which Civil Liberties Die.”

      Doesn’t have the same ring, does it?Report

  6. Avatar North says:

    Depressing but in keeping with Obama’s MO. He has run an extremely non-confrontational presidency and this is in keeping with his general behavior the last four years. A pity that his opposition is even more rabidly in favor of it than he and his party is. On this subject at least the current field looks like there won’t be a candidate to vote for who’s against it.Report

    • Avatar ThatPirateGuy in reply to North says:

      Thus my lack of anger at Obama what am I gonna do vote for the guy who wants to waterboard people too?Report

      • Avatar Jason Kuznicki in reply to ThatPirateGuy says:

        It’s too late to consider a primary challenge, alas.  But you make a good point, because the Republicans are certainly worse here, and, given the chance, they would gleefully bring back torture.Report

        • Avatar ThatPirateGuy in reply to Jason Kuznicki says:

          Jason I would live to see a follow up post on ideas toward getting this repealed in the next decade. I would like to see more on the legislative side of this too. Atheist to atheist your doing gods work here.

          I know I’m terrible because I would support Obama over Paul even now. But I would love for this to be a major issue come the 2014 and 2016 election cycles.Report

  7. Avatar Tod Kelly says:

    I know that I am going to be stand as a minority of one for saying this, but I think the focus on Obama here is misguided – and it adds to the decay (as E.D. put it) of civil liberties.  And not because he’s Obama per se, but because he’s the executive.

    The thought that any executive in any party, when given a gift wrapped mess o’ additional power by Congress, is going to ship it back saying – “No, please, I’m stuffed as it is!  Thanks, though!”-  is a little naive.  Due resect to Jason et al, but the Constitution isn’t set up so that the Executive branch curbs Executive power… it’s set up so that the other two branches do.

    Focusing on Obama the way everyone is on this issue performs the task of letting those that fell down on the job – Congress – off the hook.  I’d be happier if civil liberty proponents focused more on them and less on the passive actions of the executive in these matters.Report

    • Avatar Michelle in reply to Tod Kelly says:

      Well, the buck does stop with Obama. If he’d actually veto the thing, then maybe some of the cowardly 93 Democrats in the House, who voted for it, would side with him. While I agree that the executive does not usually give up power, when a bill that’s so blatantly unconstitutional lands on his desk, he has a duty to veto it.Report

      • Avatar Tod Kelly in reply to Michelle says:

        Actually, I would argue that the buck stops with the courts, but I get what you’re saying.  I just feel that an executive will never – NEVER – turn down extra power, and so it is the responsibility of the other two branches to make sure they don’t get more than they should.Report

    • Avatar 62across in reply to Tod Kelly says:

      Tod –

      I think the decay runs deeper. In this case, Congress is actually behaving as the representational body they were designed to be. The People, writ large, want this. To make it right, members of Congress (and the President) would actually have to stand up to their constituents and tell them they are wrong. When does that EVER happen?Report

      • Avatar Tod Kelly in reply to 62across says:

        I actually see this less as decay and more of the proverbial pendulum.

        ANd as to what the people want…  I suspect you couldn’t find 4 out of 10 people on the street that even know what this bill is or that it’s in the works, let alone have a desire one way of the other about it.Report

        • Avatar 62across in reply to Tod Kelly says:

          I’ll grant that a goodly number of people on the street won’t be aware of this specific bill, but I’m surprised that you would even question that the national mood favors security over liberty these days. It’s in response to 9/11 and, as James notes above, the Founding Father anticipated the nation would respond to an external threat thus.

          The national mood on civil liberties will swing the other way, but not on some cadence like a pendulum, but in response to an event where an act on behalf of security goes too far.  The passage of this bill will not be that event.Report

    • Avatar JG New in reply to Tod Kelly says:

      The thought that any executive in any party, when given a gift wrapped mess o’ additional power by Congress, is going to ship it back saying – “No, please, I’m stuffed as it is! Thanks, though!”- is a little naive.

      You know, I half think that a President Ron Paul just might.  I’m not a fan of his – I think he’s a crank.  But he is a principled crankReport

      • Avatar Tod Kelly in reply to JG New says:

        I tend to agree with you.  On the other hand, I tend to think that pre-elected Obama sincerely wanted the same thing.  I’d even bet a pre-elected Bush would have as well.

        I think holding power is incredibly corrupting, in part because it seduces you into thinking that the best way to eliminate corruption is to embrace that power.Report

        • Avatar JG New in reply to Tod Kelly says:

          See, I never felt that way about Obama.  I voted for him, and will vote for him again, but since I had knowledge of him from my time in Chicago, it was always obvious to me that he was too much the politician and pragmatist to be very idealistic.  I tend to think that a lot of his perceived idealism was (a) projected on him, and (b) originated more in his rhetoric (at which he is very, very good) than in anything that he’s ever done.Report

  8. Avatar Burt Likko says:

    The sarcastic comment in the OP about this dangerous law being executed in good faith might turn out to be worthy of faith, at least in the short run. Bu in the long run, it will inevitably be corrupted.

    So given that Congress has done this, and given that the President has now abdicated his responsibility to stop it, our hope must now rest with the courts.Report

  9. Avatar Maxwell James says:

    May I humbly suggest that finger-pointing between Liberaltarians and Conservatarians is itself a lost cause (not to mention a sadly irrelevant one)? No one here is going to switch parties or levers over this. There are reasonable enough arguments for any libertarianish person to stay with their own party.

    Better than that would be to say OK, what can be done _within_ the party system as it now exists to effectuate some improvement. Two ideas:

    – Democratic-leaning civil libertarians should develop a calling campaign to blast the White House every other minute with their views on the matter, and threatening to withhold their 2012 votes if Obama does not reverse.

    – Republican-leaning civil libertarians should try working with the much-vaunted grassroots Tea Parties to try putting one – just one! – representative in the House who would vote on the right side here, other than Paul. Find a district that would support the issue and get to work.

    Democracy is not just a matter of voting – it is moreover about civic engagement. That’s also an observation straight from Madison.Report

  10. Avatar JG New says:

    I have a meet and greet with Eric Holder this afternoon (really), and am contemplating making some duly respectful, but nonetheless career-limiting, comments to him re this.Report

  11. Avatar BSK says:

    I’m going to come at this from a different angle…

    “The law, contained in the defence authorisation bill that funds the US military, effectively extends the battlefield in the “war on terror” to the US…”

    Why wouldn’t the “war on terror” include US battlefields?  Pretending that we can actually fight a war on an ideology and methodology, why would we presume that it had physical boundaries?  Of COURSE the “war on terror” should include the US.

    The real question, for me, is whether this is an acceptable course of action for war in general?  I’d say no.  Yes, the extension of this power to the US is a major legal issue.  But the existence of the power to indefinitely detain folks without any ability to challenge that detention is a major moral issue regardless of where those folks are captured.  While I’m appalled that it appears this law will come to pass, I am just as appalled that it has come to be SOP for anyone.  Unfortunately, we have come to accept certain realities as the norm, further shifting the center and creating the possibilities for this latest travesty.Report

    • Avatar boegiboe in reply to BSK says:

      Hey constitutional law folks,
      Does this mean anything here?

      The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

      If the states have the right to apply to Congress to be protected from both invasion and domestic violence, wouldn’t that allow capture of Al Qaeda and Taliban members and affiliates on U.S. soil, no matter what their citizenship? If they’re foreign, they’re invaders; if they’re U.S. citizens, they’re committing or planning to commit “domestic violence.” And isn’t this NDAA just Congress’s way of passing the decision making on whom to capture to the Executive?

      I’m not saying this is all a great idea. I’m not arguing Obama should or shouldn’t veto the bill. I’m not saying Congress isn’t abdicating its responsibility by removing the judiciary from the process. All I’m saying is, this looks pretty well completely covered by the Constitution as long as it’s provided for by an act of Congress. The protection of the states from invasion and domestic violence is provided for in such a way that looks to explicitly exclude the judiciary, unless Congress decides to include the courts.Report

      • Avatar Jaybird in reply to boegiboe says:

        I don’t know. I mean, *I* think it’s an interesting argument and that it deserves to be argued on a higher level… but it seems to me like those who are “committing or planning to commit ‘domestic violence'” could easily be accused of “Treason”… and that word never gets used unironically anymore.Report

      • Avatar Jason Kuznicki in reply to boegiboe says:

        I am not suggesting that the federal government should (or did) lack the power to apprehend al Qaeda operatives.

        The federal government has had that power all along via the federal law enforcement authority, which is a clearly legitimate constitutional power when dealing with international or interstate crime.  It does not need to wait until state legislatures beg for it to act.  It can just go ahead and arrest international terrorists, and it should.

        All I am saying is that allowing the military to detain these suspects forever, without evidence or charges, and without an established procedure for review of detention, is a serious offense against other parts of the Constitution.

        Historically, the passage you cite has never been read in the way that you suggest.  “Domestic violence” here was not understood at the time and is not currently understood to mean that the federal government has jurisdiction over ordinary crimes.

        The phrase is understood to mean riots, rebellions, or insurrections.  The parenthetical is key here — this passage contemplates not just a heinous crime or two, but some very serious disruptions to the ordinary workings of government.  Even 9/11 didn’t do that.

        And anyway, even if the passage were to be read in the way that you suggest here, it would still be limited by habeas protections, and Article I, Section 9 controls those instead and exclusively, because it names them by name.  It’s a principle of law that you don’t infer the answer to a legal question from a vague passage when a more explicit one exists that will fully answer the question at hand.

        Article I, section 9 allows habeas to be suspended,, but only by the U.S. Congress, and only during rebellion or insurrection.  (Edit: i.e., the state legislatures have no power to evoke the issue.) I contend, and I’m more than willing to argue, that al Qaeda does not meet that standard now, if it ever has.


    • Avatar Jaybird in reply to BSK says:

      I would be 100% fine with this if we would declare war.

      Declare war and let’s get it on.

      War has not, however, been declared. Not in any way that we can ever say that hostilities are over.Report

  12. 44 becomes probably the worst President re: Civ Libs since 28.Report

  13. Avatar Patrick Cahalan says:

    Before I catch up on this thread, I wanted to post this, as it’s germane.

    Also, fun news for MFarmer and Koz.

    WASHINGTON, D.C. — Americans’ concerns about the threat of big government continue to dwarf those about big business and big labor, and by an even larger margin now than in March 2009. The 64% of Americans who say big government will be the biggest threat to the country is just one percentage point shy of the record high, while the 26% who say big business is down from the 32% recorded during the recession. Relatively few name big labor as the greatest threat.

    If political expediency is the justification for not vetoing this (even though it can be passed anyway by Congress), I think the White House is misreading the current state of the nation.

    This would have been (IMO) a good place to stake out a stand.Report

  14. Avatar Jason Kuznicki says:

    Both your first and your second claims are false.

    Waterboarding was supported by a legal memo from the White House, which means nothing whatsoever. If that were all it took to make something legal, we would have no need of Congress or the judiciary.

    Further, it has always been the understanding of the U.S. government that waterboarding constituted torture, from World War II through the Cold War, through Cambodia, to the present.  We are a party to several treaties that forbid torture, including the UN Convention on Torture, under which waterboarding certainly qualifies and has in the past, in other instances.  So yes, there absolutely is a crime here.

    Nor did that crime save any lives.  Read Ali Soufan’s The Black Banners.  Torture makes suspects clam up.  Talking makes them talk.  This isn’t a libertarian claim — it’s a claim by interrogation experts, in overwhelming consensus.Report

    • Avatar Jason Kuznicki in reply to Jason Kuznicki says:

      This was @Baghdad Bob, obviously.  Here’s KSM in his own words:

      “During the harshest period of my interrogation I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop. I later told interrogators that their methods were stupid and counterproductive. I’m sure that the false information I was forced to invent in order to make the ill-treatment stop wasted a lot of their time.”

      Why, Bob, do you want to waste our interrogators’ time? Are you on the other side? Just asking.Report

  15. Avatar Michael Drew says:

    The NDAA passed. So What Does It Do?Report