At least one of the fired prosecutors was replaced by a Republican hack, namely a Karl Rove sort that was involving for instance in "caging" -- the legally dubious, if not clearly illegal, method of targeting specific voters (here blacks) by trying to "prove" (the Florida "felon" scandal underlines the need to use quotes) they are not legimate voters by means of address cards. (If they are returned as not legit addresses, often in error, voter not qualified!) [Air America/Thom Hartman discussed the point last week.] This is the sort of people we have as our public officials, the proverbial "C" team in the words of Dahlia Lithwick (Slate) have its share of dubious characters in general.
This dubious nature is underlined by a guest Findlaw column by "Jeff Breinholt, a member of the State Bar of California, [who] is Deputy Chief, Counterterrorism Section, United States Department of Justice." The column discusses "lawfare," which he defines as "the effort to achieve or defeat military objectives through legal tools." As an aside, one wonders what word he would use for his administration's tactics to use legal means to achieve anti-American Bush-friendly objectives. Such as torture and such. But, I digress.
The column in part supports the habeas ruling that I have referenced a few times of late, respecting stripping habeas rights for those detained in Gitmo. The dissent and others have spelled out how the result very well probably is not "well-supported by precedent," which besides is of questionable value. Simply put, the precedents available do not tell us too much about the current situation. 18th Century English case law and such do not set up apt comparisions to the gaol down in Cuba here. Likewise, precedent changes, especially given the messages of rulings like Rasul.
[To toss something in, Balkanization is among the many blogs covering the gun ruling. See here. This is notable in part because Sandy Levinson had a seminal law review article in the late 1990s on the "embarassing" Second Amendment. The sentiments expressed, including the touch of caution on meaning and mention of "1787 originalism" (even when it hurts one's case), seem generally correct. If the 2A covers personal defense qua personal defense, it is best not to just appeal to 1787, but the Fourteenth Amendment etc. Simply put, the alternative is bad on many levels, including as a sound application of current precedent -- five votes simply are not there to take the Thomasian approach. This applies across the board.*]
Finally, if the precedent says otherwise, it deserves to change. If not, we would take things like "the Constitution does not confer rights on aliens without property or presence within the United States" as just. Under that philosophy, we can set up torture planes and such to deal with such "aliens." Likewise, the argument also misses a point emphasized by the dissent in the habeas ruling -- this is also a matter of restraint on governmental power. An all powerful executive, even one that was not blatantly breaking the law (but impeachment? huh? that was abused once, can't do that again!), is dangerous. The king of England might have arguably been in violation of the common law (and natural law overall), but quite often he surely was not. All the same, the powers practiced were deemed dangerous to our republic. So is entrusting key Department. of Justice positions to people with this menality:
But conversely, when aliens flagrantly break our laws because they are committed to our destruction, we hardly have an obligation to grant them the full benefits of citizenship - and our most cherished individual freedoms - thus assisting them in their efforts against us.
This deserves our scorn. Evidence underlines that we cannot assume guilt until innocence is proven, nor is a basic right of a hearing -- repeatedly shown to be fundamentally necessary for justice -- "the full benefits of citizenship." "Persons" have rights too in this country, moron. Finally, there is the fear of overreaching governmental power, which goes beyond citizenship rights.
Expanding habeas corpus rights to prisoners of war would make warfare involving the United States more difficult, if not impossible. (For example, the U.S. military could, under established rules in the Law of Armed Conflict, legally bomb a building, but then legally be prohibited, based on the Fourth Amendment, from searching the same building without a warrant. While this is an absurd result, it follows directly from the arguments in favor of the detainees.) Other countries would thus gain a military edge over the U.S. if Guantanamo detainees could file habeas corpus petitions.
One is speechless. I wonder ... does this include homes on our soil? Label an al-Masri an 'enemy combatant' -- without judicial oversight -- and you can bomb his home, right? The fact he lives in Peoria, notwithstanding. Anyway, one's home in Africa, and one's confinement in military bases controlled for over a hundred years by the U.S. ... tad different.
Per Atrios, what a wanker. Too bad so many American citizens agree with him.
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* Furthering the 1787 originalism theme, the opinion spent some time focusing on 1790s federal militia acts, including the weapons the members of the militia were required to own, to make its case. Since the acts, especially as to members of the militia bringing their own arms, were soon deemed somewhat unworkable -- especially by 1900 -- this is dubious. Similarly, discussing current events in Gitmo etc. through the eyes of 18th Century English precedent is workable only up to a point though it helps, see John Yoo, if you twist things.