People who get it, Part II

"The government's legal arguments justifying the detention of hundreds of people at the Guantánamo Bay naval base have been repudiated three times by the U.S. Supreme Court. But it's not just outsiders who take issue with the U.S. Justice Department strategy: Up to one fourth of the department's own civil appellate staff has recently opted out of handling the government's cases against detainee appeals, two sources familiar with the matter tell U.S. News."

Where am I?

Sorry for the extended silence here. I've been buried in a long reporting project. Regular posting will resume soon.

Strict destructionism

Constitutional question of the day, courtesy of the Christian Science Monitor:

"Padilla's treatment in the brig raises another issue, these scholars say: whether the Constitution ever permits the government to force a man to confess to involvement in terrorist plots and, in doing so, risk destruction of a portion of his mind."

They don't write Supreme Court opinions like they used to

Today I had occasion to read a couple of famous Supreme Court opinions by Justice Robert Jackson for a story that I'm working on. One is his concurring opinion in Youngstown, in which the Court found that President Truman couldn't invoke war powers to seize control of the nation's steel mills. The other is his dissent in Korematsu, in which the Court sanctioned the internment of Japanese-Americans in World War II. Both opinions contain lucid contemplations on the nature of executive power, and argue eloquently for such power to be restrained even--or perhaps especially--in times of emergency. For instance, this passage from Korematsu, in which Jackson warns of the consequences that will flow from this dangerous precedent:

"...once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image."

And in Youngstown, this passage seemed particularly pertinent, given--to name only the most recent example-- Congress's shameful capitulation over the wiretapping bill last week:

"I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."

What next?

Senator Russ Feingold: "The White House...has identified the one major remaining weakness in the Democratic Party, and that’s its unwillingness to stand up to the administration when it’s making a power grab regarding terrorism and national security. They have figured out that all they have to do is start talking about an imminent terrorist threat, back it up against a Congressional recess, and they know the Democrats will cave.”

He's right: Despite almost non-existent support for the president, and a set of hearings exposing Alberto Gonzales's incompetence and dishonesty, Democrats have now handed more power to the president and Gonzales. The Times has a useful, if depressing, account of how this happened here.

What I am wondering more and more these days is, what happens next? After 2008, will a new administration (from either party) diligently repair the various breaches in the walls that have traditionally limited the power of the presidency? Or will they discover that once you're in the White House, it's hard to bring yourself to shrink the scope of the office? This question is not getting very much attention so far in the presidential debate, but it really should.

Good question

from Brian Beutler:
"The relevant question to my mind is whether the administration is hampering the process [of releasing Guantanamo detainees] so that some of these guys don't someday describe the torture techniques used against them to a lawyer or a judge or the media. If that's the case, then you can be sure the administration will do anything in its power to keep these guys in military custody for as long as possible."

Actually, the government has already made this very argument in court:

"The Justice Department argued this point explicitly last November, in the case of a Baltimore-area resident named Majid Khan, who was held for more than three years by the C.I.A. Khan, the government said, had to be prohibited from access to a lawyer specifically because he might describe the “alternative interrogation methods” that the agency had used when questioning him. These methods amounted to a state secret, the government argued, and disclosure of them could “reasonably be expected to cause extremely grave damage.” (The case has not yet been decided.)"

In the tank

An interesting memo written by the impressive Samantha Power for the Barack Obama campaign (which she advises), on the subject of foreign policy and conventional wisdom. The memo defends Obama's much-criticized remark that he would not use nukes to take out Osama bin Laden, but then goes on to make a much broader point about the type of thinking that has dominated American foreign policy circles for many years (on the left and the right) and which has got the country into an awful lot of trouble since 9/11. Matthew Iglesias points out the careerist dimension to the caution exhibited by foreign policy Serious People here. Glenn Greenwald lays into their shallow, narrow ways of thinking here. Last week, Steve Clemons summed up the mindset among those members of the foreign policy community who opposed the Iraq War, but didn't say anything about it.

Ouch

"A pencil lodged in your brain has got to hurt. A German woman who fell on a pencil 55 years ago has just had most of it removed from her head in a complex operation. But the tip will remain in her brain for ever."

Contractors

1001 contractors have died in Iraq since the war began (as of June 30.) Here is a partial list of their names and very varied nationalities.

"the intentional and systematic infliction of great suffering masquerading as a legal process"

A stunning piece by Jane Mayer in this week's New Yorker about the detention of Khalid Sheikh Mohammed and the inner workings of secret interrogations. There are some extraordinary details that I'll try to write more about later, but here's the big picture thought:

"The C.I.A.’s interrogation program is remarkable for its mechanistic aura. “It’s one of the most sophisticated, refined programs of torture ever,” an outside expert familiar with the protocol said. “At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because you’ve heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling.”
[snip]
"The former officer said that the C.I.A. kept a doctor standing by during interrogations. He insisted that the method was safe and effective, but said that it could cause lasting psychic damage to the interrogators. During interrogations, the former agency official said, officers worked in teams, watching each other behind two-way mirrors. Even with this group support, the friend said, Mohammed’s interrogator “has horrible nightmares.” He went on, “When you cross over that line of darkness, it’s hard to come back. You lose your soul. You can do your best to justify it, but it’s well outside the norm. You can’t go to that dark a place without it changing you.” He said of his friend, “He’s a good guy. It really haunts him. You are inflicting something really evil and horrible on somebody.”