Well That Didn't Take Long

Yesterday, the Supreme Court miraculously reinstated habeas corpus. The country is slowly edging back from the Bush precipice. In Boumediene v. Bush:

The majority found that the constitutionally guaranteed right of habeas corpus review applies to persons held in Guantanamo and to persons designated as enemy combatants on that territory. If Congress intends to suspend the right, an adequate substitute must offer the prisoner a meaningful opportunity to demonstrate he is held pursuant to an erroneous application or interpretation of relevant law, and the reviewing decision-making must have some ability to correct errors, to assess the sufficiency of the government's evidence, and to consider relevant exculpating evidence. The petitioners met their burden of establishing that Detainee Treatment Act of 2005 fails to provide an adequate substitute for habeas.

This is great news, right? Well, not to John McCain.

From Time, McCain Slams The Supreme Court's Habeas Decision, direct quote from the campaign trail:

The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country. ... So now what are we going to do. We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material....

One of the worst decisions? Really?

When I say "didn't take long" that means that McCain has swiftly shown himself to be unfit to be President of the United States. Bush and Co. (which alas has now included Hillary) like to describe the president as "commander in chief" - using military terminology and military imagery. This allows Bush, Hillary, McCain to talk all cowboy like about punching cowpokes in the varmints, or whatever they do in Texas. But the president is actually Chief Executive of the Constitution first and foremost. Which means that he needs to protect our rights, liberties, and freedoms above everything else. That's his job.

I don't want to get all 2nd Amendment here, but ultimately that amendment makes clear that individual safety doesn't stop with the Federal government but with each individual citizen. The president's job is to make sure that government doesn't take away the liberties of the citizen. Bush failed spectacularly at that job. By rejecting Boumediene, McCain plans to fail even more. McCain is standing square on Bush's shoulders and appears to be proud to extend Bush's legacy.

If the 2004 election was about the war, 2008 is about the Constitution. McCain has failed.

h/t Sullivan.

Update: More reading - Scott Horton, Dahlia Lithwick, Marty Lederman.

Horton's Leaving

Scott Horton, the resident blogger at Harper's is hanging up his hat. It's sad. He was a must-read (weekly) for me. He says that blogging was too time consuming. My two cents is that he didn't actually understand that blogging was supposed to be a bunch of brief comments. Instead, he would write long long pieces. It was a newspaper/magazine article every day! And always linked to some high-culture quote from an ancient or classical text! Often requiring translation.

Anyway, I hope he keeps a regular column for Harper's. He was a valuable resource.

Torture

There are people who believe that the Bush Administration hasn't consciously created and enforced a policy of torture. These people are either (a) seriously not paying attention (about 80-90% of the US population), (b) are credulous folk who believe the nice George when he says "[Read my lips] We do not torture," (c) the rest are Republican meat-heads who will echo whatever Bush/Rush/Headvoices tell them to believe.

There are people who do believe it's now American policy to torture. These people are either (a) Michael Moore types who believe that Bush regularly rapes kittens and purposely eats chili so he can use the Constitution as a Ty-D-Bowl wipe; (b) hardline Republicans who dearly hope we are torturing people because what's the point of being powerful if you don't boot people in the head? And then there's (c) people who read the papers/internet.

When my children ask in 10-15 years, "Daddy, what did you do when our government turned criminal?" I'll need a good story to tell them. I spoke out about the issue from the pulpit, I've written to my representatives. But, sadly, until it becomes a proven fact, I can't do much more. Before the Press and Congress confirm the facts, anyone who claims we torture has only circumstantial evidence.

However, there's some more recent evidence that not only do we torture, but that it's international knowledge. Other countries' governments know we torture, but Congress is still in the dark. [Barfing sound.]

Scott Horton, from Harpers, on December 1, cites two disturbing examples of how this plays out internationally:

Is America a nation that tortures? The question is being asked all around the world. It’s not a matter of idle speculation. Under international treaties, which many nations, not being liberated by the law-what-law?mantra of the Neocons, treat very seriously, there are specific prohibitions about cooperation with nations which torture. In particular, there is article 3 of the Convention Against Torture, which forbids any state party to return a prisoner to a nation where he is likely to be tortured.

In 2006, I had an off-the-record discussion with the chief law enforcement officer of one of America’s most important allies. Having read the torture memoranda out of the Justice Department, and having seen the reports issued by the Department of the Army dealing with abuses in Abu Ghraib, Bagram and Guantánamo, I asked, is your Government in a position to engage in prisoner exchanges with the Americans or to allow American interrogators unfettered access to persons in your Government’s custody? He responded in a manner that showed the question had been studied carefully. “I can assure you that we take our obligations under article 3 very seriously. We will not speak publicly about this, but of course we have terminated cooperation with the United States in ways that would violate article 3. And of course we have reached the only possible conclusion, which is that the United States has embraced torture as a matter of formal policy.” This is a nation which continues to be one of our dwindling number of allies, but it faces increasingly steep challenges in cooperating while it complies with the requirements of law.

And this judgment is a very broad one—now shared almost universally by America’s allies. We don’t have to consider what the enemies think.

More evidence of this phenomenon in a very important decision handed down on Thursday by Canada’s Federal Court. Professor Jaya Ramji-Nogales, who’s been patiently tracking the matter, furnishes a report:

Yesterday, the Canadian Federal Court issued an opinion in the case Canadian Council for Refugees, Canadian Council of Churches, Amnesty International, and John Doe v. Her Majesty The Queen. This case challenges the “Safe Third Country Agreement” between Canada and the United States that came into force in December 2004. This agreement provides that, with limited exceptions, individuals who first enter either Canada or the United States and then attempt to cross a land border into the other country in order to lodge an asylum claim must be returned to claim asylum in the first country they entered. In assessing the constitutionality of the agreement, the Canadian Court found that the United States does not comply adequately with Article 33 of the UN Refugee Convention, which prohibits return to persecution, or Article 3 of the Convention Against Torture, which prohibits return to torture — specifically naming the Maher Arar case as an example of the United States’ failure to protect.

As one of the experts who described the ways in which U.S. asylum law (in particular, the one-year filing deadline) violates international law, I am proud to note that the court found “the Applicant’s experts to be more credible, both in terms of their expertise and the sufficiency, directness and logic of their reports” and “more objective and dispassionate in their analysis and report” than the government’s experts. Of particular note, the Court found that “it would be unreasonable to conclude that the one-year bar, as it is applied in the U.S., is consistent with the Convention Against Torture and the Refugee Convention” and that this bar “has a disproportionate impact on gender and sexual orientation claims” for asylum. The Court also found that women making asylum claims based on domestic violence are not sufficiently protected under U.S. law. The long decision is well worth a read, and while it bodes well for asylum seekers in Canada (assuming that the judge’s final order, after further submissions, follows this opinion, and that the decision survives appeal), it reads as a damning critique of the treatment of those seeking protection in the United States.

That’s the long version. Here’s the short version: “We do not torture?” That claim has been formally reviewed by a court and found to be a lie.

Just to review: according to two close allies, Canada and an as yet unnamed country, have legally considered our country to be one that tortures. Is that proof enough?

The ticking sound you hear is the silence from Congress. Grrr.

{2009 Update: First pic from here, second from here.}

Great Ike Quote

From Scott Horton's must-read Harper's blog, a quote from Pres. Eisenhower about military spending:

Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. The cost of one modern heavy bomber is this: a modern brick school in more than 30 cities. It is two electric power plants, each serving a town of 60,000 population. It is two fine, fully equipped hospitals. It is some fifty miles of concrete pavement. We pay for a single fighter plane with a half million bushels of wheat. We pay for a single destroyer with new homes that could have housed more than 8,000 people. This is, I repeat, the best way of life to be found on the road the world has been taking. This is not a way of life at all, in any true sense. Under the cloud of threatening war, it is humanity hanging from a cross of iron. […] Is there no other way the world may live?

–Dwight David Eisenhower, “The Chance for Peace,” speech given to the American Society of Newspaper Editors, Apr. 16, 1953.

Ike is considered a moderate Republican although I put him more in the Bloomberg school of the GOP - i.e. a Republican because that would get him the best shot at the office he wanted, not because he was ideologically committed to the party.

Election and Guy Fawkes

Fascinating! Scott Horton, the stunningly erudite blogger for Harper's Magazine, is one of my daily must-reads. In today's entry, he writes about November 5th - Guy Fawkes Day (or, as it may now be known, V-for-Vendetta-Day). This is a big day/night in England what I know of the day from my life, the V movie, and from Horton, it's a day mixed up with English history, torture, terrorism, and freedom.

Horton points out that in 1775 George Washington, while he was the true Commander in Chief, forbade the army from celebrating Guy Fawkes Night with the traditional minhag of burning the Pope in effigy. GW felt it was insulting to our allies, the Canadians, and just an odious practice in general. Horton quotes the "Order in Quarters issued by General George Washington, November 5, 1775":

As the Commander in Chief has been apprized of a design form’d for the observance of that ridiculous and childish custom of burning the Effigy of the pope–He cannot help expressing his surprise that there should be Officers and Soldiers in this army so void of common sense, as not to see the impropriety of such a step at this Juncture; at a Time when we are solliciting, and have really obtain’d, the friendship and alliance of the people of Canada, whom we ought to consider as Brethren embarked in the same Cause. The defence of the general Liberty of America: At such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused; indeed instead of offering the most remote insult, it is our duty to address public thanks to these our Brethren, as to them we are so much indebted for every late happy Success over the common Enemy in Canada.

Gotta love the real George W.

The extra fascinating thing is that Horton suggests that Washington purposefully replaced Guy Fawkes Day with a better, American, custom: Election Day! I will do more research to see if there's proof for this (the Wiki denies it, but if Horton's right, I'll fix the page).

Update: This webpage supports it. It quotes from: Election Day in New York, by Ernest Ingersoll: pp. 3-16, p. 81 in The Century; a popular quarterly. Volume 53, Issue 1 (The Century Company Nov 1896 New York):

The moment the polls close the liquor-sa-loons open,....The streets overflow with boys who hardly wait for the earliest dark-ness to institute their picturesque part of the day’s doings. The New York citizen be-gins to break election-day laws as soon as he can toddle about the block. Bonfires are strictly prohibited, yet thousands of them redden the air and set all the windows aglow before seven o’clock. Antiquarians inform us that this custom is nothing but a survival in America of the old English celebration of burning Guy Fawkes on the 5th of November, in recollec-tion of the Gunpowder Plot of 1605, which the children have transferred to the mov-able feast of our election day.

(emphasis mine)

Scott Horton Agrees with Me About Republicans

If you recall, back in February, I remarked that it's unfair to put Lincoln and George W. in the same political party. So Scott Horton took no time in his new blog ("Of Republicans and Banana-Republicans") to say I am correct.

[Disclaimer: he doesn't know me, I don't know him and as far as I know he doesn't read my blog... yet]:

I can’t suppress the question: how did it come to this? It’s hard to see even a trace of the party of Fremont and Lincoln in the party of Bush and Rove. Indeed, the values that Bush and Rove espouse and the constituencies to which they pander seem very much just what’s in the crosshairs for the Republicans of 1856 and 1860; a check of the electoral map in 2004 and 2006 shows the Republican constituencies of yore are, with very few exceptions, safely in the Democratic column, while Bush builds off a base starting with the old Confederacy.

Harper's Magazine Blog

There's a new news blog on the block and it's a good 'un. Harper's Magazine, which has been around for a loooong time, has some dude named Scott Horton (pic left) blogging things from a legal & political angel. It's a good read. See, for instance, what he has to say about the erasure of the emails:

It looks like the tactics of the White House in its response to the Congressional investigation have just entered a new phase. If a responsible prosecutor were presented with evidence suggesting even the possibility of the conscious destruction of evidence, he would take immediate steps: subpoena the relevant White House staffers' personal PCs, subpoena and depose the personnel involved in the alleged 'accidental' erasure, and send FBI agents to seize the RNC's servers which were 'erased.' Which explains the ever more urgent need for the appointment of a special prosecutor in this case.