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Another reason why (some) Americans like Dr Paul

In a good article at The Atlantic, Conor Friedersdorf (now that is a name to remember) has this zinger of a response to a recent desperate attempt by Andrew Sullivan to try and claim that Mr Obama has been pursuing a brilliant, long term strategy. He asks, how would any Obama voters feel had their man promised to do the following prior to his election:

“(1) Codify indefinite detention into law; (2) draw up a secret kill list of people, including American citizens, to assassinate without due process; (3) proceed with warrantless spying on American citizens; (4) prosecute Bush-era whistleblowers for violating state secrets; (5) reinterpret the War Powers Resolution such that entering a war of choice without a Congressional declaration is permissible; (6) enter and prosecute such a war; (7) institutionalize naked scanners and intrusive full body pat-downs in major American airports; (8) oversee a planned expansion of TSA so that its agents are already beginning to patrol American highways, train stations, and bus depots; (9) wage an undeclared drone war on numerous Muslim countries that delegates to the CIA the final call about some strikes that put civilians in jeopardy; (10) invoke the state-secrets privilege to dismiss lawsuits brought by civil-liberties organizations on dubious technicalities rather than litigating them on the merits; (11) preside over federal raids on medical marijuana dispensaries; (12) attempt to negotiate an extension of American troops in Iraq beyond 2011 (an effort that thankfully failed); (13) reauthorize the Patriot Act; (13) and select an economic team mostly made up of former and future financial executives from Wall Street firms that played major roles in the financial crisis.”

Now I don’t, as readers know, like everything about Ron Paul, who is opposed to every single thing mentioned in this paragraph. But the reason, surely, why even those who might have the odd doubt about him are giving this man respect is for the sort of facts as contained in this paragraph. It is, if you think about it for a few minutes, truly shocking, even though someone like me is not really all that easily shocked by politics and politicians any more.

And here are further signs that Sullivan’s infatuation with Mr Obama is a joke:

“Over the years, Sullivan has confronted, as few others have, American transgressions abroad, including torture, detainee abuse, and various imperial ambitions. He’s long drawn attention to civil-liberties violations at home too, as a solo blogger and as lead editor and writer of a blogazine. When I worked for Sullivan, he not only published but actively encouraged items I found that highlighted civil-liberties abuses by the Obama Administration, and since I parted ways with The Daily Dish, he and the Dish team have continued to air critiques of Obama on these questions.”

“But his Newsweek essay fits the pattern I’ve lamented of Obama apologists who tell a narrative of his administration that ignores some of these issues and minimizes the importance of others, as if they’re a relatively unimportant matter to be set aside in a sentence or three before proceeding to the more important business of whether the president is being critiqued fairly by obtuse partisans.”

And this:

“Beyond strenuously objecting to the focus of his piece and what it doesn’t mention, and agreeing with some of Sullivan’s points, I have important disagreements with others. “Where Bush talked tough and acted counter-productively, Obama has simply, quietly, relentlessly decimated our real enemies, while winning the broader propaganda war,” Sullivan writes. “Since he took office, al Qaeda’s popularity in the Muslim world has plummeted.” But it’s surely relevant that, according to surveys like this one from James Zogby in 2011, “After improving with the election of Barack Obama in 2008, U.S. favorable ratings across the Arab world have plummeted. In most countries they are lower than at the end of the Bush Administration, and lower than Iran’s favorable ratings (except in Saudi Arabia).” And in the areas where Obama’s drone strikes are killing innocent civilians, he is trading short-term terrorist deaths for the possibility that our policies will create more terrorists in the long run. It’s a tradeoff some people consider prudent; but that’s different from saying he is “winning the propaganda war.” In fact, the predictable effect of some of his policies is to increase hatred of the U.S.”

Meanwhile, foreign policy specialist – and Salma Hayek fan – Daniel Drezner is unimpressed.

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28 comments to Another reason why (some) Americans like Dr Paul

  • manuel II paleologos

    I have a deep mistrust of these surveys of “the Muslim world”. And when you have to fall back on the riposte “but we are just making more terrorists” you have lost the argument.

    It strikes me as quite clear that Obama does have a focus on the propaganda war that Bush didn’t and that he is winning it. I loved Bush for the way he cleary didn’t give a monkeys about what people thought of him, but he could have made everyone’s job easier with a bit more reachy-outy stuff. Sadly propaganda does matter. As Steve Jobs put it: “people DO judge a book by its cover”.

    Ludicrous though many of Sullivan’s analyses are I think his last comment there is spot on. Quietly getting on with rubbing them out is reducing their numbers AND making them look like complete losers. You don’t become a Terry to die a certain, lonely and largely unheralded death while scurrying between tents.

  • carol42

    I used to love Andrew Sullivan and even contributed to his blog when he first started. Then he was a liberal on social matters but very much a fiscal conservative. Then he took a holiday and someone else came back, or that is what is seemed like, a total change of character and, it appeared every view he previously held. He defected to the far left, I would love to know what happened to change someone so much? anyone know?

  • MattP

    I’m familiar with Conor Friedersforf’s work. He’s not a stickler for accuracy. He tends to overbroadly state the facts to make them appear more sensational.

    For instance, and I won’t pretend this is exhaustive, but just to clarify a few points that I’m prepared to address to show how the author leaves them deliberately vague and therefore apparently more threatening.

    (1) Codify indefinite detention into law

    This is the first and also the most obvious. The president already has the authority to indefinitely detain belligerents. This is the condition of all prisoners of war since, once captured, one can be detained until the end of hostilities. Up until now, the President’s ability to do so, specifically in the case of US citizens who become enemy combatants, has been based upon court precedents. One such example is this Supreme Court case: EX PARTE QUIRIN, 317 U.S. 1 (1942). During WWII, many people who held US citizenship fought on the Axis side. This involved an individual who illegally entered the US to commit sabotage. He claimed as a US citizen he couldn’t be held in military detention and tried by a tribunal. Essentially the USSC decided that citizenship was irrelevant; the question of his belligerancy. A US citizen who claimed he was not a combatant could have access to the civil courts. But only to the extent of determining whether or not he was a belligerent as defined by the Hague convention. If so, then the laws of war apply to him. And that meant indefinite detention like any other EPW, and if he had violated the laws of war a trial by military tribunal.

    When Friedersdorf hyperventilates over this, he glosses over the fact the NDAA does not expand the Presidents power in any way. The act merely codifies these prior court precedents and incorporates them into law.

    (3) proceed with warrantless spying on American citizens;

    Friedersdorf has blurred the facts so badly with his vague language that it’s impossible to say what exactly he’s upset about. If it’s communications, well, you could go back to the 18th century and find that someone sending carrier pigeons back and forth into enemy territory couldn’t demand anyone get a warrant to intercept the pigeons. Some people imagine that now in the electronic age it’s different, and if someone here in the US is texting al-Qaeda in Yemen they have some expectation of privacy the guy with the carrier pigeons didn’t.

    Maybe it’s physical surveillance? As if a cop needs a warrant to see what you’re doing in public or to enter a place open to the public. Dunno. Hard to say what he’s driving at, but the left usually does throw the word “spying” around promiscuously. I don’t know if your “occupy” crowds were like ours, but when they took over a public space and started camping out, they demanded everyone respect their privacy and stay out and quit “spying” on them. As if a cop or a news crew walking through a park was the same invasion of privacy as a cop or cameraman breaking into your house and walking into your bedroom.

    (4) prosecute Bush-era whistleblowers for violating state secrets

    Again, what is this guy talking about? Try searching this for yourself. You’ll come up with something like two names. A guy named Drake at the NSA who pled guilty to a misdemeanor charge of overexceeding his authority when using his government computer (i.e. getting into files, etc., that he wasn’t supposed to get into) and PVT Bradley Manning who downloaded and transferred a massive amount of classified information to Assange because he was angry at the way the Army was treating him as well as life in general.

    Again, check for yourself. This is way overblown. We just don’t prosecute many people for leaking classified information. Because 98% of the leaks come from policy-makers who believe they have the right and authority to reveal information if it will somehow serve a higher purpose. Such as their careers.

    The keywords are “Bush-era” and “whistle-blower.”

    We have “whistle-blower protection” laws that protect people from retaliation if they witness illegal activity such as a supervisor loading his car up with steaks from a government dining facility for later sale and/or consumption.

    It was never designed to protect people who have been authorized access to classified information who deliberately compromise that information and harm national security. It isn’t as if even a journalist could get prosecuted for this; only the people who have been informed of their legal responsibilities, the legal consequences for not doing so, and sign contracts with the government agreeing to abide by those laws.

    But since Bush was evil incarnate, it was OK to expose classified information and even entire programs to stop him. Now such people aren’t lowly leakers of classified information. They’re noble “whistle-blowers.” Trust me; the same people who think they’re whistle-blowers wouldn’t have thought so highly of them had they done it under Clinton. Perhaps even now under Obama. I’m sure they’d be more conflicted; it’s bad for Obama to prosecute the “Bush-era” “whistle-blowers.” But a large portion of the left would come to his defense for prosecuting Obama era leakers because they’d assume they were motivated by racism.

    It doesn’t matter if the Bush administration wasn’t actually running an illegal operation. As was the case with the Terrorist Finance Tracking Program. It turned out that was perfectly in accordance with the law (and yes, we do have limits). But those who leaked it were certain that since Bush was doing it, it must be illegal. So they gave everything they could to the NY Times. All they managed to do was shut down a perfectly legitimate, effective program and embarrass some EU countries who were cooperating.

    What do you guys do with your Kim Philby types? Do you have any laws that prohibit them from taking classified information and giving it to other countries or the press for widest possible dissemination?

    (9) wage an undeclared drone war on numerous Muslim countries…

    This is one of those leftwing/Ron Paulian convergence points where they both hallucinate the same thing; that is is an “undeclared” war. It’s not; an Authorization for the Use of Military Force is a perfectly legitimate way for Congress to declare war. The same people who wrote the Constitution used it in our first 2 foreign conflicts. And where we do use the drones, it isn’t like the country where we’re using them isn’t cooperating.

    (11) preside over federal raids on medical marijuana dispensaries;

    The growth, import, transportation, sale, prescription, etc. of Marijuana is illegal under federal law. Has been since 1937. Not unless you pay the $1 tax, and get the stamp issued by the US Treasury. Then it’s perfectly legal. The problem is, there are no such stamps and the Dept. of the Treasury can’t use any funds to print them or administer this law.

    It’s a dodge, I know. But the fact is, so are state “medical marijuana” laws. Physicians in those states still can’t prescribe marijuana and states that pass those laws are just kidding themselves that applying the term “medical” somehow makes it less illegal rather than more.

    The problem isn’t that Obama is enforcing a law that has existed since 1937. It’s that the wining twirps like Friedersdorf can’t get the support to legalize pot in any state. Not even California would pass a law, by voter referendum, legalizing marijuana for general sale.

    There’s not a snowball’s chance in hell of legalizing it at the national level. The Paulbots are dreaming if they think that will change if Ron Paul gets elected. He can’t decree pot legal. He has to work with Congress and get them to send a bill that he can sign to legalize it. And in his entire career of working with Congress, while in Congress, ONE of the 620 bills he introduced since his career started back in the 1970s until this moment has been signed into law. That’s how well he works with Congress.

  • Paul Marks

    There is no good reason to discuss Andrew Sullivan (a person who only really cares about one issue – a sexual one), or Newsweek magazine (sold for one Dollar).

    On the Islamic world – the Shia radicals may be trying to “hasten” the arrival the 12th Iman, by spreading “fire and blood” all over the world, and the Sunni radicals are not (although some of them are waiting for the Mahdi – and think he can brought forth same way) – but on one thing they argreed…..

    The West must be destroyed – especially the United States.

    Not for anything the United States has done (Ron Paul please note), but because the United States EXISTS – as the powerful nation of the West. To destroy the West one must destroy the United States – on this both the Marxists and the Islamists are agreed. Which is why every leading Marxist from Mr and Mrs Ayers to the leadership of “Code Pink” rush off to lick the backsides of Hamas – they are not interested in Islamic theology, they are just operating on “the enemy of my enemy is my friend”.

    As for Barack how-many-trillions-can-I-spend-in-the-Cloward-and-Piven-approach-to-destroying-the-West Obama…..

    On Civil Liberties “you have not seen much yet” (I have altered the famous line – so that it makes sense).

    Should he be relected Comrade Barack (and the vast movement of which he is but one face) will tear up such things as the Bill of Rights as if they had never existed.

    Indeed the far left may actually launch attacks on Obama.

    As in Eastern Europe after WWII – chaos on the streets (secretly organized by the Marxist) the public beg for an “end to the chaos” and the Marxists provide it.

    “Bottom up, top down, inside out” – I have listened to recordings where Van Jones (and on and on) actually say this.

    So “if we are peaceful Barack will have no excuse” will not work.

    Already rifle bullets were fired at the windows of the Whitehouse, and (only a couple of days ago) smoke bombs were thrown at the place.

    In both cases it was the “Occupy” people.

    Lots of street protests – lots of “chaos”, FROM HIS OWN SIDE.

    So, like American action or inaction in the Middle East, IT DOES NOT MATTER WHAT IS DONE.

    It does not matter – because the left will (if they can not find a mentallly unsable “rightwinger” just do the job themselves).

    And the msm will play along.

    After all it has been more than a year since the man who shot the Congress women in the head (and murdered six other people) was shown to be both crazy and a LEFTIST (an ardent admirer of Karl Marx, someone who thought abortions were a big joke – and on and on).

    Yet the media are still presenting him as a Tea Party inspired person.

  • Johnathan Pearce

    MattP, I don’t have time to go through all your points, but on the first, about belligerents, I think the issue here is about how the Geneva Conventions apply and what is meant and defined by a “belligerent”. Under the GCs, it would require such things as uniforms, insignas of rank, a command structure, open carry of weapons, etc. The whole point about why Gitmo was set up was to deal with those who were neither common criminals, nor PoWs as defined by the GCs.

    The idea that the POTUS and his/her administration can detain a category of “belligerents”, without clear definitions, as spelled out, indefinitely, is clearly very worrying unless there is full legal oversight, and a clear process that means an end-point.

    Also, let’s not make a fetish of the Constitution or other historical facts. Just because a president/prime minister or whoever has had a power in the past, does not make it right or good. That is what I call unthinking traditionalism.

    I’ll consider the other points a little later.

  • Laird

    MattP, like Johnathan I don’t have time to go through all of your points, but since I’m in almost total disagreement with you I’ll address a few of them.

    1) Codifying indefinite detention most certainly is a new wrinkle. I agree that it has always been the rule for hostile enemies captured on the battlefield, or engaged in sabotage activities. What has now changed is that the president can order the arrest and indefinite detention of persons not engaged in active hostilities, but merely upon suspicion of supporting them. Such “support” is not defined, but is purely in the eyes of the president, and there is no possible means of judicial review of the determination. And that applies to US citizens on US soil. If you contribute money to something you consider to be a legitimate charity, which the government (without any due process) determines to be a supporter of terrorism, you could be “disappeared” for a very long time. That is more than offensive; it is blatantly unconstitutional and does severe violence to fundamental principles of Anglo-Saxon jurisprudence dating back to the Magna Carta. To say nothing of eliminating the last vestiges of the venerable posse comitatus law in the US.

    2) Warrantless spying is a fact, and for you to equate it with intercepting carrier pigeons on a battlefield or the observation of activities carried out in public is disingenuous at best. You may not know (or pretend not to know) what Friedersdorf is upset about, but I’ll tell you what I am upset about. I’m concerned with warrants and wiretaps issued and implemented solely by law enforcement agencies without any sort of judicial review; “sneak and peek” searches where you are never even presented with a warrant; “double secret” warrants for such things as library records, bank accounts, etc., where the recipient of the warrant is specifically prohibited (under threat of severe criminal penalties) from informing you of its very existence; certain types of warrants which you are not even permitted to disclose to your lawyer (I think this feature of the original Patriot Act has been softened somewhat, but it’s still extremely problematic); blanket DHS stop-and-search roadblocks with no color of probable cause; the list goes on. I’ve recently read that DHS is ordering mobile vans with airport-type scanner technology that can prowl the streets and see through walls. No matter what you say, that is not in “public view”. This doesn’t frighten you at all?

    3) Federal raids on medical marijuana dispensaries may be strictly legal, since as you said marijuana has been illegal since 1937. But those dispensaries are legal under state law, and any government which even pretended to honor the 10th Amendment, or to accept the concept of “consent of the governed”, would refrain from violently overriding state law in such cases. And, of course, growing marijuana for your own personal use in no way affects “interstate commerce” so the federal government has no legitimate jurisdiction there at all (Wickard v Filburn was an abominable decision, and hopefully will be overturned, or at least modified, when the Supreme Court rules on the Obamacare cases this summer, but that’s another issue entirely).

    That’s enough for now, except to note that in essence what Friedersdorf is complaining about is the continued growth and reach of the federal government, into all manner of private activities, to the detriment of our personal freedoms, our constitutional rights, and any concept of governmental restraint. I found that disturbing during the Bush administration and it has gotten substantially worse under Obama.

  • ErisGuy

    Every four years the American people are deceived by the spectacle than one or another candidate won’t further the interests of the establishment. For whom they then vote and in whom they are then disappointed.

    There’s a better chance of Rand Paul 2020 than Ron Paul 2012.

  • Laird

    Agreed, ErisGuy. But the way to Rand in 2020 is to vote for Ron today.

  • MattP

    1. I would suggest to anyone who wants me to believe I aught to be upset that we’re codifying the President’s powers of detention, to first tell me if we’re expanding those powers.

    If not, why should I be upset?

    If we were granting the president a power that hadn’t previously existed, I’d understand the upset.

    2. I could be disingenuous, or maybe I don’t understand the question.

    So let me restate. If the terminus of the communication happens to be a Yemeni P.O. box and the recipient is a Yemeni mullah, why should I care if the means of communication is e-mail or carrier pigeon?

    It was the government’s business to stop that courier 300 years ago, but your hotmail account is cool?

    3. To use an Americanism, I can’t get “all wrapped around the axle” over the medical marijuana issue when the pot people can’t get a referendum past the people.

  • Laird

    MattP, did you even bother to read anything I wrote? The president’s powers of detention are new, applied in novel ways far from any battlefield and with absolutely no possibility of judicial review. They also authorize the use of the military for police actions within the US, in clear violation of the posse comitatus law. And my concern is over warrantless spying on US citizens. Outside of the battlefield the government has no authority to intercept communications, be they emails or carrier pigeons. Get a warrant. It’s not hard to do if there’s any legitimate basis for the search, especially with a very compliant FISA court available 24/7. But even that is too much trouble for our government, which wants (and now can) act with absolutely no restraints. If that doesn’t trouble you, you have serious problems.

  • MattP

    Yes, Laird, I read what you wrote. If you have an authoritative source four your claims about indefinite detention, I’d love to hear it.

    I don’t think you understand who you’re dealing with. I want to believe you. If, that is, it involves Barack Obama being the anti-Christ. If you want an audience that will listen to your speech about how Barack Hussein Obama is the second incarnation of Ivan the Terrible, I’m your man.

    I can find it within myself to believe every nasty rumor about Barack Obama that blows my way.

    Give me a reason to believe, bro.

    If you give me that reason, bro, and it turns out that BHO has gained some new detention powers, I’d still have to point out that Conors Friedersdorf still screwed the pooch when he wrote:

    “(1) Codify indefinite detention into law”

  • MattP

    Laird, you linked to an article discussing section 1021 of the NDAA.

    Here’s section 1021:

    Subtitle D – Counterterrorism


    (a) In General, – Congress affirms the authority of the President to use all necessary and appropriate force pursuant to the Authorization for the Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

    I appreciate the link. But from what I’ve been able to find out, Congress really did “in general” codify an already-existing presidential power.

    Having read the article you linked to, I’m still unable to see what broader authority Congress granted the President.

    If you’re under the impression the President possesses sufficient physical force to the extent that he could, if so inclined, commit injustices, you’ll get no argument from me. I agree with you. I just don’t see where Congress granted the President the authority to commit what previously had been abuses.

    Frankly, I don’t see how Congress could. I’m no lawyer, but it looks to me that there are enough weasel words (how weasels got somehow connected to the idea of evasion I’ll never know) in that language that any court in the land would rip it apart.

    I could be wrong about this. But if I am, so is Conor and the Atlantic. If the NDAA expanded the President’s powers, it does not merely codify things. I happen to agree with Conor’s assessment, I just don’t see this, this one thing, as being so ominous.

    “(1) Codify indefinite detention into law”

    Unless words have stopped meaning things, we can’t all be right.

  • Laird

    In support of this harmful bill, Sen. Lindsey Graham (R-S.C.) explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.” From this (my emphasis). See also this.

    You missed Section 1022. See the entire text of the bill here; the relevant sections are on pages 265-266. A “covered person” includes anyone who “substantially supported al-Qaeda” et al (§1021(b)(2)) (note the absence of any definition of “substantial support” or any requirement of proof; mere allegation is sufficient), and among the approved dispositions is “[d]etention under the law of war without trial until the end of the hostilities.” (§1021(c)(1).) This applies anywhere in the world, not just on the battlefield. Section 1022 requires the detention of such covered persons, and although §1022(b)(1) eliminates the detention requirement for US citizens (under this particular section, but only under this section) the option of such detention remains. And again, no due process, no requirement of proof (and no standard of proof), no habeas corpus, no possibility of judicial review; all that is required is the accusation of the President (or, presumably, his designee) and you will simply be locked away for the rest of your life (which is precisely how long this “war” is going to last). This is new law. Certainly Senator Graham thinks it is. And if it were not new law, or at least the codification of prior non-statutory (and arguably unconstitutional) practice, what would be the point of inserting these two pages into the bill?

  • Laird

    MattP, my reply to you has been smited, so you’ll just have to be patient.

    A word to the Smitebot:

    A perfect judge will read each work of wit
    With the same spirit that its author writ:
    Survey the whole, nor seek slight faults to find
    Where Nature moves, and rapture warms the mind;
    Nor lose, for that malignant dull delight,
    The generous pleasure to be charmed with wit.

  • MattP

    MattP, my reply to you has been smited, so you’ll just have to be patient.

    Laird, I look forward to your response.

    As I said, I could be wrong about the substance of the NDAA. I’ll be more than happy to say so.

    I tried to make a point about Conor Friedersdorf’s reporting.

    Is it accurate to say that indefinite detention under US law is unconstitutional?

    You could be right that I’m 180 degrees out on this. But then, unless I’m 180 degrees out on everything, so is Conor Friedersdorf.

    I may also have a problem with the feds passing a law against possessing a plant.

    That said, as a practical matter I don’t think states passing their own laws declaring such plants “medicinal” is an effective way of solving the problem.

  • MattP

    Maybe we are misunderstanding one another.

    “substantially supported al-Qaeda”

    How does this redefine a covered person?

  • Laird

    It doesn’t “redefine” anything, it defines a “covered person” for purposes of this statute. And the statute permits the arrest and indefinite detention of US citizens, not engaged in actual hostilities (i.e., not on the battlefield), upon the mere allegation of providing “substantial support.” That is what’s new, and frightening.

  • Laird

    And I think you are being unduly harsh on Friedersdorf, at least with respect to this article (I don’t know any of his other work). He wasn’t writing a legal brief or law review article; this was a short essay for a lay audience, and he used appropriately simple and ordinary language. “Codify indefinite detention into law” adequately describes the offense, in my opinion.

  • MattP

    It’s not really new. This if from the army field manual Rules of Land Warfare of 1914, Chapter III, The Armed Forces of Belligerents:

    c) Persons whose services are of particular use and benefit to the hostile army or its government, such as the higher civil officials, diplomatic agents, couriers, guides, etc.; also all per- sons who may be harmful to the opposing state while at liberty, such as prominent and influential political leaders, journalists, local authorities, clergymen, and teachers, in case they incite the people to resistance;

    We have a definition of a “covered person.” We’ve had a definition of a who is a “covered person” for a long time. The 1914 FM references an 1863 FM. We evil, nasty, cowboyish Americans didn’t even come up with the definition. It’s derived from the various treaties and customs that fall under the heading of “Law of War.”

    The section I highlighted indicates, to me, that the 1914 field manual anticipated the recent killing of Anwar al-Awlaki. I’m making somewhat of a leap, I suppose, that a person who meets the definition of an enemy belligerent and can thus be indefinitely detained as a belligerent can also be treated in other respects as a belligerent. The 1942 SCOTUS ruling in Ex Parte Quirin confirmed that the fact he was a US citizen was no barrier to treating him as a belligerent.

    I don’t see what’s new here. No one ever said you had to be engaged in actual hostilities on the battlefield to be considered a belligerent. As a matter of fact, we (whatever import the consensus of some supposed “international community” that can condemn the sinking of the Cheonan without bothering to identify the perpetrator can carry) put our heads together and decided long ago that you can in fact be subject to indefinite detention without doing any of those things.

  • MattP

    I’m so unused to being in the position of not criticizing Barack Obama, I’m compelled to defend myself no doubt excessively.

    But here’s a relevant portion of section 1022 of the NDAA.


    (a) CUSTODY PENDING DISPOSITION UNDER LAW OF WAR.— (1) IN GENERAL.—Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war.

    In order for me to fear indefinite military detention, I’d have to be captured in the course of hostilities authorized by Public Law 107-40. And perhaps not even then.

    (1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
    (2) LAWFUL RESIDENT ALIENS.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

    Like I said, I’m no lawyer. But my understanding is that this act doesn’t change the status quo. I could fall within the definition of a covered person, and I could be detained indefinitely. But the definition of what constitutes a covered person hasn’t been broadened. It was already pretty broad; it always could have been anybody.

    Then I’d have to be captured by US Armed Forces in the course of hostilities authorized by Congress. And then, I’d have to be denied access to the courts in order to challenge the assertion I’m a covered person.

    But the law says in plain language that I’d be tried in a criminal court if I were, as a US citizen or resident alien, plotting violence against my country.

    The best analysis I’ve been able to find, which certainly hasn’t been provided by the eminently fiskable Conor Friedersdorf, is that Barack Obama signed a bill that gave Congress’ stamp of approval to the President’s already existing powers. That’s it.

    I really can’t put it into words how bizarre it is I’m not taking every passing chance to bash Obama.

  • MattP

    While I’m defending myself beyond all rhyme and reason, I should probably point out this mischaracterization:

    (2) draw up a secret kill list of people, including American citizens, to assassinate without due process

    How secret can a “kill list” be if your dad can go to court to dispute it? Ahead of time.

    WASHINGTON (AP) — Attorneys for the father of a cleric trying to inspire Muslims to kill Americans argued in court Monday to keep his son from being targeted for death by President Barack Obama.

    I still haven’t been able to wrap my head around that one.

  • Paul Marks

    On American election related point….

    It is not just the Economist magazine that wants Mitt Romney the be the Republican candidate – people tell me I am too hard on the Economist magazine…

    It is also the Financial Times newspaper – and I do not think anyone will tell me that the “FT” is not as bad as I think it is.

    I made the mistake of opening this newspaper yesterday – and there was some creature arguing that Obama stood for a “safety net” (oh so it was just a “safety net” that created a 15 TILLION Dollar debt and endless trillions of UNFUNDED LIABILITIES was it?) and Mitt Romney stood for the other point of view (since when has Mitt been against a government safety net?) and these were the candidates needed for a “proper debate” in the United States.

    The spokesman for “the rich” (Romney) against the spokesman for “the people” (Obama) – no bias there you subMarxist, subhumans of the F.T.

    Needless to say Newt Gingrich was dismissed with contempt – “everyone a classic” being the sarcastic sneer directed at his 24 books.

    If only Newt had got Comrade Bill Ayers to “help him” with his books – as Barack did with “Dreams From My Father”.

    But then to accuse Comrade Barack of being a socialist “empties the word of all content” – to quote from the same lying Financial Times article.

    Glenn Beck says that Newt is a bad man – and perhaps he is.

    But, sorry Glenn, against totally evil people (such as the Financial Times crowd) “honour” and “love” (“Restoring Honour” and “Restoring Love” being the names of two big Glenn Beck events) are not going to get you very far.

    The enemy are utterly ruthless.

    Being Mr Niceguy will not work.

    Indeed the only hope (if Mitt does turn out to be the nominee) is that he (under the nice Mormon exterior) turns out to be least as tough as Newt.

    There are rumours that Mitt may have a nasty side (certainly the election tactics he has used in the past have been nasty – with people like Huckabee and Gingrich badly smeered).

    It would be good to see Mitt (and co) useing the same tactics againt Comrade Barack Obama.

    I just have a terrible feeling that they have not got the guts to hit Barack – even with stuff that was 100% true (such as his life long Marxist background).

    Smear Huckabee, sneer at Palin, (both 2004), smear Gingrich (“resigned in disgrace” and so on) – the media will not hit you for doing any of that.

    But attack Comrade Barack……….

    And the next second all Hell will be unleashed at you.

    For all his faults Gingrich has COURAGE – and that is needed. Although I still think he has no chance (he is like a man who puts his head down and charges – against a TIDAL WAVE).

    I hope that Mitt Romney has courage – but I have yet to see it.

    If he still thinks the media will only attack Gingrich (not him as well) then he is wrong – tragically wrong.

  • Laird

    As you’ve noted several times, Matt, you’re not a lawyer. You don’t appreciate the nuances of statutory construction (the legal term for how a law is to be interpreted).

    First, the term “covered persons” has a specific definition for this statute. However those words may have been defined in other settings is completely irrelevant. You could be a “covered person” under some other law and not under this one, or vice versa. You can’t extrapolate from any other statute or previous use of the phrase.

    Your 1914 army field manual citation refers to officials and residents of the opposing nation, not to US nationals. And note that in Ex Parte Quirin the defendant was granted access to the courts, which is how the case got before the Supreme Court; that is specifically disallowed under the 2012 NDAA, and it is precisely this elimination of any pretense of due process to which I object. (I obviously have no objection to arresting US citizens who are hostile to the nation, merely to their being summarily stripped of their constitutional rights.)

    Read the statute sections you cited more carefully. “Captured in the course of hostilities” does not limit it to captures on the battlefield. “In the course” can mean nearly anything, and in the hands of a government unchecked by judicial review it most certainly will. And note that §1022(b)(1) (which I referenced in my earlier post) only eliminates the requirement of detention of US citizens (which is otherwise mandated by clause (a) through the use of the word “shall”), but nonetheless leaves open that option. Also, it is specifically limited to “this section” (i.e., §1022), and does not apply to §1021 or any other section of the statute.

    You are correct that the bill “gave Congress’ stamp of approval”, but it was not to any pre-existing lawful power of the President. No president had ever before claimed the right to arrest and indefinitely detain, without proof or the possibility of judicial recourse, US citizens on US soil. Lincoln tried that during the Civil War, when he summarily jailed hostile newspaper editors, and the Supreme Court had no difficulty in overturning that on 4th Amendment grounds. And that was during actual wartime, not the faux “war on terror” in which we are now engaged. That is why I maintain that this is a frightening expansion of presidential powers, and is wholly new. And why I would be just as opposed to it whoever happens to occupy the Oval Office. It’s not an “Obama thing”, it’s a “freedom thing”.

  • Laird

    I don’t know the source or circumstances of that article you cited, but as far as I can tell the father of that radical cleric is merely trying to ensure that his son is not added to that list; there is certainly no indication that he is in actual possession of it. And it’s undisputed that such a list of predator drone assassination targets exists, or that it is kept highly confidential by the Administration (I don’t think it has even been shared with the congresional Intelligence Committees). Sounds exactly like a “secret kill list” to me.

    Frankly, as a tactical matter I would think that the list should be made public. It would scare the piss out of anyone on it, and might just keep them too busy hiding to actually engage in hostile actions against us. But that’s just me.

  • MattP

    Laird, perhaps we’re destined to play out the scene out of Cool Hand Luke on an endless loop.

    You say this:

    Read the statute sections you cited more carefully. “Captured in the course of hostilities” does not limit it to captures on the battlefield.

    My careful reading of the text of the law, as well as the precedent that preceded this law, caused me to previously say this:

    No one ever said you had to be engaged in actual hostilities on the battlefield to be considered a belligerent

    Scroll up. Take a look. You’re right. We have a point of agreement.

    Someone not engaged in actual hostilities on the battlefield can be detained indefinitely.

    This is new, how? Just direct me to the treaty we signed or law Congress passed and I’ll concede Conor Friedersdorf is right and I’m wrong that we just now concocted the whole idea.

  • MattP

    I don’t know the source or circumstances of that article you cited, but as far as I can tell the father of that radical cleric is merely trying to ensure that his son is not added to that list; there is certainly no indication that he is in actual possession of it

    The source was the AP. If the father was merely trying to ensure his son was not added to the list, that would suggest to me that dad knew the list existed.

    I’m still left to wonder just how secret Conor Friedersdorf imagined this list was?

  • MattP

    We don’t have a point of agreement.

    If I’m going to comment on Conor Friedersdorf’s mischaracterizations, I should be careful not to make any of my own.

    We have a point of disagreement. You apparently believe that someone who isn’t engaged in hostilities on the actual battlefield can’t be detained as a belligerent.

    Where are you getting that?