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Friday, September 29, 2006


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Dave Winer

It's more dangerous than that. The only thing that separates us from being a police state is that we can only imprison non-citizens without cause indefinitely without accusing them. Next year we'll find out that there are American citizens who are engaged in terrorism and then Congress will ratify a law that allows them to imprison citizens indefinitely without an accusation without judicial review.


While it does mark a shifting of perspective from the U.S. approach to international policies, at this point in time it is difficult to say with any measure of accuracy how this will impact us in the future.

Just to play Devil's advocate, an alternative perspective could question why this hasn't happened sooner under the premise that some people simply don't have a moral compass, and we as a society are remiss if we stand aside and let these with a lack of moral fiber demand their "human rights"?

I think it was Lincoln who said "The needs of the many outweight the needs of the few" Just some food for thought...

Brett Bourne

sad indeed, in a long string of sad days for America

if we believe in our system of justice, then at the worst of times it is our best refuge & hope, not an impediment to freedom and the defense of liberty

if we don't, we are lost

this administration does not believe in our system of justice, they believe in themselves (which is cruelly, tragically ironic)

if we don't shed ourselves of them soon, we will be lost


Amen, Dan.

Another scary thing is that even people who are acquitted by military tribunals (if that ever happened) could STILL BE HELD if the president wanted.

This is unchecked power, which Americans have never believed in. I am scared and worried about the future of our democracy. And I agree with Dave that we're veering toward a police state.

Folks, what do we do? I'm not someone who goes to protests much, but I'm ready to start. But would it help? How do we convince a scared (yet lazy and comfortable) country that our democracy is slipping away. And do most folks even care?


Dave is absolutely right. This is an extremely dangerous moment.

I don't have profound things to say about this. There are others who are more eloquent. But I think most Americans recognize that this is the wrong answer, and at the very least we all need to say so, as clearly and as firmly as possible. Beyond that I don't know what to do, but when that thing presents itself, I'm going to do it.

This is a gut check.

Janet Edens

How utterly ironic that we are eroding our own democracy in the name of bringing it to others ...

Dave Winer

It could backfire on the Republicans, with an election a little over a month away. You want to know what the real shame will be? If we re-elect the Republican Congress after they did this to our system of government. If we re-elect them we totally deserve what we get.


Let's see....some Habeas rights are not being given to enemy combatants, captured on the field of battle, or engaged in attempts to attack this country and its people. And most of you are screaming about the end of this country, "Bush's" attacks on our "rights", the end of Democracy, and so on and so on. These enemy soldiers do, however, have more rights now under our Constitution than in any other country in the world, and most assuredly those rights will be zealously protected by our judiciary and our legal system.

What is sad about this is that some of you, in an apparent effort to achieve some sort of moral superiority in a contest where the enemy does not care about our "moral" position on anything, would blame our President, and the 65 Senators from both sides of the aisle, for creating a mechanism that "protects" our enemy while allowing us the opportunity to defend ourselves.

What's sad about yesterday is that it is apparently not enough for some of you that the Executive, Legislative, and Judicial branches of our Democracy crafted a policy that works within the scope of the Constitution.


Sorry Agricola, my friend, but we part ways on this one. I believe in compromise, but some things wind up being non-negotiable.

Casey Kochmer

I feel like you, it's a dark day for freedom. I have been thinking about this for a while. I believe we still have hope. For we can have hope in out own personal actions.

My take on Freedom is that we have to act and be ourselves. If we let these terror bills, NSA spy bills, and all the dark gloom of the press stop us from acting to our nature, then we have lost freedom.

The response has to be act and be true to yourself! Even if it's in small actions. They do add up over time and they do make a difference.

Its taken many years for this to happen, so it's going to take a few years of us acting in the small ways and big ways together to make a new system.

It's going to be a long few years, but we can make a difference if we don't give in to Bushes war to terror.



From "The Real Ugly American.com"

Did you Lose Your Right to File A Writ of Habeas Corpus?

Why no you did not. US Citizens and legal resident alliens have not lost anything. They are still entitled to file Habeas claims. Nothing has changed.

For uniformed soldiers of foreign armies again nothing has changed.

What has changed is illegal combatants; that is non uniformed terrorists captured on the field of battle have been given defined rights they never had before.

The government has defined a procedure to try and convict them just as the US. Supreme court has requested.

By the way these detainees are entitled to file claims regarding their treatment or detention they just have to do it through the military. If you don’t believe me read the bills. H.R.6166 S.3930

The relevant sections are 950 F, 950 G Subchapter VII and sections 6 - 8.

Xark, or anyone else commenting, please tell me what rights have been trampled in this legislation. Please show me ONE legal right that has been removed from the Constitution. If anyone can, I will post such evidence in my very own blog, with its 20 readers a day.

I'm almost afraid to point out what I am sure everyone hear knows....that Lincoln suspended Habeas Corpus, for all citizens, during the Civil War. Is he any less a great president because he took the actions he did in an effort to PRESERVE the Union? And did he not restore that right upon cessation of hostilities?


Agricola: I'm glad that basic human rights now apply only to U.S. citizens. This is precisely what the founders meant by "certain inalienable rights" and "all men are created equal."

You write about "illegal combatants" on "the field of battle" as if these things came with labels. I thought the point was that they no longer do.

The fact is that anyone could be an "illegal combatant" and anyplace could be a "field of battle." Defining these things is exactly the problem. Who's an "illegal combatant?" Anyone the president or military says has "purposefully and materially" supported anti-U.S. hostilities.

What? You say you didn't do that? Well, you can't challenge your detention with a judge, you have no right to a speedy trial, and - should you even get a one - you must accept a lawyer from the very military who is trying you.

Good thing we're spreading democracy around the globe.

What this law does is allow non-citizens to be arrested without being given a reason why, then held until they die (no right to speedy trial, or habeau corpus), if the president so deigns or until the "War on Terror" ends.

The problem, of course, is that the "War on Terror" has no recognizable end. It was clear to Lincoln, and everyone, else, when the Civil War ended. How would we ever know that there are no potential terrorists living anywhere in the world?

This is a permanent blank check to those in power. By supporting it, you say that not only can we trust our leaders never to abuse these powers, but that we can also trust then to act inerrantly when applying them.

And please note that we said we were "veering" toward a police state, not that we are one now. Dave's point is that we only need a pretext for these rules to be expanded to citizens. And the past suggests he's right: Bush declined to charge Jose Padilla, an American citizen held there in Charleston, for years. He charged him only when it looked like the Supreme Court might test (and possibly reject) the presidents' ability to ignore citizens' habeaus corpus rights.

The threat of court challenges is also why this bill attempts to cut federal courts entirely out of the picture. It sugggests we can't trust the courts, only the president and military.

I guess I hold to a silly liberal beliefs in checks and balances. I also hold to that ridiculous liberal notion that people really do have "certain inalienable rights," and that the right to not be locked up forever with virtually no recourse until the end of a war that, almost by definition, cannot end - well, I suppose I think that's one of them.

And if our leaders disagree, then only laws - not democratic convictions - stand between us and a police state. And as we've just seen, laws can change.

(Note: I'm going to be backpacking all Saturday and Sunday, so I won't be able to respond to other commenters, at least immediately)


An add:

I also understand that these people don't care about our morals.

But we do, because we're Americans. And if we betray them to stay safer, we're on our way to losing our national reason for existence.

What's more, we use our morals to justify our foreign policy. If we abandon them, our rhetoric is transparently bankrupt and, therefore, unpersuasive. And most of the world is unpresuaded as it is.

No one ever said running a democracy was more efficient than running a dictatorship. And no one said freedom came without risk.


You'll notice that I didn't write about the habeas corpus provisions of the bill at all, in part because Lindsey Graham, whom both Agricola and I mistrust for different reasons, successfully forced a compromise on the White House's bid to further erode the principle. As for the Administration's credibility on protecting the habeas corpus rights of U.S. citizens, do we need a refresher on the Padilla case? An American citizen, declared a combatant, held without charges at the Navy brig in Hanahan for three years.

So yes, I'm concerned about habeas corpus -- but that's not what I wrote about. I wrote about torture, and I'm not going to change the subject.

Also, in writing this post, I distinctly avoided any use of the word "morality," not because I don't see this as a moral question, but because I'm weary of being told that my political views are "immoral" because I support things like gay marriage and free speech. "Morality" has become a rhetorical bludgeon, and I don't want to be the next one to wield it.

Besides, Americans shouldn't have to agree on all aspects of morality to agree that torturing people is wrong. I've tried to discuss torture in pragmatic terms in previous posts, just to focus the discussion on the professional sources that say torture is an ineffective means of acquiring intelligence.

But we've just crossed the Rubicon. We're no longer talking about whether isolated incidents were mitigated by various factors. We're now talking about legal government sanction.

How much waterboarding is OK? How much sexual humiliation? All three of my sons will be draft age in two years. I cannot passively abide a law that would allow commanders to order American soldiers to perform such practices. Torture brutalizes everyone.

I suspect, but cannot prove, that our recent history on torture is worse than we know -- hence the White House's urgency behind this bill, hence its willingness to compromise on other provisions but its staunchness on the legal wordings in Section 8. History's judgment is stalking this administration, and its leaders feel it.

"The object of torture is torture." -- George Orwell, 1984



In your initial post you said: "Honor is priceless, and these actions have sullied it. If you feel differently, that's your right, but I doubt that you'll be proud of that position five years from now. So I guess we'll just wait and see."

If we are all together in five years, still debating the use of torture, then I posit this legislation will have worked. That is, we will have used "coercive" interrogation on some top-shelf terrorist commander, during which he was "forced" to reveal the plans for a suitcase nuke planned to detonate in a container in North Charleston. Can we, realistically, accept the point that we would rather be incinerated by a nuclear attack than force information from an enemy? Will we all, looking down from Heaven (or wherever), feel good about our Honor while lamenting our unscheduled departure from life and our loved ones?

The alarm presented by your initial post, and supported by commenters fearing the imposition of some extra-legal framework in this country, seems to imply that we cannot, and should not, trust our democratically elected leaders to make decisions for the conduct of this war. There seems to be the scent of an implication that NeoCons and Republicans want nothing more to suppress dissent by arresting and holding (forever) those who dare to disagree with national policy decisions.

At what point do we decide that the defense of our values is at least as valuable as their continued existence; when do we become aware that for our values to exist, for us and, hopefully, for others, they must be defended by whatever means necessary. Has history ever taught that not sacrificing core principles because they are too valuable to fight for mollifies the enemy? Has Honor ever prevailed against the force of arms?

Good thread, and thanks for the opportunity to comment.

Janet Edens

Rhetoric and false choices. This is not A) sodomizing people with cattleprods or B)the end of the world as we know it.

I'm sorry that so many people are so afraid that they are willing to accept this as necessary to protect America.

Personally, I think it is a national disgrace. I actually cried when I read the article. The end does not justify the means. Adopting your enemies' methods does not mean you win.

And for the record, yes: I am prepared to risk being incinerated by a nuclear bomb if the only alternative is losing my humanity. But I'll bet that choice only gets presented to people on a Hollywood movie set.

Most real-life choices are a little more complicated, and you have to call upon all that you have, all that you are as a human being.

I like the way the Marines phrase it: Death before dishonor.


The bigger question, for me, is not whether I'm ok with torturing an enemy for information that saves up from being incinerated by a nuclear bomb, but how we know that person is an enemy. They haven't been found guilty in any court. They've simply been suspected of something. And that could be ANYONE.

Furthermore, there are tons of well-made arguements that information gained from torture is no more accurate than information not gained from torture.

Yes, the needs of the many outweigh the needs of the few. That does not, however, equate to "the ends justify the means." We've also gotten terribly narrow-minded when "needs" equates only to security and "the many" equals "the people who agree with us."

Twnety years ago hundreds of people had their lives ruined over accusations of Satanic Ritual Abuse. Evidence was frequently sketchy, to say the least. Americans were seeing child-abusing Satanists everywhere. Is it such a leap of logic to imagine us seeing terrorists at every turn now? Except now they won't simply lose their children and their jobs: they may be tortured as an enemy combatant, because someone, somewhere got the idea that this particular person has knowledge of a Big Bad Plan that's going to destroy us all.

I was raised in a country that presumed innocence until proven guilty in a court of law. Being suspected of a really heinous crime does not sacrifice your rights as a human being.

"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."


Human rights organizations exist that have no borders, yet I see none of them jumping up and down to protect these rights. Remember, we are not talking about American citizens - these people do not have the same rights citizens have. They are also enjoying more right of protection now than they ever had in their country of origin. What else would you have our country do? I am sorry, but I have to side with Agricola here. It is unlawful in this country to even threaten the President or suggest aggressive acts against the country (terrorism). If someone throws out a suggestion that they think the President should be shot, and the whole country should be nuked, sure, they are entitled to their freedom as citizens of the country. If this person is not a citizen though = doesn't this raise a red flag in your mind? They are not protected by 1st Amendment rights, which likely means they are serious! According to your previous posts, we need to immediately grant them the same rights as our own citizens and not do a thing to protect our soils, even when they clearly state they want our soil to become a sea of blood of "capitalist pigs"?

Anna Haynes

Saw The Illusionist this evening; the villain instructs his minion to extract answers, saying "I understand you have ways..."

It's very disturbing to realize that the guy in the black hat is our Uncle Sam.



While I respect your willingness to die for your ideals, I must disagree with your willingness to allow someone that does not hold your beliefs to take your life, liberty and pursuit of happiness; especially so that he (or she) may impose their values on the late you and me. I really believe that the nature of this debate, as in so many other threads, is that we have a fundamental divide in this country about whether or not we are under attack by an enemy that wishes us extreme harm. Either we are being attacked and must defend ourselves in order to survive, or we are not under attack and this whole contretemps will just go away if we behave like good citizens. Yes, my example of a nuclear bomb detonated is "cinematic" in its extremity, but who could have conceived of multiple aircraft hi-jackings ending in suicide attacks on buildings? What will it take for us to accept that this enemy will do ANYTHING to harm us?


"Human rights organizations exist that have no borders, yet I see none of them jumping up and down to protect these rights. Remember, we are not talking about American citizens - these people do not have the same rights citizens have. "

Really? Then what's this?


Amnesty International is hardly a fringe group. check out their homepage too. Lots and lots of stuff on recent legislation.

Everyone in this country, whether a citizen or not, is protected by the 1st Amendment (and the rest of the amendments, for that matter). The basis of most of those amendments is the concept of human rights - that all people deserve certain things simply for being people. If we abandon those ideals outside of our borders, then the Constitution simply becomes a common law, not a recognition of any concept of natural rights.

Morals are so decidedly inconvenient. That's why they're morals.


Catherine says, in part: " The basis of most of those amendments is the concept of human rights - that all people deserve certain things simply for being people." Okay, good enough for me. I deserve the right to take any action to defend myself from international religious terrorists who attack my country. I deserve that my President, elected by all of our citizens, defend us from those attacks. At last, a common ground in the debate.

As soon as we start thinking that our individual rights, needs, concerns, feeling, etc. are more important than our national right of self-interest or even self defense, we then become a nation of individuals, losing the integrity of "E Pluribus Unum" that is also one of our fundamental beliefs.

And, some bad news: Amnesty International does not have the best interests of the US at the top of its agenda. It's convenient to forget that during the Cold War (I know, a long time ago), AI regularly blasted the US for a variety of "crimes" that did not reflect their extremely liberal doctrine; the kicker, of course, being the lack of criticism of various African potentates, the usual Iron Curtain thugocracies, and South American fascists. A little balance from AI would go a long way to restoring their long tarnished "reputation", until then, they can butt out.


As a wrap to a weekend full of argumentation and furious typing, may I suggest we all take some time to emit positive vibes in the hope that our aura will somehow lift the Chicago Bears (the favorite team of a Xarker, who thinks they have a chance to win it all this year) to victory tonight over the powerful Seattle Seahawks. A daunting task, for sure, but one that, if successful, will validate the postulates of the esteemed Xarker, Daniel.


Thanks. Your positive thinking contributed to the Bears 37-6 win over the Seahawks. Bears fans the world over salute you.

Agricola wrote about deserving a President who would defend us against attacks by jihadists, and I have no quarrel with that. I don't think anyone does. One reason these discussions often flop so quickly is that they're framed as a debate between action and "coddling terrorists." But let's stipulate that we agree on this point, and that the area we're examining lies elsewhere.

Rather than going back to torture, I'll offer this: Agricola is basically correct when he says, "I really believe that the nature of this debate, as in so many other threads, is that we have a fundamental divide in this country about whether or not we are under attack by an enemy that wishes us extreme harm. Either we are being attacked and must defend ourselves in order to survive, or we are not under attack and this whole contretemps will just go away if we behave like good citizens."

I disagree with what he considers to be the counter argument (that behaving like good citizens will cause the argument to go away, which isn't what I hear critics saying), but I agree that this question (how much of a threat are the jihadists?) really IS an important point in the debate.

And I think liberals/progressives/whatever-we-are miss the boat when they assume that conservatives are operating out of fear on this. Sure, some are, but most conservatives I know aren't scared -- they're mad. They don't see themselves as hiding behind Big Daddy Government -- they see themselves as aggressively conducting a war against America's enemies.

That makes them willing to cross some lines I won't -- not because they're all immoral, but because they think giving the president the power to torture suspected enemies is somehow more effective than the alternative.

I believe: 1. That a Republic should never give the state the power to commit acts of torture against anyone; 2. That torture is an ineffective means of acquiring reliable intelligence; 3. That our lawyerly parsing of the Geneva Conventions and the refusal to repudiate torture will someday cause even more harsh treatment of American P.O.W.'s; 4. That jihadists are a different kind of threat than we've faced before, perhaps requiring new investigatory powers -- but that all expanded powers MUST come with robust checks, balances and safeguards; 5. That the goals of the jihadists today are focused on gaining control over the Middle East, not the West; 6. That the best way to destroy the jihadist movement isn't force of arms or Americans behaving like good citizens, but confronting the conditions in the Middle East that inspire this movement; 7. That foremost among these conditions are the petro-monarchies and police states that dominate so much of the region's wealth; 8. That the primary threat posed to the West by the jihadists over the next 20 years is not a military threat, or even a terrorist threat, but an economic threat.

I think history will record that in the late 20th and early 21st centuries, the world convulsed around the birth of a new economic order and the death of an old one. In our now-dying economic system, energy was cheap and information was scarce. In the new system, the reverse will be true. Historians will see this as an 11th-hour struggle for resources between disenfranchised Muslims and multinational economic interests.

It's not just "blood for oil." It's not just a "clash of civilizations." It's not even a national issue, because this transcends nation-states. We're witnessing a fundamental transition in the first global economy, and I think we're like blind men feeling our way around an elephant...


I agree with pretty much all xarker's beliefs in the last comment. My earlier comment focused mainly on 4, and my very sincere fears about the erosion of checks and balances and the concept of limited power.

While arguments about the "effectiveness" of torture may be one of the few places where debate can occur on this count, I think it will always be a moral issue, at least for me, and, I suspect for many, many others. Torture is wrong, and I don't support it. Period.

Also, without getting preachy or going into detail, my religious beliefs will not allow me to support torture or to draw distinctions between of U.S. citizens and non-citizens, at least when it comes to issues of life and human dignity.

Somewhat like Janet, I would rather die than torture.

However, I think conservatives err if they think ALL moderates/liberals/whoever don't understand the threat. Nothing drove home the reality of these people's mindsets like the reaction to the Danish Mohammed cartoon. Confronted with a clear exercise of freedom of speech, the Islamists burned an embassy. Now, confronted with an unpleasant comment from a Pope, they hijack a plane. That certainly shows that some of these people do "hate freedom" (here, of speech), as the conservatives put it.

For me, the problem with the neo-con response to such savages is that it can only work in the short-term. The soundbite for my position is that we're creating terrorists faster then we can kill them. But it's more complicated:

The long-term problem in Dan's "beliefs" is the continued existence of terrorist-breeding conditions: petro-monarchies. Unfortunately, we all know those petro-monarchies also serve our short-term interests. They're basically pro-American, and they allow us a steady supply of oil.

Long-term, I believe our interests are served if those countries become democracies (less terrorists). Short term, we'd likely see the House of Saud replaced by Sunni fundamentalists. And that's tough to stomach.

If we can ever hope to see a Middle East that is both democratic and somewhat friendly to the U.S., we have to rely on persuasion, not military force. Unfortunately, torturing and denying basic rights to non-U.S. citizens destroys our democratic credibility, and hence our persuasive power.

Put another way: How can the average Arab trust us to "spread democracy" when he knows that we kidnapped, held without charging, and "humanely" tortured his neighbor?

So, ultimately, squashing terrorism depends on creating democracies. But creating friendly democracies requires persuasion. That's why torture may serve our short-term interests in security (though I doubt it), but it will destroy our long-term hopes of victory.

(Side note on AI: I studied Latin America, and human rights groups did critice fascists there. But we assisted many of the fascists, notably Pinochet, in Chile)

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