The recent disclosure of a confidential White House memo about Nouri al-Maliki's ability to cope with the rumbling insurgence of Muqtada al-Sadr--a revelation resulting in the cancellation of the proposed summit between the heads of state of Jordan, the US, and Iraq--ought to be the last straw in the trend of US administrations since Watergate to allow carte blanche for anyone intent on promoting US impotence, by deftly opening a vital artery. The Bush administration has, on many occasions, chosen to eschew prosecution either of those breaking a national security oath, or of the Press' active solicitation of such illegal and unethical activity.
Ed Morrisey recently raised objections to statements by Newt Gingrich concerning internet counterterrorism (which were apparently mischaracterized by the media source, according to Newt's staff and a timely update on Captain's Quarters). Ed's objections amounted to concerns about an idealized choice between First Amendment freedom and national security. It turned out that Newt wasn't really addressing the "Ellsberg Syndrome", but the central thesis is similar. The problem is that this is a "boiled frog" scenario. Because the damage has been perpetrated in relatively small increments over a long period of time (and because the initial attempt to supress Ellsberg was unsuccessful) we appear to have become desensitized to the full consequences of such betrayal
The constraint on action doesn't really appear to be a legal matter, but a matter of political will. Were a President to prosecute a case such as the recent disclosure by the NYT he'd earn the undying enmity of the Press, for the rest of his tenure. Or more to the point, the disdain that is at least partly covert would become openly rebellious. Mainstream media would sooner compromise the nation than pass up the opportunity for a delicious "gotcha". (The Ellsberg case is generally regarded as the beginning of "gotcha journalism", because it helped define the successful careers of Woodward and Bernstein.) And absent any serious consequences about the only thing that might retard such a stampede is an increasingly incipient patriotism and moral integrity.
For some this might seem like textbook sedition: "an illegal action inciting resistance to lawful authority and tending to cause the disruption or overthrow of the government", but that's probably off the mark. Sedition is incitement to domestic disorder and rebellion, rather than aid and comfort to an enemy in time of war. The offense, whether legally actionable or not, seems closer to treason, or perhaps just boneheaded self indulgence and vanity.
Regardless of whether or not a treasonable act is actionable as treason it seems difficult to imagine how there could be any serious justification for a failure to prosecute someone participating in an offense such as this, other than malfeasance or a set of seriously flawed statutes. I have doubts that this administration will bother putting it to the test, though. It has chosen not to pursue such remedies time and time again, a failure that amplifies the stakes even as it reinforces the sense of invulnerability of the offenders. At the extreme (a condition we must surely reach in the fullness of time) failure to insist on prosecution for such an offense must be regarded as grounds for--dare I say--impeachement. A National Executive has a fiduciary responsibility, not to say a moral obligation, to prevent breeches of security that might result in the failure of critical foreign alliances or agreements, let alone military actions. Yet to my knowledge (admittedly not exhaustive) no US President since Watergate has ever seriously considered prosecution for such betrayal of individual or national trust.
And the number of offenses must be large, by this time. I can count a half-dozen off the top of my head that have had serious consequences for national policy during wartime. In 1975, but a few years after Ellsberg, the LA Times thought it profitable to disclose Project Jennifer, revealing the true purpose of the Glomar Explorer: the chief clandestine evesdropping operation that allowed the US assurance about Soviet intentions. It was this vital information that provided us the luxury of not assuming the worst, and undoubtedly prevented a nuclear confrontation between the US and the USSR on more than one occasion. The Times rendered the operation useless by making its existence public, before it had outlived it's usefulness. And this for no other reason than a real good momentary rush.
Pardon the rant, but I feel at this point that the only contender for Presidential office with sufficient fortitude to speak to these and related issues is Newt, though doing so earned the temporary antagonism of Captain's Quarters. (Yes, he was talking about a different First Amendment/National Security tension, but one equally important and equally neglected.) Earlier in the day I conducted a quick tally of the comments to Morrisey's post and found that 80% of those responding agreed, more or less, with Newt... that the Second Amendment is not a suicide pact.
I, for one, would feel reassured if some effort were made to find and prosecute the individual who leaked this memo. That would convince me that the National Executive isn't completely feckless.
Update: Some folks in the comments section point to the possibility that the memo might have been intentionally leaked. That occurred to me, of course, but for obvious reasons I hope that's not true. Our executive is currently operating under unrealistic constraints on internal deliberation as a result of what Grim calls on "oathbreaking culture". To reinforce that culture by cynically using it is irresponsible and thoughtless. But I'm not convinced that this item was "authoritatively leaked". Though I don't often agree with these folks, Democracy Arsenal offers some reasons why this might not be the case. Primarily their argument is that the memo reflects badly not only on the Maliki administration, but the Bush administration. Believing the item was authoritatively leaked as part of a diplomatic strategy is to believe that they are unaware that there's not much fuel left in their own tank. Such isolation would be genuinely breathtaking.
Two things:
First, Newt was talking about the First Amendment, not the Second -- right? It's not that he thinks terrorists will succeed in claiming a Second Amendment right to keep and bear nukes. It's that he's worried about their abuse of our guarantees of religious freedom to move freely and build networks that could smuggle WMD into America.
Second, I agree that we should begin to dismantle the culture of oathbreaking, whereby people who swear to keep secrets leak them. Prosecution of leakers to the fullest extent the law allows is a wise idea.
However, it has been widely suggested that this "leak" wasn't really a leak at all. It was a way of putting the memo on the table without having to take responsibility for putting it on the table -- in other words, an act of diplomacy. If that's right, it intended to make American doubts and intentions clear to everyone, in spite of the fact that diplomatic norms prevent being quite this clear and direct.
If that reading is right, the leak is in fact authorized; it's merely assuming the appearance of a leak in order to achieve the diplomatic purpose. I still think it is a bad idea to use leaks in this fashion, but you can see how it might be hard to gin up for a prosecution of the leaker if he was really obeying orders. (Nor, indeed, would there be reason to do so -- as I understand it, if he was obeying orders from the President to make the memo known to the press, that would be de facto declassification of the material).
The irony is that this is the one and only place (in my not-so-humble opinion) that there really and truly has been an erosion in the power of the Executive since the days of Watergate. This, of course, is Cheney's excuse for all sorts of Executive power-grabs that have been indulged in over the last six years. Cheney has concentrated on matters such as Congressional oversight, flexibility of Executive command-and-control, the ability to ignore and fire career civil servants for disagreeing with ideological decisions, etc. as part of this program... all of which had little to do with the powers of the Executive, although they had much to do whether the Executive served a nation of laws or one of men.
Instead of taking on the issue of irresponsible press disclosure in a mature and responsible manner, All The President's Men (And The Vice-President's Too) have treated the press with barely veiled contempt, surreptitiously insulted them, become more hidden than ever (evading Acts of Congress in order to do so), and generally done all manner of things that could only have the effect of further encouraging the Press to delve deeply, expose everything, and close their ears to Administration complaints about the effects thereof. At the same time, these actions have been part of the a steady erosion in public confidence in the Administration... a process that began well before the invasion, or even the public discussion of an invasion, of Iraq.
Neither effective carrots (direct negotiation with the organs of the press in a time of national emergency) nor effective sticks (threats of prosecution using tools designed for the purpose, such as the Espionage Act of 1917) have been attempted. Bush and company have mainly bitched about the matter and used whisper campaigns to discredit leaked information... which have backfired, such as in the Plame affair.
In short, in this matter as in so many others, the Administration of Bush the Younger has demonstrated its classic behaviors: incompetence, emotional motivations, fecklessness, ignoring both internal and external corrective feedback, and executing policies that have effects precisely opposite to their intention.
Why has the New York Times not been asked why the publication of this particular memo on this particular day was worth busting up a diplomatic conference?
You'd have to be a nit wit to ask the NYT "WHY" they are leaking info. Bush (and by extension, the USA) must be defeated. It is their goal and they will accomplish it (success so far). As far as the "power grab by bush/cheney" get real. Look back at all the garbage clinton and his band put us through. No questions asked about who he spoke to about his "energy" policies. No questions asked about clinton/gore testing anwr for oil. No questions asked about rendition of suspects, instituted under clinton. No actions taken about the fbi files...and on and on. Power grab? Wait till you see how the dems "RULE" the little people in the next few years...oh that's right...no questions.
Maliki has cancelled the summit.
Grim:
Heck, I got so carried away I said "Second"! At least I didn't repeat it. (Er, actually I did. :()
That has occurred to me, but the corrosive consequences are the same (as I think you realize). And if they're doing that it does nothing to convince me of their fitness to be in office.
Judith:
I don't think defeating the US is their primary goal, it's a secondary goal necessary to achieve their primary: which is a practical demonstration of their ability to control the narrative in order to secure and perpetuate their elite status. Though most of them aren't even conscious of it.
That's essentially what I said about it this morning.
I think the culture of oathbreaking is one of the principal cracks in the Executive branch of the government.
Sigh.
You ARE aware that the administration leaks like a sieve when it suits their interests, aren't you?
Take the recent British plot - Bush administration jumps the gun in Pakistan, thus destroying the investigation in Britain.
If you believe that the administration never leaks for it's own partisan purposes - you are being blind.
Also - you ignore the elephant in the room in this story - Sadr's threat to Maliki that if he goes and meets with Bush, his party will leave the government.
He backed off that, of course - he "suspended participation" for now, but left the door open to coming back.
Maliki's role in this, of course, is to also step back from the brink. In this case, to "postpone" the meeting, in hopes of that mollifying Sadr.
At any rate - not that a propagandist like you would care - you basicaly are misattributing Maliki's reasons for cancelling today's meeeting.
At least, it's murky - yet in your faux certainty, you would interfere with freedom of the press.
In addition, you ignore the administration's sins in doing the same exact thing, whilee "waxing indignant".
All to limit the freedom of the press, your bugaboo.
I'd like to see you indignance regarding the slimers of the AP, regarding the burning of the six Sunnis.
But I won't get that of course.
Wake me up when you learn to be objective.
"You ARE aware that the administration leaks like a sieve when it suits their interests, aren't you?"
If it is authorized, by definition it is not a leak. The President has the authority to declassify basically whatever he likes.
Sigh... I think the point is that if they're doing this sort of thing, they're foolish. I don't say incompetent, because it's possible to be a very competent fool.
Which doesn't mean it isn't a destructive thing to do. Of course, if they manage to handle Iran effectively I probably won't even remember this, but if they don't it'll just be part of an unforgettable pattern.
It's almost certainly a deliberate White House leak. In fact the document was probably written in order to be leaked. Have you heard screams of outrage and denials from the WH? No. Why do you suppose that is?
So maybe we should delay burning the constitution.
Strauss & Howe put it perhaps best in their 'Fourth Turning' (1997) ...
During an era of Unravelling (the Third Turning, prior to the Crisis) "Wars are fought with moral fervor but without consensus or follow-through." A better summary of our current situation could not be written, especially with nearly a decade's foresight.
Strauss & Howe time the Unravelling from 1984 until sometime in the mid-'00s. We are far closer to a Crisis period -- on the order of WWII, the Civil War, and the Revolution -- than most people realise.
The aged leaders of our era (Supreme Court, toothless old lions of the Democrat party, old-line media, etc) are nearly all "unsuccessful multi-lateralists" who having been raised as children in the midst of the last Crisis always understand 'Peace' as the absence of conflict, rather than the absence of threat.
It is their failure to address the gathering storm that sets the table for the conflagration to come.
So it is now. And so, also, will it be.
Have you heard screams of outrage and denials from the WH? No. Why do you suppose that is?
In order to minimize the memo's importance.
The larger question of if Newt is right takhalus won't address.
Is Newt right? Sadly I believe he is (speaking as someone who dislikes Newt on many levels). But I can't argue with his logic.
People's first heirarchy of needs (Maslow) is physical safety. A perceived or real threat (as demonstrated by a loss of a city or three) will have people angry, afraid, and disillusioned with their leadership.
The comment above about the toothless old lions of the Democratic and Media Parties (the same) is IMHO quite true:
For nuclear terrorism by deniable proxies Dems/Media have no suggestions. No course of action. Nancy Pelosi will dump the 9/11 Commission recs on "turnover" to get rid of Harman and make MURTHA (as corrupt as Hastings) Intel Chair.
What people are likely to conclude is that their own personal safety requires America to be "Muslim - Free." An extremely ugly conclusion but one likely to arrive with the destruction of an American city nonetheless.
In that sense the total abdication of leadership by the Dem/Media parties has consequences. You won't see the Klan but you will see something akin to the 1856 San Francisco Committees of Vigilance. Complete with National Guard armories being raided by ex-military and someone like Sherman sitting around doing nothing to confront the Vigilantes. People forget that America was founded on people making law for themselves, and we are not French.
People will fight for their lives and property. About 69% of Americans own their own homes, it's the principal source of their wealth. How many will stop at nothing to protect their homes and lives? Youth can be violent and effective, but so can middle aged men fighting for everything they have. Wikipedia the Committees of Vigilance. Guys in their thirties and forties who saw everything they'd worked for threatened by the Irish gangs. Very few young men.
The issue has passed from any ability of Dems, Media, and yes Rep leaders like GWB or Baker or Scowcroft to control or manage events. It will be the homeowner in Toledo witnessing the destruction of NYC or LA or Boston and saying "enough." Or the national guard leader in Michigan who does nothing to prevent Vigilantes from making Detroit suddenly free of Muslims.
What Newt suggests (limits on terror-related speech) is likely to be the least of it and most unimportant. If Governments cannot provide for the safety of people and defense of their hard-won wealth people will do whatever they have to ... an ugly process many have warned about.
Don't you think there's a posibility that the administration deliberately leaked this for some reason? After all, who had the greatest access?
There was an exchange on Scarborough about this.
Some think that the leaks are all part of an orchestrated Bush strategy - a confused one, obviously.
Huh - well, I guess you can't go directly.
Here is the link to the article
Jim:
I won't talk about it? I'm happy to talk about Newt's little fascist fantasy.
It is contemptible, cowardly and un-American to talk about trashing the Constitution.
We survived the Civil War, World War 2 and the cold war with Constitution intact. It is panic, pure and simple, to suggest that now we have to trash it. It is gutless. It is hysterical. You don't trash the first amendment. Period. End of story. And anyone who proposes to do so will have a lot more to worry about than Muslims.
You're wrong, Jim: the first priority is not physical safety. The first priority is liberty. Liberty or death. We did not build this country on safety.
And what makes this particularly pathetic is that the vast majority of the people freaking out and running around like a bunch of castrati live in places where they are perfectly safe. Al Qaeda doesn't even know where "red state" America is. They know New York, D.C., Los Angeles and maybe Chicago. Liberal, Democrat cities all. With the exception of Republican politicians living in DC there's hardly a conservative on Al Qaeda's radar, and yet there you are ready to surrender everything we mean as a nation.
So how about you Republicans leave it to us Democrats since you don't seem to have the stomach for it? We'll take the risk, and we'll defend the constitution. Your "heirarchy of needs" may start with safety, Jim, but I'm an American. An American, Jimbo, and we don't roll over and stick our asses in the air because some crazy beared bastard in a cave yells "Boo!"
Jesus. Grow a pair.
m. #17:
Don't know whether you're into philosophy or not, but I think John Gray dealt with the primacy of liberty pretty deftly in both volumes of his liberalism series: Liberalism and Liberalisms. That is, he fairly destroyed the arguments for the primacy of liberty, so effectively that they even impressed James Buchanan. But Gray failed to offer an alternative. At that point Buchanan took up the issue, arguing that it's not liberty that must be primary, but sovereignty. And it turns out that sovereignty isn't subject to most of the flaws that befall liberty as a prime constitutional value.
Well, that gives you two heavyweight people to wrestle with if you're so inclined.
Not to put too fine a point on it, but I'm in favor of terrorists having a degree of sovereignty that's commensurate with the responsibility of their actions, because sovereignty implies such responsibility. Liberty... not so much.
#17--Nicely put, although altogether too civil.
I believe Thomas Hobbes also concluded that there was no such thing as liberty or justice without there first being security from a sovereign.
Good lord, m tak, you cite the Civil War as an example of presidential respect for the Constitution?
Do you have any idea what good old Abraham "habeus corpus" Lincoln would have done to the NYT?
Or Woodrow Wilson for that matter?
I'd love for you to apply your knowledge of Constitutional Law, which is probably as great as your understanding of history, to explain how prosecuting people who illegally leak documents, as well as those who encourage and abet such leaks (if that is what happened here) violates the first amendment.
#21:
The constitution specifically allows the suspension of habeus corpus in the event of insurrection. If you want to diss Lincoln on civil liberties you'd be on stronger ground talking about treatment of copperhead political candidates.
In any event, I was responding primarily to the Newt speech referred to in Jim Rockford's comment, not to the original post. The subject of Newt's speech was modification and limitation of the First amendment.
I would note however that the original post was a response not to a "leak" but what some call a "squirt." A deliberate leak. A plannned, deliberate, politically-motivated "leak" by the White House. Which just maybe ought to give you pause when considering your reaction to so-called leaks. In the world of leaks things are seldom what they seem to be.
Ever ask yourself why no one ever really gets around to prosecuting leakers in Washington? Think on it.
#18
It's not a philosophical issue. It's a gut check. We lost 3,000 people to terrorists in the last 5 years out of a population of 300 million. In the same 5 years we lost 200,000 or so to traffic accidents. But if I suggested lowering the speed limit to 35 you'd rightly denounce me for panicking.
The constitution is not dictated by our enemies. The sky is not falling. It's 3,000 people in five years. 600 people a year. A 5 year rate of less than 2 a day. A minuscule percentage -- particularly as compared with, say, the 100 Iraqis a day which would translate in American terms as about 1,100 per day.
So, 1,100 a day is what we are not supposed to call civil war and are supposed to believe is manageable, but for 2 a day we run around like chickens with our heads cut off.
Some of you people would have been real barrels of fun in the London Blitz.
The constitution specifically allows the suspension of habeus corpus in the event of insurrection.
Why, yes it does. And that allowance is found in Article I, section 9, among the limits on the power of the legislature. Not the power of the President. But in any case Bush hasn't tried to suspend it. Lincoln did. So your point about the wonderful liberty enjoyed in 1863 is what, again?
You talk about conservatives being cowards who couldn't handle the Blitz, but you blithly ignore that "civil liberties" in WWII England were much less expansive than in the US today. Apparently you couldn't handle the Blitz, either.
You object to Newt Gingrich re-interpreting the First Amendment (well, I probably do, too) but are apparently unaware that it's been in the process of being reinterpreted for 200-odd years. How far do you think a blasphemy prosecution would get today? How about in 1798? New interpretations are not really a new idea.
You talk about the primacy of liberty (over security) but then cite historical examples where liberty was dramatically curtailed in the name of security--Lincoln's campaign against anti-war types, Roosevelt's internment of Japanese-Americans--as though they represent some kind of historical golden age that Bush and his minions are betraying.
Finally, is there even the slightest possibility that you're panicking over our miniscule loss of liberty, given that it is smaller than in any of your historical examples?
m.takhallus,
Your rhetoric about the Civil War, WWII etc. and the Constitution simply does not match the historical reality. The Democratic Presidents Wilson and FDR did trash the Constitution by orders of magnitude more than even your claims regarding the Bush administration.
Wilson had critics of the war and opponents of the draft prosecuted and imprisoned. FDR had people rounded up into camps solely on the basis of nationality.
Do please learn some history.
Rob:
A remarkably odd response on your part.
Point by point:
One: The accusation was that Lincoln had violated the constitution, he had not in the case of habeus corpus. (Although he may have elsewhere.) So, my point is that Lincoln was acting legally insofar as habeus corpus is concerned.
Two: What is the relevance of civil liberties to the courage of Brits in London? That has me completely baffled.
Three: Yes, it has been reinterpreted, and the interpretation has been in thee direction of maintaining and expanding protection of free speech. Newt proposes throwing the car in reverse in a panicky overreaction to a temporary threat.
Four: What I said was that we kept the constitution alive despite the extremely dire threat of the Civil War and the almost equally dire threat of WW2, so maybe in response to this notably less dire threat we could show some cojones. The fact is Lincoln did violate the constitution at least in the case of some copperhead political candidates (though probably not habeus corpus generally) and Roosevelt also clearly violated the Constitution in the case of the Japanese-Americans, but the fact that we panicked in those cases is not an argument in favor of panicking now.
Five: No, it is not possible that I'm panicking over the loss of civil liberties. If the United States is not the bleeding edge of liberty in this sorry world then we are nothing. This goes to core definition of what we are as a nation and as a people. I am honestly shocked and frankly sickened to find my fellow Americans so willing to roll over at the first sign of trouble. We lose 3,000 people five years ago and that's all it takes to break some people's love of liberty?
This is the United States. Founded by people who left their homes and made a new civilization in the wilderness. We believed in free speech when we were standing up against the greatest military force of its time, the British army. And we believed in free speech when rebel forces were half a day's drive from Washington. And we believed in free speech when we were fighting the Nazis and the Japanese at the same time. And we believed in free speech when for 40 years we were thirty minutes away from nuclear annihilation. For better than two centuries we believed in free speech, even when we were among the world's weakest, lest consequential nations. Now we're the world's only superpower and we should surrender free speech because of some flea-bitten, cave-dwelling religious nut in Pakistan? Are you kidding me?
We're not the world spokesmen for security, we are the avatars of freedom. We're not the French, for God's sake, so man up.
Churchill described detention without charge, that is, the José Padilla treatment, as "a thing most odious". During WWII, he was pretty much forced to apply it to Oswald Mosley of the British Union of Fascists not so much on his own initiative, but to satisfy the British Left. Mosley ended up under conditions similar to house arrest. Not disappearance and torture.
Now, did the Brits have a much more thoroughgoing regime of censorship then? Yes, I would say so. I would also say that the conditions of warfare and communications then made certain types of censorship much more effective in confusing the enemy than they would now, and for that matter more effective at improving home morale. Modern communications have vitiated some of these mehods. I've read that in Napoleonic times no effort was made to conceal British troop embarkations, because back then there was no means to alert the French before the troops would themselves arrive. I must say, that seems amazing to me, but perhaps it's true.
I think takhallus and I can make a good argument that Bush's impingements on civil liberties go beyond his predecessors’—you can't compare the loss of habeas in the Military Commissions Act to the Civil War, unless you consider four hijacking an "invasion"—but beyond that, I think it's a slam dunk that no President, and indeed no British King for many decades before the American Revolution, laid claim to the scope of powers Bush pretends to under the Yoo/Bybee memos, which claim that no Presidential command made under the Commander-in-Chief powers (presumably including even the most extreme torture or the rendering of American Muslims into soap) can be stopped by legal enforcement [see page 36].
Reading through WoC, it's not always easy to detect any respect for what makes America great. In even the worst dictatorships, enthusiastic endorsement of the ruling class is permitted. As far as liberties go, that's a non-starter.
M tak,
Sorry if my writing seems odd to you. Yours seems equally odd to me.
I don't see the slightest threat to free speech in the current response to Osama. Nor do I see any potential threat to free speech to a nuke hitting a city. There is simply nothing that leads me to imagine that my right to criticize the government is the slightest bit threatened. It was substantially more threatened during the Civil War and the World Wars than it is today. If that's what you're worried about, then you surely are panicking. Call me when Michael Moore is in jail.
(There is a substantial threat to free speech called "Campaign Finance Reform," but that has nothing to do with terrorism)
It is possible that there will be some threats to the press, including possible prosecution of the publishers of leaked information. I do not see the slightest constitutional or philosophical problem with this (if you do, you should spell them out more clearly). Being on the leading edge of liberty is great. That means we'll also need to be on the leading edge of responsibility, which our press is not.
Re: Lincoln. In 1861, he arrogated the power to suspend habeaus to himself. This was clearly unconstitutional, since that decision is left to Congress. In 1863 Congress obliged him with a law authorizing the supension, but as the Supreme Court ruled in Ex Parte Milligan, 71 U.S. 2 (1866), he took that too far by using it even in areas where the courts were loyal and functioning.
Lincoln certainly did NOT believe in free speech in the same sense you do when rebels were near Washington.
Also, have you ever heard of the Alien and Sedition Acts? The Federalist commitment to free speech was quite a bit weaker than yours, as it turns out.
I'm not saying you're wrong on substance--I'm a fan of free speech myself--I'm saying you're wrong about history.
AJL,
Re: Military Commissions Act. I've always thought that Padilla should have been in the domestic justice system, which is where he wound up in the end. But you're wrong that it's never been done before: American citizens were executed on the decisions of military commissions and the Supreme Court approved it. Ex parte Quirin, 371 U.S. 1 (1942). Which, BTW, I suspect you already knew.
But in any case, the MCA doesn't and won't ever apply to newspaper editors or political candidates who oppose the war, unlike Lincoln's actions. So yes, the Civil War was a bigger crisis than Sept. 11. But Lincoln went a lot farther than Bush. It would be much easier to take you seriously if you would at least acknowlege that much. Maybe you think Lincoln's actions were justified and Bush's aren't; that's fine. At least admit they were more draconian.
One more thing. The defendants in Quirin, including at least one American citizen, were captured on US soil wearing civilian clothes. That's why they were executed, of course: they were German agents who appeared behind enemy lines out of uniform, and thus were legally spies and subject to summary execution.
The point being, Padilla has it quite a bit better.
America was founded on the notion that the government was accountable to its people under various theories of social contract.
There is no contract between the American government and non-Americans and the notion that the liberty should be extended to them on the basis of some form of American idealism is foolishness. The American government must be accountable to Americans in their freedom and in their security.
#29
Interesting case you bring up, but it may not mean what you think it means.
"As I will discuss in detail in a moment, it cannot be maintained that this body has acted comparably with respect to the September 11 attacks. Congress has not declared war. Congress has not stated that the laws of war are applicable to terrorists or that military tribunals are appropriate. It is of course within Congress' prerogative to make these statements, and to have them acted upon by the Executive Branch in its discretion, and later interpreted by the courts. But without a clear statement by Congress, it is a very dangerous precedent to permit the Executive Branch to unilaterally make such a decision. The Quirin case does not go nearly as far as supporters of the tribunals wish, indeed, it confirms the simple constitutional fact that Congress, not the President, is responsible for setting up these tribunals."
I can probably find other analysis, but this is early, from Yale
IANAL - but there are definitely DIFFERENCES THAT MAKE A DIFFERENCE, between 9/11, the AUMF that Congress authorized, and WWII, and the acts that Congress authorized.
A whole host of differences, that must be taken into account, before so breezily asserting the applicability of Quirin.
Back to the point of this post though, if the leaks were done by the Bush administration - shoddy reason to use that as a basis for restricting freedom of the press.
HR:
I am open to the argument that if you use some sort of quotient like:
(severity of liberty infringement)/(severity of threat)
Bush comes out worse than Roosevelt or Wilson or Lincoln (well, probably not Wilson).
That is to say, maybe WWII justified Quirin, but Sept. 11 doesn't justify the MCA. I probably disagree, but it's a respectable position.
But the argument that Bush is worse on an absolute level--the argument that m tak and AJL seem to want to make--is foolish.
The Quirin folk came ashore wearing German military uniforms (and then ditched them). So there is one difference -- the German's made at least some pretense of trying to follow international law.
HR:
The link is a bit dated (2001) as it regards Quirin. The author argues that Quirin is not very relevant outside the context of a full-blown declaration of war. That's not the direction that the current SCOTUS went. They applied Quirin as a basis of their holdings in most, if not all, of the detainee cases. Only Justice Scalia wanted to dump Quirin (plus maybe Stephens).
#22:
No, it's a philosophical issue. Liberty either is or isn't primary, and if it isn't then it can justifiably be abrogated under conditions where a higher principle is challenged.
The casualties that motivated our entry into WWII were even more modest. Are you suggesting that we simply regard attacks by an enemy force as routine, and fold it into our everyday life as though these casualties were accidental? One can imagine the deliberation of a terrorist enclave: "Well, we can apparently kill 50,000 Americans a year and they won't react. So which 50,000 should be kill this year? Maybe we can kill 100,000 and they'll have a meeting or two about it...?"
Well, ignoring for the moment that it was 3,000 in one day, this argument begs the question: Why are you so upset about 3,000 military deaths in the Iraq War in 4 years? Clearly someone disagrees with your assessment that the projected casualties in the WoT is a flat linear function, but the number of US military deaths does appear to be on a linear trajectory, and more than modest by historical standards. My God, in the same period we lost over 150,000 in car accidents! Aren't you over-reacting a bit?
#26:
That's actually an argument I've made in the past, and it's still fairly convincing as regards any attempt to lock down the distribution of enemy propaganda. But it does seem that we could toss some icewater on the "gotcha journalistic" compulsion to disclose privileged information. Moreover, I don't think there's any doubt that if there's a larger terrorist event in our future we'll take such measures. Indeed, that'd be the least of it.
And yet somehow Michael Moore brazenly accepts an Academy Award and appears on talk shows promoting the theory that the US President is in cahoots with Saudi Arab royalty. You may think you can mount a good argument, but I think Rob and PD are getting the better of you.
Having said that, though, I don't think it wise for the Executive to arrogate and aggregate power without establishing policy, since the instant this administration leaves office the policies will hit a brick wall. And institutions can't be established without the participation of congress. It would be a good thing if congress were to tackle issues related to a long term strategy in the war, rather than sniping and acting reactively to cases like Hamdan. No matter who wins this argument on any given day no institutions will be formed to carry a strategy forward... a fact quite distinct from the strategy of containment established by Truman, which was carried (albeit imperfectly) through 4 Democrat and 5 Republican administrations (if I've counted correctly). This is the most short-sighted aspect of the Bush admin's leadership, but the brush also tars both Democrat and Republican congressional leaders.