Several people disagreed with my earlier readings of the Hamdan ruling, suggesting that I was making too much of the decisions’ having bestowed upon illegal combatants Common Article 3 protections that, given a governmental and elite culture that often proceeds from overtly ridiculous (and historically dubious) PC sensibilities, I felt would almost certainly be exploited by civil liberties absolutists and anti-war propagandists who, let’s face it, are always willing to assume the role of self-righteous moral scolds when it fits their agenda. But it looks like the WSJ editors are as concerned as I am—particularly that the Bush administration so easily ceded (and continues to cede?) the Executive powers it had fought hard to wrestle back from the other ostensibly co-equal branches. From the Wall Street Journal, “Osama in Genevaland”:
The Geneva Conventions of 1949 govern the treatment of lawful combatants and civilians during wartime. But now a new Pentagon memorandum concludes that Common Article 3 of the Conventions also governs the treatment of unlawful combatants: pirates, drug mafias and especially terrorists. So, five years after 9/11, the U.S. is about to give to people who ram commercial jets into buildings many of the same legal privileges and immunities as the average GI.
How did we get to this Osama in Genevaland world? Credit belongs to last week’s Hamdan Supreme Court decision, and to Pentagon officials who have overinterpreted the meaning of that decision. Deputy Secretary of Defense Gordon England signed the memo, and our sources tell us it was issued without any wide deliberation with, or even particular awareness by, the White House Counsel’s office or the Justice Department. (A White House spokesman didn’t respond to our query.)
Mr. England’s memo overturns a 2002 Justice Department memo that ruled explicitly that the Geneva Conventions did not apply to members of al Qaeda or the Taliban, a policy change the White House confirmed late on Tuesday. For an Administration that has fought so hard, and in our view rightly, to protect its executive powers, this is being heralded as an embarrassing reversal. It also has the smell of a bureaucratic fiasco, since we can’t recall another situation in which Presidential power was so freely handed away.
Some in the Bush Administration claim the memo does nothing more than require the Pentagon to ensure compliance with Hamdan v. Rumsfeld, and that troops in the field had to be warned. But Hamdan was a limited and ambiguous ruling: limited, because it dealt solely with the question of military commissions that put terrorists on trial; ambiguous, because Justice Anthony Kennedy’s opinion did not fully subscribe to the four-Justice majority’s reasoning.
At a minimum, the Bush Administration should have thought carefully about Hamdan and interpreted it as narrowly as possible. Instead, Mr. England’s memo interprets the ruling in the broadest way possible, applying the standards of Common Article 3 to all “DoD orders, policies, directives, execute orders and doctrine.” As a matter of law, every other government agency, including the CIA, will now have to follow the Pentagon’s line.
In practice, this means that a captured terrorist such as September 11 mastermind Khalid Sheikh Mohammed is now protected by Common Article 3. People often associate the Geneva Conventions with guarantees against torture, protection for the wounded and the sick, and other “bare minimum” humanitarian standards. But Common Article 3 goes considerably further, forbidding, for example, “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
What exactly constitutes personal dignity and outrages upon it? Who knows, though we bet the ACLU will be more than happy to supply some answers. Our guess is that the concept can be read so expansively as to forbid the U.S. from so much as shouting at captured al Qaeda suspects, never mind “waterboarding” them, as was reportedly done to break KSM. In a war in which actionable intelligence acquired from captives is crucial to uncovering terrorist plots and preventing future attacks, it’s hard to imagine a greater self-inflicted setback to counterterror efforts.
[My emphasis]
The standard for “outrages upon personal dignity”, critics of this kind of argument like to remind us, is what “reasonable people” would see as an outrage. But in truth, “reason” as filtered through the lens of a PC culture where we have federal “hate speech” crimes and universities routinely deploy “free speech” zones is, well, not quite so reasonable as it once was. And to add to the PC sensibilities, we most now also contend with multiculturalist sensibilities—both on a primary and a meta level. To wit: on the primary level, multiculturalism (both boutique and strong) suggests that we are ill-equipped to judge the cultural imperatives of the Other, and so the final word for defining a particular ethnic / racial narrative rests solely with those who “belong” to the group under scrutiny. From this perspective, it is easy to see that many things we might not consider outrages upon personal dignity will by necessity be considered outrages by fundamentalist Islamists, who are “outraged,” as I’ve pointed out before, by pretty much anything and everything western.
But beyond even that particular stumbling block to determining what is “reasonable” with regard to “outrages upon personal dignity”—and it is a considerable one, given that multiculturalist sensibilities have become institutionalized by university culture over the last 25 years or so (thanks Eddie Said!)— we then must contend, also, with what I’ll call meta-muliticulturalism: the cynical use of multiculturalist argument as a way to claim a moral highground from which to attack either the administration or its foreign policy, and to “even the playing field” for our enemies (whether out of some ludicrous notion of fairness or neutrality, or out of a desire to see the US fail, so as to teach it a lesson about imperial arrogance, etc.).
I call this use cynical because it is decidedly pragmatic: those who engage in meta-multicularism (be they western or non-western) are not at all married to the idea of multiculturalism as an ideological imperative, but rather will use those who are, along with multiculturalism’s easy bromides about respecting the Other and cultural “tolerance” (neither of which stand up to scrutiny when deconstructed and explored logically or linguistically), to achieve their ends.
This is a dangerous game, but one that we see more and more being embraced by many in the progressive movement—the idea being that any strategy that helps bring about the greater good (which is, once you peel away all the highminded rhetorical accoutrements, a return of left-liberalism to positions of power) is self-evidently justifiable.
That such thinking is decidedly anti-liberal and anti-democratic—that it smacks of elitist manipulation and the tactics of totalitarianism—is easily bracketed by those who have convinced themselves that they are fighting a guerilla war for the soul of the country, and that it is imperative they regain power, even if to do so they must brazenly attempt to manipulate voters or undermine the duly elected administration. They’ll condemn their own self-serving tactics and act contrite once they’ve regained power.
But in the mean time? Anything goes—even if it sets the kinds of repugnant anti-individualistic, anti-democratic precedents that will only serve to undermine the foundational principles of this nation.
(h/t Terry Hastings)
Hey, man. Close that bold and blockquote tag. Site’s gettin’ screwey.
some kind of glitch cut off most of the post. Fixed now.
What are the federal hate speech crimes?
But what this tells me, your fears of ‘reasonable’ aside, is that the court will apply an objective, rather than subjective standard. Thats the opposite of your fears of multiculturalism. Courts use objective standards a lot. One allusion to universities and and the now dead Said won’t change that.
Andrew Sullivan doing a happy dance?
CAIR will also be very happy to outline what is an afront to the “personal dignity” of moslem
terroristsillegallegal combatants.No Jews, women or gay guards/interrogators to start with. Ban Bibles, crosses or any reference to non-moslem church services at the detainee camp least it disturb the peace of the most-peaceable-and-loving beheaders.
I don’t know if this is as serious a problem as is suggested. Certainly, judging by the reaction of the “Shrill Sisters,” Andy Sullivan and Glenn Greenwald, it would appear that the Administration will still, at least in their construction of it, be free to continue to do much of what was done in the past.
By the way, have others noted how of late, Andy Sullivan has taken to praising Glenn Greenwald on all manner of subjects. In Andy’s latest, to paraphrase the words of The Gutman, he manages to crawl so far up Greenwald’s ass that he now qualifies as an internal organ. And given what we now know about both of them, there may be some actual truth in that….not that there’s anything wrong with it.
I don’t disagree that multicult is often used to put a minority POV that is attempting to become dominant on an essentially spurious (because undeserved) equal level with a majority POV. If that’s what you are saying. In that case, we might call multiculturalism affirmative action for ideas.
OTOH,as a devotee of individualism, individual rights, and social libertarianism (even privacy rights) as a bulwark against the capabilities of modern governments to control and interfere with the lives of their people, I must say that any shrink-down of executive power is not going to be greeted with unhappiness in this corner.
If it’s a shrink down. But instead, we’re seeing it move to the Congress and the Court through the transitive property of equality.
So, Steve, you plan on going to Gitmo and rolling up your sleeves and torturing those terrorists yourself, then? C’mon, those terrorists aren’t gonna torture themselves!
Someone’s gotta do it.
And are all candidates who recieve the benefits of AA qualified to perform certain jobs because of their skin color?
No.
The same with ideas. Not all ideas are equally valuable, and the inability to recognize this handicaps liberals and multiculturalists in their ability to judge and weigh good vs. better, or good v. bad ideas.
Hence, AA for ideas is as worthless and counter-intuitive as AA has become.
But the judicial branch can meddle as much as lawyers and activists would like? I don’t see how this is good for individual rights – a democratic process would be better to vet and air grievances that people have with their governments. That is the purpose of legislative bodies, after all – not judiciaries. You know – like the US Constitution prescribed.
I don’t recall where judicial activists are given discretion in the Constitution to “protect individual rights, privacy, check the Executive, can give rights to unclassified and unlawful terrorists that they don’t have under national or international law, etc. Maybe you can show us where in the Const. where these provisions empower the judiciary to do such things. Or maybe Breyer or Ginsburg can just invent them, like magic.
And if you’re looking for the executive war powers, try Article II. It’s a doozy.
TW: You’re not likely to agree.
So its not shrunk down. Its just forced to have more of the properties of those other branches: the stamp of legislative democracy and jurisprudential oversight.
Ohh, are we going to have a full-blown Jefferson vs. Marshall argument? Can we start with Kelo, which took power from courts and gave that power to legislatures and yet was widely touted as against individual rights.
Well of course the executive powers would be there, impliedly. But article I has some on point too.
Would that the judicial branch would stop at oversight and quit legislating and rewriting treaties from the bench on the fly.
To paraphrase Tolstoy, Ghandi, and Aldous Huxley, the more executive power increases, the more individual liberty decreases. Your choice.
Oh, that would be Gandhi. My bad.
Good Lt–
Yes, but it’s still objective because they are magical. And magical creatures, as everyone knows, are more creative.
That would be like Misha talking about Supreme Court Justices.
And ropes. And trees.
All Purpose Post
1234567890-=qwertyuiop[]asdfghjkl;’zxcvbnm,./
QWERTYUIOP{}ASDFGHJKL:”ZXCVBNM<>?
— some assembly required
Rewriting the constitution:
Some assembly required.
Writing Hilary’s memoirs:
Some dissembly required.
Rock. Paper. Scissors.
Some assembly required.
etc.
If the court used objective standards, we woudn’t see so many key rulings on items having to do with race/ethnicity etc. splitting along ideological/political lines.
The federal part of the Hate Speech crimes has to do with gathering data, I think. Which is then marshaled as justification for the need of state hate speech laws.
I don’t think thats criminal.
Found on Ask.com:
Whats meant by objective standard is that we’ll look for how a reasonable person would be treated, not one with particualr sensitivities. So when we use objective standards when analysizing a nuisance, for example, we don’t shut down the dog whistle testing ground because it opens up next to the kennel. Because reasonable users don’t mind dog whistle testing grounds, only those hypersensitive as to run a kennel.
Data gathering sounds pretty objective to me.
No, but it’s hateful. And federal.
2 out 3 doesn’t make it a federal hate crime.
These folks are leftists afterall and as such, they are unreservedly eleitist. Just like the vanguard of the proleteriat was. They only care about getting and keeping power and could give a damn about individual rights, unless ofcourse, it’s their rights we’re discussing.
Why should their tactics be any different?
Paraphrasing mobs aside, what is the practical effect on liberties here and now in these United States of America?
Because to run with that, if we eliminate the Executive, we’ll all be just as free as we can be. Which would be great, until we want something done, like national defense.
Uh, you beg the question, actus. If you are talking about “objective” standards of reasonableness, that’s absurd. Or else we would have already had a list of what is and isn’t allowed.
But instead we have vague descriptors about “outrages” that are dependant upon a number of factors—or at least, so they will be argued.
And of course, the gathering of “hate” data that is then presented to the Congress is precisely the kind of thing that will lead to special classes of crimes, be it on the federal level, or, using the data provided as justification, on the state level.
The fact of the matter is that the judiciary is the only branch of government that has consistently (over the past 40 years or so) stood up for the rights of individuals to be apart from their government.
The legislature has shown its willingness to enact laws at whim (e.g., the Schiavo law from last spring) that are a gross invasion of individual rights, and the executive has shown a willingness not only to take part in such buffoonery but also to promote invasions of privacy under the pretext of national defense or whatnot.
If someone wants to mortgage their individual liberty or freedoms to win the WOT, that’s your choice. I don’t believe it’s necessary.
What you believe about matters that are merely philosophical is of some importance.
What you believe about the survival of this nation, maybe not so much.
actus: “…federal hate speech crimes”
But what are federal hate speech crimes?
Well, I believe the President (and Congress) never should have gotten involved with the Schiavo thing, but just because (a conservative) on the Court got that one right, in my opinion, doesn’t mean that the judiciary has “consistently…stood up for the rights of individuals to be apart from their government.”
McCain Feingold, Kelo, Raich, one of the Michigan AA rulings —four that spring immediately to mind.
ACTUS:
what is the 3rd thing necessary to make it a crime thta is crimimul?
I am hoping that the Bush administrations actions in the face of the Hamdan decision is part of a brilliant Rovian rope-a-dope. Play nice now and show the world how much we respect the law, then use the issue to beat the Dems; send a bill to change the law into Congress and force the bastards to put up or shut up.
As soon as the majority of Americans understand just how bad the decision was, they will be in no mood to be soft on terrorists.
How did that one wind up? I’ll ask again, what is the practical effect on liberties here and now in these United States of America? Be specific, please.
Not to mention 4th Amendment protections gutted in the name of the “War on Drugs,” myriad other violations of the takings clause, and a near-complete refusal to hear any 2nd Amendment cases.
actus: “Its [the executive] just forced to have more of the properties of those other branches
I thought they were seprate but equal? Are you proposing merging the three branches of government?
Kelo is insane. Kelo is treason. Kelo a very good, very direct example of an attack affecting on personal liberties.
ACTUS:
Am I the only person who gives a shit about the rules arround here? The data gathering must be legal! Just being “objective” isn’t enought. It. has. to. be. legal.
I agree Pablo. But I’d rather hear from actus why he’s so comfortable with tearing up the Constitution and doing away with our separation of powers.
I’m sorry to hear that, Adam.
tw: This approach may be hazardous to your serenity.
Okay, so the Bush administration has given up torture and warrantless wiretapping. Look at the bright side, there’s still at least 748 other laws he has the authority to break.
Um, challenging a law is not the same as breaking it.
I think we’re talking about different things. When I say objective standard, I mean that whats banned are things that would outrage the dignity of a reasonable average member of the community. Ie: we would ignore any hypersensitivity of a particular, subjective prisoner. So the question is: does it outrage the dignity of an average/reasonable member of the community that a muslim extremist is interviewed by a jewish lesbian female? THe question is not: does it outrage the dignitity of a muslim extremist to be interviewed by a jewish lesbian femal.
Thats what I mean by ‘objective’. That means we don’t take our standard from the subjective plaintiff, but hte objective member of the community.
So that might be multicult. But the gathering of data isn’t. But even then, its really just a matter of deciding that certain criminal motivations, based on certain categories, are more culpable than others.
In order to have a federal hate crime you need it to be federal, hate, and a crime. Right now I don’t think what misha did was a crime.
No. You’re the one who added ‘the executive’ into my quote. Im talking about their excercise of some power being subject to the other branches. Being subject to the other branches is not merging the branches. They interact—thats how they check and balance each other.
Its also why people who say we should leave our liberties up legislatures are wrong. And so are the people who say that the supreme court takes power away from the elected branches.
I guess you are avoiding the issue, actus.
There really is not that much to avoid. I don’t think what Misha did was illegal. Thats it. It may have been federal. It may have been hate. But I don’t think it was a crime. If you think it violated a statute, I would be very interested in hearing your argument.
I’m talking about this HERE
Gathering data about hate crimes? You think thats illegal?
I would expect the average Gitmo prisoner wouldn’t mind being interrogated by the Jewish lesbian that comes to mind. On the other hand, maybe that is a violation of Article 3 …..
Notes.
#1 I am not trying to give SCOTUS a pass. But to me it’s just obvious that SCOTUS has been the only refuge for individual rights since the Warren court.
#2 Further on the contrary, the executive is always trying to expand its powers, not contract them, and the legislation is always trying to make laws, which, almost by definition, restrict freedoms.
#3 I don’t want to get into a setup describing what I perceive as this White House’s attempts to extend it’s powers. Perhaps later. I have to go make gravy now.
Great thread, but, what’s next?
The Sup’s ruled, and Bush is complying. Now the ball is in his critics’ court. What will they do?
I’ll bet my left sock that, in less than a week, the former critics of Bush’s tough treatment of “detainees” will do a 180 degree flip, in a slick attempt at getting to the right of Bush on this one.
I can’t wait to hear Sullivan pealing, at his (too) purple blog, that Bush should be meaner to non-naturalized terrorists.
(I’ll be nodding in agreement, through tears of laughter!)
-Steve
Not the gathering, the method.
Did you go to the link, actus?
What do you mean, the method?
The method by which we gather the information!
I think its done by compiling statistics from local law enforcement about bias motivated crimes. I don’t know how this could be illegal. But if you would expound on it, that would be very useful.
‘Sensitivity’ can have brutal consequences
Jyllands-Posten wasn’t being offensive for the sake of it… The cartoons accompanied a piece about the dangers of “self-censorship”—i.e., a climate in which there’s no explicit law forbidding you from addressing the more, er, lively aspects of Islam but nonetheless everyone feels it’s better not to.
That’s the question the Danish newspaper was testing: the weakness of free societies in the face of intimidation by militant Islam.
[…]
One day, years from now, as archaeologists sift through the ruins of an ancient civilization for clues to its downfall, they’ll marvel at how easy it all was. You don’t need to fly jets into skyscrapers and kill thousands of people. As a matter of fact, that’s a bad strategy, because even the wimpiest state will feel obliged to respond. But if you frame the issue in terms of multicultural “sensitivity,” the wimp state will bend over backward to give you everything you want—including, eventually, the keys to those skyscrapers.
[…]
One day the British foreign secretary will wake up and discover that, in practice, there’s very little difference between living under Exquisitely Refined Multicultural Sensitivity and Sharia. As a famously sensitive Dane once put it, “To be or not to be, that is the question.”
– Mark Steyn
http://www.suntimes.com/output/steyn/cst-edt-steyn05.html
…
It isn’t “nice” to surrender your children, neighbors, a precious heritage of liberty and respect for life, to nanny state tyrants or sharia enslavers. Wise adults could easily make the case that siding with the enemy over the DoD “experts” (Executive Branch) with traditional, Constitutional, historical warmaking authority – endangering the troops who pay for our freedom with real blood, sweat and tears daily, and most likely prolonging the war – is a “hate crime.”
…
“Those who have long enjoyed such privileges as we enjoy forget in time that men have died to win them.” – FDR
“As is true of most the Left’s values, this ideal of favoring the little guy in a courtroom runs directly counter to a basic Judeo-Christian value. Exodus 23:3 expressly prohibits it: “Do not favor the poor man in his grievance.” – Dennis Prager – “The Left hates inequality, not injustice”
“The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as his liberator, while the wolf denounces him for the same act as the destroyer of liberty.” – Abraham Lincoln
Preface: I am not a lawyer.
But actus, the “reasonable person” standard, while in principle it purports to be objective, doesn’t seem to work out that way in practice so much, does it? I mean, once today’s “reasonable person” has said, “Yes, I am offended,” or “No, I’m not,” how long is it before Times Change and tomorrow’s “reasonable person” has a different view? Or even if you just ask a “reasonable person” from New York City versus a “reasonable person” from Alaska, or South Dakota, or California. A British friend of mine said that when she first moved to the U.S., she was astonished that in such a large and diverse country, people could communicate; over time, she says she learned that they largely don’t. I disagree with her premise – that regional differences impede communication to the point where it functionally no longer exists – but I think it’s self-evident that in establishing a so-called “objective” “reasonable person” standard, the Court has to make subjective choices about which person it means.
It’s an insoluble problem in law, ISTM: in order to settle some questions, you have to establish a standard against which the questions are measured. But often there’s no quantifiable standard to go by (I’m thinking of obscenity here, f’rinstance). So somebody – and it falls to the court – has to create a standard, but knowing that they themselves aren’t supposed to be an oligarchy or anything, they try to whomp up a fictitious person to represent “society.” Which is not possible with any accuracy. So the questions become, who is on the court? And how will those people decide what “society” is? And how often will we, as real society, have to revisit that decision in order to keep the standard current?
TW: It’s beyond me, that’s for sure.