Judge Orders Five Detainees Freed From Guantánamo

[doobs]

It seems to me doobs knows the case is lost, and so has fallen back on hypotheticals and broad abstractions to make what is unreasonable and excessive, appear prudent and normal.

No. You mistake me for someone who supports the Bush detention policy. I do think what Bush has done is a reasonable response to 9/11. I do think that Bush and his advisors thought long and hard about "cons utional niceties" in crafting their anti-terrorism strategies. But I also think Bush discounted the questionable cons utionality to the extent that he thought his policies were necessary. And I believe that that is what a good president should do. This is not to say that I think Bush's policies were the right ones to address the problem; I just don't think we need Hamlet to be our president.

And you're dead wrong about Bush disregarding the courts. Disregarding the courts is what Lincoln did in Ex Parte Merryman.

[doobs]

Even if that might be somehow proveable, I think the ultimate point is that: (1) what has gone on is clearly beyond the scope of Presidential power; and (2) there is an extraordinarily reasonable argument that the cir stances that might have justified that excess have long ago expired.

Even if the immediate aftermath of 9/11 somehow clothed the President with some inherent power to act extra-cons utionally, the emergencies created by that event have long since ended in any meaningful sense. Government was up and running in an orderly fashion shortly thereafter and no exigency appears to have existed to sustain 7 years of conduct that finds absolutely no cons utional authorization.

As I've noted with my concerns with Cheney, Addington, and Yoo -- the latter of whom is now out of government -- there seems to have been, all along, a desire to expand Presidential power beyond its recognized cons utional limits and 9/11 has proven to be some sort of panacea for those needing a basis to argue for those extensions.

I agree that Yoo wanted to legitimize or codify a substantial expansion of presidential power through the whole unitary executive theory. Just to be clear, that is not the argument I have made. I have been discussing the practical exercise of presidential powers outside of the cons utional framework--that is, powers informally ceded to the president without any cons utional authority.

We live in a democracy that cares about the rule of law . . . but there is no independent authority of the Cons ution, it really is just a piece of paper. The Cons ution--and judicial review--matters because the parties agree to acknowledge its authority. In times of crisis, or if the president has enough domestic support from the people and Congress, the Cons ution is no real impediment to enacting pretty much any law.

[Winehole23]

I agree that Yoo wanted to legitimize or codify a substantial expansion of presidential power through the whole unitary executive theory. Just to be clear, that is not the argument I have made. I have been discussing the practical exercise of presidential powers outside of the cons utional framework--that is, powers informally ceded to the president without any cons utional authority.

I think I'm starting to get you, doobs. This sounds very much like Carl Schmitt. The sovereign decides the state of the exception (to normal cons utional order). Whoever rules in the emergency has the real power.

Cons utionalism is no doubt a form of political romanticism. But I would argue the clear-eyed cynicism that seeks to debunk it leads to even worse results.

We live in a democracy that cares about the rule of law . . . but there is no independent authority of the Cons ution, it really is just a piece of paper.

This is internally contradictory, and it is contradicted by what you write below. Do the people have power or not?

The Cons ution--and judicial review--matters because the parties agree to acknowledge its authority. In times of crisis, or if the president has enough domestic support from the people and Congress, the Cons ution is no real impediment to enacting pretty much any law.

If the people and the Congress support the President, that is real political legitmacy, even if the Cons ution is cast aside and with it, possibly, republican government.

Of course, all of our so-called natural rights are not natural at all, but are granted to us and protected by the state. I suppose the Cons ution is no real impediment to their being revoked at any time. But shouldn't it be?

[Winehole23]

I guess what I'm trying to get at is, granted that political necessity or expediency may from time to time overtake the cons ution, doesn't that make it all the more important that we care about it? That the cons ution is incapable of defending itself is no reason to cede to raw power.

In my mind, the political will behind our form of government is not just one contingency among others, but is a moral and political sine qua non. If we still care about our traditional rights and liberties, we can't really do without it.

Force may defeat republican will, but in that case force is its own legitimacy -- which is to say, totally illegitimate.

[Winehole23]

And you're dead wrong about Bush disregarding the courts. Disregarding the courts is what Lincoln did in Ex Parte Merryman.

What Lincoln did is tangential. Did Bush conform to the law after Hamdan? No. Instead, the MCA of 2006 was drafted to make the law conform to the Bush policies of indefinite detention and torture, enforceability for Geneva Common Article 3 was gutted, and detainees were denied habeas to prevent discovery. If that's not contempt for the law I don't know what is.

Anyway, characterizing Bush's contemptuous refusal to abide the four judgments I cited as respect for the rule of law strains credulity. Are you familiar with the cases or their aftermath? Your fiat denial cuts no ice with me, and your Prince of Denmark strawman is merely absurd.

Your posts do not disclose much in the way of factual detail, and in the thread you seem more at pains to avoid questions that are put to you than to answer them. This hurts your persuasiveness, despite your considerable rhetorical facility.

Anyway, thanks for your reply, doobs. I look forward to the next time.

WH23

[doobs]

What Lincoln did is tangential. Did Bush conform to the law after Hamdan? No. Instead, the MCA of 2006 was drafted to make the law conform to the Bush policies of indefinite detention and torture, and detainees were denied habeas to prevent discovery. If that's not contempt for the law I don't know what is.

Anyway, characterizing Bush's contemptuous refusal to abide the four judgments I cited as respect for the rule of law strains credulity. Are you familiar with the cases or their aftermath? Your fiat denial cuts no ice with me, and your Prince of Denmark strawman is merely absurd.

Your posts do not disclose much in the way of factual detail, and in the thread you seem more at pains to avoid questions that are put to you than to answer them. This hurts your persuasiveness, despite your considerable rhetorical facility.

Anyway, thanks for your reply, doobs. I look forward to the next time.

WH23

Nice try.

[ElNono]

This administration has had a complete disregard for the law and the Cons ution. It took the NY Times disclosing the NSA wiretap program for this administration to have it run by Congress under FISA once again. Their complete blocking of any investigation on the DA firings is another gem. Then you have Gonzalez trying to explain with a straight face that the Habeas Corpus right is not intrinsically afforded by the Cons ution. You have an absolute misuse of National Security Letters by the FBI, as reported by the GAO. You have Gitmo and the suspension of Habeas for over 5 years, for a bunch of people there that should not been there at all once a court of law reviewed the evidence, yet the government keeps on appealing these cases.
I certainly don't remember more somber times for our Cons ution while the Judicial was working fully. There's no justification for so much opaqueness and secrecy that this administration pursued.
I'll certainly remember them for ting on the Cons ution when they're gone. And they can't be gone soon enough.

[FromWayDowntown]

I agree that Yoo wanted to legitimize or codify a substantial expansion of presidential power through the whole unitary executive theory.

Frankly, I don't think that was Yoo's idea at all. I think the idea was concocted by Addington (as a proxy for Cheney) and Yoo was their man on the inside at OLC to make things happen without direct White House involvment. Yoo's a pawn in the unitary executive push -- a willing one, but a pawn nonetheless.

Just to be clear, that is not the argument I have made. I have been discussing the practical exercise of presidential powers outside of the cons utional framework--that is, powers informally ceded to the president without any cons utional authority.

I understand the distinction you make, but I think that the practical credibility of that specific argument is undone by the notion that some emergency persists 7 years after 9/11 that warrants extra-cons utional actions by the Executive. I suppose, in the end, that while I don't agree with your basic premise as a matter of cons utional virtue, I can see it's application in certain moments as a matter of cons utional pragmatism. But the moment for that approach to the Cons ution has passed -- long ago -- for this President; at bottom, his policies vis-a-vis the GWOT are downright disdainful of the cons utional limits on his office and the policies that emanate therefrom. You and I, I suppose, have a fundamental disagreement about that point.

We live in a democracy that cares about the rule of law . . . but there is no independent authority of the Cons ution, it really is just a piece of paper. The Cons ution--and judicial review--matters because the parties agree to acknowledge its authority. In times of crisis, or if the president has enough domestic support from the people and Congress, the Cons ution is no real impediment to enacting pretty much any law.

To the extent that you're saying that we exist as a Cons utional republic at the whim of our leaders -- who are responsive at some level to the electorate -- I can't disagree with you. But I fundamentally believe that our society continues to function because we choose, at all times, to be bound by the Cons ution. You're right in citing to the pla ude that our Cons ution is not a suicide pact; but with that said, the Cons ution also cannot function if it is easily disregarded as "just a piece of paper." What primarily threatens the latter is the choice of elected officials to cite exigency, whether one exists or not, as a basis to ignore the fundamental rights that the Constution protects.

Here, there's nothing to suggest to me that any exigency still exists to support disregard of fundamental cons utional principles. Given that, I'm left with a President whose administration has simply chosen to act extra-cons utionally under the guise of an emergency that no longer exists -- i.e., an administration that chooses to see the Cons ution as a non-limiting do ent instead of a clear guideline to constrain its conduct and policies.

That view, I think, is corroborated by the two other things that I've noted in this thread: (1) the efforts by Addington and Cheney (through Yoo, in some cir stances) to vastly expand Presidential power; and (2) the careful crafting of policies and orders to deprive those affected by them of any means to establish standing to challenge those efforts.