Dear U.S. Senators Bennett, Crapo, Hatch, Smith, and U.S. Representatives Bishop, Cannon, Doolittle, Flake, Gibbons, Herger, Istook, Matheson, McKeon, Simpson:

September 29, 2006 | 109 comments
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I can’t believe you people.

I don’t normally go in for “Mormons vs. America” grandstanding. When I think about politics and the restored gospel, I’m far more interested in working through theological problems that are every bit as much present in our own faith as they are continuous with the whole Christian political tradition. I think setting up Mormonism as one more interest group fighting for its rights within the liberal order is silly.

But the heck with all that.

Yesterday and earlier today, you people–all of you members of the Church of Jesus Christ of Latter-day Saints–voted to hand the executive branch of this country powers over imprisonment, trials, secrecy, and much more, far beyond anything which the “wise men….raised up” for the purpose of establishing this country and this Constitution would have ever considered. You have voted to allow the President of the United States to suspend the writ of habeus corpus when it comes to prosecuting certain defendants (as identified by the president), to strip the jurisdiction of the country’s courts when it comes to dealing with certain defendants (again, as identified by the president), to say nothing of what the bill you helped to pass allows insofar as torture, detainment, arbitrary arrest, coerced evidence, and all the rest is concerned.

Yes, yes, I know. The war of terrorism is real. I’m not one of those who dismiss without a thought the civilizational aspects and stakes in this conflict. While I think any Christian ought to be appalled at the very idea of torture, I admit that intelligence gathering is almost by definition a difficult and dangerous process, and that grey areas may be necessary. I even acknowledge that the prospect of putting Khalid Sheikh Mohammed on public trial would be problematic in the extreme. But still….don’t you get it? When the executive branch has the power to identify a U.S. citizen as an unlawful enemy combatant, lock them up secretly, use illgeally obtained evidence against them, interrogate them in ways that get to be defined for the most part solely by the executive branch itself, etc., you have established a precedent that can, and probably will, be used at other times, in other contexts. Against “home-grown” terrorists, perhaps. Against people who provide “material support” to enemy groups. Against people with dangerous beliefs. Against religious crazies. Against, well….Mormons.

You all know what the latter-day prophets have said about the U.S. Constitution, right? You all know how bitterly Joseph Smith railed against local officials who winked at mobs and refused to respect proper legal procedures, refused to grant him fair trials, refused to require his enemies to produce real evidence (which is what habeus corpus is all about), right? You did learn all this in Sunday School, right?

(And no, Senator Smith, you don’t get off by whining about how you wanted to strip the habeus corpus provision from the bill before you ended up supporting it; your job is to legislate, not to play with fire while promising your constituents that the Supreme Court will force you to repair what you did to the Constitution today at some later date. That’s the way children talk, not adults.)

I focus on you 14 legislators (and send praises to Senator Reid and Representatives Mark and Tom Udall, Mormon politicians who decided not to play games with our freedoms) because, like it or not, the religion we share forces us to be invested in the United States and the U.S. Constitution. Whatever God’s purposes in guiding the families of Lehi and Jared, and Columbus, and the Pilgrims, to a promised land, it was not for secret trials with hidden evidence and coerced confessions. The Salem witch trials were not the pinnacle of American Zion.* Neither was Lincoln’s casual use of martial law. Neither was FDR’s internment of Japanese-American citizens. All of the above can be explained, of course; perhaps they can even be defended, as you all presumably would defend your votes in this time of paranoia and fear. But I strongly doubt Joseph Smith would be convinced by any such defense. Sorrowful to hear it, but not convinced.

*I owe these lines to Jonathan Green.

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109 Responses to Dear U.S. Senators Bennett, Crapo, Hatch, Smith, and U.S. Representatives Bishop, Cannon, Doolittle, Flake, Gibbons, Herger, Istook, Matheson, McKeon, Simpson:

  1. Jonathan Green on September 29, 2006 at 2:26 pm

    Russell, I couldn’t have said it better myself.

  2. Guy Murray on September 29, 2006 at 2:37 pm

    THANK YOU RUSSELL!!!!!! Be prepared for an onslaught. But keep in mind there are many who support exactly what you have so elequently written here!!!!

  3. Kaimi Wenger on September 29, 2006 at 2:37 pm

    Russell,

    Nice post.

    However, I’m not sure that I’m convinced as to Joseph Smith. I suspect that the Joseph Smith who ordered the Nauvoo Expositor destroyed could be viewed as a proponent of a strong executive power.

    And another legal quibble: Most, in fact just about all, of today’s evidentiary protections weren’t around in JS’s day to protect him. They’re the result of incorporation of the Bill of Rights against the states, which didn’t happen till later. So I’m not sure it’s accurate to try to bring JS’s complaints about the constitution to today.

  4. Russell Arben Fox on September 29, 2006 at 2:48 pm

    “I suspect that the Joseph Smith who ordered the Nauvoo Expositor destroyed could be viewed as a proponent of a strong executive power.”

    I do not think that Smith’s understanding of what he ordered then has many parallels to how President Bush, et al, appear to understand what they need to do today, through this bill and others. I don’t necessarily have a problem with a strong executive….assuming it is an expression of a strong, participatory, and morally committed community. Smith’s action was a populist one; it was about identity and the local social order. But the executive powers which President Bush has insisted are necessary today have nothing populist about them; they are secret and elite–in fact, they’re whole point is to take certain matters away from the public view.

    “Most, in fact just about all, of today’s evidentiary protections weren’t around in JS’s day to protect him. They’re the result of incorporation of the Bill of Rights against the states, which didn’t happen till later. So I’m not sure it’s accurate to try to bring JS’s complaints about the constitution to today.”

    Why not? Just because Smith misunderstood how 19th-century constitutional jurisprudence conceived of the writ of habeus corpus doesn’t mean he was wrong when he complained about how it was (mis)applied to him. If anything, we Mormons should be especially concerned about what becomes of such evidentiary protections as we have today because they are, for the most part, exactly what our founding prophet thought the Constitution ought to have been providing him with. In a sense, the country eventually came around to Smith’s argument. We don’t want to lose that advance, do we?

  5. john f. on September 29, 2006 at 2:52 pm

    With that caveat that I agree with Kaimi’s note, I’d like to thank you Russell for this needed piece. I have been dismayed that LDS politicians went with this. The terrorists have won if they can force such a fundamental change in our societal framework.

  6. Jeremy on September 29, 2006 at 2:58 pm

    Thank you Russell. If there ever were an excuse for righteous indignation, and ever an example of unrighteous dominion, the current situation is it.

  7. All vigilant members on September 29, 2006 at 3:04 pm

    AMEN.

    Of al the people on all the earth, the good LDS members are the ones who have had the best teaching and most instruction on the importance of protecting our freedom and others also.

    Shame on the these men. What goes around, comes around.

  8. Seth R. on September 29, 2006 at 3:09 pm

    I agree with Russel.

    Now we have only to wait for the apologists to surface and argue why the “war on terror” allows Bush to deflower our daughters…

    Yes. I know that statement is grossly unfair. I don’t feel particularly “fair” right now.

  9. John Taber on September 29, 2006 at 3:10 pm

    Flake voted yes? I happened to surf by last night on C-SPAN and it looked like he was coming out against, for all the same “good Constitution” reasons stated here.

  10. Jared* on September 29, 2006 at 3:14 pm

    Another Amen.

  11. Mike on September 29, 2006 at 3:22 pm

    I agree with the elected Senate and President Bush. Don’t have time to explain, but I think I am not alone, this close to the election. I served in the military which is a big influence on how I think about this. Perhaps this blog is more Liberal than you think. Or else more chicken-hearted.

    I also don’t think you have a right as a Mormon to rebuke a Utah Senator unless you live in Utah. They represent us as citizens not as members of the church.

  12. john f. on September 29, 2006 at 3:24 pm

    deflower our daughters? What are you talking about, Seth?

  13. Russell Arben Fox on September 29, 2006 at 3:29 pm

    Indeed, Flake voted yes–as did Rep. Matheson, the Democrat from the 2nd district in Utah. I mistakenly left him off my list originally; now he’s been added.

  14. MMF on September 29, 2006 at 3:36 pm

    I think we do have a right to rebuke Senators who share our religion, even if we don\’t live in Utah, because, like it or not, they are public figures and de facto representatives of our Church. What they do reflects on all of us, whether we like it or not. And I, for one, get tired of explaining that I don\’t actually agree with everything the Republican senators from Utah believe, even if I am Mormon, too.

    I\’m sure the veterans of WWII also agreed with FDR for putting away Japanese-Americans. Doesn\’t make it right.

  15. Russell Arben Fox on September 29, 2006 at 3:37 pm

    “I also don’t think you have a right as a Mormon to rebuke a Utah Senator unless you live in Utah.”

    But I didn’t reproach any of them for being bad senators or representatives, Mike. I didn’t say anything at all about how adequately they have represented the will of their constituents. I made an argument against their votes based on Mormon experience, appealing to their Mormon identity. True, they aren’t elected on the basis of their Mormonism. But that doesn’t mean I can’t criticize them on that unique basis all the same. (Clinton’s job as president as outlined in the Constitution didn’t involve his being a good husband, but that doesn’t mean we didn’t have the right to criticize him for adultery on the basis of how we believe good husbands should behave regardless.)

  16. Brian Duffin on September 29, 2006 at 3:38 pm

    Well said, Russell! Well said!

  17. JKC on September 29, 2006 at 3:39 pm

    Thank you.

    I was not surprised to learn this morning that the senate had actually passed the thing; but I have been surprised at how much it has affected me today. I feel deeply sad, depressed, betrayed. My mind is swimming with lines and images from Julis Caesar, Yeats’ The Second Coming, 1984, Margaret Atwood’s Handmaid’s Tale (and other writings), and the Book of Ether. I feel like I we’ve sold our birthright for a mess of political pottage. What shall it profit a nation if it shall gain the whole world and lose its own soul?

    I know I’m being melodramatic, but this is truly sad.

  18. bbell on September 29, 2006 at 4:05 pm

    Russell,

    I think you are out of touch with the LDS mainstream as demonstrated by the overwhelming percentage of LDS members of congress who voted in favor of this needed legislation.

    The writ of habeus corpus for non -uniformed terrrorists captured on the battlefield. PLEASE

    My grandfather witnessed the lawful executions of nazi soldiers dressed in US uniforms during the battle of the bulge. No trials

    This law is nothing by comparison

    Our enemies must enjoy the spectacle of us endlessly debating how to deal with captured terrorists. Makes us look weak in their worldview.

    I am afraid that wimpy left wing attitudes are going to result in many western countries the imposition of portions of Sharia law. Its already starting in the EU with Western women starting to wear the Burka while out in many large western capitals

  19. Eric Russell on September 29, 2006 at 4:09 pm

    Don’t forget John McCain! I mean, he’s not Mormon or anything. But surely he must be confused about the contents of the bill if even he – the most outspoken Senator against torture on either side of the line – supported such torturous legislation as this.

  20. endlessnegotiation on September 29, 2006 at 4:11 pm

    Russell:

    None of your claims in your fourth paragraph are substantiated by a reading of the text of either of the bills in question. I invite you (or anyone else) to provide specific examples from the text to suppport the claims you made.

    You wrote, “When the executive branch has the power to identify a U.S. citizen as an unlawful enemy combatant…” Read the law. That can only happen if said US citiczen is picked up on a foreign “battlefield.” The Marines can come bust down the doors of some poor slob in Bowling Green, KY and declare him (it usually is a him) an enemy compatant. In the US with US citizens the appropriate constitutional protections still apply. Look no further than the case of the two teenage jihadist from Georgia.

    The are plenty of other mistaken assumtions and I’m sure I, or someone else, will get a chance to debunk them all.

  21. Jay S on September 29, 2006 at 4:12 pm

    Bbell said “I am afraid that wimpy left wing attitudes are going to result in many western countries the imposition of portions of Sharia law. Its already starting in the EU with Western women starting to wear the Burka while out in many large western capitals”

    I don’t mean to doubt your veracity, but a cite for this particular assertion would be great.

    I am all for safety, but if we sacrifice the rule of law and promise of liberty for safety, we have allready lost.

  22. endlessnegotiation on September 29, 2006 at 4:13 pm

    that should read “The Marines CAN’T…”

  23. Jack on September 29, 2006 at 4:16 pm

    So they cart you away in a Continental, put you in a cold room, and blast the “Red Hot Chile Peppers” at you for three days straight. Sheesh, who needs the Constitution when we’ve got the Geneva convention?

  24. ECS on September 29, 2006 at 4:18 pm

    I’m horrified at how “national security” has become the buzzword to justify and ram through all kinds of barbaric legislation. Stop scaring us into believing we must torture terrorists to protect our freedom! The “war” in Iraq is making us less safe, and legislation like this is counterproductive and morally repugnant.

    #16 – If the LDS mainstream supports legislation like this, they’re not paying attention in Church.

  25. Mark B. on September 29, 2006 at 4:20 pm

    One minor quibble:

    How many of those politicians self-identify as Mormons? I know the obvious ones, but, for example, what about Matheson? I know his ancestors were Mormon pioneers, but was his father? I don’t know.

    And the Udalls. I know that one branch of that family are faithful active church members, but I thought the Mo Stew bunch had taken their leave a half century ago.

    On to the substance:

    It’s odd to use the gross immorality of warfare as the standard for deciding when a law is good. I suspect that any of our fathers/grandfathers who fought in Europe or the Pacific in WW2 could tell us of worse examples than the shooting of Germans in US uniforms. (By the way, bbell, they were Germans, not necessarily Nazis.)

    Second, who knows if the guy who is arrested is a terrorist? I suppose if you know that he’s a terrorist, and you capture him on the battlefield, you may as well shoot him on the spot and save the cost/trouble of making him a POW. But that’s the problem–we don’t know if the prisoner is a terrorist.

    I’d be interested in knowing which non-Muslim western women are wearing the Burka when walking around Paris or London or Brussels or Madrid. The real question, of course, is whether they also wear the Burka when they’re at the topless beaches in Greece.

  26. Kaimi Wenger on September 29, 2006 at 4:25 pm

    Mark,

    Yes, but only a half-burka. One must dress appropriately for the location.

  27. Eric Russell on September 29, 2006 at 4:27 pm

    “If the LDS mainstream supports legislation like this, they’re not paying attention in Church.”

    Paying attention to what in Church? Can you offer us anything specific?

  28. ECS on September 29, 2006 at 5:27 pm

    #27:

    “O God, the Eternal Father, we ask thee in the name of thy Son, Jesus Christ, to bless and sanctify this bread to the souls of all those who partake of it; that they may eat in remembrance of the body of thy Son, and witness unto thee, O God, the Eternal Father, that they are willing to take upon them the name of thy Son, and always remember him, and keep his commandments which he hath given them, that they may always have his Spirit to be with them. Amen.”

  29. bbell on September 29, 2006 at 5:44 pm

    never heard the sac prayer used to justify a political position.

    That is a new one….. and a massive overreach….

  30. Drex Davis on September 29, 2006 at 5:53 pm

    Did they vote their conscience or the will of their constituents?

    Should they vote their conscience or the will of their constituents? After all, they represent the people in their states/districts. I haven’t seen the polls. Where did most Americans come down on this issue?

    As an American people, we get to reap the consequences of our collective will, manifest through those we’ve sent to represent us. There are surely many trade-offs. But what of the very real threat of enemies infiltrating us under the pretense of citizenship? Terrorists have shown they will go to any length to dissemble and infiltrate. Are we not then allowed to deal with them as enemy combatants because of their citizenship status?

    There are two sides to this coin. I do wonder where many of our wartime book of mormon heros would’ve come down on this, Captain Moroni, etc.. After all, they did have their fellow citizens, king-men executed. Without trial, I presume (not even a shadowy, secret, one).

    For the record, I don’t know where I come down on this issue yet. But I think it’s too much of a stretch to say that this flies in the face of LDS doctrine, or even America-centric LDS beliefs . . .

    The proof will be in the pudding.

  31. ECS on September 29, 2006 at 5:53 pm

    LOL – bbell, Jesus’ message _is_ a political position. Choose you this day, etc.

  32. Jenna on September 29, 2006 at 5:54 pm

    #11 \”Perhaps this blog is more Liberal than you think. Or else more chicken-hearted.\”

    Maybe this comment doesn\’t even deserve a response, but here one anyway.

    How, exactly, is it chicken-hearted to refuse to do something approaching torture to someone who is shackled and imprisoned?

    Why is it \”Liberal\” to demand that our government follow judicial tradition of protecting the rights of the accused? Isn\’t it simply \”American\”? If that is what the word \”liberal\” means, then sign me up. Maybe that\’s why George Clooney said \”liberals don\’t have to put the word \’compassionate\’ in front of the word to indicate that they give a s*** about people.\”

  33. gomez on September 29, 2006 at 6:14 pm

    I agree with what Jenna said. I don’t get why its considered chicken-hearted or wimpy to be opposed to this bill. In fact in my mind it shows greater strength to say that in the face of evil I won’t let my principles of freedom and fairness be changed.

  34. wilt on September 29, 2006 at 7:11 pm

    RE: #11:

    As one who served – and retired from – the U.S. Army I take exception to your characterization of those opposing this ill-conceived legislation as perhaps “chicken-hearted.� With all respect, you lack standing to determine the intestinal fortitude of the rest of us.

    I volunteered for and served in Saudi Arabia, occupied Kuwait, and a portion of Iraq during and just after the first Gulf War. I would have happily served in Afghanistan were I not already old, broken and retired. I too have views based on my military service – and they, along with my LDS membership and thoughtful consideration, bring me to the Democratic Party and efforts.

    People of good will may disagree without being morally deficient or cowardly.

    More to the point in this thread – if we allow the adversaries to determine our actions and how strictly we will follow the rule of law, the nation has already lost.

    wilt

  35. Tyler W. on September 29, 2006 at 7:33 pm

    I would have voted in favor of this legislation. If a terrorist has information that might save lives, then torture may be necessary. I’m not talking about cutting off fingers or of breaking legs. I’m talking about loud music, cold rooms, sleep deprivation, or possibly waterboarding. Saving lives is more important than giving a terrorist his rights. The war on terror is making us safer (we haven’t been attacked since 9/11), and legislation like this is NOT counterproductive or morally repugnant.

  36. john f. on September 29, 2006 at 7:38 pm

    I actually really like chicken hearts. If they ever bring them around at Rodizio’s Brazilian Grill and Cafe, take a few.

  37. DavidH on September 29, 2006 at 7:38 pm

    Russell,

    I fully agree with your post.

    EndlessNegotiation (20)

    Could you please point me to the specific language in the bill that limits “enemy combatants” to those captured on the battlefield?

  38. HP on September 29, 2006 at 7:39 pm

    To be honest, I think McCain passed it because he thinks that he will be the next president to implement it and he trusts his own judgment. I also think that it is deliberately vague and he may have been told that Bush would interpret it to a certain standard that he find acceptable.

    Once again, torture is not now nor should it ever be a political issue. I used to consider it trite or condescending to say things like “I oppose torture,” because…well, duh. Yet, somehow, it has become a debatable topic. In the next few years, maybe we’ll begin to debate whether racism is bad or some other apparently self-evident truth.

    Sorry to go off on an off-topic rant. Russell, I too am scared of this legislation. I am also more afraid of how future administrations will use it than how this one will.

  39. john f. on September 29, 2006 at 7:44 pm

    HP, according to Boston Legal, that day is already come, though I have my doubts (see final scene in recent “midget” episode).

  40. Silus Grok on September 29, 2006 at 7:50 pm

    #30 Drex… shame shame: you must realize that the forefathers installed a republic for just this sort of purpose — to subdue mobacracy, and to allow ( supposedly ) cooler heads to prevail.

    But it’s election time in a republic that has succumbed — heart and soul — to partisanship. It’s no longer about the constitution or even the best course of action. It’s all about supporting your party at the cost of all else.

    I’m heartsick… We’re selling our birthright for a bowl of lentil soup. We’re not even as smart as the people of King Noah — he at least bought their acquiescence with state-funded hedonism. What have we been given here? Nothing: wars and rumors of wars… war mongering and fear mongering… the vain promise of safety. And brought to us by whom? An administration who lied to us to get into a war they had planned to fight before 9/11… who continue to lie to us about almost every aspect of our so-called war on terror… who look the other way when our troops engage in disgusting and inhumane acts and when our contractors use slave labor to staff our military bases and public-works projects. Are we safer? No. Are our children safer? No. Will torture really make us any safer… probably not.

    At last report, three-quarters of the detainees at Guantanamo were mistakenly taken… but have yet to be returned home. How many of these were tortured? Will they speak kindly of us to their kin? Will they teach their children to love or hate America.

    America used to be a shining light on the hill… and now we’re a curse and a by-word… a punchline.

  41. Jenna on September 29, 2006 at 7:51 pm

    #35

    Your logical problems aside [i.e. because we haven’t been attacked in 5 years, therefore the war on terror is making us safer] there is a fundamental flaw to what you say.

    The ends do not justify the means when you are claiming to take the moral high ground, spreading democracy throughout the world. I have actually worked with victims of torture [giving legal aid] and I can tell you that one of the consoling thoughts that I had as I slogged through the gruesome details was that we [Americans] were better than that. And we are. Or we should be, anyway. We cannot start wars that are in part to spread our “better way of life” unless we do indeed have a better way of life. It is not weakness to take the moral high ground. It is strength. And we have a far better chance of spreading democracy throughout the world, and thus decreasing the threats to us, if the world sees us as moral and consistent.

  42. Rob on September 29, 2006 at 8:15 pm

    Russell, its been years since I posted here–mostly because I was much quicker to wrath than the crowd here about current administrative overreaching and warmongering. Good to see you with your ire up. Finally.

  43. Ronan on September 29, 2006 at 8:17 pm

    Take a look at the link on BCC’s sidebar, “what waterboarding looks like.”

    America and the Khmer Rouge. I applaud Russell for his post, and thank all my American friends who will not let this go by unnoticed.

  44. Nate Oman on September 29, 2006 at 9:10 pm

    “I don’t necessarily have a problem with a strong executive….assuming it is an expression of a strong, participatory, and morally committed community. Smith’s action was a populist one; it was about identity and the local social order. But the executive powers which President Bush has insisted are necessary today have nothing populist about them; they are secret and elite–in fact, they’re whole point is to take certain matters away from the public view.”

    With all due respect, this strikes me as a rather lame attempt to maintain the legitimacy of populist credentials while making frankly liberal arguments. Bush enjoys considerable popular support for the idea that one should deny certain civil liberties in order to prosecute the war on terror. Furthermore, there is considerable popular support for giving the executive the power to do this secretly. Much of it strikes me as quite misguided, but it doesn’t strike me as anti-populist.

  45. Morgan on September 29, 2006 at 9:40 pm

    “Be prepared for an onslaught. But keep in mind there are many who support exactly what you have so elequently written here!” (See second comment).

    I think it’s funny that was said when in reality the majority of the comments have agreed with what Russell said and have praised him for posting it. That seems somewhat ironic.

  46. queuno on September 29, 2006 at 9:58 pm

    With reference to bbell’s comment, I guess I’m glad that I’m out of step with the LDS mainstream.

    I also pay a faithful tithe, attend the temple monthly, do my home teaching every month, read my scriptures and pray daily, and we have FHE weekly. The “mainstream” LDS aren’t as “faithful” LDS as the stereotype — ask your average bishop.

  47. Jeremy on September 29, 2006 at 10:00 pm

    I have four points to make:

    1) Tyler W.: We have been attacked since 9/11. Five people were killed by anthrax. There are no leads as to who did it, which suggests we’re completely unprepared to prevent it again. And expanding our scope beyond the borders of our own country: terrorist incidents worldwide have increased since 9/11, with a particularly sharp uptick in the last two years (or, to put it more polemically, since Abu Graihb). The NIE makes clear that U.S. actions in Iraq have exacerbated terrorist activities and been a catalyst to jihad. I hate Bill Maher, but he got it right recently: he observed that after 9/11 Bush said “If you’re not with us, you’re against us.” And in the last four years, muslims across the world have though “Well, I’m not with him, so…”

    2) Everyone who supports this legislation misses a fundamental principle of American justice even in the very language they bring to the discourse: they talk about the rights of “terrorists” as if it’s a forgone conclusion that anybody the military picks up on foreign soil is one. And if there’s one thing our justice system is against, it’s forgone conclusions. We’re not talking about the “rights of terrorists,” we’re talking about the rights of people accused of terrorism, and their access to a system that will determine, fairly, if they are in fact terrorists.

    3) bbell says: “Our enemies must enjoy the spectacle of us endlessly debating how to deal with captured terrorists. Makes us look weak in their worldview.” This is a valid argument only if one’s sense of self and one’s sense of ethics is based, like Bush’s seems to be, on ego (i.e., “Bring’em on!”). Do we really care whether the terrorists are neener-neenering?

    4) The goal of terrorists isn’t to kill. The casualties are a by-product, in their mind. In the terrorists’ minds, the targets of 9/11 weren’t the 3000 people who died in the trade center five years ago, but the millions of people who live in fear today — and who allow that fear to trump every other rational and ethical impulse. To quote a recent writer whose name escapes me, “The goal of terrorists is to terrorize, and in this effort the current administration has been entirely explicit.” That we would resort to torture in response to their threat shows how successful they have been.

  48. Russell Arben Fox on September 29, 2006 at 10:07 pm

    Nate,

    I should have figured my comments would raise your eyebrows.

    “Furthermore, there is considerable popular support for giving the executive the power to do this secretly. Much of it strikes me as quite misguided, but it doesn’t strike me as anti-populist.”

    To continue our long-standing debate…it is, I think, a common mistake is to assume that doing anything that is “popular” must, by definition, be “populist.” I’ll grant that there is a fine line between outright majoritarianism and an authentic populism, but there is a line there nonetheless, and it is an important one; ignoring it allows one to say that any thug who issues rabble-rousing slogans–a Hugo Chavez, for example–is thus a populist, and therefore enables one to discredit populism as a whole. Populism is not about doing what the majority wants; populism seeks to empower the majority, which is not the same thing. So a powerful populist executive busts up oppressive monopolies (Teddy Roosevelt), crusades for social welfare programs to give new immigrants a leg up in society (Jane Addams), urges tariffs to product locally goods (W.J. Bryan). Some of those programs were, at the time they were advocated, highly popular; others were not.

    Over the last five years, President Bush has worked mightily to make it appear that his efforts to increase the power of the executive, loosen our obligations to international treaties, and identify his political enemies as traitors, has all been to serve the people. If “serving the people” means removing the struggle with terrorism from their sight and their involvement, then I suppose he’s succeeded. He may even be very popular for that reason. But little of what he’s done genuinely strengthens the people; on the contrary, it has made them ever more dependent on bureaucracies and agents that operate outside the law and democratic politics. Not populist by a longshot.

    And if you think that’s all hogwash….fine. I may be a communitarian, but I’m a liberal communitarian, and at this point, the liberal part of me is pissed. (I’m going to have to write about this on my own blog, I guess.)

  49. Jeremy on September 29, 2006 at 10:11 pm

    I can’t resist adding an indulgent speculation:

    Imagine if we reacted to school shootings using some of the arguments being put forth by conservatives in favor, er, “para-Constitutional” anti-terror methods. I mean, if we can round up dozens of brown-skinned folks in the middle-east and deny them habeus corpus because one of them might be a terrorist, why can’t we round up all the white kids in black trenchcoats and Marilyn Manson t-shirts, just in case? And what if we heard somebody was plotting a school shooting, and we thought there was a chance some kid might have some information, could we torture him to get information out of him?

    Or couldn’t we at least close the gun-show loophole or impose waiting periods? But wait, some might say, if we did that, we’d be threatening the Constitution…

  50. Ivan Wolfe on September 29, 2006 at 10:21 pm

    Boy – there have been a lot of these posts around the Bloggernacle lately. Mainly, they aren’t intended to sway the undecied middle, or even serve as points for serious discussion. Their main point is to show how morally superior the posters are over Bush and his supporters.

    It’s the “look at me! I’m one of the good guys! You who support Bush, are (however) evil and wrong or at least seriously misguided and need to listen to my superior wisdom.”

    This sort of “me too” political posturing is rather boring, adds nothing to the discussion, and frankly sickens me. Rather then reflexively condemn all things Bush, it might be nice if someone spent the time to try and figure out why Bush and those who support him feel the way the do and want the policies they want.

    But that might take actual effort and serious thought. Much better to proclaim your superior moral insight over the tools who dare think maybe Bush is right.

    Yeah, my comment is a bit harsh. But it’s tame compared to posts like this (at least this post didn’t claim to see sacraficial fires in Bush’s eyes).

  51. Ivan Wolfe on September 29, 2006 at 10:43 pm

    [and I should add, even though some people in the bloggernacle will and have accussed me of lying or being disingenuous on points like this, I do not like the new legislation discussed here nor do I care for the current state of the war on terror. But what I like even less is this hyper-partisan “look at how more enlightened than I am than those bad people over there” commentary that has flooded the bloggernacle on lately. It attracts lots of “Right on! You rock!” cries from those who already agree with you, but other than a nice anger high, it actually makes serious discussion of the issue less and less likely.]

  52. Chad Too on September 29, 2006 at 10:49 pm

    Ivan,

    Wanna know what takes actual effort and serious thought? Responding to Russell’s actual and serious points rather that just writing him off as a Bush-hater.

    Other than an intellectual reference to the executive branch, Bush isn’t even mentioned. You’re setting up strawmen.

    Let’s face the question: Should we, as LDS church members, support the torture of people (not necessarily convicted of any crime) simply because the government suspects them of being guilty?

    You’re welcome to leave partisan discussion out of it but before slamming Russell and the others that support him I think we at least own him a fair discussion of the points he raised.

  53. Julie M. Smith on September 29, 2006 at 11:05 pm

    All: I was impressed by the fact that we had many comments on a controversial topic that weren’t inappropriate, but I think y’all are getting close to the line. Play nice. T & S has no problem with torturing those merely suspected of comment terrorism.

  54. Ivan Wolfe on September 29, 2006 at 11:29 pm

    Chad –

    I might, but being I don’t want to play devil’s advocate on the issue – and the post and comments indicate that very few commentators are actually interested in serious discussion of the issue at hand. Most are just raising their hands and saying “me too” and then making dire predictions about Bush (whom Russell mentions quite a bit in his follow up comments) doing evil things like actually caring about keeping classified stuff classified.

    Nope – I never should have commented. This is a club for people to declare allegiance to a certain ideology. This isn’t a fair discussion, since the well was poisoned from the beginning.

    Russell really lost me when he started comparing this flawed legislation to the Salem Witch trials and the internemnt of Japanese-Americans. That’s over the top and serious reflection would show that. The mere presence of those analogies poisons the well at the start and makes serious discussion impossible.

    Russell raises no original points or viewpoints, and the post is mostly about him declaring he knows better what members of the church should do. It’s a jump on the currently fashionable bloggernacle bandwagon of extreme alarmism over Bush and his policies.

    As for LDS positions on torture – well, I could always take the position that Captain Moroni execute or jailed dissenters during wartime and Mormon praised him as the pinnacle of righteousness.

    I’m going to stop now. My wife wants to check out the My Little Pony discussion board.

  55. Nate Oman on September 29, 2006 at 11:40 pm

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  56. Tyler W. on September 29, 2006 at 11:54 pm

    Nice analysis! Thanks for the post.

  57. Tatiana on September 29, 2006 at 11:55 pm

    Excellent post, Russell!

  58. Russell Arben Fox on September 30, 2006 at 12:03 am

    Ivan,

    While I would prefer to see you take the time to explain your own thoughts on the issue, your complaint is a fair one. While I find it hard to believe that criticizing a specific piece of legislation constitutes, in your words, “declar[ing] allegiance to a certain ideology,” insofar as my main goal in writing this post was to vent and spout condemnation upon the heads of legislators who, by my reading of Mormon doctrine and experience, ought to have know better, you are correct that I did not exactly invite a fair and open discussion of all the relevant issues. Again, that certain wouldn’t prevent someone (again, like yourself) from bringing them up, but if you think the only conditions under which such can be done correctly is one that has not been characterized by an original judgment one way or another, then you’re right not to participate, as certainly that was not the case with my original post.

    I realize that you won’t be reading this, but a few other points for the record nonetheless.

    “Most are just raising their hands and saying “me tooâ€? and then making dire predictions about Bush (whom Russell mentions quite a bit in his follow up comments).”

    By my count, I have commented four times previously on this thread (this will be the fifth time). The first (#4) repsonded to a point Kaimi made about Joseph Smith. The second (#13) briefly updated the information available about how two LDS politicians voted. The third (#15) made a point about the legitimacy of criticizing public officials on the basis of other than strict poll-based criteria. Finally, my fourth comment (#48), which was a response to a comment from Nate Oman, did in fact mention Bush by name (one time). I said he wasn’t a populist. My apologies for muddying the waters.

    “Russell really lost me when he started comparing this flawed legislation to the Salem Witch trials and the internemnt of Japanese-Americans.”

    One, Jonathan Green supplied the Salem Witch trial line, not I, though admittedly I thought it was a good one; I wouldn’t have used it otherwise. Two, it really does seem to me that the difference between this legislation and the Salem Witch trials and the internment of Japanese-Americans is one of degree, not of kind. If one grants the executive branch the power to set up trials with rules of evidence, limitations of interrogation techniques, and procedures for holding and detaining the accused, that are entirely determined by that self-same executive branch, without any legislative or appellate oversight, well, then how exactly is one in a fundamentally different condition than that which obtained in either of those cases? The basic outlines of power seem to me remarkably similar.

    “Russell raises no original points or viewpoints, and the post is mostly about him declaring he knows better what members of the church should do.”

    A clarification: I did not say I “know better what members of the church should do.” My post was neither that general, nor did it claim to have a solution to the threat of terrorism. It did, however, say that 14 members of the church did something very wrong in supporting this bill. A sharp, but much narrower accusation.

    I hope your wife enjoys the My Little Pony discussion board. Our six year old loves My Little Pony.

  59. Nate Oman on September 30, 2006 at 12:06 am

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  60. Chad too on September 30, 2006 at 12:07 am

    Ivan,

    The poisoned well argument holds no water with me. To borrow some popular vernacular, you’re attempting a cut and run.

    I don’t want you to leave the discussion, I value opposing viewpoints. I’m all about hearing varied opinions and thoughts. Taking your marbles and going home doesn’t solve anything.

    Do you find this issue not worth addressing? Is there really no hope for a reasoned discussion? Should we all retreat into our little polarized camps never to peek out the tent flap ever again?

    I, for one, have had my opinions influenced by a well-reasoned Bloggernacle discussion in the past. I have my leanings in this particular discussion, but no locked-down ideology.

    I am a poster who is “actually interested in serious discussion of the issue at hand.” So far your two responses boil down to:

    1) Y’all are Bush-haters, and
    2) Y’all are Bush-haters and it’s useless discussing this with Bush-haters.

    So, I’m outing myself. I am officially open-minded. I’ve heard Russell vent his spleen, now I want to hear what you have to say.

    I state the bottom-line question (as I see it) again. Feel free to leave partisanship at the door, but the question deserves consideration. Should we, as LDS church members, support the torture of people (not necessarily convicted of any crime) simply because the government suspects them of being guilty?

    I really do await your response. But not so much that I’m willing to go to the My Little Pony website to read it :-)

  61. Matt Evans on September 30, 2006 at 12:13 am

    Ivan,

    You, me, and Captain Moroni would be prettly lonely in the bloggernacle lately.

    Russell,

    You lost me on your reference to the U.S. Constitution. What do you have in mind? I also find your slippery slope assertion — first they came for the terrorists, then they came for terrorist sponsors, then they came for the . . . Mormons — to be, um, unpersuasive. Exceptions can be exceptional: Lincoln didn’t throw away our civil rights forever in his prosecution of the Civil War (and good luck getting Mormon politicians to share your ex post whine about the way Lincoln saved democracy for the whole freaking world!), and California Mormons didn’t follow the Californian Japanese into the internment camps.

  62. Nate Oman on September 30, 2006 at 12:28 am

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  63. Nate Oman on September 30, 2006 at 12:32 am

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  64. Russell Arben Fox on September 30, 2006 at 12:35 am

    Nate,

    Thanks for the analysis. A couple of responses before I go to bed.

    “First, the bill suspends habeas corpus for any person who is “(A) currently in United States custody; and (B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.â€? On the constitutional question, it is actually doubtful that this section violates the constitution.”

    But Nate, I never claimed that this provision of the bill was unconstitutional. I said it was bad, and that Joseph Smith would probably feel the same way. (Though, oddly enough, at least two Republican senators who voted for the bill have said they believe it is unconstitutional, and have stated–for whatever purpose–that they voted for the bill while trusting that the Supreme Court would overturn in because of this provision and force them to “do it right” the next time.)

    “The real problem with the absence of habeas review….is that one can be detained pending trial before the commissions more or less indefinitely because the act explicitly repeals the statutory right to a speedy trial under the Code of Military Justice.”

    Let’s make sure everyone is clear on how the bill imagines the executive will operate on this point. The bill defines “unlawful enemy combatants” as “any person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.” This means that if the Pentagon says you’re an unlawful enemy combatant–apparently using criteria which the Pentagon itself determines–then as far as U.S. law is concerned, you are one, whether or not you have had any connection to “hostilities” at all. Moreover, not only is this definition not limited to Al Qaeda or the Taliban, or to aliens, or to persons captured or detained overseas. On the face of it, it’s not even limited to a time of war or armed conflict; it could apply in peacetime. Therefore, this definition could quite literally give the President and the Secretary of Defense the statutory authority to detain just about anyone they want, indefinitely.

    Is that likely? Probably not. Is it now plausible? Most certainly.

    “The question is could you get into court as a detainee in order to force the DoD to bring you to trial before a military commission. You certainly couldn’t do so by way of habeas corpus. The real question is whether you could bring a civil lawsuit against say the Secretary of Defense to get an injunction instructing him to try you.”

    Forgive me, Nate, but I confess that I am less than confident that bringing a civil lawsuit against the Secretary of Defense (which I doubt would ever be under even the best of conditions an easy, streamlined, widely available and relatively inexpensive option) will be able to function just was well has habeus corpus to prevent the sort of abuses which history teach us often flourish under functionally unchallengable executive regimes.

  65. Jeremy on September 30, 2006 at 12:36 am

    Nate,

    I appreciate your technical analysis of the bill, although I admit that at some points I have a hard time discerning whether you’re unsatisfied with the ethical grounding of its concepts or with the manner of their articulation in the bill’s language. The two problems you identify do serve to clarify why the bill is problematic, but your explanation seems to me to simply articulate in a more clinical fashion the fundamental problems the Russell got so “hysterical” about. I mean, those two problems are big problems, no? I’ll admit to letting my emotions run ahead of my legal understanding on this one, but dismissing any misunderstandings of the bill the public might have, even a correct understanding of the bill’s language is still a cause for grave concern, no?

    Also, could you speak more specifically to (c)(2)? If I understand correctly, (b) says no torture. But then (c) says, okay, some torture, maybe, if it’s in “the interest of justice.” Is this not a little absurd? In the interest of what, besides justice, would evidence be submitted? If we already know what the interest of justice is going in, aren’t the subsequent proceedings moot? It seems like (c)(2) is the equivalent of a “wink-wink nudge nudge.” Is there any check on the determination of what constitutes the “interest of justice?” Is it completely irrational for me to get the Orwellian willies when I read, more or less, “anything goes… when the interest of justice is served…”?

  66. Nate Oman on September 30, 2006 at 12:38 am

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  67. endlessnegotiation on September 30, 2006 at 12:50 am

    I’d like to thank Nate for the superb analysis. I just got home from the local homecoming game and sat down to compose a lenghthy analysis of the two laws but found Nate to have done a better job than I could have. I’m certain that the vast majority of those who have spent a lot of time criticizing this legislation have not taken the time to read it. I found the document to be quite readable for anyone with even a high school eduation. For those certain that this legislation is the work of Lucifer I would invite you to use the actual text of the document as proof.

    In my humble opinion, I think the source of most of the indignation around this law is the definition of “torture.” Those who hate this law do so because it represents a tightening of the definition of torture (i.e. pulling out fingernails = torture; waterboarding torture) they are not willing to accept. All of the other complaints, as Nate so aptly points out, are little more than red herrings.

  68. Nate Oman on September 30, 2006 at 12:56 am

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  69. Nate Oman on September 30, 2006 at 12:57 am

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  70. Mark Butler on September 30, 2006 at 12:58 am

    The law of war is a very severe law, and the authority to conduct it a fearful authority. It is unquestionable that some will suffer unjustly. So has it always has been. How many lawful soldiers have committed sins worthy of death or imprisonment?

    Unlawful combants, or brigandi, on the other hand, provided adequate evidence are worthy of a sentence of death under the law of war. In other words, without commander, nor uniform, nor any respect for the laws of war, the vast majority of such persons (if properly identified) are justly subject to immediate execution as a scourge upon the face the earth. That is the strictness of the law of war.

    We should rightly hope that this state of war does not continue in perpetuity, nor the executive abuse the authority we have granted it in our defense, but we should not kid ourselves that the vast majority of the folks currently detained in very nice conditions in Guantanamo and elsewhere are blessed not to be subject to immediate capital punishment for participating in the blind and indiscriminate deaths of men, women, and children whether they are personally responsible or not.

  71. Jeremy on September 30, 2006 at 1:04 am

    Endlessnegotiation: I don’t get the impression that Nate is dismissing the problems of the bill as red herrings. I think he’s saying some of the reaction is based on an emotionally driven misunderstanding of what’s in the bill; but I don’t think his clarification serves to exonerate the bill. For example, Nate quotes RAF as saying ““to say nothing of what the bill you helped to pass allows insofar as torture, detainment, arbitrary arrest, coerced evidence, and all the rest is concerned.â€? Pretty bad stuff. And then Nate says “Okay, here RAF starts making some supportable claims.” That’s quite a different kettle of fish, if you’ll forgive the pun.

  72. "iNate Oman on September 30, 2006 at 1:13 am

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  73. Nate Oman on September 30, 2006 at 1:19 am

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  74. Bill on September 30, 2006 at 1:22 am

    These facile references to Captain Moroni are becoming tiresome so let me offer a more pertinent comparison. I was reminded of his righteously indignant epistle on Monday as I watched the C-SPAN broadcast of the congressional hearings where testimony was heard from Gen. Batiste, Gen. Eaton, and Col. Hammes, all retired of course, but all with recent experience in Iraq. I encourage everyone to watch it through the link above.

    These witnesses confirmed story after story about how the civilian leadership constantly undermined the commanders in the field, and failed to supply them with neccessities, relying all the while on the reluctance of loyal soldiers not to contradict the constant refrain that the commanders had whatever they asked for.

    The civilian leadership, unlike Pahoran, were not facing an insurrection, but instead, a united country ready to sacrifice in order to do what was necessary. Instead, they worried, fearful and cowardly, that asking for too much of a sacrifice might not be politically expedient. So they subordinated the careful judgments of many experienced and patriotic voices to their own ideological requirements.

    Incidentally, General Batiste was also an unequivocal voice against any use or approval of torture, both on grounds of morality and (lack of) utility.

  75. Nate Oman on September 30, 2006 at 1:33 am

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  76. D-Train on September 30, 2006 at 1:35 am

    Nice work, Russell.

  77. Nate Oman on September 30, 2006 at 1:42 am

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  78. Mark IV on September 30, 2006 at 1:50 am

    Anyone who is interested in more of the kind of careful thinking Nate has done here should go over to Volokh and review some of the work he has done on this issue. He says, among other things:

    Torture — often defined to include a wide range of harsh interrogation techniques — is just patently depraved, the argument goes; the ends don’t justify the means; any decent person should be able to see that and denounce provisions that allow such techniques; end of story.
    But for me, this easy moralism just doesn’t cut it.

  79. Scott on September 30, 2006 at 1:58 am

    Excellent summary, Nate. One clarification on Subchapter VII (Punitive Matters), however. Your comments (perhaps unintentionally) suggest that the death penalty is an option for all listed offenses. That\’s not the case, as a number of the offenses expressly exclude the death penalty.

    Also, in addition to the appeal by right to the DC Court of Appeals, in cases where the sentence is death, the President has the right to approve, commute, remit, or suspend the sentence. For lesser sentences than death, the Secretary of Defense (or the convening authority for the military commission) has authority to suspend the sentence. Prior to the appeal to the federal judiciary, the convening authority of the military commission has sole discretion to set aside a guilty finding, to find the party guilty of a lesser included offense, and to approve, disapprove, commute, or suspend the sentence in whole or in part. (No one–not the convening authority, not the federal judiciary, not the President himself–can increase the sentence beyond that assigned by the military commission.) The bill provides opportunity after opportunity for broad, discretionary action to prevent injustice or extend mercy.

    And, as for the whole \”secrecy\” business, the accused is served with written charges (948q and 948s). He has the right to appointed defense counsel (948k(c)) (including the ability to retain civilian counsel, if he chooses (949c(3)). Reporters must be present and take a verbatim records of all proceedings and testimony before the military commission (948l). After the record is authenticated by signature of the presiding military judge, a copy must be given to the accused, redacted only to exclude classified information (per the rules set out in 949d(e)) (949o). The defense counsel has access to the unredacted record (949o). And once shifted to the DC Court of Appeals, the procedure is completely in the open. Beyond that, is there any prohibition in the text of the bill (or elsewhere) of public access to the military commission proceedings? If so, I haven\’t found it.

    In response to Russell\’s latest comment (#58) about the \”executive branch [having] the power to set up trials with rules of evidence…that are entirely determined by that self-same executive branch, without any legislative or appellate oversight,\” he still seems to be operating in ignorance of the text of the bill. As Nate has pointed out, there is appellate oversight from the DC Court of Appeals and (if cert is granted) the US Supreme Court. There is obviously a considerable degree of legislative oversight, in that the legislature is the body of government that\’s authorizing the military commissions and related procedures (and they can always come back and revisit the law, if they feel it necessary). While 949a(a) does permit the Secretary of Defense to establish the rules of procedure for the military commissions, that right is expressly subject to the baseline rules the legislature sets out in the chapter. And as for the \”rules of evidence\” that Russell mentions, the bill provides that \”except as otherwise provided in this chapter or chapter 47 of this title, the procedures and rules of evidence applicable in trials by general courts-martial of the United States shall apply in trials by military commission under this chapter\” (949a(a)). There are no mandatory exceptions in the bill, as far as I can tell. Just authorization for the Secretary of Defense to provide for certain specified exceptions, if he wishes to. These include the discretion to set up the rules to: allow for evidence seized *outside* the United States without a warrant (949b(3)(A)); allow admission of statements of the accused (that are otherwise admissable) despite alleged coercion, as long as the evidence complies with 948r (the exclusionary rules for statements obtained through torture and lesser degrees of coercion) (949a(3)(B)); less formal rules for authentication (presumably because, in many cases, a more rigorous application would be impractical or impossible in many cases) (949a(3)(C); and less stringent application of hearsay rules (again, presumably due to the impracticality of a rigorous application, given the farflung geography likely involved in many proceedings) (949a(3)(D)). That\’s it. Beyond that, the Secretary of Defense has no discretion to deviate from the rules of evidence set forth in the Uniform Code of Military Justice. Hardly Salem.

    Additional distinctions from the Japanese internment. Over 60% of those confined were US citizens. This bill does not apply to US citizens. And, of the non-US citizens among the Japanese confined, almost none were enemy combatants engaged in hostilities against the United States. The bill wouldn\’t have applied to them.

    Scott

  80. Eric Russell on September 30, 2006 at 2:01 am

    Nate Oman, I appreciate your taking the time to explain what’s really going on with this bill. It is particularly valuable in environments such as this, where we are all eager to throw out comments for and against – usually based on quips and headlines we’ve heard second-hand.

  81. Nate Oman on September 30, 2006 at 2:21 am
  82. Nate Oman on September 30, 2006 at 2:31 am

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  83. Scott on September 30, 2006 at 2:44 am

    Russell,

    You write, \”This means that if the Pentagon says you’re an unlawful enemy combatant–apparently using criteria which the Pentagon itself determines–then as far as U.S. law is concerned, you are one, whether or not you have had any connection to \’hostilities\’ at all.\”

    Okay, first of all, typical of the imprecision in your original post and subsequent comments, you offer no citation for your quotes or assertions. This led Nate and me to mistakenly assume you were talking about the Senate version of the bill which passed yesterday, which has a different definition of \”unlawful enemy combatants.\” It now appears you\’re talking about the House version of the bill.

    Second, you fail to acknowledge that the portion of the definition you quote is essentially grandfathering prior determinations of \”unlawful enemy combatant status,\” rather than being the once-and-for-all definition. This is either sloppy or less than forthright on your part, since the bill states that, in all cases except those previously determined before the passage of the bill into law, the definition of \”unlawful enemy combatant\” is \”a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).\”

    Third, how do you go from the text of the bill, which says \”a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense,\” to the concept of total executive discretion that you\’re apparently entertaining. Do you think the House just pulled the term \”Combatant Status Review Tribunal\” out of their butts? Do you think \”competent tribunal\” equals \”whatever the President or Rummie says\”? It\’s laudable that you\’re now starting to read the bill(s). You can continue your reading on past administration policies and procedures here: http://www.defenselink.mil/news/legalrefs.html . Show me the total, unfettered discretion in the administrations prior policies for identifying individuals as \”unlawful enemy combatants.\”

    Next you write, \”Moreover, not only is this definition not limited to Al Qaeda or the Taliban, or to aliens, or to persons captured or detained overseas.\”

    Um…right. It\’s not. Because Al Qaeda and the Taliban are not the only candidates for \”unlawful enemy combatant\” status. And it doesn\’t matter *where* an \”unlawful enemy combatant\” is captured or detained. And you\’re right in saying that the *definition* isn\’t limited to aliens. But you\’re wrong in apparently stopping your reading there. If you keep going till 948a(3), you\’ll find the definition of \”alien\” (i.e., \”a person who is not a citizen of the United States\”). And if you\’ll read even further to 948b(a), 948c, and 948d(a) & (b), you\’ll see that the House bill–like the Senate bill–applies *exclusively* to \”alien unlawful enemy combatants.\” This is extremely sloppy reading on your part, Russell.

    You continue: \”On the face of it, it’s not even limited to a time of war or armed conflict; it could apply in peacetime.\”

    Yup. If an alien unlawful enemy combatant engages in hostilities against the United States during peacetime (e.g., the plotters and perpetrators of 9/11), they would be subject to the military commission procedures. How is that troubling?

    You write: \”Therefore, this definition could quite literally give the President and the Secretary of Defense the statutory authority to detain just about anyone they want, indefinitely.\”

    How? How would it allow them to detain anyone other than an alien unlawful enemy combatant (with the mechanism for determining status as an unlawful enemy combatant operating under existing rules until the bill becomes law, then following the procedures and definitions provided by the bill thereafter)?

    Scott

  84. Jeremy on September 30, 2006 at 3:12 am

    Nate,

    Thanks for the clarification, and sorry if I misconstrued what you were saying.

    Balkin’s article isn’t just interesting for law geeks. I found this passage particularly interesting:

    The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations. That means that if the President violates the MCA, he still fails to take care that the laws be faithfully executed, which is his constitutional duty under Article 2, section 3 of the Constitution. (And in case you are wondering, he might well be guilty of a high crime and misdemeanor, but don’t hold your breath.) The President wanted it this way: He wanted to be able to say that he was following the law, but, just in case he wasn’t, he didn’t want to be held to account for it in any court proceeding.

    So, even if RAF has misinterpreted particulars of the bill, doesn’t the gist of it, as summarize here, warrant at least the discrete quantity of righteous indignation directed toward it?

  85. grego on September 30, 2006 at 3:12 am

    Why stop there? :)

    I am concerned about several issues with regards to Senator Orrin Hatch, who acts as the representative of Utah’s citizens. It seems that every time I hear/ have heard about him in the news, it’s something that leaves an unpleasant taste in my mouth.

    My first concern arose when Senator Hatch defended and let off President Clinton during his impeachment–“he’s just a human, after all.” Yes, but he was also President of the USA who lied under oath. And the sexual affair was nothing compared to the real issues of his giving technology to the Chinese, etc. Then, Senator Hatch suggested that Bush pardon Clinton.

    I remembered that it was, of all people, Senator Hatch who “leaked” the 9/11 – Osama bin Laden connection and got everyone riled up about attacking the Middle East. The official version of 9/11 has since been shown to have so many holes, it doesn’t hold a bit of water. Yet here we are, still killing and being killed to fight “terrorism” (I still don’t get it). Not to mention his support of the Patriot Act, which is strongly anti-Constitutional and anti-freedom in many parts. Did he even read it before passing it?

    Robert Gehrke, Associated Press, reported that right after Sen. Hatch’s 3 strikes-completely burn-your-computer proposal, his own website immediately had 2 strikes against it: it linked to a porno site, and had infringed upon the copyright of software it was using. The excuse for the illegal software use?: “Hatch spokeswoman Margarita Tapia said the senator’s office acted quickly to correct the problem. ‘You have to put this into context,’ she said. ‘There was never a financial obligation.'” So, in other words, it’s ok to steal or break rules if you can personally interpret them to make yourself feel justified.

    Why did Senator Hatch lead in campaign contributions from wine, beer, liquor; and fifth from tobacco companies? Is he that liked by them for what he does?

    Then there was his sponsoring of the “Dietary Supplement Health and Education Act”, the bill to make vitamins/ supplements illegal–that is, unless you have a medical prescription and get it through your doctor. And yet there is a very strong presence of many dietary supplement companies in Utah (USANA, Twinlab, Nature’s Sunshine, NuSkin, The Synergy Company, Mega Pro International, Nutraceutical Corp., Noni, Nature’s Way, etc.), many of which are even based in Utah.

    Then Gersh Kuntzman wrote about Senator Hatch’s comments about Article II, Section I of the Constitution: “If Arnold Schwarzenegger turns out to be the greatest governor of California, which I hope he will, if he turns out to be a tremendous leader and he proves to everybody in this country that he’s totally dedicated to this country as an American, we would be wrong not to give him that opportunity [to be president],â€? Hatch said. Earlier in the same Salt Lake City Tribune interview, he detailed Schwarzenegger’s qualifications: “He’s a nice man, very talented. He’s a very bright guy who is devoted to his wife…If he gets the chance, he’s not going to be a namby-pamby out there.â€? I’m not sure which qualifications sets him apart from all the other governors of California, or if this list of qualifications also included drugs, groping women, orgies, or questionable Nazi connections. And unlike other proposals by “liberals” of 35 years, conservative Senator Hatch sets 20 years of citizenship as the bar of passage. This, in light of what Kuntzman says: “I expected Frank [the senior director of research at the National Constitution Center] to tell me that the Founding Fathers held contentious debates over this particular sentence… But, Frank said, it wasn’t like that. ‘There was no debate on that provision at all,’ he said. ‘The Founding Fathers were well aware of how foreign powers were meddling in other countries’ political affairs and they wanted to avoid that. They knew that in Poland, Russia, Prussia and Austria put their man on the throne and then partitioned the country.’ So, somehow, Senator Hatch finds wisdom that was missing to all the Founding Fathers when they didn’t see how it would be wrong not to give Governor Schwarzenegger that opportunity. Perhaps they believed that the country was more important than politics. Or is he perhaps looking for a vice-presidency on Arnold’s presidential ticket?

    As head of the Senate Judiciary Committee, where were his protests and actions against Janet Reno and the rest of the Justice Department in all of their fiascoes, such as Chinagate, Filegate, Waco, Ruby Ridge, etc.–all very anti-Constitutional, anti-freedom criminal activities? And now, where are his protests and actions against Ashcroft and the rest of the Justice Department in all of their fiascoes?

    And just recently, about President Hinckley receiving the Presidential Medal of Freedom (as reported by Carrie A. Moore) : “Sen. Orrin Hatch, R-Utah, called the honor well-deserved. ‘You couldn’t find a better person in the world to receive it than President Hinckley,’ Hatch said, adding that Bush has a ‘very high opinion’ of the LDS faith and its leader. Bush ‘has seen his worldwide humanitarian efforts as well as religious efforts,’ Utah’s senior senator said. ‘I can guarantee you that he is well aware, as was his father, of what President Hinckley has done.’ Hatch said he was especially pleased the award will be presented on President Hinckley’s birthday. ‘I want to personally thank the president for doing this for this great man on his birthday,’ he said.” There he is again. If he can’t get that photo op with the president during conference, he can always say something like this. While Bush seems to despise many Christian virtues, he seems to play every major religious leader there is–and Senator Hatch is right there ‘at his side’ to push it along.

    Latest was the Senator’s push for the marriage amendment, which seemed like a good and saving idea to some. This Constitutional amendment would have limited marriage to one man and one woman. Here’s what the church said about this many years ago: “The Constitution gives the privilege to all the inhabitants of this country, of the free exercise of their religious notions, and the freedom of their faith, and the practice of it. Then, if it can be proven to a demonstration, that the latter-day Saints have actually embraced, as a part and portoin of their religion the doctrine of a plurality of wives, it is constitutional. And should there ever be laws enacted by this government to restrict them from the free exercise of this part of their religion, such laws must be unconstitutional.” (Church History in the Fullness of Times, p.424) This amendment would not only put “fundamentalist Mormons” in a more precarious situation than they are already in for the free exercise of their religion, but it would also make it unconstitutional in the future, for as long as the USA exists, for anyone, regardless of religion, to practice plural marriage, including members of the Church of Jesus Christ of Latter-day Saints, possibly even as this church practices it now (one spouse on one side of the veil, and one living). Again, Senator Hatch finds wisdom that early LDS church “founding fathers” Brigham Young, John Taylor, and Wilford Woodruff, among others, were sadly lacking.

    There is one other incident I must mention–a very small but important one. Why was my mother, who lives very far away from Utah, called by his campaign, during his running for President of the USA, to ask for her support? Is it because she is a member of the same church he purports to be a member of? Did his campaign illegally use the church membership records, or did his campaign receive a revelation that some woman thousands of miles away had a certain phone number and needed to be called? And no, I don’t think it was a random call or that every person in the USA was called to support his campaign, as they seemed stunned when she replied in a way they must have thought was unbecoming a true LDS church member. As far as we could guess, and as far as his personnel would divulge, it seems it was that way.
    I really hope Senator Hatch reads the talk by Pres. Hinckley’s Book of Mormon talk (Ensign, August 2005) a few more times.

  86. Scott on September 30, 2006 at 3:21 am

    The House bill does differ from the Senate bill in some respects. Three minor but relevant ones are: (i) the House bill\’s failure to mandate the UCMJ evidentiary rules (with limited SecDef discretion) (949a(a) in the House version); (ii) tying the standard for the exclusionary rule for post 12/30/05 instances of alleged coercion to the standards of the Detainee Treatment Act of 2005, rather than 5th, 8th, and 14th Amendment standards as the Senate bill does (948r(D) in the House version); and (iii) providing for reporting requirements for greater Congressional oversight (House version 948e).

    In the broad strokes, however, the bills are similar. Examples:

    (1) Like the Senate bill (and contrary to Russell\’s repeated insistence), the House bill applies only to alien unlawful enemy combatants (House version 948c).

    (2) Like the Senate bill, there is an appeal by right to the Court of Appeals of the District of Columbia (House version 950g), with authority to the Supreme Court to grant cert.

    (3) Like the Senate bill, there is an exclusionary rule for statements obtained by torture (House version 948r(b)) and lesser forms of coercion (House version 948r(c) & (d)).

    (4) Like the Senate bill, there are a wide variety of protections relating to the flow of information to the accused (House version 949j(d), 948s, 949o(c), etc.) and preservation of the record (948l & 949o).

    (5) Like the Senate bill, the suspension of habeas corpus is solely for aliens who have been determined, or are awaiting determination, to be unlawful enemy combatants (House version Sec. 7).

    Bottom line: US citizens can\’t be detained, locked up, tried, sentenced, or punished under either version of the bill. The sooner Russell recognizes and acknowledges that, the sooner we can move on to his other, less alarming claims.

    Scott

  87. Mark Butler on September 30, 2006 at 3:39 am

    If the Senate would dispense with its arguably contrary-to-the-spirit-of-the-Constitution seniority system, we would be less spared the spectacle of suffering the same senator in office for four, five, and six terms. We would get better laws too.

  88. Mark Butler on September 30, 2006 at 3:39 am

    That and repeal the seventeenth amendment…

  89. Nate Oman on September 30, 2006 at 3:47 am

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  90. Brent W on September 30, 2006 at 4:04 am

    There are such divergent views on this that the only way I can see to make sense of it is…….

    1) Wait and see how this new legislation plays out….
    2) If there are grievous abuses…we will hopefully see the courts come down on it, or at the very least,
    3) The people can demand further legislative reforms

    I always wonder how many of our representatives actually read the full text of a bill (especially those of such import) and form their own opinion before voting….?

  91. Jonathan Green on September 30, 2006 at 7:54 am

    Nate, I appreciate your legal reasoning, but you’re talking about torture and indefinite detention of American citizens as if they were mere hypotheticals, which they are not. We don’t have to guess what the administration thinks it already has the authority to do, we know that it thinks it was justified in holding Jose Padilla without trial indefinitely, and we know that the administration is quite satisfied with the law as passed. To me it looks more like the law does more to codify Abu Gharaib and the Padilla case than to prevent it.

  92. Aluwid on September 30, 2006 at 8:37 am

    As has been mentioned before, alot of the disagreement behind support/nonsupport of this bill hinges on what exactly one believes is \”torture\” or \”inhumane treatment\”. It is very unfair to paint supporters as if they would be happy to see their enemies shocked by car batteries or slowly skinned to death. What we are talking about here are coercive techniques which some find very acceptable while others label as \”torture\”. As you look at the support by the large percentage of Mormon Congressmen, and the large support by the Mormon population as a whole keep in mind that these people have the same level of spiritual enlightenment as you. They also have the gift of the Holy Ghost and the benefit of the additional revelation that the Mormon church provides. Take a step back and consider that. If you find yourself in the minority among such a group of people should you be so ready to condemn the rest of them or should you reflect on why exactly it is that they are able to hold the view that they do while sharing your same religious beliefs? Here is a thought that goes along with this, do you believe that Senator Reid would have voted no if he wasn\’t the Democratic Minority Leader? I don\’t.

    I believe the high conservative support found among Mormons stems alot from the Book of Mormon. The Book of Mormon contains examples of how a nation is allowed to defend and take care of itself. This brings up an interesting analogy between an example of what happened in the Book of Mormon, and what is happening today with those Mormons who are non-supportive of the extra-aggressive approaches to fight this war. Consider the Anti-Nephi-Lehis verse the rest of the Nephite population in general. The Anti-Nephi-Lehis were willing to lay down their own lives (and the lives of their wives and children) before shedding the blood of another, whereas the Nephites in general would go to war and kill as many Lamanites as was necessary to ensure the safety of themselves, their families, and their nation. Following the story to it\’s conclusion I submit the following points:

    1. It is very possible that the behavior of the Anti-Nephi-Lehis was more personally righteous than the behavior of the Nephites. However I believe it is clear from the text that the Nephites were not condemned for their willingness to do violence in their defense, it was not considered a sin. In my opinion this means that the Anti-Nephi-Lehis behavior was above and beyond what we are asked to do, we do not have to live by that extreme standard to be fully acceptable to God.

    2. The Anti-Nephi-Lehis as a nation were doomed to be destroyed due to their lack of willingness to defend themselves. Were it not for the compassion of the more assertive Nephites and their choice to protect the Anti-Nephi-Lehis then that righteous nation would likely have been killed off very shortly.

    So, while personally they might have been on a higher plane of righteousness then was commanded, as a nation they weren\’t destined to last very long. It takes an assertive people to do that.

    Now, compare that to the situation where we find ourselves today. The majority of Mormons feel comfortable before God supporting these more coercive techniques whereas a minority would rather allow a terrorist attack to kill themselves, families, and friends before submitting enemies to these more extreme approaches. At the end of the day, those that would allow an attack before performing these uncomfortable actions to others might or might not be living to a higher standard of righteousness then the rest of us, but in my opinion it is above and beyond what we have been required to do. I\’ve been allowed to protect myself, my country, my religion, etc, and I will do it with extreme prejudice. If others choose not to do the same then they have that right and perhaps will find greater reward for doing so. But just like the Anti-Nephi-Lehis only survived because the more assertive Nephites were calling the shots it\’s also imperative that those that lead the country are willing to do what it takes to defend it.

  93. Nate Oman on September 30, 2006 at 9:41 am

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  94. Guy Murray on September 30, 2006 at 10:01 am

    Nate, I agree that it may not codify http://salon.com/news/abu_ghraib/2006/03/14/introduction/index.html; but, it codifies the concept that alternative interrogation techniques are acceptable under U.S. law. And, that is what gave rise to Abu Ghraib. I fear it will plant the seeds for future Abu Ghraibs. There will always be those who want to push the envelope. How far can we go before the technique is unnacceptable? Thank you and Russell and the rest for the fascinating discourse on this topic.

  95. Guy Murray on September 30, 2006 at 10:05 am

    Sorry, link should have been Abu Ghraib

  96. ECS on September 30, 2006 at 10:24 am

    If all we’ve got to hold onto is habeas relief, we’re in big trouble. Defendants rarely win on habeas petitions after AEDPA and Williams. The USSC recently granted cert, however, to a case in the 9th Circuit that will give the USSC an opportunity to redesign the contours of habeas relief. But, again, defendants need more than access to habeas relief – they need the same constitutional protections granted to everyone else.

  97. Russell Arben Fox on September 30, 2006 at 10:28 am

    All: Yesterday I received a request that, with general conference upon us and a desire for the blog not to be a site of contention during that time, that I cut off comments at 100. I’m inclined to honor that request, as I think it’s a good one; let’s see how things go for the next hour or so.

    A couple of brief replies.

    “For the record, I am extremely troubled by holding people without probable cause. However, that is not the same thing as holding them without trial.”

    I’m glad to hear you feel that way, Nate; I wish more of our representatives thought similarly. I would also argue that, after a certain point, holding people without public, built-in limits requiring when they be brought to trial becomes a function obstacle to the very possibility of them being brought to trial.

    “Bottom line: US citizens can’t be detained, locked up, tried, sentenced, or punished under either version of the bill. The sooner Russell recognizes and acknowledges that, the sooner we can move on to his other, less alarming claims.”

    Bottom line, Scott: there are reputable and well-known constitutional authorities (Jack Balkin, Sanford Levinson, Bruce Ackerman, and more) that disagree that the language of this bill can be so obviously limited in the way you and Nate insist it will be. No, I do not, and I doubt any of these people, think that the “House just pulled the term ‘Combatant Status Review Tribunal’ out of their butts,” nor do I or, I suspect, they think that “‘competent tribunal’ equals ‘whatever the President or Rummie says’.” But fearing the worst, and wanting specific provisions for public review that would prevent the worst, given the events of the past five years, seems to me rather reasonable. It also seems to me a reasonable position for Mormons with a good grasp of their own history to take as well.

    All: my apologies for not specifying which version of the bill I was referring to at any one point. I do not think that the thrust of my original post is therefore invalidated (as I freely admitted to Ivan, it was more anguish than analysis), but I do appreciate having some of more excitable claims moderated.

  98. Nate Oman on September 30, 2006 at 10:29 am

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  99. Nate Oman on September 30, 2006 at 10:42 am

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  100. ECS on September 30, 2006 at 10:45 am

    #97 – _Miranda_ warnings (including right to counsel present during all custodial interrogations), Fourth Amendment protections against unreasonable searches and seizures with corresponding fruit of the poisonous tree exclusions, etc.

  101. Nate Oman on September 30, 2006 at 10:46 am

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  102. Nate Oman on September 30, 2006 at 10:52 am

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  103. Russell Arben Fox on September 30, 2006 at 10:56 am

    Nate:

    “I don’t think that any of the legal scholars you are citing think that the bill allows U.S. citizens to be detained without access to a probable cause hearing subject to review by an Article III court.”

    Bruce Ackerman:

    “BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation….authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights. This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops ‘during an armed conflict,’ it also allows him to seize anybody who has ‘purposefully and materially supported hostilities against the United States.’ This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.”

    There’s a lot more where that came from.

  104. ECS on September 30, 2006 at 10:58 am

    My concern is that “ordinary” habeas review isn’t much of a review at all. Same with the grounds for reversal on direct appeals. It’s an empty right, although Hamdi was a pleasant surprise:

    “Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

  105. Nate Oman on September 30, 2006 at 11:02 am

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  106. Nate Oman on September 30, 2006 at 11:14 am

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  107. Nate Oman on September 30, 2006 at 11:25 am

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  108. ECS on September 30, 2006 at 11:25 am

    I disagree with you. Not with your description of the procedure, but that this gives anything but faint lip service to protecting a defendant’s right to a fair trial.

  109. Russell Arben Fox on September 30, 2006 at 11:28 am

    As I said above (#96), there was a suggestion made to close down the comments on this thread before general conference began. So this will be the last comment on this thread. To all those who contributed, my thanks. (If there are many requests to do so, perhaps the comments will be re-opened after the weekend.)