Despotism Watch

I'd sort of forgotten about this story:

According to the lawsuit filed at U.S. District Court in Denver, Howards and his son walked to about two-to-three feet from where Cheney was standing, and said to the vice president, "I think your policies in Iraq are reprehensible," or words to that effect, then walked on.

Ten minutes later, according to Howards' lawsuit, he and his son were walking back through the same area, when they were approached by Secret Service agent Virgil D. "Gus" Reichle Jr., who asked Howards if he had "assaulted" the vice president. Howards denied doing so, but was nonetheless placed in handcuffs and taken to the Eagle County Jail.

Now the good news is that the Eagle County District Attorney's office dropped all charges, notwithstanding the Secret Service's request that Howards be issued a summons for harrassment. But as Andrew Sullivan points out, you have to look at this sort of thing in the context of our novel torture and detention policies. They could have had Howard detained indefinitely without trial. While in detention, Howard could have been subjected to "coercive interrogation" designed at producing a confession. At a quasi-judicial proceeding, the coerced interrogation could have been used as evidence against him and kept secret from his legal team. You get the picture.

Now do I think it's likely that the next person who gets in Cheney's face will be detained, tortured, and convicted on serious terrorism charges? No, I don't. But you don't need to use these powers in an abusive way on a regular basis simply in order to scare people into the belief that getting in the VP's face isn't worth the risk. And the same powers that can be used to intimidate a random citizen can be used against protest-organizers, hostile journalists, etc.

Comments

"They could have had Howard detained indefinitely without trial. While in detention, Howard could have been subjected to "coercive interrogation" designed at producing a confession. At a quasi-judicial proceeding, the coerced interrogation could have been used as evidence against him and kept secret from his legal team. You get the picture."

Unless Howard is not a U.S. citizen, this is nonsense.

Posted by AV | October 4, 2006 9:50 AM

I don't believe Matthew said is incorrect. The only thing being a non-citizen would change is that you wouldn't even get the quasi-judicial proceeding.

I'm no expert, though.

Posted by Consumatopia | October 4, 2006 9:55 AM

I have a hard time believing even Cheney would have been rattled by the quotation in the story. It must have been something a little more incendiary, like, "I think your policies in Iraq are reprehensible... douchebag."

Posted by Mitch | October 4, 2006 9:59 AM

> Unless Howard is not a U.S. citizen,
> this is nonsense.

Speaking of nonsense. Congress passed a _200 page_ bill stuffed full of every favour that Dick Cheney, Donald Rumsfeld, Scooter Libby, John Yoo, and the gang of torturers could dream up. It was heavily modified *after* the so-called "McCain compromise", and will be further modifed with a Yoo-written signing statement. That means that Congress had, oh, 3 days or so to dig through the 200 pages and parse the Yoo language.

But AV is convinced that he knows what the outcome would be if a citizen were charged under the Torture Act. Nonsense for sure.

Let's face it: any administration has the ability to disappear and torture non-citizens with very little fear of reprecussion as long as they have even a semi-convincing argument. No citizen would really question them, and of course no politician would speak up against it. If the Torture Act wasn't intended to legalized the disappearance and torture of Citizens (and political opponents?) it really had no purpose.

Cranky

Posted by Cranky Observer | October 4, 2006 10:07 AM

Unless Howard is not a U.S. citizen, this is nonsense.

Absolutely right.

Apparently Andrew Sullivan hasn't read Hamdi v. Rumsfeld. Habeas corpus proceedings - regular, Article III judicial proceedings - are available to all US citizens.

It's not surprising that Sullivan is lying; Sullivan's never been one to let the facts get in the way of a good slam at that Bush Administration.

Posted by Al | October 4, 2006 10:32 AM

Andrew Sullivan was referring to legislation passed since the Hamdi v. Rumsfeld decision, Al. But you knew that.

Posted by tps12 | October 4, 2006 10:52 AM

Howard should be filing a Bivens action against the Secret Service agent and a 42 USC 1983 action against the state cops.

There is no court in the land that will accept anyone's argument that they just didn't know they couldn't arrest people for what was said to the Vice-President.

(Btw, it would be nice if this site, like all the others I go to, remembered my "personal information.")

Posted by Anderson | October 4, 2006 10:53 AM

Grow up, Al. It was available all the way through; what is troubling is that someone had to go to court to vindicate that right. That you don't see the Bush Administration's position as even mildly problematic is beyond bizarre and well into anti-American. Let me guess: your favorite Justice is Thomas, right?

Posted by SomeCallMeTim | October 4, 2006 10:54 AM

AV and Al are actually correct on this one. A US citizen has habeas corpus rights and could not be detained indefintely.

However, if Howards was a German, or a Turk, or a Mexican, or any other kind of alien, he could in fact be jailed for the rest of his life without being charged and without having any right to challenge his detention. And while Bush couldn't legally break the Geneva Conventions in his choice of alternative interrogation techniques, if Bush did go over the line there is nothing Howards could do about it.

Posted by ostap | October 4, 2006 10:54 AM

SCMT: What's the problem with someone having to go to court to vindicate a right? That's what the courts are there for. Are you telling me that nobody goes to court to vindicate a right under other administrations? Of course not!

tps12: The legislation passed since Hamdi does nothing to take away the right of US citizens to habeas corpus.

Posted by Al | October 4, 2006 11:09 AM

From Is That Legal

Further, as to the habeas question -- which, in my haste, I wrongly said to a commenter had been stripped from Americans. Yes, Americans held in indefinite detention somewhere in the world awaiting a designation by a military tribunal continue to have the right to file a habeas petition.

I guess I'm just a bit more than skeptical that, in those circumstances, the right to file a habeas petition is not worth much more than the paper the T/T Act is written on. Speaking practically, exactly how and when will the detained American be in a postition to actually file the petition? I'm guessing, but I believe -- in the absence of the immediate appointment of counsel -- no habeas petition will be forthcoming for quite awhile . . . a very long while.

Posted by Cranky Observer | October 4, 2006 11:12 AM

Again, the Radical trolls here are talking through their hats as they (and we) have no way of knowing what was really in that bill nor how the "unitary executive" and the Justice Departement will interpret it in practice.

Cranky

Posted by Cranky Observer | October 4, 2006 11:15 AM

SCMT: What's the problem with someone having to go to court to vindicate a right? That's what the courts are there for.

Some rights are more fundamental than others, and the government's apparent willingness to overlook such a fundamental right is more troubling than other govt. violations. But you might have to be an American to get that.

Posted by SomeCallMeTim | October 4, 2006 11:41 AM

Nixon could have imprisoned Nicaragua..

Posted by Mudge | October 4, 2006 11:55 AM

Interesting, SCMT. Which rights are so fundamental that they shouldn't ever need to be vindicated in court? Habeas? That needs to be vindicated all the time. Perhaps it is true that requiring vindication in court makes me un-American. If so, then I'll be in the good company of a heck of a lot of other unAmericans, such as President Clinton. So be it.

Posted by Al | October 4, 2006 11:56 AM

Every regime needs a good set of enablers like Al. A citizen gets imprisoned for 2.5 years before the Supreme Court rules that it was wrong to deny him a hearing? No problem, says Al. After all, lots of people have to go to court to vindicate their rights, so who cares if a U.S. citizen spent 2.5 years of his life wrongfully rotting in a cell.

Posted by Steve | October 4, 2006 12:02 PM

Unfortunately American citizens CAN be declared an "enemy combatant" and completely have their rights stripped from them.

This is the horrible truth of the Bush administration.

Posted by Alexander | October 4, 2006 12:10 PM

Unfortunately American citizens CAN be declared an "enemy combatant" and completely have their rights stripped from them.

Nonsense. Remember Hamdi v. Rumsfeld? Hamdi was victorious in that case. Sure, he was then coerced by the government into surrendering his US citizenship so they could deport him, but at least he had the moral victory. Or something.

And for all those who are so comfortable with the habeas petitions of US citizens, Padilla v. Rumsfeld was punted back down from SCOTUS because Padilla's habeas petition wasn't filed in the correct jurisdiction. And why wasn't it? Because the government had moved him to a different secret location since his arrest. And after being held for years, he's finally gotten his day in court. And if he's found "not guilty," the Bush administration can scoop him off the courthouse steps and detain him as an "unlawful enemy combatant" again, while footballing him around to avoid habeas. And none of this bothers the resident trolls at all. After all, Padilla is guilty of something. Ashcroft and the Decider have already said so; the rest is window dressing.

Posted by mds | October 4, 2006 12:32 PM

What's the problem with someone having to go to court to vindicate a right?

It's a problem if the right is already well established, but the government acts as if it isn't. The process of vindicating a right isn't a light burden.

There would likewise be a problem with, say, the police standing outside of a church and arresting the parishoners as they came out, only releasing them when a court reaffirmed the right to free excercise of religion. The government isn't supposed to be actively hostile to rights already established.

Posted by Matt F | October 4, 2006 12:33 PM

"tps12: The legislation passed since Hamdi does nothing to take away the right of US citizens to habeas corpus."

If non-citizens are stripped of both habeas and the right to appeal to a civilian judiciary, then citizens have lost habeas. If you are seized, labelled a non-citizen, incarcerated indefinately, with access only to a military tribunal, only a small handful of people (3-5) need to decide that you are gone forever. A military tribunal can decide to dishonestly call you a non-citizen, and you have no habeas corpus right.

I am willing to trust that there are no all-encompassing facsist conspiracies in my government. I am not willing to trust that small handfuls of men will not engage in small-scale tyranny.

Posted by Njorl | October 4, 2006 12:36 PM

If you are seized, labelled a non-citizen

You can't be "labelled" a non-citizen. Citizenship is a fact, not a label.

Posted by Al | October 4, 2006 2:00 PM

It's a problem if the right is already well established, but the government acts as if it isn't.

The right vidicated in Hamdi was "well established"??? Hilarious. That'll be news to the Supreme Court, which issued four separate opinions on the matter, none of which commanded a majority.

Posted by Al | October 4, 2006 2:03 PM

You can't be "labelled" a non-citizen. Citizenship is a fact, not a label.

And yet, Hamdi was stripped of his citizenship and deported. Just another instance of the Bush administration's contempt for facts, apparently.

That'll be news to the Supreme Court, which issued four separate opinions on the matter, none of which commanded a majority.

Yet eight of the nine justices sided with Hamdi anyway, with six of those acknowledging his rights, but engaging in an awkward balancing act with virtually unlimited wartime powers for the President. Scalia and Stevens acknowledged Hamdi's fundamental rights, while rejecting the unilateral executive formulation. So, rather than being a complete hodgepodge, there is actually an almost unanimous affirmation...

Hang on, you're not actually debating in good faith, are you? Because now you're asserting that the right of a US citizen to habeas corpus and a trial isn't well-established, which was Mr. Yglesias's original point. I'm beginnning to doubt your sincerity, Al.

Posted by mds | October 4, 2006 2:17 PM

Al et al. are full of crap. They've grabbed US citizens, declared them enemy combatants, and whooshed them away. The pixie dust is the phrase "enemy combatant". Plus, if you're whooshed away and held incommunicado and your loved ones not informed of who whooshed you where, it's kind of impossible to get a lawyer to get a writ which renders the right to a writ purely academic.

As it just so happens, lots of people they've whooshed away turned out to be innocent. Lots of people they've tortured turned out to be ignorant. Go figure. Cheney's an gangster ass. Bush is a gangster ass. There's no end, apparently.

Al et al, you're apologists for tyrants. And anonymous apologists at that.

Posted by Jeffrey Davis | October 4, 2006 2:43 PM

...detained, tortured, and convicted on serious terrorism charges...

Oh, come on, where's your sense of proprtion - clearly it would've been an overkill. I don't see anything here that couldn't be corrected by a few months in a re-education camp. And obviously his son should be there with him too, in the children's block.

Posted by abb1 | October 4, 2006 2:51 PM

'You can't be "labelled" a non-citizen. Citizenship is a fact, not a label.'-Al

That's asinine.

If you tell your jailers "I am a citizen. I have the right of habeas corpus", and they reply, "No, you're not a citizen. It says so right here on this piece of paper." Which will matter, the label or the fact?

If you had access to a civilian justice system in a modern liberal society, the fact would be more important. But at the whims of a military tribunal, the label is more important.

Posted by Njorl | October 4, 2006 3:24 PM

Unless Howard is not a U.S. citizen, this is nonsense

I call bullshit to this and I quote Marty Lederman at 'Balkinization':
"But the really breathtaking subsection is subsection (ii), which would provide that UEC is defined to include 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."

Read literally, this means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to "hostilities" at all.

This definition is not limited to Al Qaeda and the Taliban. It's not limited to aliens -- it covers U.S. citizens as well. It's not limited to persons captured or detained overseas. And it is not even limited to the armed conflict against Al Qaeda and the Taliban, authorized by Congress on September 18, 2001. Indeed, on the face of it, it's not even limited to a time of war or armed conflict; it could apply in peacetime."

Obviously it will take a court case to reach the final understanding but I, for one, am dismayed that this law even exists.

Let's see what Jack Balkin himself has to say regarding this -

Posted by darms | October 4, 2006 8:24 PM