Standard: Bush Should Embrace Fascism

It seems to me that looking at the most-alarmist writings of the incumbent political party's ideological adversaries and noting that their concerns seem overstated is a solid "evergreen" story idea, so I don't bregrudge Noemie Emery and The Weekly Standard for taking a stab at it. But as Gene Healy notes she sure did pick a strange lede:

The fascists are coming! Or rather, they're already here, installed in the White House, planning like mad to subvert the Constitution and extend their reign in perpetuity, having first suppressed and eviscerated all opposition and put all of their critics in jail. Thus goes the rant of America's increasingly unhinged left. If only, sigh many Bush partisans, wondering when this administration will get out of the fetal position and show some fighting spirit.

This is the kind of thing that gets people nervous.

Meanwhile, I would note that whether or not one thinks it likely that Bush will start ordering his political opponents to be not so much put "in jail" as abducted off the streets and then held incommunicado in secret foreign facilities for an indefinite span of time during which they'll be tortured until, eventually, their coerced confessions as used as evidence for never releasing them, the point I would make is that Bush really has asserted his constitutional right to do this and the main opinion leaders on the right have agreed that there should be no meaningful constraint on his ability to behave in this manner.

Comments

Their commitment to freedom and democracy is so great that they will brook any amount of lawless command and unitary execution to support that freedom.

Liberty in Defense of Extremism is No Vice!!

Posted by El Cid | September 14, 2007 10:33 AM

Right, every comment I've read has said that the administration should have this right with respect to its "political opponents." Just as every commentator on the Clinton administration said clearly that any time a church pastor doesn't respond to a summons, the children in the church should be burned up. And every time there is a custody dispute, a federal SWAT team should be dispatched to kidnap the child involved and deport him to Cuba. That's what the "main opinion leaders" on the left said.

Posted by y81 | September 14, 2007 10:34 AM

Unitary Executive to Congress: "Impeach me or get lost."

That is just a hair away from kingship. And not even a thick, greasy one. If you've got enough toadies in the Congress, and Bush does, he's free to subvert 200 years of tradition. And he has. Imagine what we'd have been if right out of the box, the Alien and Sedition Acts hadn't been mostly KOed. That's what Bush and his elk envision.

Posted by Jeffrey Davis | September 14, 2007 10:36 AM

Bush really has asserted his constitutional right to do this

And, unavoidably it seems to me, the right of his successors to do the same. Which you'd think most wingnuts would see as a fairly risky gamble, though they apparently don't.

Posted by Ryan | September 14, 2007 10:38 AM

Jeebus. The neocons are just fucking sickening.

Posted by SomeCallMeTim | September 14, 2007 10:40 AM

MY: Do you not buy the existence of a rights/powers distinction?

y81: No, he's asserted the unreviewable power to do it, the fact that the context he brings it up in isn't about his political opposition doesn't mean he acknowledges that it would be illegitimate to use it against them.

Posted by washerdreyer | September 14, 2007 10:45 AM

Shorter Standard: "It's only fascism if they arrest ME."

m, justice requires everyone else be arrested

Posted by max | September 14, 2007 10:49 AM

Re: Ryan

One of the things that novelist Ayn Rand did get right is her recognition that authoritarians tend to be "range of the moment" thinkers. The authoritarian right doesn't see the obvious risk to which you refer because to them it's not about long-term plans and consequences. Instead, it's all about whatever trick can be pulled to hold power for just a while longer. If power goes to the other side, it'll be all about whatever tricks can be pulled to get it back (think of the whole Clinton impeachment fiasco of the 90s).

That's the whole game. This is not about long-lasting principles, but about using every legitimate (and many an illegitimate) tool at one's disposal to have one's way and beat the other side.

Posted by Khaled | September 14, 2007 10:49 AM

... every commentator on the Clinton administration said clearly that any time a church pastor doesn't respond to a summons, the children in the church should be burned up. And every time there is a custody dispute, a federal SWAT team should be dispatched to kidnap the child involved and deport him to Cuba.

Tell me y81, is the united states a nation of laws or a creation of the president's will?
Or is it just the land of do as you please?

The cadres at the Standard are only reflecting what is already here, a fascist mentality that has a hammerlock on the bulk of republican party and its membership. With such followers it is only natural for bush to feel entitled to rule america by fuhrerprincip

Posted by Northern Observer | September 14, 2007 10:52 AM

y81: die in a fire, and burn in hell for all of eternity. Seriously.

Posted by LarryM | September 14, 2007 10:52 AM

y81: die in a fire, and burn in hell for all of eternity. Seriously.

Speaking of fascists...

Posted by Al | September 14, 2007 10:53 AM

[A]bducted off the streets and then held incommunicado in secret foreign facilities for an indefinite span of time during which they'll be tortured until, eventually, their coerced confessions as used as evidence for never releasing them . . . .

It used to be that every time I explicitly confronted the Addington/Cheney/Yoo theories of what is "legal," and forced myself to put it in the simplest possible terms (as you have done here), I always paused to ask myself: Really? Can it actually be that bad? Could that really be their interpretation of American and international jurisprudence? Surely no fellow citizen of mine could possibly condone this sort of thing . . . right? This must just be overblown rhetoric, and a proof of Godwin's Law, and what always gets thrown at conservative administrations. Right?

So then I got my ass into law school (partly to try and understand what the hell is going on in the U.S.A.), and read all of the publicly released memos, and asked pointed questions whenever I came across a respected scholar* . . . and whaddya know. It is that simple. They are, in fact, literal totalitarians. No getting around it. Gosh.

These people (including Mssrs. Giuliani, Tancredo, Romney, etc.) are actually proposing that we should abandon the Republic, and create a new, crypto-fascist, authoritarian, military-industrial, Christian state. And there are voters and pundits out there who drool over the thought!

So. Why isn't everyone angry? WHY AREN'T WE RIOTING IN THE STREETS?

Instead, I'm sitting on a comfy couch, in a cozy NYC apartment, writing a lengthy comment on a blog. Procrastinating about doing my reading for class. Thinking about the last time I participated in rioting in the streets (New York RNC, '04), and the fat lot of good that did.

Don't really know what to say, here. Just venting. Thanks.

*My favorite response, from Scott Horton:

Me: Is the Bush administration's goal literally an Orwellian perpetual war wherein the Executive branch has supreme domestic authority?

Horton: Hmm. "Orwellian perpetual war"? (pause) Yes.

Posted by S.G.E.W. | September 14, 2007 10:58 AM

hehe Al, you're always good for a laugh, in this case showing the outer limits of the right's current obsession with labeling everything it disagrees with fascism. Now of course the left isn't immune from this sort of thing either, but generally resrrticts itself to, you know, making arguments about fascist tendencies in the government. And if it wasn't entirely clear to your fucking pea brain, I don't want the GOVERNMENT to burn him in a fire. I don't even want a private citizen to burn him in a fire. I hadn't even given particular thought to the cause of the fire, but I suppose a fire caused by y8l himself, or by an act of God, would be deliciously appropriate.

As for burning in hell for all of eternity, last time I checked even the most dedicated fascist didn't claim to have power over people's fates after death.

Posted by LarryM | September 14, 2007 11:00 AM

the point I would make is that Bush really has asserted his constitutional right to do this

This, BTW, is just a flat-out lie.

Bush has not asserted his right to do anything to his "political opponents" (which is what Matthew asserted).

Jeez, Matthew. The Atlantic is paying for this?

Posted by Al | September 14, 2007 11:02 AM

LarryM:

"...even the most dedicated fascist didn't claim to have power over people's fates after death."

Ah, but nobody ever expects the Spanish Inquisition...

Posted by STS | September 14, 2007 11:06 AM

Spare me, Al. I don't know what kind of fucked up family life you had, but up North, that's not how we behave towards our friends. w/d's point stands: how would you know why he'd done it?

Posted by SomeCallMeTim | September 14, 2007 11:06 AM

Al, "political opponents" is a subset of "anyone".

Posted by Njorl | September 14, 2007 11:09 AM

Al you fucking moron, are you really that fucking stupid?

He has asserted the right to do that to a broad range of people who fit into certain categories. He has asserted the right to define those categories himself. He has asserted that his decisions in that regard - the definition of those categories, who fits in them - is unreviewable.

The fact that none of those categories bears the label "political opponents" is irrelevant. The non-reviewability is the key. There is nothing legally stopping Bush from deciding, for example, that his political opponents, by opposing his policies, are, by doing so, providing material assistance to our enemies. Heck, Plenty of your fellow travelers have asserted as much. He could then hold those political opponents indefinitely, with NO REVIEW OF ANY TYPE POSSIBLE.

There is nothing LEGALLY stopping him from doing that.

Posted by LarryM | September 14, 2007 11:09 AM

I'm going to regret jumpin' into this fray, but:

Bush has not asserted his right to do anything to his "political opponents" (which is what Matthew asserted).

The thing is, under the current strangled logic of the Military Commissions Act, and the various "signing statements," and the legal memos from counsel, etc., the Executive branch can do anything it likes to anybody, anywhere, at any time. This could include "political opponents," as there is no check on this power whatsoever. If nobody can stop the Executive from doing this to political opponents, it is a power, and therefore a "right."

You may be correct on one point, however: It could be said that Mr. Bush has not, himself, asserted any right whatsoever. In fact, charitably speaking, one could imagine that he might not even be aware of this (or any other) interpretation. To put his behavior in the best light, he might be, you know, clinicaly retarded. And therefore not totally blame-worthy.

Posted by S.G.E.W. | September 14, 2007 11:11 AM

that's not how we behave towards our friends

SCMT: what's that?

how would you know why he'd done it?

How would I know why who'd done what? Bush has asserted the right to detain enemy combatants for the legth of the conflict. This, of course, is the same right that, e.g., FDR asserted, so it's not like it is something new. And of course Americans have the right to a habeas hearing, so if the question is how do I know whether Bush has asserted someone is an enemy combatant, well, that's how.

Posted by Al | September 14, 2007 11:12 AM

Al, "political opponents" is a subset of "anyone".

I'm not sure how this helps, since Bush has not asserted the right to detain "anyone".

Posted by Al | September 14, 2007 11:14 AM

Why, if I didn't know better I might think Al was arguing in bad faith.

Posted by neil | September 14, 2007 11:15 AM

Al,

Funny how you accuse Mathew of lying, and then include several blatant lies in your post. Let's just hit the two most egregious.

(1) His assertion as to who he can obtain indefinitely goes well beyond just "enemy combatants," and

(2) According to the administration, citizens do NOT have a right to habeus if they are among the covered classes. Now, it's possible that even the current supreme court would disagree (perhaps even your boy Scalia), but we're talking about what the administration has asserted, not what the court MAY decide.

Posted by LarryM | September 14, 2007 11:19 AM

The commentators here seem to have modified Matt Yglesias's original statement to read: "The Bush Administration has asserted powers of detention etc. which could, in theory, be used against political opponents, though no one has actually said or done that." That rather proves too much, no? Elian Gonzalez could, in theory, have been a political opponent of the Clinton Administration, but, while I disapproved of Janet Reno's handling of that matter, I didn't go around that I was in actual danger of being seized by a SWAT team and deported for criticizing the Clinton Administration.

Posted by y81 | September 14, 2007 11:20 AM

obtain=detain

Posted by LarryM | September 14, 2007 11:21 AM

This, of course, is the same right that, e.g., FDR asserted, so it's not like it is something new.

Yeah, that turned out awesome, didn't it?

whether Bush has asserted someone is an enemy combatant

Bush can assert anyone is an enemy combatant, without the public or the judicial system seeing the evidence. Therefore, he has asserted the right to detain anyone.

Posted by Consumatopia | September 14, 2007 11:24 AM

Elian Gonzales, though, was not simply declared arbitrarily and non-reviewably by the President to be a Cuban citizen. He was, you know, born that way.

By contrast, the President has claimed the authority to indefinitely detain anybody who is a terrorist, and he has also claimed the nonreviewable authority to unilaterally declare somebody of being a terrorist. The precedent set by the Elian Gonzales case didn't put Eric Alterman in any risk of being spirited away, but the precedent set in the Jose Padilla case did.

By the way, it's pretty mystifying that 8 years later, Republicans are still whining that Clinton sent a boy back to Cuba just for being Cuban, while utterly ignoring the fact that Bush has been incarcerating hundreds of people in Cuba, many of them innocent, for years.

Posted by neil | September 14, 2007 11:26 AM

That the "main opinion leaders on the right" support Bush's megalomaniacal excesses is neither surprising nor disturbing. That a significant number of Democratic Congresscritters and other "main opinion leaders on the left" do is both.

On second thought, I guess it was surprising only the first few times. All hail "bipartisanship and moderation!"

Posted by Adams | September 14, 2007 11:28 AM

Al, the fascist, commenting on fascism. What a surprise. Hi, Fascist Al. Run along on your fascist ways as always.

Hi, Fascist Al.

Posted by Jennifer | September 14, 2007 11:29 AM

I'm not sure how this helps, since Bush has not asserted the right to detain "anyone".

Yes he has and you know he has.

Bush asserts it is his right to label people "enemy combatants". He has asserted that he alone can decide what does and does not make up an enemy combatant. He has asserted that no judge, or Congress, or anyone else is entitled to review those conditions, or even see them.

Hence, he has asserted his right to detain anyone.

Posted by Joshua | September 14, 2007 11:32 AM

...every commentator on the Clinton administration said clearly that any time a church pastor doesn't respond to a summons, the children in the church should be burned up. And every time there is a custody dispute, a federal SWAT team should be dispatched to kidnap the child involved and deport him to Cuba. That's what the "main opinion leaders" on the left said.

You might mean some mainstream and especially DLC Democrats on that first point. You'd be hard pressed to go back and find the "main opinion leaders" on the left backing the Janet Reno raid on the Koresh compound.

You'd probably mean about everyone outside a small hard-core segment of Cuban exiles and a small portion of Republican extremists on the Elian Gonzalez reference. Sending a kid back to his dad after a full legal review of custody options seems pretty uncontroversial, and few outside the sub-section of the Miami exile community feel that 'the Miami relatives' and those boat cruisers who called themselves 'the fisherman' had the slightest bit of custody claim. They didn't.

Posted by El Cid | September 14, 2007 11:35 AM

Al:

Bush has asserted the right to detain enemy combatants for the legth of the conflict. This, of course, is the same right that, e.g., FDR asserted, so it's not like it is something new.

The new part is that Bush has also asserted that he gets to say who counts as an enemy combatant, and no one else gets to review or challenge that. And this invites a situation in which an executive, maybe Bush or maybe a successor, makes a bad faith designation -- without having to justify it to anyone -- of someone as an 'enemy combatant" and disappears them for a while. Snatches a US citizen out of an airport, let's say. If you say you don't see the potential for abuse of this power to silence political opponents, I don't believe you.

This is what was meant by the question "how would you know why he'd done it," which you pretend not to understand.

Posted by er | September 14, 2007 11:36 AM

It was not mere assertion Matthew.

It is what happened to Jose Padilla.

OF course he was tried when there was no other option and after what was done to him was done to him.

But he was whisked away for years with no hope of any due process and that action was defended by this Bush Administration and by the people you are quoting from the Standard.

It was an act of fascism.

Posted by Armando | September 14, 2007 11:36 AM

I don't want to pile on Al, but he deserves it. Sticking up for and lying about Bush's habeas corpus/enemy combatant decisions should get him banned as a troll.

Posted by Jeffrey Davis | September 14, 2007 11:38 AM

Matt, the whole point of the U.S. Attorney scandal was that they were going after political rivals on bogus corruption charges, as well as prosecuting people for "vote fraud" who made innocent mistakes.

So it is true that some liberals believe that other liberals are being prosecuted unfairly (and put in jail)

Posted by Chad Okere | September 14, 2007 11:44 AM

Can I just point out that for all the talk about Bush, it's his elk we ought to be worried about?

I hate that elk.

Posted by mark | September 14, 2007 11:46 AM

>banned as a troll ... I don't know. I'd put our conservative commenters into three categories. People with honest disagreements, expressed respectfully, obviously shouldn't be banned. True trolls, who let invective substitute entirely for argument, and/or who make wholly nonsensical arguments, should be banned. y8l falls into this category, or close to it.

Then there is AL, who, in addition to his invective, does make real "arguments." They are stunningly poor arguments, for the most part, but so much so as to often be amusing. More importantly, they are often unintentionally revealing, serving in many cases to even underline Matthew's point. Kind of like his fascism comment up thread. So I say let AL stay.

Posted by LarryM | September 14, 2007 11:51 AM

El Cid, I missed that "full legal review" of the Elian Gonzalez custody decision. What court was that in? . . . O you mean a "full legal review" by the Attorney General. Right. The Bush Administration will give you that.

Posted by y81 | September 14, 2007 11:57 AM

Al-

He's asserted his right to detain anyone who is an "enemy combatant."

He's asserted that only he gets to decide who is or is not an "enemy combatant," and that no one can appeal or review or otherwise contradict his decision or the criteria on which that decision was made.

Therefore, "anyone" can be an enemy combatant if the president says so.

"Political opponent" is a subset of "anyone."

Therefore, he has asserted that he has the right to point at someone, including a political opponent, declare them to be an enemy combatant, have them arrested, detained, and subjected to "enhanced interrogation."

QED.

In fairness to Bush, he probably doesn't believe that he's really claiming the right of presidents to detain and torture anyone on the planet without any restrictions on that power other than what the army and the CIA would do for them before refusing orders. But that just means he's dumb instead of actively malicious.

Posted by Patrick | September 14, 2007 11:57 AM

Chad brings up and excellent point the points to the ongoing fascist drift in the republican party. Under Bush the republicans overthrew precident and tradition in the federal public service by turning all federal agencies into extensions of the republican electoral machine. Hatch act be damned, only the hardest republican loyalists were allowed into the civil service, even for minor jobs. This ongoing effort has neutered certain agencies from fulfilling their mandate: FDA, Energy, Interior, etc..

The most serious break took place in the Department of Justice where gonzales, directed by rove, proceded to fire federal attorney's who would not conduct malicious prosecutions against democratic party candidates and office holders. In the case of attorney Carol Lam, an ongoing criminal investigation of CIA official and republican patizan Kyle Foggo was brought to a halt.

The republican party subverted the department of justice for political advantage and the situation has not been rectified to date. It will await 2009.

Go to TPM muckraker for the gory details.

Posted by Northern Observer | September 14, 2007 12:01 PM

Bush can assert anyone is an enemy combatant, without the public or the judicial system seeing the evidence. Therefore, he has asserted the right to detain anyone.

Is it really true that Bush has claimed the right to do this even for American citizens, without any external review? Could anyone post a link to a legal source unpacking this assertion clearly and tracing it to legal arguments? I'm sort of in SGEW's pre law school position of not quite believing it could possibly be this bad.

Posted by mq | September 14, 2007 12:04 PM

This little corner of the internet is turning into a joke, Matthew.

As you recall, I'm sure, the November 13, 2001 Presidential Military Order concerning the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism applies to, er, non-citizens only.

Sec. 2(a) reads: The term "individual subject to this order" shall mean any individual who is not a United States citizen...

Yeah, you can actually look this up! What a world, eh?

You can also read the government's case-in-chief in the Hamdi decision, and then actually read the Hamdi decision!

But wait, you say. Wasn't Hamdi a US citizen being detained indefinitely pursuant to the foul diktat of smelly Bush? Well, if you said that, you'd be right. However, I'll give you a dollar if you can spot the stadium-sized extenuating circumstance in that case.

Hint: it has something to do with Hamdi being captured by the Northern Alliance during the early phases of the Enduring Freedom, on the battlefield no less.

The Court overturned the Executive, which, if I have my head on straight, means that the government is functioning as designed by the Founders!

But, you know, words like fascist (and plutonium!) are just so fun to use.

Posted by JA | September 14, 2007 12:07 PM

Is it really true that Bush has claimed the right to do this even for American citizens, without any external review? Could anyone post a link to a legal source unpacking this assertion clearly and tracing it to legal arguments? I'm sort of in SGEW's pre law school position of not quite believing it could possibly be this bad.

It is not true. American citizens who are detained and designated as enemy combatants are entitled to habeas corpus proceedings to challenge their detention. See Hamdi v. Rumsfeld. The US did not challenge that point of law - see, e.g., the oral argument in Hamdi:

QUESTION: Well, perhaps not, but we are
here on habeas. Do you agree that, that [Hamdi] is entitled to bring a habeas action?
MR. CLEMENT: We do agree that he is
entitled to bring a --
QUESTION: Okay.
MR. CLEMENT: -- habeas action.

I'm not sure why there are so many members of the Reality Based Community here claiming the opposite, but they are simply wrong.

Posted by Al | September 14, 2007 12:10 PM

Could anyone post a link to a legal source unpacking this assertion clearly and tracing it to legal arguments?

Here's Prof. Balkin's summary of the Military Commissions Act, as it applies to U.S. citizens:
http://balkin.blogspot.com/2006/09/does-military-commissions-act-apply-to.html

There are a lot of posts at his site that delineate the assertions of the Bush Administration, and contrast them with standing Constitutional law, viz. detention, torture, etc.
The "short list" can be found at:
http://balkin.blogspot.com/2005/09/anti-torture-memos-balkinization-posts.html

And as for you, Al, Hamdi v. Rumsfeld was decided before the M.C.A. was passed. In fact, the M.C.A. was a direct response to that decision. Sigh.

Posted by S.G.E.W. | September 14, 2007 12:14 PM

"Don't feed the trolls."

Words to live by.

Now and forever.

Posted by Uncle Kvetch | September 14, 2007 12:19 PM

I'm not sure what you are trying to say, SGEW. As Balkin concedes in the post to which you link, American citizens are entitled to habeas proceedings.

Posted by Al | September 14, 2007 12:21 PM

y81- You ought to review the facts about Elian Gonzalez before making comments. The state court revoked the american relatives temporary custody prior to the boy being removed from their home. Also, the entry itself was pursuant to a court order. Elian remained in the U.S. until all legal appeals seeking asylum were exhausted and the matter was declined by the Supreme Court. Only then did he return with his father to Cuba.

Posted by Doug | September 14, 2007 12:26 PM

JA,

Can you really not be aware of the subsequent legislative developments, executive orders, and the administrations interpretations thereof?

Or are you a lying piece of shit?

My guess: lying piece of shit.

I'll give you a small amount of credit on one point. The biggest excesses of the 2001 Order were, indeed, not sustained by the Supreme Court. Unfortunately, the language of the relevant decisions left some room for the argument that a more explicit legislative grant of authority might lead to a different result. The Bush administration is arguing that the 2006 torture and habeas repeal bill (I don't recall off the top of my head the official title, but you guys all know what I'm talking about) fills in that legislative gap and allows the blanket detention of U.S. citizens (who, according to an unreviewable determination by the administration, give material aid to the "enemy" - it's NOT just limited to "enemy combatants") without recourse to habeas).

Posted by LarryM | September 14, 2007 12:30 PM

El Cid, I missed that "full legal review" of the Elian Gonzalez custody decision. What court was that in? . . . O you mean a "full legal review" by the Attorney General. Right. The Bush Administration will give you that.

Posted by y81 | September 14, 2007 11:57 AM

You're right. The Clinton administration swept in and sent all the "Miami relatives" who weren't the kid's parents to a secret detention center in Syria and Elian Gonzalez was airdropped from a C-130 into a Cuban jail and no one ever ever ever got to be heard from in court.

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ------------------------------------------- No. 00-11424 --------------------------------------------

D. C. Docket No. 00-00206-CV-KMM

ELIAN GONZALEZ, a minor, by and through
LAZARO GONZALEZ, as next friend, or, alternatively, as temporary legal custodian, Plaintiffs-Appellants,

versus

JANET RENO, Attorney General of the United States;
DORIS MEISSNER, Commissioner, United States
Immigration and Naturalization Service;
ROBERT WALLIS, District Director,
United States Immigration and Naturalization Service;
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE; and UNITED
STATES DEPARTMENT OF JUSTICE,
Defendants-Appellees,
JUAN MIGUEL GONZALEZ,
Intervenor.
---------------------------------------------------------------

Appeal from the United States District Court for the Southern District of Florida
----------------------------------------------------------------

(June 1, 2000)

Before EDMONDSON, DUBINA and WILSON, Circuit Judges

EDMONDSON, Circuit Judge:

This case, at first sight, seems to be about little more than a child and his father. But, for this Court, the case is mainly about the separation of powers under our constitutional system of government: a statute enacted by Congress, the permissible scope of executive discretion under that statute, and the limits on judicial review of the exercise of that executive discretion.

Elian Gonzalez ("Plaintiff"), a six-year-old Cuban child, arrived in the United States alone. His father in Cuba demanded that Plaintiff be returned to Cuba. Plaintiff, however, asked to stay in the United States; and asylum applications were submitted on his behalf. The Immigration and Naturalization Service ("INS") -- after, among other things, consulting with Plaintiff's father and considering Plaintiff's age -- decided that Plaintiff's asylum applications were legally void and refused to consider their merit.

Plaintiff then filed this suit in federal district court, seeking on several grounds to compel the INS to consider and to determine the merit of his asylum applications. The district court dismissed Plaintiff's suit. Gonzalez ex rel. Gonzalez v. Reno, 86 F. Supp.2d 1167, 1194 (S.D. Fla. 2000). Plaintiff appeals,(1) and we affirm...

... When the INS was confronted with Plaintiff's purported asylum applications, the immigration law of the United States provided the INS with no clear answer. The INS accordingly developed a policy to deal with the extraordinary circumstances of asylum applications filed on behalf of a six-year-old child, by the child himself and a non-parental relative, against the express wishes of the child's parents (or sole parent). The INS then applied this new policy to Plaintiff's purported asylum applications and rejected them as nullities.

Because the preexisting law compelled no particular policy, the INS was entitled to make a policy decision. The policy decision that the INS made was within the outside border of reasonable choices. And the INS did not abuse its discretion or act arbitrarily in applying the policy and rejecting Plaintiff's purported asylum applications. The Court neither approves nor disapproves the INS's decision to reject the asylum applications filed on Plaintiff's behalf, but the INS decision did not contradict 8 U.S.C. § 1158.

The judgment of the district court is AFFIRMED.

Buncha pathetic losers. Elian!!! Ellllllllian!!!!

Posted by El Cid | September 14, 2007 12:34 PM

The MCA was a response by...wait for it...

Congress! Doing exactly what they are tasked to do! Make laws. (In other words, this was not Bush the Kingly!)

And, of course, Section 948b of the MCA states that "[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants."

But let's say you're just a plain old enemy combatant like Hamdi. "Hamdi [decision] states that citizens have the right under the Due Process Clause to contest their designation as enemy combatants."

You see that? Under Due Process -- the Due Process Clause being in the Constitution and, therefore, cannot be overridden by an act of Congress except through a Constitutional Amendment (see Judicial Review on Wiki) -- citizens have the right to contest their designation as enemy combatants in US Court.

Posted by JA | September 14, 2007 12:36 PM

AL,

In your case, I think there is a small possibilty that you are being dense rather than intentionally deceptive. You're THAT stupid. But for the benefit of those few readers who may for some reason accord you some shred of credibility, the position of Balkin is roughly as follows:

(1) Under any reasonable interpretation of the constitution, Americans retain the right of habeas. But

(2) The administration, and, sadly, the relevant legislation, claims that this is not the case (when the Bush administration unilaterally and unreviewably determines that the citizen has given material aid to the enemy), and

(3) Given the current state of the Supreme Court, there is no guarantee that the Court will rule correctly.

I would add that, given the recent addition of two justices highly deferential to assertions of executive power, I have serious doubts that even the precedents that JA refers to would be decided the same way today.

Posted by LarryM | September 14, 2007 12:37 PM

Just to add that if Congress were to formally declare war on anyone, all these powers are vested in the President, along with the right to censor newspapers and ban demonstrations. The last time that happened was WWII so I guess we lost on Dec 8th 1941 when the fascists won.

Just to add, do progressives have some sort of pact between themselves that everytime they use the words 'fascist/ism' or 'Nazi/ism' that they're having some sort of contest as to who can be the most ridiculous? It's been remarked that no progessive, liberal, lefist or what have you has actually used those words correctly in a sentence since at least 1950 or so.

Whatever a prgressive is attempting to accomplish with this, what he is actually succeeding at accomplishing is creating a deep, sincere, confident, 'ressentiment'free feeling of intellectual superiority amongst the non progressives. I guess progressives are just trying to lull such people into a false sense of security.

Posted by j mct | September 14, 2007 12:40 PM

JA,

Man, you know the talking points. To bad that you are a fucking filthy liar.

It's not about the military tribunals, which indeed do not apply to citizens. It's about the seperate detention provisions that DO apply to citizens.

Yes, I'm sure that citizens detained indefinitely without trail or review will take comfort in the fact that they can't be tried by a military tribunal.

Posted by LarryM | September 14, 2007 12:42 PM

And big dumb AL, the administration is not bound by concessions made by its attorney in Supreme Court argument, especially given other, more recent statements to the contrary, and subsequent legislative and executive actions.

Posted by LarryM | September 14, 2007 12:44 PM

Larry M, I'm definitely a prone piece of shit.

But, more to the point, I'll give you a buck-o-five if you can find any official orders by the President, and acts of Congress, or any Presidential interpretations thereof, that say anything about suspending habeas for US citizens (you know, the ones who were not caught on a foreign battlefield fighting their own country, which doesn't sound to me like a particularly smart way to become a viable political opponent of vile Uncle George).

Posted by JA | September 14, 2007 12:48 PM

The MCA was a response by...wait for it...

Congress! Doing exactly what they are tasked to do! Make laws. (In other words, this was not Bush the Kingly!)

The fact that the legislature is shamefully complicitous in the administation's actions doesn't excuse the administration.

I mean, if the legislature allowed the president to jail any American without review, would you defend that as "doing exactly what they are tasked to do?"

Oh, wait, that is precisely what you ARE doing! scum.

Posted by LarryM | September 14, 2007 12:49 PM

Or perhaps those "separate detention provisions" are behind the Bush Firewall, so we can't see them?

Wait a minute. Cheney is the President of the Senate, Cheney is a redactor...

Oh my God.

Posted by JA | September 14, 2007 12:54 PM

Scum? Are you from Mos Eisley perchance?

But to answer your softball, the Legislature does not have the Power to allow the President to violate the Due Process rights of US citizens. So, I guess I'd have to come down on the side of the Constitution on this one, too.

Posted by JA | September 14, 2007 12:57 PM

Am I on a roll? I feel like I'm on a roll.

Posted by JA | September 14, 2007 12:59 PM

both statements are by AI

that's not how we behave towards our friends
SCMT: what's that?
how would you know why he'd done it?
How would I know why who'd done what?

>>"Bush has asserted the right to detain enemy combatants"

for the legth of the conflict. This, of course, is the same right that, e.g., FDR asserted, so it's not like it is something new. And of course Americans have the right to a habeas hearing, so if the question is how do I know whether Bush has asserted someone is an enemy combatant, well, that's how.
Posted by Al | September 14, 2007 11:12 AM

Al, "political opponents" is a subset of "anyone".
I'm not sure how this helps, since

>>Bush has not asserted the right to detain "anyone".
Posted by Al | September 14, 2007 11:14 AM

Posted by judson | September 14, 2007 1:09 PM

It can't be stressed too often that Bush is, in fact, operating under the carefully crafted and extremely Constitutional Theory Of We Get To Do Whatever The Fuck We Want.

And so, he's doing whatever the fuck he wants, cheered on by his authoritarian followers in the Beltway and the remaining 30% of the country who will be unable to undrink the KoolAid, even after any amount of deprogrammming. Why that would surprise anyone at this point I cannot imagine.

Incidentally, there's way to prove that Bush hasn't asserted the right to detain "anyone" and no reason to believe that he hasn't. Or do you believe that there are no secret laws?

Posted by lambert strether | September 14, 2007 1:25 PM

Am I on a roll? I feel like I'm on a roll.

Yeah, a Kaiser roll. With bologna.

Posted by Peter Driscoll | September 14, 2007 1:28 PM

Am I on a roll? I feel like I'm on a roll.

Ummm, no. You sort of seem to be rolling around in random circles. No one has answered the point that the MCA allows indefinite detention of any persons (citizen or not) found by unreviewable executive determination to be giving material aid to the enemy...is that true?

And please stop doing the comparisons to WWII, which are false in all kinds of ways and when true are not reassuring (Japanese mass detention).

Posted by mq | September 14, 2007 1:44 PM

One of the more un-nerving thing about the Padilla case was how cynical it was. Padilla could have been arrested and tried and incarcerated for the crimes he was charged with and nobody would have said Boo! about it. Instead, the Bush jackasses used it to flex their theories of presidential powers.

The shall we wonder/why others prosper/living so wicked/year after year

Posted by Jeffrey Davis | September 14, 2007 1:54 PM

No one has answered the point that the MCA allows indefinite detention of any persons (citizen or not) found by unreviewable executive determination to be giving material aid to the enemy...is that true?

Who says that's true? Balkin, cited above, doesn't - as I pointed out, he acknowledges that citizens are entitled to habeas proceedings. Can you point me to the where in the MCA it says that? Or to a discussion of the relevant provisions.

Posted by Al | September 14, 2007 1:55 PM

J.A. - you're rolling somethin'.

Matt -

While it is true that the "sky is falling" shouters of this world may frequently be hyperventilating, I think it's equally true that too many have deluded themselves into believing "It can't happen here".

Posted by rihilism | September 14, 2007 2:20 PM

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930enr.txt.pdf

Please scroll down to page 37 of the pdf display.

Are you there now? Good. (I'm typing this out since I always f*** up copying text from pdfs. So sorry if I misspell).

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination (emphasis mine).
(2) Except as provided in paragraphs (2) and (3) of Section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination (emphasis again mine)

One very simple question to the field:

if you have no access to anyone detained, and you have no legal recourse as long as said detainee (what a filthly word that is) is awaiting determination as a combatant, how are you to prove U.S. citizenship? Inquiring minds would really, really like to know.

"this is the way the world ends,
this is the way the world ends,
this is the way the world ends,
not with a bang, but a whimper."

Posted by jonathan | September 14, 2007 3:04 PM

if you have no access to anyone detained, and you have no legal recourse as long as said detainee (what a filthly word that is) is awaiting determination as a combatant, how are you to prove U.S. citizenship?

Huh? The detainee can apply for habeas relief. At the habeas proceeding, in federal court, he can show he is a US citizen.

Sections (e)(1) and (2) above, by their terms, apply only to aliens.

Posted by Al | September 14, 2007 3:17 PM

You're not thinking it through, Al.

Think of it this way:

-my mom goes on holiday to Asia, and somehow finds herself mugged and laid out in a nasty part of Afghanistan (yeah, I know, silly, but my mom isn't exactly worldly and sophisticated).

-some conniving bastards decide to turn her over to Americans, saying that she was Osama's slutty whore, etc. And don't be fooled by her good English, either. AQ paid good money for her to go to college in decadent New Jersey (snigger).

-so my mom is locked up in a cellar in Kabul for a bit, and is later shipped over to Gitmo. Bear in mind she's got no papers (having been mugged-poor mom!), and it's not like someone who gets nabbed in Kabul is allowed the proverbial one phone call, so I, her panicking son, have no idea where she is or who's got her. Since it will become readily apparent to her captors (in between bouts of waterboarding, simulated dog attacks, etc) that she's damn familiar with the tri-state area, the Powers that Be decide to put off figuring out her "status" for a while.

-now, if my mom meets Al in a Gitmo cell and he tells her that even a dumb whore like her can have a habeas review, what are her chances of getting it?

According to the MCA, contra Al, ZERO. None. Zip. Zilch. Nada. There is NO provision in the MCA for determining alien status. And as the second section I cited above makes terrifyingly clear, while you are "awaiting determination as an alien combatant", the government doesn't owe you dick regarding any legal action AT ALL. So please explain to me again, Al, how my mom is going to stop her *ahem* forceful interrogation long enough to convince the nice men in black that she was born in New Rochelle?

Please hurry.

They mentioned something about a cheese grater and bleach when I talked to them during lunch.

Posted by jonathan | September 14, 2007 3:39 PM

A couple of points:

1) "determined by the United States" = "l'etat c'est moi" since Bush is the decider.

2) Bush blipped past the little problem of his citizenship and simply declared Jose Padilla an enemy combatant. It was only Padilla's usefulness as PR that got his case to the public's eye originally. Now, no court now has the right to hear future complaints about those findings. Since Bush fought to keep Padilla out of the courts, there's no reason to suspect that in the future that we'll even hear about prisoners like Padilla to have 3rd parties alert anyone about the habeas corpus abuse.

Posted by Jeffrey Davis | September 14, 2007 3:45 PM

if my mom meets Al in a Gitmo cell and he tells her that even a dumb whore like her can have a habeas review, what are her chances of getting it?

100%. All she needs to do is assert she is a US citizen and she's in federal court for a habeas hearing.

According to the MCA, contra Al, ZERO. None. Zip. Zilch. Nada. There is NO provision in the MCA for determining alien status.

That's because the habeas proceedings do that.

And as the second section I cited above makes terrifyingly clear, while you are "awaiting determination as an alien combatant", the government doesn't owe you dick regarding any legal action AT ALL.

No, you have improperly quoted the text. The text is "or is awaiting such determination". What does "such" determination refer to? Not a determination as to alien status, but rather a determination "by the United States to have been properly detained as an enemy combatant". But this, of course, only applies to aliens, as the text explicitly states. Your mom, not being an alien, doesn't fall into this provision, and she can use a habeas proceeding in front of a federal judge to show that.

Posted by Al | September 14, 2007 3:51 PM

and she can use a habeas proceeding in front of a federal judge to show that.

IF she can get her case even noticed by a court. Do you know where there's a list of the names of the prisoners in our detention facilities?

Posted by Jeffrey Davis | September 14, 2007 3:54 PM

All she needs to do is assert she is a US citizen and she's in federal court for a habeas hearing.

Wow.

This may be the most obtuse, incompetently arrogant, faith-based sentence I've ever seen written on the internet.

And I was there during the Specialist period at TAPPED.

Just, wow.

Unbelievable.

You take the cake, Al, you really do. You know, I never truly understood the pony concept until right now.

Posted by jonathan | September 14, 2007 3:59 PM

Do you know where there's a list of the names of the prisoners in our detention facilities?

Nope. What difference does a list make? As long as the person asserts it, they will get a hearing.

Posted by Al | September 14, 2007 4:04 PM

Nope. What difference does a list make? As long as the person asserts it, they will get a hearing.

You're guessing. (The tell: you used the word "asserts".)

Posted by Jeffrey Davis | September 14, 2007 4:14 PM

OK, thanks. The law's text does make clear that it is not supposed to apply to U.S. citizens, which makes it a little short of the full nightmare scenario. Yeah, it might be easy to violate the law, but violating the law was possible even under the old system.

Posted by mq | September 14, 2007 4:29 PM

Al (and implicitly, mq), please note that there are no apparent guidelines in the MCA to determine when this "assertion of citizenship" should take place, or what kind of assertion would be found credible by the bastards currently ripping my mom's fingernails out. Please also note that under the Immigration and Nationality Act Section 349(a)(7) you automatically lose US citizenship if you "attempt to overthrow, or bear arms against" the United States, which is certainly congruent with the MCA. And of course this is all complicated by the unfortunate reputation of the rest of the government at this point, especially the courts, to be deferential to executive branch power. I.e., if my mom "asserts" her citizenship, a Bush flak can all too easily scream OMG!!!TERRORISM!!!9/11!!ALQAEDAOVERHERE!!11!!1!!!!

My mom's lawyer: your honor, Jon's mom was born in New Rochelle, and for pity's sake, she was mugged in a foreign country.

Bush flak: your honor, in this area the executive branch is clearly supreme, since if you allow this habeas petition you are objectively pro-terrorist and we'll tell the religious right to poison your dog. Anyway, we have a signed confession right here.

mom's lawyer: that says "someone help I'm being whipped with Nintendo control-"

Bush flak: I don't think we need to drag anyone's reputation through the mud here-

mom's lawyer: your honor, this has dried blood on it-

Bush flak: I SAID, no one's credibility needs to be quest-

mom's lawyer: look, right here, it looks like a sca-

Bush flak (to my mom's lawyer): DON'T you have a green card?

mom's lawyer (startled): yes, I've had it for years. I've always been legal, ever since I had a student visa.

Bush flak: how strongly do you want that state of affairs to continue?

mom's lawyer: ....

Posted by jonathan | September 14, 2007 5:16 PM

Nope. What difference does a list make? As long as the person asserts it, they will get a hearing.
Posted by Al | September 14, 2007 4:04 PM

You are unbelievably naive. When did conservatives go from not trusting government to being hoplessly naive about its good intentions? I musta missed that memo.

Posted by Northern Observer | September 14, 2007 5:19 PM

the point I would make is that Bush really has asserted his constitutional right to do this and the main opinion leaders on the right have agreed that there should be no meaningful constraint on his ability to behave in this manner.

PRECISELY! And why you don't hear more about this in general discourse is beyond me!!

Posted by oddjob | September 14, 2007 6:06 PM

Northern Observor - Tell me y81, is the united states a nation of laws or a creation of the president's will?

Neither.
It is a nation that The People of America created laws and a constitution to help enforce their norms and culture. Both law and the Constitution can be chucked if the nation - and it's norms and culture - are threatened. Laws are suspended in an emergency, when martial law is imposed. And the Constitution, as Justice Jackson noted, is not a suicide pact.

Laws are secondary to what they are intended to protect.

Which is why parts of the Constitution are jetttisoned in wartime, and why men are Drafted against their will, forced to obey orders, sometimes against their will, put in danger and hardship stripped of most of their Constitutional rights.
Only Jews pretend that they are a nation of The Law, above all other considerations.

Or is it just the land of do as you please?

The Left would like it that way, except for their own fascist Nanny-State laws and regulations.

It was not mere assertion Matthew.
It is what happened to Jose Padilla.
OF course he was tried when there was no other option and after what was done to him was done to him.
But he was whisked away for years with no hope of any due process and that action was defended by this Bush Administration and by the people you are quoting from the Standard.
It was an act of fascism. Posted by Armando

Padilla was a self-admitted terrorist sent to America from Afghan training camps to kill American civilians - hopefully in his mind hundreds - with radioactive substances or natural gas explosions. He admitted he was at terror camps, he admitted he was under enemy command.
Oh, boo hoo for Padilla the enemy terrorist.

That he was a citizen only makes his conduct worse. Because he is a traitor. When Americans found US citizens fighting with the Japs or Nazis, more often than not, they were shot on the spot. No civilian trial, not even a tribunal. The Russians and French did the same with there own citizens that went over to the Nazis.

We and the Brits also had tens of thousands of US and Canadian born "citizens" that went back to Italy in the Depression, and who we captured in N Africa and Italy. Many went as POWs to the US and Canada - the lucky ones - who escaped the Brit hellholes in N Africa and Iran.

None. Not one. Had right to habeas corpus. Even the ones we liked and allowed to stay in the US after the war since they were not ideologue killers like Padilla, just economic opportunity-sekers.

Posted by Chris Ford | September 15, 2007 12:30 AM

It is a nation that The People of America created laws and a constitution to help enforce their norms and culture

Please define "People of America" and their "norms and culture".

Posted by Adan | September 15, 2007 3:00 AM

Both law and the Constitution can be chucked if the nation - and it's norms and culture - are threatened. Laws are suspended in an emergency, when martial law is imposed.

This tells you everything you need to know about conservatives that you'll ever want. The founding ideals of the United States are nothing more than convenience, to be thrown away like so much trash when they feel "threatened" by someone else's "culture".

Tell me Mr. Ford, do you still wear your white bedsheet and hood, or is a Brooks Brothers suit and Chamber of Commerce pin the new white?

Posted by jonathan | September 15, 2007 9:32 AM

Exactly, the Constitution and our laws are living, breathing documents which are contextualized for the times and culture of the American nation of the time, not rigid laws set in stone which primitive tribesmen follow robotically.

On the other hand, interpretation of these subtle philosophical tracts must reside entirely in the hands of right wing nuts, so that they may properly decide when to make enemies vanish or to shoot traitors on sight.

Posted by El Cid | September 15, 2007 10:15 AM

I think the US media completely missed the boat with regards to the recent Padilla verdict -- which I explain in a blog. Also, suggest you check out my post about 9/11 while you are there. - Jotman

Posted by Blogger Jotman | September 16, 2007 9:46 AM

What do you do if you feel the Writ of Habeas Corpus is being unjustly held prisoner?

Posted by 'We call him | September 17, 2007 2:54 AM