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August 12, 2005

From the "What the Hell?" File

This lovely story in the New York Times:

Foreign citizens who change planes at airports in the United States can legally be seized, detained without charges, deprived of access to a lawyer or the courts, and even denied basic necessities like food, lawyers for the government said in Brooklyn federal court yesterday.

Call me crazy, but I like my administrations to at least give a glancing nod toward due process, even for lousy foreigners. You know, to differentiate us, philosophically, from totalitarian thugs.

2008 cannot come soon enough.

Posted by john at August 12, 2005 02:48 PM

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Comments

sxKitten | August 12, 2005 04:07 PM

I heard this on the radio yesterday - the news report also mentioned that foreigners would receive no protection against physical violence short of torture while in custody. As a Canadian (and thus a foreigner), I find this more than a little scary. The US now ranks right up there with third-world tinpot dictatorships as safe places to vacation.

Justine Larbalestier | August 12, 2005 04:07 PM

I'm touched, Scalzi, that you care about us lousy ferriners. Thanks!

John Scalzi | August 12, 2005 04:22 PM

Apparently someone has to, as our govenment does not.

John H | August 12, 2005 05:36 PM

And we have the audacity to criticize other countries for human rights abuses.

I'm not willing to wait for 2008 - let's retake congress next year and start the impeachment already...

Harry Connolly | August 12, 2005 06:01 PM

Frankly, I don't think non-US citizens should be traveling
to the US right now. It's just not safe.

Todd | August 12, 2005 06:18 PM

"United States officials maintain that "clear and unequivocal" but classified evidence shows that he is a Qaeda member."

The New York Times, true to their nature, put an anti-American spin on the story. The individual in question was a suspected terrorist. The title of the piece gives the impression that our government is rousting random foreigners from planes for giggles. No doubt a vast right-wing conspiracy of some sort...

While we always have to keep an eye on what the government is doing, let's not forget that the ultimate purpose of these security measures is to protect other passengers, many of whom may be foreigners as well as Americans.


-----------
SxKitten wrote:

"The US now ranks right up there with third-world tinpot dictatorships as safe places to vacation."

Would we be safer if we let suspected terrorists on planes?

sxKitten | August 12, 2005 07:06 PM

Todd: Maher Arar was a Canadian citizen - would it not have been a little more reasonable to return him to Canada (under guard if he represented a threat) rather than deporting him, in secret, to Syria?

And if I have dark-skin and a non-Anglosaxon name, I think my odds of being detained in the US are higher than of being blown up on a plane.

John | August 12, 2005 07:39 PM

2008 cannot come soon enough? Please. This was a federal court ruling, changing politicians however appealing on the surface will not change the ruling. I have not read the ruling but would like to do so. As the NYT story is not a primary source (and has their own agenda), I think a reading of the decision would be appropriate. That being said, if it's as bad as the article states, one can hope it is appealed to SCOTUS and overturned. Regardless of which political ideology you may ascribe to, grunting like a neanderthal and believing, 'my side good, your side bad' gets us no where.

Todd | August 12, 2005 07:54 PM

SxKitten wrote:
"Maher Arar was a Canadian citizen - would it not have been a little more reasonable to return him to Canada..?"

I am open to the fact that U.S. officials could have handled this particular case better. As I acknowledged, we need to guard against over-zealous and abusive individuals in the law enforcement system. No problem there.

My point is that the New York Times article, like Mr. Scalzi's original post, ignores the context. The added security measures are in place because Islamic terrorist wackos are blowing up planes, buses, and subways in the U.S. and elsewhere. If we need more oversights, fine. But the comparison between the U.S. and "totalitarian thugs" is an irresponsible hyperbole.

Mr. Scalzi would have more credibility on this issue if he devoted at least half as many pixels to speaking out against radical Islamists as he does to trashing the United States. The last line of his post "2008 cannot come soon enough"--makes clear what his real agenda is.

As for you, based on your profile, I don't think you have anything to worry about when you come to the United States. And I don't think that people with "dark-skin and a non-Anglosaxon names" in general have a problem. I know at least two South Koreans who travel through U.S. airports every month without a problem.

Security efforts are focused on Islamic males between the ages of 18 and 40 because--guess what--these are the folks who are blowing up the aforementioned planes and buses around the world right now. Rather than focusing so much of your ire on the U.S. law enforcement agents who are charged with protecting you when you come here, perhaps you could convince the Islamic radicals that blowing up busloads of innocent civilians really isn't such a nice thing to do.

Chelsea | August 12, 2005 08:15 PM

"Security efforts are focused on Islamic males between the ages of 18 and 40 because--guess what--these are the folks who are blowing up the aforementioned planes and buses around the world right now."

Well, it may sound reasonable to YOU... but to me, it reads like racial profiling writ large. you know, where cops make a practice of stopping and harrassing not white people who are citizens of the united states because they're the wrong colour - except now they're going to expand that particular bit of jackbooting to international travellers.

Maher Arar was a Canadian citizen. Canada used to have a good relationship with the USA. I can't say that's true now, and I am increasingly hesitant to travel to the United States. I'm that concerned about having my rights violated because my colour is completely against me... exactly the right shade of brown to look arabic. I've got the right sort of name (right in this case being anglo saxon - heck, my first name is english as can be and I share a last name with a president) and I'm female, but if things keep skipping merrily down this primrose path, I'm not sure that will protect me, either.

And there was a time when I'd travel to the US every week. Now? I don't even want to go down for a convention. And I have friends there that I'd like to visit, but not at the cost of being hauled off to jail because I don't get sunburns.

Brian Ledford | August 12, 2005 08:47 PM

"United States officials maintain that "clear and unequivocal" but classified evidence shows that he is a Qaeda member."

One wonders whether this evidence is of the same quality as that that indicated that Iraq had an active nuclear weapons program and mobile biological weapons labs. Personally, the quoted statement strikes me the same as "the lurkers are supporting me via email."

Todd | August 12, 2005 08:57 PM

Chelsea:

Like Scalzi and SxKitten, you seem more concerned with preserving your left-leaning orthodoxy ("thou shalt not profile") than you do with protecting your fellow citizens (or my fellow citizens, perhaps).

Sorry to break the news to you, but sometimes the world isn't nice and life isn't always fair. I wish it were, but it's not. In WWII, both your government and my own did some bad things to stop some bad people. Want to guess how many innocent people suffered when the Allies bombed Dresden?

That doesn't mean that the ends justifies any means. However, if the authorities have to give Islamic males a bit of extra scrutiny in order to protect us from terrorist attacks, that's life. I am not saying that it would be an ideal solution in an ideal world--but guess what--we don't live in ideal world. I call it the lesser of two evils. 9/ll did change some of the premises on which we operate. Not nice, but it's a fact.

As I noted, it sounds like the U.S.authorities may have bungled in the case of Mr. Arar. But they also believed that he was a member of Al Qaeda. Can we acknowledge, though, that the war on terror doesn't begin and end with this one anomolous case? The New York Times author is (quite intentionally) misrepresenting an exceptional situation as the rule.

If the "jackboots" in the U.S. really frighten you that much, I would suggest travel to Britain. Except that now Tony Blair has also decided to "profile" Islamic males. As Tony Blair said of England, "We cannot allow people to come here and abuse our openness." Similar advice could apply to the U.S., Canada, or anywhere in the civilized world.

Mike Hoye | August 12, 2005 09:47 PM

Give me your tired, your poor, your huddled masses, yearning to breath free, the wretched refuse of your teeming shore, send these, the homeless, tempest tossed; they have, at most, the right not to be subjected to gross physical abuse.

Bruce | August 12, 2005 10:37 PM

Todd, one quick question. What color skin and sorts of names blew up the Federal Building in Oklahoma City, or shot down the students of Columbine and Jonesboro?

Hint: Not dark, and totally American.

Threats, you see, are not limited to Al Qaeda and its allies, as much as George W. and his boss and subordinates would have you believe it.

That is why we fight profiling; not to be less safe, but more so.

Jan | August 12, 2005 11:28 PM

Profiling strikes me as yet another example of stupid after-the-fact attempts to stop terrorists from doing whatever thing they did last time. Somebody hides explosives in his shoes; okay, let's make everybody get their shoes scanned before they get on planes. A bunch of Islamic males between the ages of 18 and 40 blew up some planes; okay, let's do a lot of extra security checks on Islamic males between the ages of 18 and 40.

What would make me feel a lot safer would be some indication that the government were actually trying to anticipate the next innovations in terrorist attacks, rather than continually slamming barn doors after the horses are long gone. It seems to me that if terrorist organizations know that the US is targeting Islamic males between 18 and 40, they'll start actively recruiting people who don't fit that profile. Which is one of the reasons profiling is stupid.

Besides which, I like thinking of my country as being "the good guys" -- you know, the guys who don't torture their enemies, or starve them, or detain them without counsel, or any of those tactics that we associate with, as John put it, "third-world tinpot dictatorships." We're moving en masse towards a mindset in which any means are acceptable, as long as they reduce the risk of a terrorist attack. I don't want to live in a country where preventing terrorism justifies torture, or any other loss of basic human rights.

John Scalzi | August 12, 2005 11:30 PM

Todd:

"Mr. Scalzi would have more credibility on this issue if he devoted at least half as many pixels to speaking out against radical Islamists as he does to trashing the United States. The last line of his post "2008 cannot come soon enough"--makes clear what his real agenda is."

Good fucking lord, Todd -- does it hurt to have that string in your head? You know, the one your overlords tug in order to make you spout such hackneyed crap? Send a note to your thought manufacturers that it's time for some new buzzwords -- the ones you're using now are kind of old and funky-smelling.

To repeat: 2008 cannot come soon enough. The current administration is an embarrassment to this country -- not because of its desire to protect this country, but because its patent inability not to kick the guiding principles of this country in the testicles at every conceivable opportunity and then try to pass it off as "protecting Americans." I call bullshit.

And to be clear, this isn't a conservative or liberal thing -- I have no doubt that a principled conservative government could have protected the US without taking a bowel movement on the US Constitution. However, this administration is not that one.

Todd, perhaps you'd have more credibility if you weren't ignorant and stupid in the same sentence. Crawl through the site and you'll find I have no love for ignornant jackasses hijacking Islam for their own purposes; likewise no love for people who will cheerfully ape totalitarian techniques to keep us "safe," even when they're in my own government. Perhaps you'd have more credibility if you showed more respect for the principles the country was founded on rather than what was politically expedient for an administration whose entire foreign policy is based on stupidity and fear.

My real agenda in 2008 is hopefully voting in an administration who does not confuse reasonable measures to keep this country safe with a carte blanche to disregard human rights whenever it feels it is convenient to do so, thereby diminishing the credibility of the US as a moral compass in the world. You don't have to like it, Todd -- but ask me what your credibility is with me on this score and you'll understand why I don't particularly care what you think.

Jeff Porten | August 12, 2005 11:35 PM

Let's note that the suspect in question was cleared of all charges by Syria. Which is really where I want to go when I want to be certain of getting due process.

Let's also note that America has a history of providing some human rights to foreigners; however small, these rights have tended to include the right to not be deported to a third country on the grounds of secret evidence.

The bottom line is the bottom line: if this continues, expect to see foreign tourism to drop to a trickle -- and that includes non-Americans avoiding American carriers like the plague so they don't need to connect through here. Already I've heard of several international conferences that were moved to avoid visa and regulatory hassles for the attendees. Expect those economic arguments to hit home for the people in power far sooner than telling them they're enacting un-American policies, which is also true.

snowcrash [TypeKey Profile Page] | August 13, 2005 12:01 AM

As a funny-speaking, brown-skinned furriner with a strange-sounding name and a citizenship in a Muslim nation, allow me to say that this sucks.

It used to be the done thing for those of my generation in my country -not just non-Muslim minorities like me, but among the Muslim youth as well- to hold up countries like the US/ Australia as shining -if somewhat tarnished- examples of what a responsible administration could look like. That countries could be succesful without resorting to unjust laws like the Internal Securities Act (which, BTW, is everything it's name implies) in order to protect "the greater good".

Nowadays?

I -again, like so many of my peers- just can't be bothered anymore to defend America's minor flaws in order to to promote it's advantages and freedoms. Because those minor flaws aren looking less and less minor.

This really, *really* sucks.

Brian Greenberg | August 13, 2005 03:20 AM

Ugh, here we go again...

1) Thousands of people of every color and creed come into and out of the United States every day without being so much as delayed, let alone detained and extradited to a country for torture. It certainly sounds like Mr. Arar got screwed here, but to suggest that this is how America treats foreigners, or to be afraid to come to this country because you might be part of the 0.00001% of people that get treated that way is, quite frankly, ridiculous.

2) The fact that we take a case like Mr. Arar's so seriously, even though it is entirely unrepresentative of the norm shows our constant strive toward zero-tolerance where human rights violations are concerned, and is one of the things I find most endearing about the United States.

3) We seem to be forgetting the fact that Mr. Arar is currently having his day in U.S. Federal court, and stands to be well compensated for his trouble. He's already received a great deal of publicity, and thousands have come to his defense in a very public way. None of these people has been carted off by the secret police of the fascist state, as far as I know.

4) Just like with Alberto Gonzales, people seem to quickly and conveniently forget what a lawyer's job is: if the law says we don't have to grant Mr. Arar constitutional protection, then the lawyer has to argue that point or he/she wouldn't be doing his/her job. It doesn't imply for a split second that the government is in favor of mistreating foreigners.

5) For decades now, the United States has the highest net immigration rate of any country in history. There's a vast silent majority that want in to this country. And ironically, it's largely because of how well we treat foreigners: we fight for their rights to work and live here, even if they're doing so illegally, we give them emergency medical care when they need it (free of charge if necessary), we do not distinguish them when providing basic social services (e.g., fire & police), etc. Heck, in some states we'll even give them driver's licenses! Show me another country that goes this far for non-citizens...

6) While I'll steer clear of most of Todd's comments, I will agree with him on his assessment of John's position: his dislike of George W. Bush is well documented. John is, of course, entitled to his opinion, but very little about this case has anything to do with the president or his administration. If Mr. Arar wins his case, it will be because a federal judge (who may or may not have been appointed by Bush) decides that airport security did not follow the law. The law in question (whether the constitution applies to foreigners) was written long before GWB was in charge. The closest you can get to pinning this on the administration is to claim that the general sense of policies toward suspected terrorists has been propogated by the administration which, while true, is a far cry from blaming the whole sordid mess on Bush. John may be looking forward to 2008, but this was nothing more than another opportunity to say "Bush = Bad."

Todd | August 13, 2005 08:16 AM

Mr. Scalzi:

Your counter-argument is basically: "You're a right-wing tool and and I don't care what you think anyway!" For the record, I have voted Democratic in two of the last four elections, and I am no fan of President Bush.

However, I do acknowledge that the danger from terrorists is real, and that they have already been successful in killing thousands of Americans--a fact which you dance around at every opportunity.

Jan, who suggests that the U.S. government focus more efforts on discovering terrorist "innovations" is at least presenting an argument. While this is aspect is important, the recent attacks in London demonstrate that the terrorists have shifted to low-tech attacks against "soft targets." This makes screening (and yes, profiling) a key part of the equation.

Bruce correctly points out that the attack in Oklahoma City was carried out by a member of a white, right-wing militia group. If you recall, our government did (rightly) apply closer scrutiny to militia groups in the wake of Oklahoma City. Thankfully, though, that threat has more or less receded. Homegrown militias may have been the primary terrorist threat in 1995, but Islamic extremists are the primary threat in 2005.

Mr. Scalzi, I suggest that you consider the situation from a military/law enforcement angle as well as a purely ideological one. Like you, I attended college, and I can tell when you are parroting the verbiage of your undergraduate profs.

Kevin Q | August 13, 2005 08:48 AM

Brian said:

1) Thousands of people of every color and creed come into and out of the United States every day without being so much as delayed, let alone detained and extradited to a country for torture. . .that we know about.
Remember, one of the issues of this case is that Mr. Arar was held incommunicado. The current administration feels that in "protecting the American public," (sorry for the scare quotes) they can act in secrecy. Unfortunately, such secrecy makes it hard to know whether people are being granted basic human rights.

2) and 3) You and I might be taking this case seriously, but there is great fear that the current administration is not. Remember, this is not a case of the administration working to protect civil rights while seeking justice. This is a civil case, filed nearly 3 years after the fact, to force the administration to admit that its actions were wrong, and make restitution for actions already completed. The opportunity for Mr. Arar's due process rights to be protected are well gone. This is not his "day in court." He had that in Syria, after being tortured. This is his attempt to redress a wrong.

4) To be fair, nobody's piling onto the lawyers in this case (at least not on this website) for making the arguments they are making. If the law says that we don't have to grant Mr. Arar human rights, well, that's because the law was changed at the behest of the current administration to make it easier to do so. The lawyers are arguing the law. But I (and others) feel that the law itself is wrong. Basic human rights should not rely on interpretation of the Constitution, but on the fact that the person in question is human. I'd like to think that something that sets the United States apart is our dedication to human rights around the world. Unfortunately, that's getting harder and harder to justify to myself every day.

5) I agree with everything you said in statement 5, and I (for one) want to keep it that way.

6) The closest you can get to pinning this on the administration is to claim that the general sense of policies toward suspected terrorists has been propogated by the administration which, while true, is a far cry from blaming the whole sordid mess on Bush.

Well, certainly, not only on Bush. I also blame Cheney and Rumsfeld and Gonzalez and Ashcroft and Rice and the rest of the administration. They set the policies, and they make it easier for law enforcement to ignore the rights of detainees. We took an innocent man off of his flight and sent him secretly to a foreign country to be tortured and tried. In what universe is that an acceptable thing to do? It may happen rarely. But if the administration seriously thought this was the wrong thing to do, they would make changes to ensure that in never happened again, while agreeing to redress Mr. Arar's wrongs. But no, they are mounting a solid defense while relying on secret evidence. And I'm sorry, but nothing that's happened in the last five years gives me any reason to suspect that their evidence is accurate.

John may be looking forward to 2008, but this was nothing more than another opportunity to say "Bush = Bad."

And it can't be said often enough.

K

Nicholas | August 13, 2005 10:11 AM

Foreners are being denied basic rights, a massive war effort in it's "last throes" (which accoring to Cheney could last 10-12 years!) and in a twist of irony, the president is on vacation. Three more years left...

Patrick Nielsen Hayden | August 13, 2005 10:25 AM

"This was a federal court ruling"

No, it wasn't; it was an argument made in federal court by lawyers for the current Administration.

John Scalzi | August 13, 2005 10:47 AM

Todd:

"Your counter-argument is basically: 'You're a right-wing tool and and I don't care what you think anyway!' For the record, I have voted Democratic in two of the last four elections, and I am no fan of President Bush."

And yet that still havsn't kept you from uncritically swallowing their constitution-shredding rhetoric, which makes the problem worse, not better. I don't particularly care who you voted for, Todd. What concerns me is that you appear to be willing to trade away the principles the country was founded on to an administration that time and again has shown that it has no actual interest in justice, either in any philosophical or practical sense.

You are once again making the stupid and wrong assumption that this is a "right wing - left wing" issue. It's not -- a allegedly "liberal" government that made the same contention would be just as heniously wrong. You're a tool, all right, Todd, but one for an administration whose errors lie not so much in philosophy as in the application -- in the practical exercise (or in this case, abuse) of power.

The statement above for the government lawyer posits that all foreign visitors to our soil can be detained incommunicado, without lawyers and without food, by our government for any reason (or more accurately, without any reason). It's saying that our goverment has the right to make any foreign national effectively disappear. Not just the terrorist ones, mind you. Any.

The reason I am more than mildly contemptuous of your "it's about our security" argument, Todd, is that allowing this administration to carve out a heretofore unspecified imperial right to zero out people it finds inconvenient has not a damned thing to do with making us safer from terrorists. And given its track record with human rights, of it appears largely unconcerned, nor do I have any inclination to trust this administration regarding its ability not to -- whoops -- "accidentally" disappear someone it finds inconvenient. And for the record, I don't want any other administration, conservative or liberal, to have the "right" to do that, either. The framers of the Constitution held it as a given that governments needed to be restrained and watched, otherwise they would tend toward corruption and consolidation of power.

The difference between you and I, Todd, is that while I am also perfectly willing to allow the government the ability to protect and defend its citizens, I'm not willing to allow this government to claim it needs an axe to kill the proverbial fly. I'm content to give it a fly swatter and tell it to aim carefully.

"Like you, I attended college, and I can tell when you are parroting the verbiage of your undergraduate profs."

Quite so -- I went to the University of Chicago, and most of my favorite professors, to the extent that they exposed their politics at all, were classically conservative. I expect that most of them would be utterly appalled by the intent and implication of the government lawyer's contention above. Unlike you, Todd, I recognize this isn't a liberal v. conservative issue: This is an abuse of power v. sense of moral obligation issue.

But of course I recognize that you didn't know that I went to a school famed for being a powerhouse of conservative thought (i.e., some of that ignorance of yours that I was discussing earlier is coming through again) -- you just wanted to imply that I was merely aping knee-jerk liberal attitudes. But see, this is why I think you're a tool, Todd: You've accepted the cheap and easy framing of this adminstration and all its other tools as an issue of mere politics. It's all right-wing/left-wing mud wrestling to you.

It's not: It's about the fundamental character of our government, and the damage that statements like the one above do to it, and to our country at large. The fact you are unwilling or unable to see this fact is why you're merely a tool, and why your thoughts on the issue are not particularly worth consideration.

Ian Mathers | August 13, 2005 02:01 PM

The whole "profiling" thing which Todd brought up (not to mention pretty much all of his first couple of posts, at least) are distortions of the original point.

Which was: "Foreign citizens who change planes at airports in the United States can legally be seized, detained without charges, deprived of access to a lawyer or the courts, and even denied basic necessities like food, lawyers for the government said in Brooklyn federal court yesterday."

This is (a) disgusting (b) against the principles the USA was founded on (c) completely unnecessary to fight terrorism. Pulling suspected terrorists off of planes can be done without denying them food or shipping them to another country to be tortured. Especially when that country isn't the country the suspect is a citizen of. It's theoretically possible someone in Arar's has Canadian citizenship under false pretences, but that is our problem, not yours.

It happened (at least once), but I don't buy the exceptionalism argument. This isn't okay because it just happened once or because it might not happen again. As John says, it's a matter of what principles your country lives by - and not extending certain basic rights to everyone, citizen or not, terrorist or not, makes the US a sad and scary place to live. You can easily still fight terrorism without retracting those rights.

mythago | August 13, 2005 02:35 PM

If one actually reads the story, the question in front of the court is not "Should we protect our borders?" but "May Mr. Arar sue the United States government for placing him in detention and then shipping him to Syria where he was tortured?"

The administration's argument is that it has 'clear and convincing' evidence that he is linked to Al-Qaeda--evidence which is classified and thus can't be presented to the court--and therefore his lawsuit should be dismissed.

They threw in in the neat "only a lawyer could appreciate this" argument that because Mr. Arar had been seeking admission to the U.S. and not yet formally admitted, he was not actually IN the U.S. for purposes of the law, even though he was physically in a Brooklyn jail.

Oh, and: Dennis Barghaan, who represents former Attorney General John Ashcroft, one of the federal officials being sued for damages in the case, argued that Congress and recent judicial decisions tell federal courts "keep your nose out" of foreign affairs and national security questions, like those in this case.

This isn't about "security measures" or terrorism. It's about whether a court can even *hear* Mr. Arar's claims and weigh them.

Todd | August 13, 2005 06:06 PM

Ian:

I acknowledged several times that Mr. Arar's detention seemed to be a miscarriage of justice, unless the government can come up with some compelling evidence to prove that he *is* a member of Al Qaeda.

My complaint was with John's wild stretch into the comparison of the U.S. with a totalitarian nation, because he does not like our current president.

Ten years ago, when Janet Reno was sending shock troops into people's houses in the pre-dawn hours to abduct children and ship them to communist countries, I'll bet neither of you were concerned about encroaching totalitarianism. I'll bet John wasn't calling for Clinton to be turned out of office.

And neither was I, because the above case was an exception to the rule. Although it would be technically true to say that the Clinton Administration forcibly repatriated a child to Cuba (Elian Gonzalez), burned people alive (Waco), and shot unarmed women and children (Ruby Ridge), these were not representative of the U.S. government under Clinton. Exceptional miscarriages of justice have occurred under almost every administration to date.

Does this case, by itself, really make the U.S. a "sad and scary place to live?" Is the U.S. a "sad and scary place to live" every time a law enforcement agent makes a mistake? Aren't we exaggerating just a bit--and for purely partisan purposes?

As the article points out, the United States allows people to seek redress through the courts when mistakes happen. I think that says something about "what principles [our] country lives by."

John Scalzi | August 13, 2005 06:53 PM

Todd:

"My complaint was with John's wild stretch into the comparison of the U.S. with a totalitarian nation, because he does not like our current president."

Correction: I loathe the current president (as a matter of his policies. I'm sure he's perfectly nice in a one-on-one setting). He's the most incompetent president since Harding, and definitely in the bottom quartile of U.S. Presidents, ever. What you don't seem to grasp, Todd, is that my loathing has nothing to do with his conservative bent (which merely rates disagreement), and everything to do with his thoughtless, smug authoritarian bent.

As for comparing this country with a totalitarian state, well, Todd, when a country's lawyers suggest that a visitor to a country "can legally be seized, detained without charges, deprived of access to a lawyer or the courts, and even denied basic necessities like food," how does that read to you? Like the utterances of a lawyer whose country (or more accurately, whose government's administration) sincerely believes in the principles of universal human rights? What about that statement is not fundamentally totalitarian in its conception? It's not fucking stretch, Todd: An actual government lawyer said that in court. A government lawyer working under instructions from the current administration.

What you seem to be nicely eliding here, Todd, is the fact this is not an "isolated event" -- this administration as a matter of course is has shown itself perfectly happy to slide on human rights and (as relates to citizens) Constitutional protections whenever it damn well feels like it, citing "secret evidence" as it does so.

Nowhere have I said other administrations have not also had their moments -- however, this administration has more than moments: It definitively trends toward authoritarianism, of a particularly "Oh, just trust us, we're the good guys" sort. Don't blame the rest of us if you haven't been paying attention for the last several years and are under the impression this is an isolated incident, or an exception rather than part of a trend toward administrative consolidation of power.

In itself, the Bush administration is deeply unlikely to push America into totalitarianism, of course; there are too many check and balances for that. However, this doesn't mean the Bush administration is not attempting a land grab of powers and executive rights which if successful diminish the protections we all have against an unjust future government, be it conservative or liberal. This is why -- to repeat -- I'll be glad when 2008 rolls around and (hopefully) the US will vote in an administration which is not so consistently and smugly squats on the rights of others to get what it wants. If it happens to be a conservative government with a clear sense of moral probity regarding human rights, that'd be fine.

"Aren't we exaggerating just a bit--and for purely partisan purposes?"

Jesus, Todd, if you were any slower on this point you could be outrun by molassass. Once again: This isn't about partisan politics. The Bush administration's authoritarian bent has nothing to do with conservative politics per se; just ask a conservative who isn't unthinkingly parroting out the Bush line. Just because you can't seem to get this point doesn't mean that mechanically trying to wrench this back into a partisan framework is going to work the next time you attempt it, either. Please stop doing it: you look an ass.

"As the article points out, the United States allows people to seek redress through the courts when mistakes happen. I think that says something about 'what principles [our] country lives by.'"

However, as Mythago notes, the hearing which this comment came out was about whether the court can hear the claims of the plaintiff -- and this administration is of the opinion that it can't, and that foreign nationals sitting in US airports -- any of them -- must be left to the tender mercies of the Executive branch of our government, which, leaving aside your unfathomable arguments of "exceptionalism," has shown very little interest in human rights (otherwise, we should note, this particular case which is being discussed would not have happened at all, unless shipping someone out of the US to be tortured somehow fits in with your conception of human rights). I think this says something about the principles our adminstration lives by, and why it is contemptible.

Harry Connolly | August 13, 2005 10:40 PM

The suggestion that this is an isolated incident boggles the mind.

The fact is that the administration is trying to establish legal precedent to disappear people. No administration, not this one, not any to come, should have that power.

Christopher Davis | August 14, 2005 01:10 AM

Todd: As I recall it, the Elian Gonzalez case actually went to court before the 11th Circuit Court, was appealed to the Supreme Court (cert denied)...and was publically discussed.

Elian didn't go back to Cuba until the legal cases were complete.

Comparing that to being sent to Syria without any court case or decision is beyond disingenuous.

Brian Greenberg | August 14, 2005 01:16 AM

Ian Mathers:

It happened (at least once), but I don't buy the exceptionalism argument. This isn't okay because it just happened once or because it might not happen again. As John says, it's a matter of what principles your country lives by - and not extending certain basic rights to everyone, citizen or not, terrorist or not, makes the US a sad and scary place to live. You can easily still fight terrorism without retracting those rights.

I assume you're referring to my original comment, so I feel the need to pipe in: I never said it was okay, and I don't disagree that it may happen again. My point about how rarely it happens was meant to establish that this isn't "administration policy" or "the principles our country lives by." If it were, thousands upon thousands of people would be deported every day.

As to "[this] makes the US a sad and scary place to live," as I said before, that's simply ridiculous. There are dozens of countries in the world that would have each and every one of us thrown in jail or possibly killed, simply for having this discussion in a public forum. Other countries would have us arrested or killed for practicing our religious beliefs, admitting our sexual orientations, or even for the way we dress. Those are sad and scary places to live. In those countries, it doesn't matter how quickly 2008 comes around, because 2008 will look just like 2005, which looks a heck of a lot like 1805.

We take an awful lot for granted.

John:

when a country's lawyers suggest that a visitor to a country "can legally be seized, detained without charges, deprived of access to a lawyer or the courts, and even denied basic necessities like food," how does that read to you? Like the utterances of a lawyer whose country (or more accurately, whose government's administration) sincerely believes in the principles of universal human rights?

I'm no constitutional lawyer, but my understanding is that this is the law, and has been so for centuries. Our laws (including the Bill of Rights) apply to our citizens. We can declare them "inalienable" or "God-given" all we want, but we're under no legal obligation to provide them to anyone other than our citizens. A lawyer defending his client must make this point. If you find it reprehensible, I can certainly understand why. But remember, every convicted felon in the history of our country had a lawyer who claimed he/she should go free.

John again:

Once again: This isn't about partisan politics. The Bush administration's authoritarian bent has nothing to do with conservative politics per se; just ask a conservative who isn't unthinkingly parroting out the Bush line.

OK, I'll take the bold step of assuming that I'm a conservative who isn't unthinkingly parroting out the Bush line. John: this is absolutely about partisan politics. I value and respect your opinions on these subjects, but they are, after all, your opinions. This "authoritarian bent" that you've assigned to the Bush administration is your own creation, and while many, many people out there agree with you, it doesn't make it fact.

I agree that the Bush administration has done some things to increase the power of the federal government, sometimes dangerously so. I also note that many of the things it's done (prime example: the PATRIOT Act) have been touted as "facism on a plate," and have never really panned out to matter much at all to anyone but the Michael Moore set.

Regardless of what you think of this war, the fact is we're at war. Every time we've gone to war, the government has taken these kinds of steps. I don't have the history to back it up, but I'd be willing to bet that in each case, the administration was criticized for "throwing away what we're fighting for," and that the criticism has grown more powerful in each successive war.

You're right to criticize. But those who disagree with you are not automatically ignorant or stupid...

mythago | August 14, 2005 01:53 AM

Every time we've gone to war, the government has taken these kinds of steps.

Which is precisely why the Framers, in their wisdom, created the Bill of Rights.

but we're under no legal obligation to provide them to anyone other than our citizens

Actually, we are. Geneva Convention and all that. And do you really believe that, for example, the government does not need a search warrant to bust in and toss a house belonging to a legal resident alien?

As the article points out, the United States allows people to seek redress through the courts when mistakes happen.

Bluntly, Todd, you either didn't read the article or you didn't understand it. The whole point of the article is that government lawyers are saying that Mr. Arar should not be allowed to seek redress through the courts; that the court should not even hear the merits of his claims; and that this is true because a) they have TEH SEKRIT evidence, trust 'em, and b) it's none of the court's freakin' business what the executive branch does on matters of national security.

The fact that you are arguing your point by flying in the face of what is actually going on says much about your position.

John Scalzi | August 14, 2005 02:38 AM

Brian Greenberg:

"But those who disagree with you are not automatically ignorant or stupid."

Obviously not. I don't call people ignornat or stupid unless they are saying ignorant and stupid things, Brian. However, if they are doing so, I don't particularly feel the need to suggest they are doing anything but being ignorant and stupid. I don't call people ignorant and stupid because they disagree with me, but I will call them such if they disagree with me in ignorant and stupid ways.

"This is absolutely about partisan politics."

Bullshit. This line of crap coming from you rather than Todd doesn't make it any less of a line of crap. If a "liberal" adminstration was pulling the same authoritarian crap as this adminstration, I would be equally opposed to it. This is more than can be said about the many of the folks who appear to be cheerfully blithe about Bush's creeping authoritarianism; God knows if a Clinton administration laywer had spouted this same line of crap, aterial blood would have fountained directly from Rush Limbaugh's neck.

Notice: At this point, I am so goddamn sick of people assuming that I don't really mean that I find this appalling in a non-partisan sort of way, and of having to make this point over and over again, that the next person who vomits up the "it is about partisan politics" line is going to get the comment expunged because they aren't fucking paying attention to what I am saying. Working on the assumption that I don't actually mean what I say offends me. Seriously. You have been warned. And I mean it.

And now, for the last time, and let me type slowly so you can all get this: This isn't about partisan, right-left politics. It's about an authoritarian-leaning adminstration that feels it need not be answerable to any outside agency for its policies. That's dangerous, no matter where on the political spectrum it lay.

"This 'authoritarian bent' that you've assigned to the Bush administration is your own creation."

Aw, that's just crap, Brian. How many secret tribunals and torture memos and American citizens rotting in Navy ships and court appearances by government lawyers claiming "secret information" that no one else can see requiring the government to ship someone off to another country to be tortured do you need in order to see an authoritarian pattern? These aren't my opinions, Brian. These are things the current government is doing, and has been doing fairly consistently over the last few years.

"But remember, every convicted felon in the history of our country had a lawyer who claimed he/she should go free."

I have absolutely no idea what the point you're trying to make here is, Brian, unless you're suggesting in this case that the US is the convicted felon and the government lawyer are trying to suggest it go free.

As for the ability of the US government to deprive foreign air travelers the right to due process, clearly it's not settled "law," otherwise the government lawyer wouldn't be floating the concept in front of a judge to see if the judge would swallow it -- nor would the assertion have been exceptional enough to be judged as news. This seems pretty clearly an attempt by the Adminstration to claim it can snatch foreign nationals, where no such claim has been explicitly made before, as opposed to a gentle reminder to the judge that this is all settled law. Naturally, I hope the judge calls "bullshit" on this little power grab.

For my part I suspect that we may have treaties with Canada (and other countries) which would keep the US Government from denying the citizens of that country Consular contact or access to legal counsel (this is relevant in this case because the plaintiff in this case is a Canadian). So it's likely the person in question (and, in a larger sense, anyone from countries with whom the US has certain diplomatic treaties) cannot legally made to simply disappear as the administration would argue.

More to the point, however, the fact the government has to assert this rather dubious line of reasoning is due to the fact it shipped off a foreign national to a third country to get tortured is ominous in itself -- rather obvious evidence of that authoritarian bent (and lack of interest in human right) that apparently lots of people are shocked, shocked to hear is being applied to the current administration. Surprise! Here it is.

OneWeeFact | August 14, 2005 06:01 AM

Todd - be careful about the Clinton-bashing propaganda you apparently listen to and check the dates on when Ruby Ridge happened. Hint - the name of the President at that time begin with a "B" and ended with "ush." I know that facts and reality tend not to matter a whole lot in partisan circles such as yours, but still... let's not be egregious about our misleading rhetoric...

Nancy Lebovitz | August 14, 2005 06:39 AM

Brian, what people want to be sure they won't be tortured. Being able to sue (if you're lucky) for having been tortured is a very poor compensation.

Ans I believe that the human obligation to not defend atrocities trumps a lawyers' professional obligation to defend a client.

Andrew | August 14, 2005 09:36 AM

From Nancy's post:

"Ans I believe that the human obligation to not defend atrocities trumps a lawyers' professional obligation to defend a client."

Not to a lawyer. We pretty much have an ethical obligation to represent our client regardless of what the issue is that we are retained to represent on. The law society of Upper Canada (the governing body for lawyers in Ontario Canada where I practice) talks about representing clients regardless of the notoriety of the client in the community.

The limits we have on our ability to represent clients comes from our status as officer's of the court. That covers things like commencing actions that are frivolous and vexatious, suborning perjury and obstructing justice.

This is not just something that is convenient for lawyers to use to justify representing bad people. It is an important for you, who might someday have to retain a lawyer. It means that regardless of how unpopular or heinous the issue you are having to deal with, you can find counsel who will represent you. That would be a useful thing if you were ever accused of something terrible and you were, in fact, innocent.

The system is by no means perfect. People who are really rich and sometimes really poor can find lawyers to represent their needs. Person's of modest means have a really difficult time finding counsel as they don't have enough money to pay for counsel and they are not poor enough to be legally aided through the legal system.

Cheers
Andrew

Nancy Lebovitz | August 14, 2005 11:03 AM

Andrew, there's a difference (probably not an absolute bright line, though) between defending a person who's accused of an atrocity and defending an atrocity. For example, if you're defending someone accused of murder, it's one thing to say that they weren't there or it was self-defense and quite another to say that murder is just fine.

John Scalzi | August 14, 2005 11:12 AM

As an aside, what's not being said here is whether the Bush adminstration, in an effort to excuse shipping off a foreign national to another country, where he was tortured, absolutely needed to make the rather expansive argument that it did in order to justify such a thing -- i.e., whether a more narrowly fashioned argument regarding the rights of the government in this case might have been more effective than a scattershot assertion that airport-traveling foreigners have almost no rights at all to just about anything.

mythago | August 14, 2005 01:21 PM

Ans I believe that the human obligation to not defend atrocities trumps a lawyers' professional obligation to defend a client.

Good thing you're not a lawyer and apparently think you'll never need to rely on one.

A lawyer might well argue that 'murder is just fine'--for example, in defending a battered woman who killed her spouse after thirty years of abuse.

andrew | August 14, 2005 05:59 PM

You are right that there is a difference between defending an atrocity and the defending the perpetrator of an atrocity. In many cases, probably most, you are relying on defences like it wasn't my client, you don't have enough evidence to convict etc.

However you will run into cases where the defence is that the atrocious act is not, in fact, illegal. Mythago's example is an excellent one (thanks mythago). If that argument is open to me to make on my client's behalf, then I have an obligation to make that argument.

cheers
andrew

Phillip J. Birmingham [TypeKey Profile Page] | August 15, 2005 11:09 AM

Thousands of people of every color and creed come into and out of the United States every day without being so much as delayed, let alone detained and extradited to a country for torture.

Millions of Americans go about their lives peacefully each day without getting killed by terrorists, so I guess we shouldn't get worked up about that, either, huh?

pecunium [TypeKey Profile Page] | August 16, 2005 02:38 AM

I'm no constitutional lawyer, but my understanding is that this is the law, and has been so for centuries. Our laws (including the Bill of Rights) apply to our citizens. We can declare them "inalienable" or "God-given" all we want, but we're under no legal obligation to provide them to anyone other than our citizens.

Well, no. The Constitution is pretty clear. When it means citizens it says citizens, when it mean everyone, it says persons. The Fifth Amendment says persons.

For some caselaw on it, Dred Scott v Sanford specifically held that the writ of the Constitution ran beyond our borders, and into the territories (which was what invalidated the Missouri Compromise and led, IIRC Jefferson to say it was, "as a bell clanging in the night," and filled him with dread).

The Insular Cases limited that some, in that they held possessions, taken in war, weren't quite the same as territories which had been incorporated (though oddly, or not) no one seemed to want to apply that idea to the areas siezed from Mexico, just to Hawaii, Alaska the Phillipines, and the like).

Generally, however, we have said people who are in the country are entitled to the same protections as any citizen.

What we did here was say, "You aren't a citizen, you aren't in the USA, and we happen to have the ability to kidnap you, and send you to a country you aren't a citizen of, while accusing you of terrible things. If they torture you, well we didn't ask them too, and if you're not guilty; or even actually innocent, well that's the price you have to pay so we can tell people they are safe. BTW, we also want the courts to make that the law of the land, so bugger off with your silly little appeal to the rule of law."

As for the claim, made above about the people blowing things up, as I said elsewehere (in the subsequent post on this subject) I'll take that risk, in exchange for being free. Like the risk of car-crashes, in exchange for being able to visit my family, or gun deaths, or any host of secondary effects of a deleterious nature for things I count a public good.

As for who is blowing things up (or trying to) the FBI says it's foiled some sixty terrorist attacks in the past three or four years. Those are the white, American, terrorists. The one's with cyanide bombs, and pipe bombs, and the idea of making anthrax, and other such charming things.

But I don't see any calls for profiling them.

If you want to see why profiling, as being advocated, doesn't work, read

TK

pecunium [TypeKey Profile Page] | August 16, 2005 02:40 AM

I seem to have made some mistake in the end of the last comment:

If you want to see why profiling, as being advocated, doesn't work, read The Carnival Booth which is a research paper on the mathematics, and beatabilty, of mechanistic screening such as, "all males of "X" persuasion, between the ages of 'x' and 'y'."

TK

Stephen | August 16, 2005 04:45 PM

On his blog for Aug 12, Charlie Stross explains why he will be avoiding travel to the U.S. in the future: http://www.antipope.org/charlie/blog-static/

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