How mad? Oh, so mad.
Un-American anti-libertarians make me so mad I could spit.
Gakked (link goes to defn.) from Howard Bashman's invaluable How Appealing:
"The New Detainee Law Does Not Deny Habeas Corpus; Fear not, New York Times, al Qaeda's lawfare rights are still intact": Andrew C. McCarthy has this essay today at National Review Online.
(permalink to HB's post here)
Now, the NRO is not where I go for advanced and reasoned opinionating. National Review Online is what we in the field might call "biased."
What's wrong with the hed on the above-mentioned bit? Well, he uses the word "lawfare." Much like "tort reform," this label obscures an agenda. Tort reform is a wonderful idea; I favor making it harder for frivolous defenses in class action suits to escape sanctions, including dismissal of defenses and directed verdicts for plaintiffs. I also acknowledge that the American rule (no costs shifted to loser) is sometimes flawed. I also dislike it when bad science is the basis for a decision, likewise bad economics, bad law, etc. I just see things from a different view, because my cases are just, etc. etc.
Lawfare means, and here I am being generous, the unethical and immoral use of bedrock American traditional rights to prevent the government from doing what the hell it feels like.
If this be treason, make the most of it.
I am offended by the term lawfare. Lawsuits are NOT a continuation of war by other means. Lawsuits are a way of resolving disputes. Some disputes are false; that's why we call some people "IP trolls" and refer with disdain to frivolous frequent filers. (Say that three times fast.)
But habeas? And where the heck did "Al Qaeda" come in here? If the prisoner was admittedly Al Qaeda, wouldn't things be different? Or adjudicated to be? Or had a trial?
Instead, this NRO headline implies heavily - and I'm so disgusted I don't even want to read the anti-freedom drivel surely contained at the other end of the link, but I probably will, just to see where he's going - that you don't need to find out the truth, in order to figure out if someone is guilty.
The new detainee law does certainly attempt to infringe habeas rights. I mean, that's the point. See this post at Balkinblog, er, Balkinization. It would be unconstitutional if it did that improperly - check your Constitution, article I, section 9:
Now, if I can't prove I'm not Al Qaeda, as by seeking habeas relief, what's to stop governmental overreaching from plucking me, an Americna citizen, out of my life, putting me in jail, and denying me a lawyer and a trial?
If I'm not a terrorist, how can you defend imprisoning me without a trial? And if I won't ever get the opportunity to clear myself, how do you know I really am Al Qaeda?
In other words: bah.
On the plus side, this rant has cheered me up. Take that, depressing anti-libertarians.
(Followup: after briefly perusing the post, I note that the author is just flatly, plainly wrong. Constitutional limits don't give rights to citizens vs. non-citizens. They are limits on the powers of Congress, and of the government. Suspending habeas corpus unlawfully is beyond Congress' powers. Full stop.
Other things he gets wrong: Congress did not give the detainees habeas rights, and yes it does matter what they're called. Which rights attach to the review tribunals (NEVER trials) which might be a detainee's only hope of escaping possibly wrongful detention (as in, he's not a terrorist. Not at all, never was, wrong guy)? And who gets them? Because most of the detainees, despite years in custody, have not gotten trials, and are not scheduled to. Hundreds of people - and more to come?)
Gakked (link goes to defn.) from Howard Bashman's invaluable How Appealing:
"The New Detainee Law Does Not Deny Habeas Corpus; Fear not, New York Times, al Qaeda's lawfare rights are still intact": Andrew C. McCarthy has this essay today at National Review Online.
(permalink to HB's post here)
Now, the NRO is not where I go for advanced and reasoned opinionating. National Review Online is what we in the field might call "biased."
What's wrong with the hed on the above-mentioned bit? Well, he uses the word "lawfare." Much like "tort reform," this label obscures an agenda. Tort reform is a wonderful idea; I favor making it harder for frivolous defenses in class action suits to escape sanctions, including dismissal of defenses and directed verdicts for plaintiffs. I also acknowledge that the American rule (no costs shifted to loser) is sometimes flawed. I also dislike it when bad science is the basis for a decision, likewise bad economics, bad law, etc. I just see things from a different view, because my cases are just, etc. etc.
Lawfare means, and here I am being generous, the unethical and immoral use of bedrock American traditional rights to prevent the government from doing what the hell it feels like.
If this be treason, make the most of it.
I am offended by the term lawfare. Lawsuits are NOT a continuation of war by other means. Lawsuits are a way of resolving disputes. Some disputes are false; that's why we call some people "IP trolls" and refer with disdain to frivolous frequent filers. (Say that three times fast.)
But habeas? And where the heck did "Al Qaeda" come in here? If the prisoner was admittedly Al Qaeda, wouldn't things be different? Or adjudicated to be? Or had a trial?
Instead, this NRO headline implies heavily - and I'm so disgusted I don't even want to read the anti-freedom drivel surely contained at the other end of the link, but I probably will, just to see where he's going - that you don't need to find out the truth, in order to figure out if someone is guilty.
The new detainee law does certainly attempt to infringe habeas rights. I mean, that's the point. See this post at Balkinblog, er, Balkinization. It would be unconstitutional if it did that improperly - check your Constitution, article I, section 9:
The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
Now, if I can't prove I'm not Al Qaeda, as by seeking habeas relief, what's to stop governmental overreaching from plucking me, an Americna citizen, out of my life, putting me in jail, and denying me a lawyer and a trial?
If I'm not a terrorist, how can you defend imprisoning me without a trial? And if I won't ever get the opportunity to clear myself, how do you know I really am Al Qaeda?
In other words: bah.
On the plus side, this rant has cheered me up. Take that, depressing anti-libertarians.
(Followup: after briefly perusing the post, I note that the author is just flatly, plainly wrong. Constitutional limits don't give rights to citizens vs. non-citizens. They are limits on the powers of Congress, and of the government. Suspending habeas corpus unlawfully is beyond Congress' powers. Full stop.
Other things he gets wrong: Congress did not give the detainees habeas rights, and yes it does matter what they're called. Which rights attach to the review tribunals (NEVER trials) which might be a detainee's only hope of escaping possibly wrongful detention (as in, he's not a terrorist. Not at all, never was, wrong guy)? And who gets them? Because most of the detainees, despite years in custody, have not gotten trials, and are not scheduled to. Hundreds of people - and more to come?)