Re: Get Disappointed By Someone New Watch: Bagram

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1) It may have been overturned or vitiated by court rulings, but I do believe there is a third status in the treaties for spies & saboteurs. This had been abused by Bushco, of course.

2) I do not understand what jurisdiction we have for Khalid Sheikh Mohammed, for instance, who did not committ any crime on American soil. I should think either Afghanistan, if he conspired there, or some Int'l tribunal would have jurisdiction.

3) I am not sure if the Afghan gov't has not granted America (as the Iraqi gov't I think at some point did) certain detention etc privileges in Afghanistan. We are not an occupying power in Afghnistan, and might be able to act as an ally/agent.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 1:10 PM
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Hilzoy seemed to have this pretty well covered.


Posted by: Sifu Tweety | Link to this comment | 03- 1-09 1:12 PM
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1.1: No. Spies and saboteurs are criminals. You can shoot them, but you have to try them first.


Posted by: LizardBreath | Link to this comment | 03- 1-09 1:16 PM
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2: Yeah, I'm totally on board with this:

Because what matters most to me is that there be no category of people who have no legal rights, and no place where we can hold them with impunity; and that people we imprison should have the right to contest their detention in a fair proceeding, unless we have granted them the rights afforded prisoners of war under the Geneva Conventions.

I would be fine with a position that the prisoners at Bagram don't have habeas rights, if it were accompanied by an explicit breakdown of what the basis was for holding each prisoner and what legal rights that prisoner had. But I don't see that happening in a timely fashion.


Posted by: LizardBreath | Link to this comment | 03- 1-09 1:19 PM
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It's been two months! Half (or more) of the subordinate positions in the executive branch haven't been filled, they've had a massive economic crisis to deal with, and they've already begun the processes of tackling the closing of Guantanamo and withdrawing from Iraq, both in reasonably credible ways. I'm all for being disappointed when it's called for, but wow.


Posted by: Sifu Tweety | Link to this comment | 03- 1-09 1:27 PM
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4:As I said or implied at 1, Afghanis in Afghanistan (Bagram) have the rights the Afghani gov't grants them, and if the Karzai gov't were to determine that the Taliban have no rights I am not certain their American allies can say otherwise.

We are no longer an invader or occupying power in Afghanistan, and I think the relationship is closer to the one we had in Honduras or El Salvador during the 80s, or maybe Vietnam.

The Hague & Geneva Conventions do touch on rules of civil wars, but much more gingerly than wars between separate nations.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 1:28 PM
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Evil Christians (at Trollblog)


Posted by: John Emerson | Link to this comment | 03- 1-09 1:31 PM
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or under any decent person's understanding of the dictates of civilized behavior.

Occidentalist.


Posted by: Parenthetical | Link to this comment | 03- 1-09 1:33 PM
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Where's CC? Crikey, I do seem to remember a court case involving prisoners in Iraq, that was decided not to the liking of human rights activists.

There are circumstances in which Bagram is "American-controlled", and so subject to Int'l rules, but my bet is that the Karzai gov't & the US have something like the Iraq/American SOFA that is determinative.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 1:35 PM
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5: Seriously, an announcement to the effect of: "Everyone we're holding is either a POW or has a right to due process in some sort of tribunal; our courts, the courts of the country where the conduct happens, or real military tribunals characterized by due process. The situation we were handed was a mess, so sorting people into POWs, people we're going to try ourselves, people we're going to hand over to another country, and people we're going to set free is going to take a couple of months, but it is our stated policy that we're going to sort them all out and treat them appropriately. The US does not claim to be legally entitled to detain anyone indefinitely at its discretion." would make me happy. I don't mind it taking awhile to straighten everything out, but I want some explicit statement of what they understand the rules to be.


Posted by: LizardBreath | Link to this comment | 03- 1-09 1:36 PM
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Hilzoy is "very much of two minds about this".


Posted by: David Weman | Link to this comment | 03- 1-09 1:37 PM
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And more to 5: And yes, other than this I've been happy with the Obama administration. It still seems worthwhile to keep on making a fuss about the things that make me unhappy.


Posted by: LizardBreath | Link to this comment | 03- 1-09 1:42 PM
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10: so you're saying, you don't care if they have a fully worked out legal strategy for unwinding this, you just want them to say what their fully worked out legal strategy will entail? I mean, saying what their approach is going to be strikes me as the last step, after figuring out how they're going to do it. It might be the most meaningful step for us, but it's not, presumably, the most meaningful step for people in Bagram. As far as second-guessing their intentions based on what I understand to be a single court filing issued in the very early days of the administration, it just seems like a way to set yourself up to say "Oh. Well, that's all fine, then." when they eventually do announce that they've developed a strategy that coincides with what their stated goals have been all along.

In short, I don't think we know a thing about what their approach will end up being.


Posted by: Sifu Tweety | Link to this comment | 03- 1-09 1:43 PM
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We ought just get the hell out.

hilzoy, and many other liberals were somewhat reassured when Obama ended "extraordinary rendition" and were not completely outraged by simple "rendition". I suppose the idea is that if we can capture Odama in Pakistan, of course we can fly him to NYC for trial.

But that is where it all goes wrong. Thus,as far as I can tell, we can fly any Gitmo detainee to Afghanistan (or some other favourable location) at which point Afghani law, and only Afghani law will apply.

The crime, and it is a terrible crime, is moving people across borders against their will. If that is allowed, almost anything becomes possible.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 1:45 PM
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9 -- I think Eisentrager was wrongly decided, and am sorry that there haven't been 5 votes to overrule it up to now. If it was up to me, the jurisdictional question would be about the defendant, not the plaintiff, and certainly not where the defendant, who has complete power, has decided to hide the plaintiff.

On the practical level, for minions, it's a whole lot safer to take the client's position and lose, than it is to give any of the client's contentions away at the office. (Especially if it goes wrong and some guy does something). I personally don't think much of the guys who went to trial with the impoverished Saudi teenager was a member of a London-based cell, but none of the temps on these cases will get in trouble for repeating the contentions of the intelligence/defense establishment.

(I have argument tomorrow on a number of issues where the government's position is ridiculous. Hoping the judge rips them one.)

10 -- There are EO's that ought to lead to this kind of thing. We'll see.


Posted by: CharleyCarp | Link to this comment | 03- 1-09 1:47 PM
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So if I understand correctly, Bob, you're against any kind of extradition at all? So, for instance, somebody who commits murder on US soil and then flees to Canada should, in fact, successfully evade prosecution in this country?


Posted by: Sifu Tweety | Link to this comment | 03- 1-09 1:47 PM
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14 -- Nope. First, they have to give me 30 days notice, and second they have to give up any and all control to the Afghans. Pol-e-charky isn't a resort, but it isn't Bagram either.


Posted by: CharleyCarp | Link to this comment | 03- 1-09 1:49 PM
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14.2:Osama rather than Odama

14.4:"Moving people against their will" and without due process, of course.

As far as I know,if Seals were to capture Osama in al-Qaedastan (Waziristan? Pakistan) he should be handed to the Pakistani gov't for extradtion.

Of course, the Seals shouldn't be in Pakistan in the first place.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 1:50 PM
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"I'm all for being disappointed when it's called for, but wow."

This is misguided. The administration has taken a position. They may at best be unsure what they want, but they had to make a choice and made it. And I don't think they are that unsure. They might come around if lefty grassroots go nuts over this, which isn't happening.

The time to go nuts over this is now, or soon, before the administration has gotten too attached to their position, or grown weaker and more afraid of republican attacks.

I'd guess grassroots never will go nuts, and that they won't come around regardless.


Posted by: David Weman | Link to this comment | 03- 1-09 1:52 PM
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16:see 14.2, and thanks for the benefit of the doubt.

17:You're the expert. We aren't acting as some kind of agents for the Afghanis in Bagram? Is Bagram considered American territory?


Posted by: bob mcmanus | Link to this comment | 03- 1-09 1:53 PM
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On kidnapping, I think you have to recognize the genuine standing issue. It's not for the criminal hiding out in Costa Rica who was kidnapped and brought to the US for trial to complain about violations of Costa Rican sovereignty, but for the CR government. I think the record over the Bush years has been active connivance on the part of other governments, even if they sometimes make public complaints for the benefit of their rubes.

Would Pakistan be sorry if a special forces team kidnaps OBL and brings him to trial in NYC? Not very.


Posted by: CharleyCarp | Link to this comment | 03- 1-09 1:55 PM
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20.2 -- We might have a SOFA with Afghanistan -- I'm sure we do. But Bagram is ours. We send Afghan GTMO prisoners to Pol-e-charky from time to time, and their US lawyers are arguing against dismissal of habeas cases that were pending before the transfer.


Posted by: CharleyCarp | Link to this comment | 03- 1-09 1:58 PM
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Of course, the Seals shouldn't be in Pakistan in the first place.

I'm ok with this. Hell, Pakistan probably is too, if not quite so vocally.


Posted by: Matt F | Link to this comment | 03- 1-09 1:59 PM
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Further to 22 -- briefing just recently completed whether there's still jurisdiction over cases brought by prisoners since transferred. I'd expect a decision in a month or so: I get the filings by email with the automatic filing system, but don't read them very closely, since I don't have a dog in that fight.


Posted by: CharleyCarp | Link to this comment | 03- 1-09 2:00 PM
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21.1:That kinda sucks.

I would like to think that I personally, have a better claim to protection by my gov't than that.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 2:01 PM
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13: Yes.

It's not as if the correct legal strategy is all that complicated.

What is complicated is Obama's determination not to acknowledge in any way that anything the Bush administration did was illegal.

"It might be the most meaningful step for us, but it's not, presumably, the most meaningful step for people in Bagram. "

Oh yes. Because if you're a prisoner, there's no meaningful difference at all between captors who will hold you indefinitely without rights and under threat of being transported, and captors who tell you "Everyone we're holding is either a POW or has a right to due process in some sort of tribunal; our courts, the courts of the country where the conduct happens, or real military tribunals characterized by due process. The situation we were handed was a mess, so sorting people into POWs, people we're going to try ourselves, people we're going to hand over to another country, and people we're going to set free is going to take a couple of months, but it is our stated policy that we're going to sort them all out and treat them appropriately. The US does not claim to be legally entitled to detain anyone indefinitely at its discretion."

Hilzoy's condoning torture and extrajudicial imprisonment is one of the major disappointments of the blogosphere, even if I could see it coming from the post where she declared she was in favor of Obama retaining Bush's Sec'y of Defense, without once referencing or responding to any of the issues about US military crimes committed over the past 8 years.


Posted by: Jesurgislac | Link to this comment | 03- 1-09 2:01 PM
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10: so you're saying, you don't care if they have a fully worked out legal strategy for unwinding this, you just want them to say what their fully worked out legal strategy will entail? I mean, saying what their approach is going to be strikes me as the last step, after figuring out how they're going to do it.

No. All I want is a clear statement that there is no category of detainees that we are entitled to hold indefinitely at our discretion. Figuring out exactly what procedural rights each person we're holding should have (the options I can see are POW; US civilian trial; handover to the civilian authorities in the country where we're holding them; trial by some newly constituted US military tribunal characterized by due process) could take a bit of time, and that's okay.

But a statement that there's no one who has no procedural rights shouldn't be something they have to sweat over; the fact that apparently it is worries me.


Posted by: LizardBreath | Link to this comment | 03- 1-09 2:03 PM
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Jesurgislac is a lawyer?


Posted by: Sifu Tweety | Link to this comment | 03- 1-09 2:04 PM
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28: You are?


Posted by: LizardBreath | Link to this comment | 03- 1-09 2:05 PM
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29: no. Is Jesurgislac?


Posted by: Sifu Tweety | Link to this comment | 03- 1-09 2:06 PM
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My understanding is that she isn't. But I don't see anything in her comments that would be discredited by not having a law degree.

In short, what was your point in asking the question?


Posted by: LizardBreath | Link to this comment | 03- 1-09 2:07 PM
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Honestly, I should let this all go, because I really don't think there's any harm -- and maybe, at the outside, there's some small marginal benefit -- to people getting preëmptivey outraged about Obama's failure to do (good, liberal) stuff he's almost certainly going to do. Go for it, fight the good fight.

Hilzoy's condoning torture and extrajudicial imprisonment is one of the major disappointments of the blogosphere

That, on the other hand, is a bunch of tendentious shittiness. Way to turn on the smartest voice on our side, Jesur.


Posted by: Sifu Tweety | Link to this comment | 03- 1-09 2:09 PM
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That, on the other hand, is a bunch of tendentious shittiness. Way to turn on the smartest voice on our side, Jesur.

If Hilzoy prefers to ignore or condone rather than condemn torture and extra-judicial imprisonment, as has been her unremitting habit ever since November, then she may be on your side, Sifu, but she's no longer on mine: and I'm none too impressed with the "smartness" either - someone who thinks that it doesn't matter that Obama is continuing to find justifications for holding people illegally and that the US military is continuing to torture prisoners, is really not that smart: it matters just as much that Obama's doing it as it did when Bush was doing it.


Posted by: Jesurgislac | Link to this comment | 03- 1-09 2:13 PM
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31: she claimed that the necessary legal strategy was not all that complicated. That's true? It's not complicated? Like, how many pages would your brief be, that would settle all these problems? Shorter than this post?

Anyhow, I'll leave y'all to it.


Posted by: Sifu Tweety | Link to this comment | 03- 1-09 2:13 PM
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33: leaving aside that she's done no such thing, and he's done no such thing, either, you've neatly made my point to me, again. So okay, bye.


Posted by: Sifu Tweety | Link to this comment | 03- 1-09 2:15 PM
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That, on the other hand, is a bunch of tendentious shittiness

AFAIK, hilzoy is forsquare against torture.

OTOH, on extrajuridicial imprisonment & rendition without due process, Jes & I seem to be among a minority of people taking an absolutist line. See 21.2.

hilzoy seemed to conflate kidnapping with extradition, both of which I think are called "rendition", in some of her posts


Posted by: bob mcmanus | Link to this comment | 03- 1-09 2:16 PM
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Thing is, that's ruder than I would have been about Hilzoy's post myself -- generally, I figure Hilzoy's smarter than I am, so if I can't figure out where she's coming from, it's not her, it's me. But Hilzoy's post also struck me as awfully waffly.

It's not that there aren't hard legal questions here, that might lead the Obama administration to take legal positions that sound bad if you don't have a full grasp of the facts. But they have the opportunity to clarify what's going on with detainees, and what their plans are, generally, going forward, and to state that they disapprove of and are in the process of rectifying the Bush administration's treatment of detainees. And if they're going to take bad-sounding legal positions, I'd really like that clarification to come quickly.

I'm going to be ashamed of myself if a year from now everything's ticking along nicely domestically, and I'm approving of the Obama administration, and then someone reminds me that we're still indefinitely detaining some unknown number of people overseas somewhere, and I haven't been paying attention.

Maybe everything's fine and they're just getting around to fixing it all. But I don't want to rely on that to the point of forgetting there's still a problem.


Posted by: LizardBreath | Link to this comment | 03- 1-09 2:17 PM
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28: No, I am not a lawyer.

But the issue of what legal rights prisoners in Bagram Airbase and other US gulags have is something that I've been keenly interested in since December 2001 ... and something that, not being American, I see as more important almost than anything else Obama's administration has to do.

The notion that we should just sit back and let prisoners continue to be abused by the US military without speaking out because, hey, sometime or other Obama will get around to fixing the situation, once he's figured out how to do it without having to admit anything illegal was done to them before January 20 2009?

Bad. Really, really bad.


Posted by: Jesurgislac | Link to this comment | 03- 1-09 2:18 PM
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I would like to think that I personally, have a better claim to protection by my gov't than that.

You don't have a private army, and haven't connived at assassinating the leaders of the country in which you are hiding (SFAIK!).

UBL is not a citizen of Pakistan, and may well not be there legally. Sure Pakistan has the right to repel invaders looking to kidnap, and the right to complain about kidnappings in its territory, and has a number of costs it can impose. (And bribes it can take.) I don't see, though, why you, Jes, Hil, or I need to be arguing Pakistan's side here -- a side Pakistan doesn't itself seem all that interested in asserting.


Posted by: CharleyCarp | Link to this comment | 03- 1-09 2:24 PM
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AFAIK, hilzoy is forsquare against torture.

My issues with Hilzoy over this began when she wrote an approving post for Gates being kept on as Sec'y of Defense, without ever referencing or responding to the issue that if Obama intended to clean the US military of torture, there was going to be a problem with his keeping on someone who could well be implicated by a thorough investigation - and as Obama was smart enough to know that, his retention of Gates meant there would be no thorough investigation and hence, almost certainly, torture would continue.

I didn't expect the evidence of Binyam Mohamed to prove me horribly right so quickly. New brooms can sweep clean, but only if they're used.


Posted by: Jesurgislac | Link to this comment | 03- 1-09 2:30 PM
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On the specific case of rendition by kidnapping, I'm with Charley -- it's an offence against the country in whose territory it takes place, but not against the person arrested any more than forcibly arresting them in the US would be. If the country in whose territory it takes place doesn't object, and the prisoner is accorded due process once arrested, I'm not significantly bothered.


Posted by: LizardBreath | Link to this comment | 03- 1-09 2:31 PM
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39:I have a habit of using the most challenging example. I could have used the guys grabbed in Italy or Macedonia instead to show why the principle is important.

I am trying to understand this. Suppose the Canadians were to grab me in Dallas in the dark of night, and I wish they would, and took me to Montreal. Now if the US or Texas gov'ts didn't object, I guess that leaves the Canadian courts. The kidnapping did not take place in Canada, but holding me against my will would likely be a violation of Canadian law.

There might be a civil opton in a Dallas court, but that would really require some US gov't assistance, either for extradition or collecting damages.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 2:32 PM
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41:LB, are you really ok with having no personal right at all to be where you want to be?


Posted by: bob mcmanus | Link to this comment | 03- 1-09 2:35 PM
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42 -- If the Canadians put you on trial for whatever crime they think you committed, I suppose you can argue that the arrest violates Canadian law, and maybe you win. You wouldn't win here, since the Fourth Amendment doesn't apply abroad.

You don't have a right to be where you want to be if someone has a valid basis to arrest you and hold you for trial.


Posted by: CharleyCarp | Link to this comment | 03- 1-09 2:39 PM
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Well, if I'm arrested, I don't have a personal right not to be imprisoned, generally, assuming the jurisdiction that has arrested me has made the showing before its own courts that my arrest is appropriate. So I don't have a general right to be where I want to be.

Generally, I'd expect my government to protect me against arrest by foreign powers unless the foreign power in question made a convincing legal showing that I should be extradited. But that's an expectation I have against my own goverment (or that OBL has against Pakistan). I don't have any relationship with Canada that entitles me to state that it's wrong for them to arrest me in Texas if they could arrest me in Montreal; I'd be angry with the US for allowing it without objection, but I wouldn't have much of a gripe against Canada.


Posted by: LizardBreath | Link to this comment | 03- 1-09 2:42 PM
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44:Charley, I think you are evading the question. Many of the people picked up and rendered over the last few years did not have clear cases against them. and the fact that nation X says I violated a domestic law (hate crimes in Canada?) should not make the kidnapping permissable. Where an extradition hearing can be justified and productive, it can be used.

This, according to my understanding, may come up quite often in political refugee cases, and death penalty cases.

Does 44.2 imply that I have such a right when ya know, there is a presumption of innocence? As I understand you, I do not but the nation where I reside has sranding and options.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 2:50 PM
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Wait, didn't Maher Arar also sue the Canadian gov't for allowing his rendition?

Again, I think y'all assuming a valid cause for arrest is unfair.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 2:53 PM
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I might be evincing extreme ignorance, but: given 45's "I'd expect my government to protect me against arrest by foreign powers unless the foreign power in question made a convincing legal showing that I should be extradited", does this mean there's some formal procedure in place by which the arresting foreign power has to notify the government of the person they're arresting? If Canada arrested bob in Dallas, I would think that in order for him to have a reason to be angry at the US about it, Canada necessarily must inform the US of what it is doing. Is this right? Did the US fully inform the governments of all of the people it was taking into custody?


Posted by: essear | Link to this comment | 03- 1-09 2:56 PM
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46: Think about it this way. Bernie Madoff changes all of his ill-gotten gains to gold coins, and flies (with his bodyguards) to some failed state with no governmental apparatus that can arrest or extradite him. Does he have a personal right to be immune from prosecution because he's managed to find a place where the local government can't or won't engage in legal process against him? I say he doesn't have such a personal right.


Posted by: LizardBreath | Link to this comment | 03- 1-09 2:56 PM
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48: If the US didn't kick up a fuss after the fact, that's what I'd be angry at the US about. If Canada was holding Bob secretly without trial so that the US never found out, that's a procedural problem, and Canada is acting wrongfully in that regard. But if the US allows Canada to enter its territory without objection, either before or after the fact, to arrest Bob, that's between the US and Canada and the US and Bob, not between Bob and Canada.


Posted by: LizardBreath | Link to this comment | 03- 1-09 2:59 PM
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47: Again, I think y'all assuming a valid cause for arrest is unfair.

No, that's not unfair, it's just picking the problem apart. Where there's no valid cause for arrest, and no due process after arrest, that's where the arrestee's individual rights against the arresting country come in.


Posted by: LizardBreath | Link to this comment | 03- 1-09 3:00 PM
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You don't have a right to be where you want to be if someone has a valid basis to arrest you and hold you for trial.


You might think you have a right to a formal and fair extradition process. If Gary McKinnon (whose extradition to the US I oppose) had been kidnapped by the US, I think we might all say his rights had been infringed.


Posted by: jayann | Link to this comment | 03- 1-09 3:01 PM
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It's been two months! Half (or more) of the subordinate positions in the executive branch haven't been filled, they've had a massive economic crisis to deal with, and they've already begun the processes of tackling the closing of Guantanamo and withdrawing from Iraq, both in reasonably credible ways.

but rather oddly, they've been able to find time to support the Bush administration's Bagram position.


Posted by: John Emerson | Link to this comment | 03- 1-09 3:04 PM
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Maher Arar AFAICT did not sue Canada, since the kidnapping took place at JFK, but did receive a $10 million dollar "settlement"

Look usin Bin Laden or Madoff I think confuses the issue, since I think most think the accused should have the same rights as the innocent, pre-trial. This kind of argument is partly why things like Maher Arar took place. Different rules for bad guys?


Posted by: bob mcmanus | Link to this comment | 03- 1-09 3:08 PM
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50 is pretty good.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 3:09 PM
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LB, I'm not a lawyer, but it seems strange to describe the problem with kidnapping another country's citizens as a crime primarily (solely?) against the other country, (especially given differing laws and punishments), and it's not an arrest if someone isn't acting with legitimate authority, which a foreign power inside the U.S. isn't.

Arar won a settlement, but I am not sure if he sued.


Posted by: Cala | Link to this comment | 03- 1-09 3:13 PM
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55:I think.

to arrest Bob, that's between the US and Canada and the US and Bob, not between Bob and Canada.

This was part of my original question to Charley, whether I would have some standing to sue the US for allowing my kidnapping. My impression was that CC said no.

The Maher Arar case might not really answer the question, since it was not a court case, and because I am not sure what the settlement was for. Other bad things were done be the Canadian gov't, searches, leaks.


Posted by: bob mcmanus | Link to this comment | 03- 1-09 3:17 PM
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In the near term, I think that the more flak people give Obama the better. All through the New Deal Roosevelt had people on his left attacking him. If the attacks only come from the right, Obama will move to the right. Why shouldn't he? It's up to us to keep the pressure on. Sifu doesn't have to play if he doesn't want to. (In one case Roosevelt as much as asked for the people on his left to put some public pressure on him. He actually wanted to go that way, but he couldn't do it purely on his own initiative.

I keep saying this, but liberals seem to have forgotten how to play the game. They seem to try to scientifically figure out what the score will be, and then aim for that score. (I think that mostly of other Democrats, not so much Obama so far. But, while maybe Obama's long game will work out, at the time it seems that he thought he could make preemptive compromises on the stimulus in order to avoid a fight. That just doesn't work, you have to play the game first, and he ended up having to make additional compromises.)


Posted by: John Emerson | Link to this comment | 03- 1-09 3:22 PM
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56: Try this. Bob's wanted in Canada. He likes to taunt the Canadians by walking halfway over the Peace Bridge, stopping just short of the border, and making faces. One day, a Canadian cop sneaks up behind him, and shoves him into Canada, where he's arrested.

You're right, the Canadian cop has committed battery in NY state; he's committed a crime under American law. But I don't think that wrongdoing illegitimizes the arrest once he's in Canada, if the arrest is otherwise legitimate. And if the US government chooses to exercise prosecutorial discretion by not prosecuting the Canadian cop, that's its decision to make.

Similarly, kidnapping OBL in Pakistan is a crime under the laws of Pakistan, and US agents who did so could be prosecuted by Pakistan. But once he's in the US, the fact that he was brought there by people violating Pakistani law doesn't give him a right not to be arrested on US soil.


Posted by: LizardBreath | Link to this comment | 03- 1-09 3:26 PM
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58: Totally separate -- albeit related -- can of worms, so please ignore this if you'd like, but you really don't think Obama won the stimulus fight? By what metric did he lose, John?


Posted by: ari | Link to this comment | 03- 1-09 3:52 PM
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He handled it clumsily, which admin sources have conceded themselves, even if everything turned out OK from his perspective.

But he seems to have learned from it. And he really is very ambitious with the budget, and playing it skillfully, emphasis on the middle class, broad principles, etc. If it weren't for the bank thing, everything would be peachy. But he bank thing might give the whole world a lost decade.

He's both better and worse than expected.


Posted by: David Weman | Link to this comment | 03- 1-09 4:03 PM
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Ari, Obama did end up making more compromises than he probably had to or should on the stimulus. He won overall, but the bill ended up being less "stimulative" than it should have been.

Obama's budget did show real daring and sweep -- conventional wisdom was that because of housing/banking/stimulus you'd likely have to delay health reform/fiscal-taxation/global warming, but Obama is going for all of it. It's possible by 2010 we could see the entire Democratic domestic agenda circa 2006-7 enacted, and the U.S. several steps closer to social democracy. It's also possible that by 2010 the Democratic agenda circa 2006-7 will seem too timid to address the scope of the problem, but we'll see.


Posted by: PGD | Link to this comment | 03- 1-09 4:05 PM
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pwned by 61. Agree completely, Dave, including that banking is the key issue and the Administration doesn't have a real handle on it.


Posted by: PGD | Link to this comment | 03- 1-09 4:06 PM
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Hmm, I'd like a cite to the administration sources who have conceded clumsiness. I saw Emanuel, by way of bashing Krugman, say that they knew it should have been a bigger number, but also knew that they didn't have the votes to get there. I haven't seen much beyond that.

Still, I'm happy to concede that they tried a strategy that didn't work to perfection. But the bill they did get -- almost exactly the tax cuts promised during the campaign, coupled with more new spending than anyone would have imagined possible as recently as November -- seems like a huge political victory. Especially because they made the Republicans wear dunce caps and painted them into the obstructionist corner, paving the way for more wins in the (very likely near) future.

But, as you say, it could all come to naught. The economy gets scarier by the day. I just find the criticism of the politics surrounding the stimulus package odd. Whereas I find the stimulus package itself -- as a matter of policy, rather than politics -- incomprehensible.


Posted by: ari | Link to this comment | 03- 1-09 4:11 PM
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IANARL, but there's something bothersome here: You're right, the Canadian cop has committed battery in NY state; he's committed a crime under American law.

As a neutral principle I like the conceit that my government should always obey the law. Every law. When acting in a foreign country it should obey both US law and the local law. This means that even if the local law condones bribery, it shouldn't bribe. If the local law prohibits alcohol, my government shouldn't be allowing alcohol off embassy grounds.

Yes, there should probably be some sort of exception for failed states - places where local law must be ignored in order to enforce stronger, widely held standards - but we shouldn't let the exceptions swallow the rule. We probably need some neutral international third party to determine such cases.

And I'm not sure how to enforce my notion, or who should have the right to complain. But somehow we should respect the notion of law, and this means that we shouldn't countenace our government being a scofflaw.


Posted by: Michael H Schneider | Link to this comment | 03- 1-09 4:11 PM
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62: Again, pgd, I think the question is one of balancing politics and policy. I remain pretty sure that the stimulus fight was a big political win for Obama and the Democrats, generating political capital that's now going to be spent getting a very ambitious budget passed. Which, if that happens, will roll right into a huge fight over health care.

On the stimulus package's policy merits, though, I'm out of my depth. My guess is that it was the first among many steps the administration will take. As I've said elseblog, the New Deal wasn't built in a day.


Posted by: ari | Link to this comment | 03- 1-09 4:15 PM
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59: I guess what I'm sensing here is a fruit-of-the-poisoned-tree problem, and I'm not sure how or if it applies here. There's also a problem with the fact that we're doing this it seems to avoid having to treat someone as a POW ("we're not capturing, just kidnapping"), and that doesn't seem right.


Posted by: Cala | Link to this comment | 03- 1-09 5:00 PM
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67: POW status wouldn't enter into it for the sort of thing we're talking about (that is, for the precise case I'm saying isn't so bad, for a criminal suspect against whom we are prepared to make a case in US civilian courts, now resident in a country that can't or won't arrest and legally extradite him to us, but who wouldn't object to a US kidnapping: OBL in Pakistan). None of the triggers for POW status are present -- no actual war, no uniform and so on.

Fruit of the poisoned tree is a good way to think about it, and my thinking is that this tree isn't particularly poisonous. The ill effect it tends to encourage is the one Michael alludes to in 65; lack of respect for the law of other countries. But if it's contingent on non-objection from the relevant country, we're not respecting their law any less than they do themselves; I'm not seeing this as a substantial risk for spreading into a common practice.

But this is all a pretty minor side issue -- Charley brought it up, and I wanted to agree that it didn't set off my "That's absolutely unacceptable" radar, in the same way as the other practices we're talking about do.


Posted by: LizardBreath | Link to this comment | 03- 1-09 5:35 PM
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60: He started out by conceding a lot of tax cuts before he was even challenged, then the Republicans moderates squeezed some more piecemeal concessions and a smaller plan out of him, and then he "won". This still would be great if the original plan hadn't been,already too small. It's sort of like he got the fire halfway put out in the face of opposition from a small Republican minority that wanted the house to burn down.

I confess that, like many, I lump the stimulus and the bailouts. My understanding is that the bailouts have been a disaster, not because of Republican resistance, but because of the people Obama appointed. But that can't be called failure, exactly.

Third, he also had to make concessions to the idiot Blue Dogs who want, of all the goddamn stupid things you could possibly imagine, fiscal austerity and balanced budgets.

Now, it may be that he'll make the Blue Dogs look as stupid as they really are and give them nothing more than the IOU he's already given them. I hope so.

From the point of view of normal times Obama is a superman, but these aren't exactly normal times.


Posted by: John Emerson | Link to this comment | 03- 1-09 6:01 PM
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I was going to say above: in a lot of areas (especially civil liberties and military and foreign policy) I'd like to see Obama walk things all the way back to before Bush was elected. He doesn't seem at all inclined to try to do that, so we're going to have more of the same reactionary "two steps forward -- one step back" that we've seen since 1968. And people will always be able to talk about the halfway step back he took, but he'll leave us with a net loss.

On the economy, Rahm will always be able to blame the Republican / Blue Dog majority, but if the results are bad enough, Obama will rightly be blamed too if he doesn't openly battle against them.


Posted by: John Emerson | Link to this comment | 03- 1-09 6:11 PM
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Speaking of extradition, not to mention the federalism discussion we were having earlier, I wouldn't mind if my state decided to extradite and then put John Yoo on trial for, say, treason.

Instead, we're apparently giving him an [expletive-deleted] bully pulpit.


Posted by: Witt | Link to this comment | 03- 1-09 8:10 PM
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I don't remember whether Arar sued Canada -- if he did, though, it would be because of Canada's involvement in his rendition/torture. Remember, Canada was the source of the false information that get Arar sent to Syria.

OK, let's say Bob is wanted in Mexico for some crime. Neither Texas nor federal authorities are willing to do anything, so Mexican agents kidnap him. The US doesn't prevent it, and when they find out about it, they sent a strongly worded letter to the Times, but nothing else. Can Bob sue Texas? I don't see a cause of action. Can he sue the US? This I really don't see. What claim would it be? Failure to exercise discretion in a foreign policy issue as vigorously as Bob would like?

Now if the federal authorities did something that was a violation of established constitutional rights, maybe he'd have a 1985 claim or something . . .


Posted by: CharleyCarp | Link to this comment | 03- 1-09 8:20 PM
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The Inquirer prints Mark Bowden, doesn't it?


Posted by: eb | Link to this comment | 03- 1-09 8:27 PM
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Bowden is sane. He's wrong, sometimes badly and irresponsibly wrong, but I've read a lot of his stuff over the years, including some lengthy interviews, and unless he's gone around the bend in the last 18 months, he's just not even close to being in Yoo's league.

A better parallel would be Rick Santorum, and indeed the Inquirer did give him a permanent column-perch from which to spout his unpleasant prejudices. But in some way that I can't fully articulate, I feel betrayed by Yoo's repulsive acts as if he did indeed grind my country's honor into the dirt. It's probably made worse by the appalling social cowardice of his professional associations, which seem to have done little to even nod in the direction of the of social censure and opprobrium which I feel he deserves.


Posted by: Witt | Link to this comment | 03- 1-09 8:34 PM
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Just about the only things I've read by Bowden are a column of his in the Inquirer and a long Atlantic article in the fall of 2003, both about torture, or something very much like it going by other names. So I associate him with Yoo.

The other thing I've read by him was about The Wire. It was unremarkable, mostly.


Posted by: eb | Link to this comment | 03- 1-09 8:41 PM
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Also, and I'm know I'm yelling at the choir here, the true gravity of what Yoo did as far as I'm concerned is that he was a policymaker. He was not even a journalist or advocate bellowing from the sidelines. He betrayed, on the most fundamental level, his duty to preserve, protect, and defend the Constitution.*

*I don't care if his position actually required him to take such an oath; it should have been in his bones and in his soul. That he perverted his interpretation so badly is yet one more mark against him.


Posted by: Witt | Link to this comment | 03- 1-09 8:46 PM
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Bowden was a talented and promising journalist until he got coopted. Perhaps he'll get better.


Posted by: foolishmortal | Link to this comment | 03- 1-09 9:01 PM
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The thing is, it's nice to be able to sit here and say "trust Obama", but in the meantime all the petty little Hitlers and hard men wannabe torturers are still in place.

It's not just that there are a couple of people locked up with a questionable status, neither POW or a criminal suspect, but that Bagram is one of the places were Americans have tortured. People have _died_ there.

Obama did the right thing by ordering the closure of Guantanamo Bay, but this was only the least that he could do. Developments since have not been good. There has been the ongoing waffling about releasing prisoners and accompanying attempts to blackmail the EU in taken them in, the lack of attention to the rest of the Gulag, and so on.

To say that he's only been in ofccie for two months is irrelevant. If Obama thought it was important, he has had plenty of time since he was elected, or even before, to get the ball rolling. It's a question of priorities.


Posted by: Martin Wisse | Link to this comment | 03- 2-09 12:31 AM
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If Obama thought it was important, he has had plenty of time since he was elected, or even before, to get the ball rolling.

This is a good point and defines my position, more or less. Just tell us "We're working on the matter. Shit's pretty fucked up" in a very obvious way, and I'll hang back, opinion-forming-wise.


Posted by: Stanley | Link to this comment | 03- 2-09 12:57 AM
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Bagram, and the other Bagrams, have never been famous, which is convenient for Obama. It's been obvious for several years that Guantanamo would probably be closed at some point, so I wish more could have done to make Bagram famous. Obviously, the blame falls mostly on the US trad media, I don't know if activists could have done more.


Posted by: David Weman | Link to this comment | 03- 2-09 3:30 AM
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The problem is Eisentrager. GTMO is being closed because of Rasul: once habeas was granted, the opportunities to abuse prisoners, to regard them as non-human, dropped steeply (although not to zero). The drip, drip, drip of revelations from GTMO prisoners, and now their cases, has to be cut off. (And believe me, there are plenty more situations as embarrassing as the Taliban Cook and the Impoverished Teenager yet to be revealed.)

The President has inherited a defense/security apparatus that has convinced itself that these people are really scary. Yes, they really are scared of the Cook, and they're scared of the Uyghurs.


Posted by: CharleyCarp | Link to this comment | 03- 2-09 6:21 AM
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81: Right. Eisentrager really makes the 'no right without a remedy' problem clear. IIRC, part of the basis for the holding in Eisentrager was that the petitioners had been tried by a military tribunal characterized by due process, so what were they griping about? And the thing is, I think that's probably enough process for the petitioners in Eisentrager to have gotten, and enough process for the prisoners at Bagram. But if they don't have the right to bring a habeas petition to complain about not having been tried, then they don't have a right to a trial.


Posted by: LizardBreath | Link to this comment | 03- 2-09 6:26 AM
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Just for kicks, read this.


Posted by: foolishmortal | Link to this comment | 03- 2-09 6:25 PM
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Obviously he needs his feet holding to the fire about this.

BTW, who bets the files have mysteriously vanished, just like the ones at Guantanamo? One thing which arose from the Taguba report was just how much interaction there was between the Rumsfeld/Addington/CIA system and the ordinary military POW handling structure; everything was contaminated. In southern Iraq, the UK-led multinational division got its corps-level support from the US 3rd Army, and that included running the main POW camp. And it just turned out last week that, in defiance of agreements between the UK and US, you shipped two POWs we sent there in 2004 off to Bagram and God knows what fate.

Not that I have much faith that the agreement was meant by our side to be taken seriously, rather than to shut the lawyers up. Not that the lawyers, specifically Lord Goldsmith, needed much upshutting...


Posted by: Alex | Link to this comment | 03- 3-09 10:03 AM
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Bowden wrote a good article on how we nailed Zarqawi using proper interrogation methods, not torture. I would not dismiss him as a hack. Yoo is a hack.

Gates being kept on as Sec'y of Defense, without ever referencing or responding to the issue that if Obama intended to clean the US military of torture, there was going to be a problem with his keeping on someone who could well be implicated by a thorough investigation

I am not sure what acts of torture Gates could be implicated in, coming on board in November 2006.


Posted by: Anderson | Link to this comment | 03- 4-09 2:58 PM
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Anderson, I think there's room to debate particular procedures with respect to the hunger strikers: I am not myself an expert on this subject, but people who are think there's a genuine issue. More than that, I think he could and should have taken in former hand prior acts, and I think that even today he ought to instruct his people to stop stonewalling on discovery (much of which relates to conduct prior to his term in office). That is, I wouldn't ask him to have his people do anything but comply with what the courts have already ordered him to do, but compliance would be nice.


Posted by: CharleyCarp | Link to this comment | 03- 4-09 3:33 PM
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Yes, they really are scared of the Cook, and they're scared of the Uyghurs.

I knew a guy in DC who was a counterterrorism analyst for the FBI, and I was shocked by the degree to which he sincerely bought into the darkest, most fearmongering assumptions about this kind of thing. "Well, that guy supports Palestinian statehood, so of course he's a scary person we shouldn't let into the country."


Posted by: Bave Dee | Link to this comment | 03- 4-09 3:49 PM
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taken in former hand prior acts

I do not understand this phrase.

Re: Gates's behavior, I didn't mean to suggest he's snow-pure; I just don't know that any investigation of post-Rumsfeld behavior is going to implicate Gates of violating the War Crimes Act.

I'm a little disappointed that Obama kept Gates on, for the reasons Yglesias set forth at the time (implication that Dems can't handle Defense), but I see the bipartisanship thang and the need for cover on the war(s). I don't think keeping Gates on implies indifference to Rumsfeld's abuses -- Obama has displayed that indifference in other ways.


Posted by: Anderson | Link to this comment | 03- 4-09 3:49 PM
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I was shocked by the degree to which he sincerely bought into the darkest, most fearmongering assumptions about this kind of thing.

Oh lord. I'm reading Sheehan's Bright Shining Lie right now, and nothing much seems to have changed, including that.


Posted by: Anderson | Link to this comment | 03- 4-09 3:51 PM
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87, 89: What is that? Why is fear of terrorism an area where more knowledge seems to turn into more irrational poorly-founded fear?


Posted by: LizardBreath | Link to this comment | 03- 4-09 4:22 PM
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90: the cult of secrecy. People believe that something classified must be true, and the more hawkish/lunatic factions in the national security apparatus both buy into this and milk it. I'm fairly convinced this is the case, having seeing it happen with paranoid hackers, paranoid computer security people, and not obviously paranoid liberal members of congress.


Posted by: Sifu Tweety | Link to this comment | 03- 4-09 4:27 PM
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90, 91: I think it's more than the "cult of secrecy." It seems more like a tendency to oversimplify our enemies so as to feel more secure.

"International Communism" and "global terror" are scary things, but it's comforting to think that we can identify our enemies by facts like "supports Palestinian statehood." It makes defending ourselves seem easier. Not unlike wiping out a village in a "Viet Cong controlled area" instead of attempting to discriminate between genuine enemies, opportunistic allies of our enemies who could be turned, fence-sitters, and plain people just going about their business.

Cf. Cheney's "we don't negotiate with evil, we defeat it." Negotiating with the devil is scary; defeating him, less so. For that matter, believing in a devil is a time-tested heuristic.


Posted by: Anderson | Link to this comment | 03- 4-09 4:34 PM
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92: I don't necessarily disagree, and I think the insular culture of someplace like the FBI -- where there's one set of people who you work with and trust, and another that you're desperately trying to stop -- reinforces that kind of thinking. Especially when people steeped in this insular culture do things like setting hiring standards. Combined with the huge amounts of probably worthless (but secret! and therefore Important!) information, it makes people think that they're better informed than average when they're actually just the opposite.


Posted by: Sifu Tweety | Link to this comment | 03- 4-09 4:44 PM
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93: maybe the secrecy also comes in b/c if the agency revealed its stupidity, its categories of potential evildoers (people named "Muhammed," etc.?) would be open to public scorn.


Posted by: Anderson | Link to this comment | 03- 4-09 4:57 PM
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If I spelled 'firmer' with an i instead of an o, it might be easier to follow.

My friend Wells is arguing a case tomorrow that is even more embarrassing than the cook. I'll let you know.


Posted by: CharleyCarp | Link to this comment | 03- 4-09 5:58 PM
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There's the whole casio watch thing too. I love it that one guy accused of having one asked at his hearing: half the guards here have the same kind of watch -- are they members of Al Qaeda too?


Posted by: CharleyCarp | Link to this comment | 03- 4-09 6:00 PM
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Got it, CC -- if I didn't have a sinus infection, I might even have figured that out. (Blame the germs, I always say.)

... Casio watch? what next, boxers not briefs?


Posted by: Anderson | Link to this comment | 03- 4-09 6:32 PM
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