Justice Dept. Drafts Sweeping Expansion Anti-Terrorism Act

[Snurgt]

Just wondering what all yer opinions on this are:

http://www.publicintegrity.org/dtaweb/r ... &L4=0&L5=0

[Sylvos]

Admittedly I only gave it a quick skim (tired this morning) but if this gets passed, I'd say you can thank Bin Laden for not only orchestrating the deaths of, 1400?, americans in the September 11 attack; you can thank him for killing the constitution as well.

[Corth]

If the proposed laws are unconstitutional, and they get through congress they will get quashed by the courts. When the bushies start arguing that the Supreme Court has no authority over them... thats when Its time to get worried.

BTW, not to say that its right but traditionally the executive branch gets expanded powers during war. Thats how the Japanese internment camps were found to be Constitutional during WWII. The argument goes that civil liberties are of little importance to you if you are dead. Of course, it has also been worrisome that expanded powers are available to a president who can generally start a war at will notwithstanding Congress' power to declare war. Thats really the interesting debate, imho.

Corth

[Bilraex]

heard on the news that a few members of congress and some civilians are taking the president to court over trying to start a war without the approval of congress

[Gurns]

If the proposed laws are unconstitutional, and they get through congress they will get quashed by the courts.
[snip]
traditionally the executive branch gets expanded powers during war. Thats how the Japanese internment camps were found to be Constitutional during WWII.

Um. I'm not reassured.

[Gura]

if i'm not mistaken the president can declare war for 90 days without the approval of congress..after that he has to withdraw all troops unless he gets the approval

[Corth]

Heh, congress already gave the president approval to goto war with Iraq. They are free to take away permission. There is one such proposal currently being discussed.

Gura referred to the war powers act. To give some background, it hasn't been tested in the supreme court and has been disavowed by every president since it was enacted as being a violation of the constiutional principle of separation of powers. Interestingly enough, it is just about always complied with. Basically, the president and congress both have warmaking powers, and its not very clear where one ends and the other begins. The law in this area is very poorly defined.

Gurns,

If you are worried that there are not enough checks and balances in the US system of government, then perhaps you should come up with something better. In order for this worrisome legislation to become law it needs the president (accountable to the public every four years) and two legislative houses (accountable every 2 or 6 years) to approve it. Even then it can be quashed by a supreme court who's members can ignore political considerations because they can't be removed. By the way, European countries generally have little or no judicial review of legislative acts. Basically, there are more procedural safeguards in the US in regards to individual rights then there are anywhere else in the world. I defy you to come up with an example of any other country that does a better job of guarding the freedoms of its people.

As for the Japanese internment camps, yes they severely infringed on civil rights. And yes, they were also found to be constitutional by the Supreme Court. Whether or not they were right or wrong is a whole other story. The fact of the matter is that when the country is involved in a war, there is a lot more latitude given to the powers that be to take drastic steps that wouldn't ordinarily be allowed. Its a function of reasonableness. If a government cannot protect its citizens from death and destruction of property, then rights such as freedom of speech and due process of law are useless.

[Gurns]

Gurns,
If you are worried that there are not enough checks and balances in the US system of government, then perhaps you should come up with something better.

You mistake my meaning. I wasn't sniping at the structure of government, but at your argument. You tried to reassure us that "If the proposed laws are unconstitutional, and they get through congress they will get quashed by the courts." You and I both pointed out one example of a clearly unconstitutional law and actions that was upheld by the courts. Hence, I am not reassured.

The fact of the matter is that when the country is involved in a war, there is a lot more latitude given to the powers that be to take drastic steps that wouldn't ordinarily be allowed. Its a function of reasonableness. If a government cannot protect its citizens from death and destruction of property, then rights such as freedom of speech and due process of law are useless.

That is, you're saying that it is sometimes necessary to violate the Constitution in order to save it. You're saying that individual rights can be violated, and it is reasonable to violate them, to protect the country and its citizens. And that we should trust our government, and its systems of checks and balances, to protect as many individual rights as it can, while violating those that it has to, to keep us safe.

That is not a set of statements I would have expected from you, so perhaps I am misinterpreting your words.

[Corth]

I didnt point out an example of a 'clearly unconstitutional law', Gurns. The japanese internment camps were found by the supreme court to be constitutional. The case name is Korematsu v. United States. Whether the case would be decided again the same way should it be brought now, I dont know. It probably wouldn't.

As for violating individual rights guaranteed under the constitution, well, it happens all the time. None of those rights are absolute. Yes we are allowed Freedom of speech, but obscene speech isn't protected. Neither is speech that is intended to incite a riot. We are allowed the free exercise of religion, but we're not allowed to withhold medical treatment to our children, even if our religion requires it. Likewise, we cannot use Peyote in our religious practices. We are guaranteed equal protection under the law and yet certain instances of government affirmative action are allowed. The list goes on and on.

Perhaps its misleading to say that those are examples where the court allows a right to be 'violated'. What is happening in each of those examples is that a constitutional power of the government is conflicting with the individual right. Where there is a compelling governmental interest and there is no other way to carry out that interest except to violate an individual Constitutional right, the Supreme Court will almost always allow it. Being able to properly fight a war would be considered among the most compelling of governmental interests.

Now I certainly would not advocate that the constitution gets thrown out whenever we are at war. But on the other hand, reasonable governmental activities during war might very well conflict with some of our civil liberties. If there is no other option, then so be it. We cannot allow our freedoms to make us into a weak country that cannot fight war on the same terms as other countries. That would certainly undermine the spirit of the constitution.

As for this new patriot act, I haven't looked at it and have no opinion. What I do know is that the president (democratically elected figure who has sworn to uphold the constitution) has proposed it, Congress and Senate (democratically elected figures who have been.. etc) will debate it, and either approve it or not, and then if they do approve it, The Supreme Court (tenured body) gets a crack at it. These safeguards are not perfect, but it doesn't get any better. Maybe others worry, but I have no fear that the will US will devolve into some sort of dictatorship.

Corth

[combatmedic]

Well i guess i now know what Corth is doing while he is afk on smoke. He's making these posts. Don't ever let me get into a debate with you Corth, you would probably hand me my ass. Good post.

[Gurns]

I didnt point out an example of a 'clearly unconstitutional law', Gurns. The japanese internment camps were found by the supreme court to be constitutional

Actually, that's not quite correct. But the more important point is that there's a key difference in our definition. You are defining "constitutional" in a narrow sense, as "what the Supreme Court has said is constitutional". I was defining "constitutional" more broadly, as "consistent with the Constitution." Your definition is "the law of the land", mine is "what the law of the land is supposed to be".

They should be the same, of course, but there is a difference. I'm sure Corth knows that from his training, but for any reader who may be in doubt, think of this: The Supreme Court has, on occasion, reversed its decision about what is constitutional and what is not. Segregation, for example. One of the two contradictory Supreme Court decisions must be wrong, so we know that the Court has ruled something was constitutional when it wasn't, or vice versa. This shouldn't be a surprise: People make mistakes, and the Justices, even acting in concert, are people.

We also know that there have been times when the Court has not ruled on the constitutionality of a law. In a narrow practical and legal sense, that means that law can be considered "constitutional": You are expected to obey that law unless and until it is deemed unconstitutional. But does that make every law consistent with the Constitution? No, sometimes an untested law is later tested and deemed unconstitutional.

So, we can see how laws may be "constitutional" by Corth's definition (which might more accurately be said to be "the Supreme Court hasn't said they're unconstitutional") but still have the potential to be "unconstitutional" by my definition ("not consistent with the Constitution"). Who am I to say such things? Why, as a citizen of these great United States, it is my right and even my duty to think about the Constitution, its guardians, and to speak out on such issues.

The example of Japanese internment in WWII is informative about this distinction of definitions, and the way the Court makes such decisions, and it is quite relevant to the current situation. That link you posted is quite interesting, Corth, thanks.

For those of you not familiar with the history, after the Japanese Empire bombed Pearl Harbor, the U.S. was divided into military districts. The Western Defense Command included the West Coast states. The military commander of that district issued certain orders, supported and confirmed by Executive Orders from President Roosevelt and by Acts of Congress. An early order was that all persons of Japanese heritage were under curfew from 8 p.m. to 6 a.m. This order was upheld as constitutional by a unanimous Supreme Court ( http://www.tourolaw.edu/patch/Hirabayashi/ , Hirabayashi v. United States, 1943). Note that some of the concurring opinions are highly qualified: "it's allowable, but we don't like it". A later order (the exclusion order) required that all persons of Japanese heritage stay out of certain areas. These areas were geographically quite large. Still later orders required that such persons report to Assembly Centers (from which some of them couldn't leave), and finally (four months after Pearl Harbor, I think) ordered them moved to internment camps (from which few could leave).

One could list a bunch of reasons for these orders. The official and legitimating reason was a very real fear that some of these folks would act as spies or saboteurs for the Japanese Empire. With the perspective of history, most folks have come to the conclusion that it was this fear mixed with racial prejudice (we were also at war with Germany and Italy at the time of the orders, but persons of German and Italian ancestry never were subject to any similar orders). What was absent was any sort of evidence that any of these folks were aiding the Empire. (An aside: Interestingly to me, the orders and the Court decisions are somewhat based on sociological arguments about Japanese American sub-culture. Lots of folks argue that various Court decisions are "too much" affected by sociological or psychological matters, rather then being a matter of law alone, but these cases aren't ever mentioned as some of those.)

http://www.tourolaw.edu/patch/Korematsu/ , Korematsu v. United States (1944) was decided as a test of the exclusion order. Y'all should read the opinion of the Court. One can see how narrowly the Court focused their decision. You can see how carefully the opinion avoided the questions of the evacuation or imprisonment of Mr. Korematsu, or the question of the camps themselves. You can see how carefully the opinion says that an order, a law, explicitly based on race is not really about race.

Y'all should also read the dissenting opinions, after reading the Court's opinion. They're a lot more fun. Lessons in how to say "You're so full of shit" in judicial language.

100,000 to 120,000 people, perhaps 2/3 of them U.S. citizens, men, women, and children, had been evicted from their homes, and sent to internment camps (under fairly miserable conditions), for as much as three years. Not because they were accused of any crime, but only because they, or their parents, or their parents' parents, immigrated from Japan (and also because they lived in California, Oregon, or Washington). However, the Supreme Court ruled, 6-3, that the exclusion order was constitutional. By the Court's careful avoidance of the subject, the evacuation orders and internment orders were never tested, so they were not found to be unconstitutional.

It is not the case that the Court had to decide only on the exclusion order in Korematsu. That's what they did, and the majority opinion says "This is the only issue before us." However, the Court has at times ruled more broadly on cases, not just on the most limited interpretation of what is before them.

A third case that reached the Supreme Court was http://caselaw.lp.findlaw.com/scripts/g ... &invol=283 , Ex Parte Endo. The Court ruled that a person of proven loyalty to the U.S. could not be held in the camps. But that decision only required the release of Ms. Endo. It did not require the release of those who were being held without grounds for suspicion, only the release of any whom the authorities would concede were loyal. A matter of "guilty until proven innocent." And what I do not see anywhere is any mechanism, aside from a lawsuit, to prove that one was loyal/innocent. Oh, wait, there was one: Enlist in the military. (So we lock these folks up because they might be spies and saboteurs, but we let them volunteer the military, and later draft them? That makes sense. By the way, many of these served heroically in the 442nd "Go for Broke" Regiment.)

How could this happen? Corth has it exactly right:

Where there is a compelling governmental interest and there is no other way to carry out that interest except to violate an individual Constitutional right, the Supreme Court will almost always allow it. Being able to properly fight a war would be considered among the most compelling of governmental interests.

That is what those decisions say. The Hirabayashi and Korematsu majority opinions can be paraphrased as "We're at war, and the survival of the country is at stake. Under the circumstances, we're not going to second-guess the military, including the President and Congress, the military's overseers."

So there is Corth's point. The curfew and exclusion orders were tested and deemed constitutional by the Supreme Court. The evacuation and internment orders were never tested, and so are constitutional by default. The exigencies of war were sufficient for the Court to allow a clear violation of individual liberties of tens of thousands of U.S. citizens. These actions were legal, constitutional, by the law of the land.

And that's also part of my point. These actions were held to be legal. Mass violations of individual rights (i.e., government actions not consistent with the Constitution), because of fear and prejudice and nothing in the way of real evidence, were found to be legal. Corth said "These safeguards are not perfect, but it doesn't get any better." I point out that the safeguards he mentions were in place during WWII. That shows how poorly the safeguards can work.

Maybe others worry, but I have no fear that the will US will devolve into some sort of dictatorship.

I have no fear of dictatorship. But I do have some fear of a return to the "good old days", when (specifically) mass arrests based on no evidence are tolerated and (generally) individual liberties are ignored because "we're at war". Though I must note, as to the "specifically" point, that in the last year or so, "only" a couple thousand have been detained in this country, only a couple of those are U.S. citizens, and there is evidence against the U.S. citizens. So we're doing much better than in WWII. (This is both true, and said with some note of sarcasm.) Of course, there's only been one terrorist attack so far. What happens after the next one? And the one after that? Of course, why should I worry, I'm not Japanese, I mean, middle Eastern.

None of those rights are absolute.

Quite correct, and something always worth reminding folks of. A good list, too, although I thought I'd read recently that certain religious uses of peyote were now allowed again? A story in Time magazine, maybe?

Now I certainly would not advocate that the constitution gets thrown out whenever we are at war. But on the other hand, reasonable governmental activities during war might very well conflict with some of our civil liberties. If there is no other option, then so be it.

I agree, up to a point. And the point is, where do we draw the line? And the point is, who's drawing the line?

What I see is that the current administration is quick to step to absolutes, to say "There is no other option." And to keep escalating. First, we had no other option, we had to "get Osama." Now we have no other option, we have to "get Saddam". First, we had to have the Patriot Act. Now we see drafts of the Patriot Act II. We won't see this version of Patriot Act II, but soon we will hear that we have to have some of its provisions.

Are these good actions/laws? Bad ones? Who is to know? Until recently, few in government – the checks and balances – have opposed these actions. Does that mean the administration is right? Or does that mean that politicians don't argue with someone with a 75% (or whatever) approval rating? Does that mean the government's actions are either allowed under or consistent with the Constitution? Or just that they haven't been tested in court?

Corth, in your discussion of the checks and balances, you implicitly but didn't explicitly mention the ultimate one. The citizens. We (as a country) elected these officials, they are responsible to us, and we get to squawk at 'em when we think they're acting incorrectly. And we get to try to convince other citizens to speak up, too. Since I've got the soap box for the moment, I get to squawk that the government will be trying to take away your liberty, by arguing that it needs to, to keep you safe. Y'all have to figure out just how much liberty you're willing to give up for what degree of safety. And how many other people's liberties, and lives, you're willing to sacrifice, to give you what degree of safety.

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

Unlike Ben, I'll give up a little liberty for some safety, and I still think I deserve both. But you gotta watch who's drawing the line, and where, and whether it's worth it. That is:

"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel." Patrick Henry

"Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions." Daniel Webster

We cannot allow our freedoms to make us into a weak country that cannot fight war on the same terms as other countries. That would certainly undermine the spirit of the constitution.

Our freedoms are our strength. If we weaken those, then no matter how many battles we win, we've lost the war.

[Corth]

Gurns,

While any interested person is perfectly free to form opinions as to the Constitutionality of a law, the only opinion that really matters is that of the judge deciding it. Was Korematsu wrongly decided in the early 1940s? Probably. Was the regulation in question constitutional? Yes, regardless of whether we agree with the reasoning of the Court. Would it be decided differently should it come to the Supreme Court in 2003? Probably. Have societal norms changed since the early 1940's? Definately.

Anyway, good post. I think that between the two of us, the debate has been framed quite well.

Corth

[Gurns]

I think that between the two of us, the debate has been framed quite well.

I can agree with that. :)