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Friday, December 23, 2005

Better Start Listening to Opposing Views

The last few days have been an avalanche of criticism regarding the Bush Administration playing fast and loose with the law and the facts. And it isn't just coming from Democrats.

The recent decision (warning: PDF) by the 4th Circuit on the Padilla case is a good example of how even conservatives are disgusted by this Administration. Judge Michael Luttig, writing for the court, accuses the Administration of attempting to avoid review by the Supreme Court, by playing fast and loose with the law and trying to get the Court to aid and abet them in mooting the issue. To say Judge Luttig and the rest of the 4th Circuit judges involved in the decision were not amused is an understatement.

Then there is the decision recently issued by the D.C. Circuit (warning: PDF) regarding two Uighur detainees, already determined by the US military to be "no longer classified as enemy combatants" (whatever in the hell that means, since there is a substantial question as to whether they were ever enemy combatants in the first place, according to the Court, which can't get a straight answer from the Administration on this point and calls their description Kafka-esque). The case was sent along to me by Hilzoy from Obsidian Wings (who has been doing excellent work on this issue, btw, major kudos), and reading the opinion is an exercise in frustration and disgust.

It seems these two men have been held for four years in Guantanimo and, despite being determined by both military and civil courts as being innocent, are still being held because they are in some sort of legal limbo in terms of relief. Under the law, the D.C. Circuit cannot order release into the United States, but as uighurs who have been determined to have been in Afghanistan, the Chinese government has a "special interest" in them.

So, they are prisoners without a country of safety, and will remain in Guantanimo indefinitely until someone decides that imprisoning innocent people is unacceptable, and finds a third party nation to take them (since the US isn't exactly stepping up to the plate with offers of sanctuary, seeing how they might be pissed at us for wrongful imprisonment in the first place and all).

Then you add in the fact that Congress specifically negotiated with the Administration that there would be no domestic spying included in the Afghan resolution, according to Tom Daschle -- you really get a feeling that this Preznit is an awful lot like my toddler. Telling her no makes her cranky and obstinate, too. But, really, don't you expect more from an adult who styles himself the leader of the free world?

Apparently, some folks don't, like John Schmidt in the Chicago Tribune. Just one problem -- Schmidt ignores this in his reasoning: The Keith case specifically addressed domestic surveillance and determined that it DID require a warrant.

Moreover, the Supreme Court in that case did not rule that any surveillance methods used to surveil foreign actors were okey-dokey. Rather, they expressly stated they were reaching no opinion whatsoever on that matter, since it was not addressable under the facts at issue in that case. I'd suggest a re-reading of Keith, along with the Youngstown case, for good measure, for Mr. Schmidt. And some contemplation as to why the FISA court was established in the first place -- it's called Presidential overreaching and bad faith and ignoring Congressional and legal oversight. Sound familiar?

While the Preznit keeps touting his great legal advice, I have a little for him myself: try talking with lawyers who aren't just telling you what you want to hear. The value in legal advice is listening to all sides of the issue, even the ones that don't support your own viewpoint -- that way you don't continue to get an ass chewing from irate Federal judges that you are playing fast and loose with the law.

Of course, it's a little late for those uighurs in Guantanimo, isn't it? About four years too late.

UPDATE: Glenn Greenwald has more, including an update on Administration supporters' latest attempts at justifying all of this.

Also, TalkLeft addresses the Administration contentions on domestic surveillance authority.