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Posts from October 2006

Before the Law

If you were listening to Morning Edition on NPR a couple of days ago, you had a remarkable opportunity to hear the Banality of Evil demonstrated concretely for you, within your own earshot. I’m talking about Steve Inskeep’s interview with John Yoo, a former lawyer for the Bush administration. Here are some of his remarks on the recently-passed Star Chamber law. I’ll reprint them, but you really must listen to Yoo to understand it fully–there is no way to convey the sheer blandness of Yoo’s plain-spoken, calm explanation and apologetics for the most despicable sort of Stasi-statism.

Inskeep: Now [if you’re a citizen accused of being an enemy combatant] you can challenge your status in court, but if you lose that, are you entitled to a trial, as a U.S. citizen?

Yoo: No, and that’s something that the Supreme Court made clear two years ago, is that if you are an enemy combatant, there is no constitutional requirement that you get a criminal trial. You can be held until hostilities are over.

Of course, the rules for imprisoning enemy soldiers were developed in a context where hostilities meant wars between two or more particular States, which had declared beginnings and definite endings. How long will it take for these hostilities, which are part of an undeclared global war waged against a vaguely-specified enemy with no identifiable central authority, and pursued with no defined conditions for victory, for surrender, or for truce, to count as over? But we’d best hurry along. Now that you are being held, quite possibly until you die in prison….

Inskeep: Now what if you’re a non-citizen, what happens then? Same scenario. The government has some suspicions about you, they think you’ve done something, they arrest you, they say you’re an enemy combatant, you disagree. What can you do?

Yoo: Well, first, according to the law passed by Congress last week, I’d have the right to go to what’s called a combatant status review tribunal, which is set up by the Defense Department, where I’d have a hearing, where I could challenge the evidence against me, that I’m an enemy combatant.

Oh, well then. That sounds reasonable enough.

Inskeep: –Wait, let me stop you for a second. When you go to that hearing, do you get a lawyer?

Yoo: I believe you don’t get a lawyer. You have representation from an officer, but not necessarily one who’s a military lawyer.


Inskeep: And when you say that you could challenge your detention, how would you gather evidence to show that you’re not an enemy combatant?

Yoo: Well, first you can tell your own story, and also I think you would have the abliity to see unclassified evidence against you, and to challenge it.


Inskeep: You said unclassified evidence. So classified evidence, that the government says, We have evidence against you and we can’t share it with you, that’s the end of the story?

Yoo: I believe so. I believe that classified evidence is not provided to the defendant. It’s not even provided under the military commissions, or often in civilian trials, even, for terrorism or spying.


Inskeep: If you’re an enemy combatant, who decides if you ever get a full-blown trial–a military commission trial as it’s been called?

Yoo: That’s ultimately up to the President. I think it’s still up to the President and the Secretary of Defense who’s going to be tried by a military commission.

Inskeep: The government will decide that when it’s in the government’s best interest, a trial will be held, and when it’s not, the person will be held without a trial?

Yoo: That’s right.

Full stop.

Then Inskeep asks the next question.

Inskeep: Do you think it’s inevitable that some people who are innocent are going to end up in this system, spending years and years at Guantanmo Bay?

Yoo: There’s no perfect system. I agree, Steve, there’s always the chance that there will be people who are detained who are not enemy combatants. The same is true of our criminal justice system. There’s no doubt that we have people in the criminal justice system who are innocent. That’s why we have all these processes, that’s why we have all these appeals levels, is to try to correct any mistakes that were made, and prevent errors.

Inskeep: You said there’s always the chance. I mean, isn’t a certainty, especially given that some cases have already been found, to be almost indisputably cases of people who were innocent being held at Guantanamo for a long time, or held elsewhere.

Yoo: I would say, look, in wartime, there’s always going to be people who might be picked up. It’s also the case in wartime that you have mistaken targets attacked and people killed by accident. But my only point is that you also have that in the criminal justice system. No system is going to be perfect.

Inskeep: Do you, as a lawyer who’s worked in the Bush administration, and obviously thought about these isues, think that this law does everything possible to prevent error?

Yoo: Well, I think we could probably do a lot more, but it would be a lot more expensive. I think what we have here is something that’s very close to the civilian system.

Inskeep: Are you saying it would be too expensive to give habeas corpus protection to non-citizens?

Yoo: Yeah, I think that’s what Congress decided when it passed this law last week, is that, you could have the possibility of hundreds and hundreds of habeas corpus proceedings, and they do impose a cost. They impose a cost on our judicial system. They impose a cost on our government, on our military. Think about… you’d have to pull in witnesses in from abroad, you’d have the cost of potentially releasing classified information… all this process does have a cost on our system. It’s not free.

Inskeep: John Yoo is author of War by Other Means, which is out this week.

Good night, and good luck.

Two and a half wars

Secretary of State Condoleezza Rice said Tuesday a North Korean nuclear test would be a very provocative act and the United States would have to assess its options should it be carried out.

Rice’s warning, at a news conference in Cairo, reflected widespread concern within the Bush administration. She stressed, however, that a North Korean test was an issue for the neighborhood and not just for the United States.

It would be a very provocative act, she said. Still, she said, they have not yet done it.

Rice did not elaborate on the options she said the United States would consider if North Korea followed through on it threat.

— Ann Gearan, Forbes.com (2006-10-03): U.S.: N. Korea Nuclear Test Unacceptable

Now, I reject, root and branch, the whole terror-empire geopolitics that are so proudly endorsed by both the ruling Right and the Cold War liberals who dominate the Loyal Opposition. But suppose that you take those ideas on their own terms for a second. The strategic question that Rice’s blustering raises is this. Even granting the legitimacy of the enterprise, given the way the United States is hopelessly mired in ever-worsening civil wars in both Iraq and Afghanistan, not to mention whatever the endgame for the increasingly bellicose diplomatic confrontation with Iran may be, just what options does the United States realistically have left at this point?

Everything has limits, even global superpowers. The War Party, especially in its more bellicose factions, fantasizes that the United States has the muscle, resources, know-how, and will to sustain itself as the head of a geopolitical power structure which amounts to world empire in everything but name; and it is precisely these people who are most fond of passing themselves off as hard-nosed policy realists against the saccharine dreams of hippies, pacifist zealots, moonbats, the terminally clueless, and countless other denizens of whatever La-La Land they imagine you have to be from to possibly have doubts about the latest march to war. But they are wrong, dead wrong, and their pose is growing more evidently absurd every day. Unfortunately, we, not they, will be forced to deal with the human consequences of the colossal disasters they are pulling us into.

Traditional Values

Sydney McGee is an art teacher at Wilma Fisher Elementary School in the northern Dallas suburb of Frisco, Texas. She has 28 years of classroom experience and has consistently gotten good performance reviews. Since this Spring, she has been repeatedly harassed by administration pencil-pushers. This September, she was suspended with pay by the school board and she’ll be fired at the end of the school year.

Why? Because last April McGee had the temerity to try to educate her ten-year-old students by taking them on an approved field trip to the Dallas Museum of Art, on a tour accompanied by four other teachers, twelve parents, and a museum docent along with them. The next day McGee was hauled into the principal’s office and dressed down. Turns out that one of the kids’ parents was outraged to learn that during the tour his or her kid had been exposed to … to glimpses of these:

Nude figure of a young man from a funerary relief: Greek, Attic (c. 330 BCE) A nude sculpture entitled “Flora”, by Aristide Maillol (1911) A nude sculpture entitled “The Shade”, by Auguste Rodin (1880)

The principal had approved the field trip ahead of time, but now, at Mr. or Mrs. Grundy’s behest, she was shocked! shocked! to learn that there are sometimes nudes in an art museum. Who could possibly have imagined that it was acceptable for ten-year-olds to be exposed to artistic nudes? They might learn that men and women are sometimes naked! In any case, about a month later the assistant principal and principal subjected McGee to an unusual evaluation process, gave her poor marks, and stuck her on a professional growth plan that allowed the administration to issue eight pages of arbitrary directives her for curriculum and lesson planning. After she contacted an attorney and the teacher’s union, the administration retaliated by inventing–oh, sorry, remembering–a heretofore unmentioned and completely undocumented history of verbal reprimands. The process of retaliation finally led to Ms. McGee’s suspension late in September. The school board suggests that her contract will not be renewed.

Well. Take that, Renaissance! It may have trashed an experienced art teacher’s career, but traditional values are on the march, by jingo, and Mr. and Mrs. Grundy can rest better tonight knowing that their children will once again be kept safe from exposure to their own artistic heritage.

(I heard about this from Rebecca Traister @ Broadsheet 2006-10-03. More from The New York Times 2006-09-30, Texas Ed 2006-08-25, Texas Ed 2006-09-26, and the Dallas Morning News 2006-08-24.)

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