Attention, 'McCain Democrats': Two Federal Court Detainee Decisions You Need to Check Out and an Alternative Candidate

by Damozel |  I am going to say it again:  If you are a Democrat, think hard about presidential powers before you vote for John McCain.  Appointing federal judges --- and I don't just mean to the Supreme Court --- is a biggie.  Federal judges are appointed for life.  Presidents come and go and at least hypothetically you have the option to throw the bastards out by voting them out of office. 

Not so federal judges. President Bush's court appointees will be trying to shove Bush-style policies down our throats long after he's back home riding the range at Crawford.  The same will apply to McCain appointees.  And -- thanks to eight years of Bush -- our courts are already well-stocked with judges who share Bush's world view. 

To see why it matters, let us consider this exceedingly worryingly 4th Circuit case. First:

President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision. (NYT)

On the other hand side, the presidential power is not completely unlimited.

But a second, overlapping 5-to-4 majority of the court, the United States Court of Appeals for the Fourth Circuit, ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., must be given an additional opportunity to challenge his detention in federal court there. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled. (NYT)

One of the judges, Judge Wilkinson, said that terrorism cases present a special problem in balancing competing interests.

“We may never know,” he said, “whether we have struck the proper balance between liberty and security, because we do not know every action the executive is taking and we do not know every threat global terror networks have in store.” (NYT)

In other words, if terrorism has succeeded in terrifying you, throw up your hands and concede that you can't ensure a just result and that you just have to trust the president to do the right thing.  Oh, right.   That's really worked well these last eight years. 

Anyway, the last time I looked, there was no constitutional guarantee that the government would be able to make us secure.  I do seem to remember seeing a list of rights Mr Jefferson was keen on, including --- just for example --- the rights to due process of law and freedom from unreasonable searches and seizure.  Apparently many people have come to believe that the government can somehow keep us safe by reducing our basic freedoms.  That can't be true, you realize.  How can it be? 

Michael J.W. Stickings is clear about where the balance falls, even if Judge Wilkinson isn't.

Sometimes you have to take the bad with the good, but, in this case, or, rather, with these cases, the bad, which is truly awful, far outweighs the good, a qualified good at most.

George W. Bush and his administration of Constitution-shredding warmongers are, as you should know, turning the United States into a police state. How they are doing this has been a matter of great discussion among critics of what they have done: domestic surveillance, extra-legal detentions, the consolidation of executive power over the legislative and the judicial, the creation and exploitation of a culture of fear, the vilification of the Other, etc.

And they won a major victory today, with the judiciary backing the executive (which was supported by submissive legislature). As a result, the United States is even more of a police state today than it was yesterday.

The five judges who held that the president can order military detention  persons captured in the US offered different criteria' in individual opinions of who might be subject to such a detention. At Talk Left, Jeralyn quoted this comment by a knowledgeable reader:

At oral argument before the en banc court, however, the Government finally acknowledged that an alien legally resident in the United States, like al-Marri, has the same Fifth Amendment due process rights as an American citizen. For this reason, the Government had to concede that if al-Marri can be detained as an enemy combatant, then the Government can also detain any American citizen on the same showing and through the same process.

Did you get that?  If not, here's another framing of it by :'Jonathan L. Hafetz, a lawyer for Mr. Marri with the Brennan Center for Justice at the New York University School of Law' who 'called the Fourth Circuit’s decision deeply disturbing.'

“This decision means the president can pick up any person in the country — citizen or legal resident — and lock them up for years without the most basic safeguard in the Constitution, the right to a criminal trial.'. (NYT)

With respect to the second decision (granting relief), note the split:

All of the judges who would have denied Mr. Marri any relief — Judges Wilkinson, Karen J. Williams, Paul V. Niemeyer and Allyson K. Duncan — were appointed by Republican presidents; all who would have granted him full relief were appointed by Democrats. Judge Traxler was appointed to the appeals court by President Bill Clinton. (NYT)

We are citizens of the home of the brave as well as the land of the free.  These decisions do not reflect either value.  They are the result of craven fear that is willing to sacrifice all our most basic principles.
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At At-Largely, Larissa Alexandrovna wrote:

I am astonished, discouraged, and frankly, frightened for this nation....

Is this type of dictatorial power not the very definition of terrorism? (NYT)

I understand the argument here for refusing to throw a vote to a Democrat you can't support.  I also understand the wish to punish the arrogant assumption that Democrats have to open their mouths and close their eyes and swallow whatever Obama gives them. 

But the ramifications of handing over the executive branch to another Republican are just too dire.

Avedon Carol writes:

f you vote for McCain, they just assume you wanted McCain - and if McCain wins, they say it's because "the country is conservative," which means the Dems have to become even more conservative. And if you don't vote at all, they just figure they can ignore you because you're apolitical and you won't vote anyway, and they should just concentrate on the people who do vote - who they continue to think are conservatives.  So if you absolutely refuse to vote for the Democrat, you must vote for someone who is as far to the left as you can find - which, in this race, means McKinney. Remember: It's the conservatives who most want to discourage you from voting at all.

Good idea, if you really can't vote Democratic .  Protest voters:  Instead of voting for McCain , why not vote for the Green Party candidate, Cynthia McKinney?

Memeorandum is here

OTHER POSTINGS

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Obama & the Miffening* of Dem Insiders...   

Jon Swift and Others on Satire-Gate (Obama's New Yorker Cover) 

The Flip-Flopping Label Has Jumped the Shark   

Joe Lieberman and the Democratic Party   

Federal Government Rescues Fannie and Freddie

Comments

[rain]

How sad that this great country is going down the tubes.

[Mikey]

Yeah, thanks for the lecture. It may surprise you but we disaffected Hillary supporters actually know how our government works. The Obamabots and the DNC should have considered all of these issues when they were working so hard to disenfranchise us and shove the Great and Powerful Obama down our throats. Good luck with your empty suit.

[jeanharris]

So. I'd say bin Laden is winning.

[Shade Tail]

It's a shame, really, how many democrats have no idea how our society really works. Particularly those selfish so-called Hillary "supporters" who are preparing to betray everything she stands for by voting for a right-wing extremist like McBush.

Seriously, you listen to them declare that they understand how this works, and yet it is only slightly more visible than blindingly obvious that they haven't got a clue.

The one real comfort is that they are merely a tiny minority who make noise far out of proportion to their size. Sort of like the extremist religious right.

[edde]

"Yeah, thanks for the lecture. It may surprise you but we disaffected Hillary supporters actually know how our government works. The Obamabots and the DNC should have considered all of these issues when they were working so hard to disenfranchise us and shove the Great and Powerful Obama down our throats. Good luck with your empty suit."

Mikey, sorry but you truly are an idiot. Hillary would have gotten MY vote even though she was not my first choice (because she's republican light). She blew it, plain and simple. Nobody "did" anything to her or you.

[Danny]

There is no argument Democrats can make that will change my mind.

Democrats are as much to blame for the Judges appointed to the courts as Bush is anyway - they all have to be approved by congress after all. Unless it's an recess appointment (Bush).

I personally think that John McCain will do a fine job appointing Judges to the courts. I'm not one bit affraid of right wing judges. I've made my decision and will stick to it come hell or high water!

If not Hillary I'll vote for McCain. It's that easy for me (call me un-thinking). LOL

Obama is not ready to lead - he is a horrible politician and has baggage not even opened yet - Just ask those kids of his they know he comes with hatefull baggage we will all pay for if he is elected. He does have thuggery nailed down how do you think he is where he is today? He wasn't elected to the presumption of nominee. so *^%&$ him!

I will not ever support him or any Democrats who endorse him for President. I'm personally voting against any democrat that endorsed or endorses Obama becuase he is not or should not have been crowned the selected presumptive by the DNC.

The Democratic Party can and should fix this mess - SPINELESS as USUAL will be the ending to this story.

President John McCain - I pressume!

[damozel]

Well, MIKEY, as long as you have your priorities straight. I was a Hillary supporter as well...and I had to weigh whether I was angrier at the DNC for yanking my choke chain (yep, they did) for a few months during the primaries or for THE BUSH ADMINISTRATION AND THE GOP FOR THE LAST EIGHT YEARS.

I am not saying vote for Obama. The whole point is that if you share the values that the Democratic party is supposed to stand for (though it doesn't), then don't pick McCain --- pick the Green Party candidate.

But if you WANT another Republican, that's your look-out.

It wasn't a lecture --- Jesus. It was an attempt to call attention to the ramifications of your cold, implacable desire to punish. I get the desire to punish --- I said so. It's the solution of being a 'McCain Democrat' I reject.

If you vote for McCain, you're no Democrat, as far as I'm concerned. Just go ahead and call yourself what you are: a Republican.