Habeas Corpus Isn't a Corpse

If you don't include torturing helpless prisoners in your definition of evil, your definition of evil is meaningless. -- Tony Lagouranis, Fear Up Harsh

In This Week's Sift:

Hocus Pocus: The Court Makes Habeas Corpus Reappear. Justice Scalia says Americans will die for this. Newt Gingrich thinks it could cost us a city. What evil invention are they talking about? Habeas corpus, the foundation of human rights.

The Negative Campaign. John McCain is behind in the polls and doesn't have a popular issue to run on. So he's going to have to make Barack Obama even less popular.

Short Notes. Obama comes to the town where I grew up, while McCain visits the town where I live now. The SOFA negotiations become uncomfortable. Governor Jindal, exorcist. Impeachment or hanging? And the surprising downside of loaning large sums of money to people in jail.

Hocus Pocus: The Court Makes Habeas Corpus Reappear

I've said this before, but it's worth repeating: Just about all of your rights as an American are founded on habeas corpus. The Latin is intimidating, but the idea is simple. If a government official arrests you, you can get a hearing before a neutral judge. The judge determines whether or not the government has a legal basis to hold you, and if not, you go free.

Most of your other rights concern what reasons the government can or can't use at that hearing. Your freedom of religion means that "He's a Muslim" is not a good enough reason to imprison you. Your freedom of speech means that "She called the president an ignorant jerk" is also not a viable reason. But if the hearing is never held -- if the government just arrests you and doesn't have to explain itself to anybody -- then even though your other rights may stay on the books, you have no way to claim them.

Worse, if any class of people is denied habeas corpus rights, that creates a hole in the system into which anyone else might fall. Say, for example, that non-citizens aren't allowed a hearing. "No problem," you say, "I'm an American citizen." But if the government says you're not a citizen, then who's going to hear you claim that you are?

Cutting corners on habeas corpus is especially dangerous when combined with the Bush administration's unitary executive theory, by which they interpret Article II of the Constitution to mean that all officials in the executive branch of government are "emanations of the president's will" (in David Rifkin's evocative phrase). So if somebody in the Pentagon accuses you of being an enemy combatant, and a military commission assesses the evidence against you, your accuser and your judges are all emanations of the president's will. If the president doesn't like you, you're pretty much screwed.

This week the Supreme Court decided this is a bad situation, and is not consistent with the American tradition of constitutional law. That's the good news. The bad news: They decided it by one vote, 5-4. The four in the minority -- Scalia, Thomas, Roberts, and Alito -- are healthy, relatively young, and likely to stay on the court for many years. The next two or three retirements are going to come from the five. Senator McCain has mentioned Roberts and Alito as models for his court appointments, so this ruling could easily be reversed if McCain is elected.

As for what the new ruling says in detail, I haven't finished reading it yet. Glenn Greenwald (I keep forgetting he's a lawyer) summarizes it. So does Salon's James Ross. The Volokh Conspiracy extracts key quotes. So does emptywheel.

From the responses of conservatives, you might think that the Court had ordered the immediate release of everyone at Guantanamo, rather than just offer them a fair hearing. (Slate's Dahlia Lithwick: "The court merely said that the petitioners are entitled to some reasonable approximation of a habeas corpus proceeding, and that the jumped-up pretrial hearings known as Combatant Status Review Tribunals just don't substitute.") Bush said, "It was a deeply divided court. And I strongly agree with those who dissented." Presumably he meant Justice Scalia, who wrote that the decision "will almost certainly cause more Americans to be killed." On Face the Nation Sunday Newt Gingrich raised the ante: "This court decision is a disaster which could cost us a city." McCain said it was "one of worst decisions in the history of this country." (By contrast, Obama supported the ruling, calling it "an important step toward re-establishing our credibility as a nation committed to the rule of law.")

Conservative commentators went even further. National Review's Andy McCarthy passes on a "practical response" suggested to him by "an old government friend."

Let's free all Gitmo detainees...on a vast, deserted, open and contested Afghan battlefield. C-130 gunship circling overhead for security. Give them all a two minute running head start.

Glenn Greenwald reports on a radio debate he had with conservative Jed Babbin:

The question I put to him again and again was one that he simply couldn't answer: how and why would any American object to the mere requirement that our Government prove that someone is guilty before we imprison them indefinitely or execute them?

And the bottom line is that many of them aren't guilty. That's the conclusion the McClatchy Newspapers came to in its Guantanamo: Beyond the Law series.

From the moment that Guantanamo opened in early 2002, former Secretary of the Army Thomas White said, it was obvious that at least a third of the population didn't belong there.

Of the 66 detainees whom McClatchy interviewed, the evidence indicates that 34 of them, about 52 percent, had connections with militant groups or activities. At least 23 of those 34, however, were Taliban foot soldiers, conscripts, low-level volunteers or adventure-seekers who knew nothing about global terrorism.

Only seven of the 66 were in positions to have had any ties to al Qaida's leadership, and it isn't clear that any of them knew any terrorists of consequence.

This conclusion would not surprise anybody who has read Fear Up Harsh, the account of an American interrogator in Iraq. (It sounds familiar because I put it on the Summer Reading List last week.) The book describes in detail a system focused entirely on sweeping up anyone who might know something, and not at all concerned with clearing the innocent.

It didn't occur to me at the time, but the patrol that discovered the IED had no reason to believe these two farmers had anything to do with it. But they were nearby, and so they were worth arresting. Then they were handed to someone like me, who really wanted to believe that the infantry had a good reason to pick them up.

So he moved them on to the next prison up the ladder. And so on.

The Negative Campaign: It's Starting

Securing the Democratic nomination gave Obama a bounce in the polls, and a small but definite lead over McCain. The 538 blog is currently predicting a 300-238 electoral college victory for Obama. 538 has a complicated technique for assessing the probabilities state-by-state, and they now give Obama a 62% chance of becoming the next president. That agrees with the Intrade market, where shares of Obama are trading at 62.

Pundits of all stripes are starting to agree on the general shape of the campaign: With an unpopular Republican president, an unpopular war, unemployment and gas prices rising, and an amazing 80% of the public agreeing that the country is on the wrong track, the only way for McCain to win is to tear Obama down. Ideally, as in all negative campaigns, the candidate himself will keep his hands clean. But the mudslinging is already starting.

A lot of it will revolve around race. In America today, you can't just campaign on the theme "Don't vote for the black guy." But you can raise racial fears and resentments indirectly, then provide a smokescreen argument for directing that fear and resentment at a candidate. This path was blazed by the 1988 Willie Horton ad, which never came out and said "Dukakis will let big black studs rape your womenfolk" but certainly raised that idea in viewers' minds. The 2006 "Harold, Call Me" ad against black Senate candidate Harold Ford again put forward an interracial sex theme -- deniably, of course. The beneficiary, now Senator Bob Corker of Tennessee, was able to have it both ways. He could denounce the ad while claiming to be unable to stop the national Republican Party from running it. (Meanwhile, his own anti-Ford ad had African tom-toms sounding in the background.) Expect something similar from McCain.

Fox News is already trying -- sometimes with unintentionally comical ineptitude -- to connect Obama with anything dark and scary. The fist-bump greeting that Obama and his wife exchanged before his victory speech in St. Paul was characterized by Fox as a possible "terrorist fist-jab". Fox labeled Michele Obama as "Obama's Baby Mama" -- a slang expression for mothers of illegitimate children, more-or-less equivalent to calling the Obama daughters bastards. As with Willie Horton, the "baby mama" phrase triggers images beyond its literal meaning, connecting Obama with ghetto gangsters who father more children than they can keep track of.

Floyd Brown, the producer of the original Willie Horton ad, is raising money for an "independent" anti-Obama advertising campaign. His first ad pushed the idea that Obama was soft on gang violence, and his most recent one promotes the frequently debunked Obama-is-a-Muslim charge. Expect more. His group, the National Campaign Fund, maintains the exposeobama.com web site.

The worst stuff, naturally, is in emails of no determinable source that people forward to their friends. Maybe you've gotten some.

Obama is showing early signs of responding more quickly and effectively than John Kerry did to the Swift Boat ads in 2004. His campaign recently put up a Fight the Smears web site to collect simple evidence debunking negative rumors. For example, in response to the charge that Obama won't say the Pledge of Allegiance, they have a tape of Obama leading the Senate in saying the Pledge on June 21, 2007.

At a fund-raiser in Pennsylvania Friday, Obama promised not to be a patsy. "If they bring a knife to the fight, we bring a gun," he said. This line has been widely interpreted as a reference to the scene in The Untouchables where Sean Connery explains "the Chicago way" to Kevin Costner.

Maybe the best way to fight back is with ridicule, like this video in which people explain why they're voting Republican.

Short Notes

Saturday Obama was in my home town (Quincy, Illinois), which is bracing for the same flood waters that have swept through Cedar Rapids. He filled a few sandbags and called for his supporters to come out and volunteer to build up the levee. This is the right way for him to exploit the age issue. Obama wielding a shovel displays vigor in a way that McCain can't match. The call for volunteers is a clear contrast with President Bush, who won't ask average Americans for any sacrifice beyond going shopping. And anything about floods and levees is going to remind Americans of New Orleans, where the Bush administration failed in its pledge to protect American cities.

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I saw McCain here in Nashua Thursday. He said pretty much the same things he said here in December, but I think I'm starting to understand him better now. I wrote up my observations on DailyKos and on my own Open Source Journalism blog. And if you happened to see this piece on CNN, the questioner was absolutely as boring and single-minded as they made him out to be.

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Today is the first day for same-sex marriages in California. State officials think they might be busy.

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The Bush administration's attempts to negotiate a status-of-forces agreement (SOFA) with the Iraqi government has run into problems. The administration has been very secretive about what it is proposing, but leaks from the Iraqi side indicate that the administration wants a large number of permanent bases in Iraq and free rein for American forces to do whatever they deem necessary, without Iraqi approval. Prime Minister al-Maliki says this would "violate Iraqi sovereignty." Smintheus on Daily Kos has a pretty good summary of what is publicly known.

Glenn Greenwald recalls when it was almost treason to accuse the administration of wanting permanent bases in Iraq:

What's striking is how those who pointed out that this was the administration's plan were totally demonized in our establishment political discourse -- Americans who said that long-term bases were the real U.S. intention in Iraq were scorned as anti-American, far Leftist hysterics, while Iraqis and other Middle Eastern Muslims who said this were mocked as primitive, Arab Street paranoids.

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This week the Washington Post has a series (called The Bubble) about the housing mess. Here's a clip from Sunday's installment:

The young woman who walked into Pinnacle's Vienna office in 2004 said her boyfriend wanted to buy a house near Annapolis. He hoped to get a special kind of loan for which he didn't have to report his income, assets or employment. Mortgage broker Connelly handed the woman a pile of paperwork.

On the day of the settlement, she arrived alone. Her boyfriend was on a business trip, she said, but she had his power of attorney. Informed that for this kind of loan he would have to sign in person, she broke into tears: Her boyfriend actually had been serving a jail term.

Not a problem. Almost anyone could borrow hundreds of thousands of dollars for a house in those wild days. Connelly agreed to send the paperwork to the courthouse where the boyfriend had a hearing.

Who could possibly have foreseen that something might go wrong with such a sound business model?

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Congressman Dennis Kucinich filed 35 articles of impeachment against President Bush this week. Read them all here. I think Bush should be glad that he's president of the United States and not Pakistan, where opposition leader Nawaz Sharif is calling for President Musharaf to be hanged. On the other hand, Kucinich should appreciate that he's not in Zimbabwe, where President Mugabe has brought treason charges against the second-in-command of the party that had the audacity to run against him. "We are prepared to fight for our country and to go to war for it," Mugabe said.

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Louisiana Governor Bobby Jindal is sometimes mentioned as a McCain VP. So isn't it handy that he has experience as an exorcist? I can see it now: Vice President Jindal is presiding over the Senate when some crazy-assed thing Senator Inhofe says about global warming makes Harry Reid's head spin. As soon as Reid's eyes come around to the front again, there's Jindal with the Holy Scripture in his hand. "Out, demon, out!" he commands.

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Pollster.com graphs the changing party identification of people in Wisconsin: Democrats rising, Independents and Republicans sinking. This may not be a swing state any more.

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A few weeks ago I linked to a video that compressed the Democratic presidential race so far into seven minutes. Well, now that the race is complete, it takes eight minutes.