Holte's corner

The One percent Solution

When a person breaks a law it is called a crime. Crimes are defined by actions not effects, and not goals. Crimes are defined by cause, but crimes always have effects. These effects are often quite beneficial to the criminal and to those on whose behalf he/she is acting. There are consequences to crimes. Those consequences are amplified by the responsibilities of the criminals.

The reason for crime and punishment, for the justice principle, is that people commit crimes because they are seeking a beneficial effect; either for themselves or for a cause they believe in. That they have worthy goals doesn't make criminal actions any less criminal. In fact having worthy goals to justify criminal actions often simply makes the crimes themselves more criminal.

In the case of the war-crimes symbolized by the hundreds of detainees at Guantanamo, the goal of the endeaver, supposedly, was to stop Al Qaeda. Supposedly the detainees were the worst of the worst. They were denied due process and subject to harsh conditions on the theory that this way they could be "broken" and mined for intelligence. All this has been documented. The perpetrators of these crimes have been quite open about breaking the Uniform Code of Military Justice and why they were doing it. The Supreme Court does a pretty good job of deconstructing the crime involved in the case of Hamdi versus Rumsfeld. You can read it here:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=05-184

When Stevens calls the President's actions "illegal", he is stating in a low key manner something that a more passionate observer might shout:

"Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan's commission trial are illegal. "

The government does not have the right to ignore the law, make up its own rules, and throw out inconvenient ones. And that is for a reason. It turns out that of the people at Guantanao, detained without trial, without access to lawyers, courts, the right to defend their case or seek witnesses to defend them, all these "evil, dangerous, terrorists." Of these, Ann Marie Lizi, a European investigator says:

"The number of those, when you discuss it with the people in this jail, could move from 70 to a little more than 100 but not more. And in some cases, people say we could have only 30 to 40 real valuable cases,"

"Her report says Guantanamo now has some 460 detainees."

So that means that of 10 detainees, 1 is probably a real "terrorist" or at least associated with terrorism, and 2 more may have been legitimately suspected of terrorism or membership in Talliban or Al Qaeda; but the other 7 are more than likely folks who were swept up in a dragnet and then labelled as terrorists. Doing this is illegal. The Constitution gives no such rights. It violates the rules of war. The "one percent doctrine"(see http://www.ronsuskind.com/theonepercentdoctrine/, the idea that if a terrorist threat is deemed even one percent likely the United States must act as if it’s a certainty) is not an American doctrine, it is an 'un-American" doctrine (even if employed before, it is more at home in Nazi Germany than in the US). It is the kind of self-justification that leads to criminal acts. It is a monstrous doctrine, and according to it, according to this administration things like Gitmo are justified because they got more than "one percent" and put them there.

If we Americans are serious about our rights and liberties we cannot take these things lying down. When the President announces his intention to violate laws, such as he did in this signing statement:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

He has no such "unitary" power. Unitary power is something asserted by Dictators. The President does not have the right to selectively apply the laws of war. He may have the power to do so, but not the right, and so when he announced in 2003:

'In addition, President Bush today has decided that the Geneva Convention will apply to the Taliban detainees, but not to the al Qaeda international terrorists."

The President does not have the right to abrogate the laws of war. Not on his own. He may claim he obeyed the law, but he did not. As court says:

"The District Court granted habeas relief and stayed the commission's proceedings, concluding that the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention's full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear."

He broke the law. Now the courts have said so, and until he can pack the court with enough folks like Justice Thomas and Alito, the courts are the only thing standing between us and Ceasarism. Anyone who loves the constitution. Democrat or Republican, should recognize the danger of these activities and stand up to them. He has also confessed to breaking the law with regards to the FISA courts. Regardless of the legitimacy of the goals, the President has acknowledged that he ignored, skirted, and bypassed the law--while claiming it was all very legal in his opinion("And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker. ") -- and those courts were "too slow" to be bothered with. But as Russel Feingold notes, and as the President himself affirmed:

"It Is Illegal to Wiretap Without a Warrant or Court Order: The law is clear that the criminal wiretap statute and FISA “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.”

"FISA Has an Emergency Exception: The Administration has indicated that it ignored FISA because it takes too long to get a warrant under that law. In fact, in an emergency where the Attorney General believes that surveillance must begin before a court order can be obtained, FISA permits the wiretap to be turned on immediately as long as the government goes to the court within 72 hours. Prior to 2001, the emergency wiretap period was only 24 hours. The Administration requested and received the increase to 72 hours in intelligence authorization legislation that passed in late 2001."

Well that is enough for now.

More information:
http://www.fraughtwithperil.com/blogs/holte/archives/001098.html
http://www.fraughtwithperil.com/blogs/holte/archives/001099.html
http://feingold.senate.gov/~feingold/statements/06/02/2006215.html
http://www.therandirhodesshow.com/live/node/2310
http://www.truthout.org/docs_2006/printer_061906C.shtml
http://en.wikipedia.org/wiki/Guantanamo_Bay_detainment_camp
related blog entries:
http://uchicagolaw.typepad.com/faculty/2006/06/the_one_percent.html

Posted by cholte at July 1, 2006 01:06 AM