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To: Sully- who wrote (20453)12/19/2003 4:11:11 AM
From: LindyBill  Respond to of 793689
 
Here is Volokh's opinion on the Padilla case.

Padilla v. Rumsfeld (sorry, the opinion PDF file might be a bit glitchy): I'm several hours late to this -- an eternity in Internet time -- because I was out in New Haven giving a talk on my Crime-Facilitating Speech paper. Still, here are a few thoughts about this Second Circuit decision from today, in which the Second Circuit held that Jose Padilla couldn't be held as a military detainee:
It's almost certain, I think, to go to the Supreme Court.

The decision was mostly on statutory grounds -- it concluded that the President lacked the inherent power to detain as enemy combatants U.S. citizens who weren't seized in the theater of war, and it concluded that Congress explicitly prohibited such seizures. It didn't resolve the core individual rights question: Even if the Congress did authorize the detention, would Padilla still have the constitutional right to have a civilian court decide whether he was indeed (or at least seemed likely to be) an enemy combatant?

The majority's argument rested on 18 U.S.C. 4001(a), which says "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." The government argued (among other things) that the post-September 11 Joint Resolution authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." This, the government points, is the Act of Congress that authorizes the use of traditional military force against al Qaeda (the organization that planned September 11), and such traditional military force "against [the] . . . organization[]" includes the power to detain in military custody its members, whatever their citizenship.

The majority disagreed: The Joint Resolution didn't authorize detention of citizens "clear[ly]" and "unmistakabl[y]" enough. But while I sympathize with the majority's arguments in some measure, I think the dissent ultimately had it right here -- nothing in 18 U.S.C. 4001(a) or in the rules of statutory construction requires any more clarity than what the Joint Resolution provided. The Resolution provided for the use of military force against al Qaeda. Military force has always been understood to include the power of military detention. Al Qaeda was an organization that was known to have members from many countries, and it was quite foreseeable that it would have some American citizens as members, too. (Even the Axis countries during World War II had some American citizens as soldiers.) There was no need, I think, to say "all necessary and appropriate force, including military detention, both of non-U.S. citizens and U.S. citizens."

That in fact was the one dissenter's argument, and I agree with it -- as I agree with his conclusion that the majority should have instead reached the individual right question, and held that Padilla was entitled to a hearing where he could "contest whether he is actually an enemy combatant thereby falling within the President's constitutional and statutory authority." I understand in principle the virtues of deciding a case on statutory grounds, and leaving the protection of our liberties to the legislature in the first instance, and saving judicial protection only for times when Congress has indeed failed to provide legislative protection. But this is sound only when Congress has in fact taken a libertarian position. As to cases such as Padilla's, I think that it has not.

A curious item: The rarely-mentioned Third Amendment (you do know what the Third Amendment is, don't you?) makes an appearance, see p. 31.

Finally, my very tentative prediction to follow up on my firm prediction in point 1 above: The Court will agree with the dissenting judge, and hold both that the President had Congressional authorization here, and that Padilla was entitled to a civilian court hearing on whether he was indeed an enemy combatant.

volokh.com



To: Sully- who wrote (20453)12/19/2003 4:53:57 AM
From: LindyBill  Respond to of 793689
 
How to lose an election. He can't really be this stupid.

Democrats must focus on mobilizing their base, and inspiring nonvoters, with language and an agenda that energizes traditional party constituencies such as labor, feminists and gay civil rights activists.


RONALD BROWNSTEIN / WASHINGTON OUTLOOK


With Endorsement of Dean, Gore Steers Democrats Away From Clintonism
Ronald Brownstein

December 15, 2003

As a political movement, Clintonism arguably was born on May 6, 1991, when Bill Clinton delivered a seminal speech on his "New Democratic" vision to a conference of the Democratic Leadership Council in Cleveland.

Political historians may conclude that Clintonism was eclipsed as the dominant set of ideas in the Democratic Party on Tuesday, when Al Gore, Clinton's vice president, endorsed Howard Dean in the 2004 presidential race.

Dean has demonstrated many assets in his bid for the Democratic nomination. He's run a groundbreaking campaign that has changed forever the way candidates look at the Internet. He's shown the capacity to inspire great passion among Democratic activists. He speaks the way a boxer jabs, with sharp thrusts that strike many voters as heartfelt and uninfected by political calculation.

But whatever his other virtues, it's difficult to argue that Dean upholds the political philosophy that Clinton advanced. Indeed, Dean is probably the Democratic contender who most directly rejects Clinton's vision.

By endorsing Dean, Gore has continued the journey away from Clinton that began in Gore's own 2000 presidential campaign. More important, the former vice president's endorsement suggests that just three years after Clinton left office, key portions of the Democratic establishment most associated with him are willing to acquiesce, if not to help, as Dean moves to redirect the party.

Clinton and Dean offer diametrical visions of how the Democrats can capture the White House.

Clinton's overriding political assumption was that Democrats could not win solely by mobilizing their hard-core partisans. Instead, Clinton argued that Democrats had to craft policies that attracted swing voters while maintaining the allegiance of traditional Democrats.

In the central line of his 1991 speech, Clinton memorably declared that Democrats had to redesign their agenda to recapture middle-class voters who had abandoned the party since the 1960s. "Too many of the people who used to vote for us," he said, "the very burdened middle class we are talking about, have not trusted us in national elections to defend our national interests abroad, to put their values into social policy at home, or to take their tax money and spend it with discipline."

Dean starts from precisely the opposite perspective.

Throughout his campaign, he has disparaged the idea of targeting the Democratic message toward swing voters. Instead, he argues that Democrats must focus on mobilizing their base, and inspiring nonvoters, with language and an agenda that energizes traditional party constituencies such as labor, feminists and gay civil rights activists.

"We are going to take back the Democratic Party from the idea that the way to win elections is to neglect our base," Dean recently said.

Dean doesn't criticize Clinton directly; in fact, as his evidence against a strategy focused on swing voters, Dean usually cites the Republican gains in the 2002 election (after Clinton had left office).

But all of Dean's arguments about the best approach for Democrats echo the left's complaints about Clinton; Dean's signature line that he intends to represent the "Democratic wing of the Democratic Party" is the description that liberals used to distinguish themselves from centrist "New Democrats" associated with Clinton. "That was the anti-Clinton line," says Al From, founder of the DLC, a centrist party group.

The distance between Dean and Clinton is measured partly in policy. Dean shares Clinton's commitment to fiscal discipline (though Dean has offered a health-care plan much more expensive than anything Clinton proposed after his initial proposal collapsed).

But Dean has rejected Clinton's emphasis on lowering trade barriers, his push to use the federal government as a lever to force greater accountability in the schools and his effort to balance tax increases on the wealthy with tax cuts for the middle class.

In conflicts such as Bosnia and Kosovo, Clinton worked to erase the post-Vietnam suspicion that Democrats flinched at using military force. Dean has insisted he is not reflexively opposed to using force. But by centering his campaign on opposition to the war in Iraq, Dean is steering the Democrats back toward their pre-Clinton identity as the party most dubious about committing troops abroad.

As important as the difference on issues is the contrast in tone. Though his personal problems threw sand in the gears, Clinton relentlessly sought to reconnect Democrats with swing voters through themes such as personal responsibility, government reform, national strength and bipartisan cooperation; he often said he intended to transcend "brain-dead politics in both parties."

Dean, by contrast, offers a biting, sometimes red-faced, partisanship that presents issues from abortion and civil rights for gay and lesbian Americans to taxes as an unambiguous conflict between right (liberals) and wrong (conservatives); in contrast to Clinton's call for a new synthesis between left and right, Dean says the Democratic Party's principal problem is that it has blurred too many differences with the Republican Party.

With his nuanced reformist message, Clinton became the first Democratic president to win two full terms since Franklin D. Roosevelt. In 2000, Gore largely followed Clinton's agenda but separated from him stylistically with a more populist and partisan appeal. Now, Dean is offering an even sharper break, both in tone and substance.

In his policies, Dean most resembles 1980s neo-liberals like Paul Tsongas and Michael S. Dukakis: socially liberal and fiscally austere. In his style, Dean offers Gore's born-again populism with the volume turned up. Neither strand of Dean's identity draws from Clinton's model. But that's the strategy that Gore, closing the door on his Clintonite past, now says should represent the Democrats' future.

Ronald Brownstein's column appears every Monday. See current and past columns on The Times' Web site at latimes.com .