Free Markets, Free People

Legal Affairs


The New Gitmo Plan – Release Terrorists In US

Al Qaeda having difficulty establishing sleeper cells in the US? Not a problem – let the Attorney General help:

European justice ministers met with Mr. Holder earlier this week and pressed for details on how many Guantanamo prisoners the U.S. planned to release domestically, as part of any agreement for allies to accept detainees. Mr. Holder said U.S. officials would work to respond to the questions European officials have over U.S. Guantanamo plans.

For “people who can be released there are a variety of options that we have and among them is the possibility is that we would release them into this country,” Mr. Holder said. “That process is ongoing and we’ve not made any determinations or made any requests of anybody at this point.”

Seriously, anyone – sound like a better option than keeping Gitmo open and these prisoners there until and unless another country can be found to take them?

~McQ


Newspeak: Pelosi Style

Up is down. In is out. Billions in earmarks are no big deal, but millions in “bonuses” merit extreme outrage. And now, per Speaker Nancy Pelosi, illegal aliens represent the height of patriotism, but enforcing American laws is “un-American”:

No I can't!

No I can't!

House Speaker Nancy Pelosi recently told a group of both legal and illegal immigrants and their families that enforcement of existing immigration laws, as currently practiced, is “un-American.”

The speaker, condemning raids by Immigration and Customs Enforcement agents, referred to the immigrants she was addressing as “very, very patriotic.”

“Who in this country would not want to change a policy of kicking in doors in the middle of the night and sending a parent away from their families?” Pelosi told a mostly Hispanic gathering at St. Anthony’s Church in San Francisco.

As some might say, that’s muy estúpido. But the Speaker wasn’t done:

Referring to work site enforcement actions by ICE agents, Pelosi said, “We have to have a change in policy and practice and again … I can’t say enough, the raids must end. The raids must end.

“You are special people. You’re here on a Saturday night to take responsibility for our country’s future. That makes you very, very patriotic.”

Our country? Perhaps Pelosi is unclear on the concept of illegal immigrants? Do you think she realizes that they are not part of our country?

And the idea that enforcing our immigration laws is somehow “un-American” is beyond ludicrous. Although, when you consider this is coming from the party that seems to think paying taxes is a only a patriotic duty if you aren’t working for the Democrats, then I suppose it makes sense.

In the spirit of Pelosi’s newspeak, may I just say that the Madam Speaker is clearly a thoughtful and intelligent lawmaker who is doing a fine job at her post.

[HT: HotAir HL]


One Man’s “Terrorist” Is Another’s “Law Enforcement Problem”

Is homegrown terrorism the next problem? That’s the question being asked by some:

There is an increasing threat of homegrown terror stemming from segments of a deeply isolated and alienated Somali-American community, a U.S. Senate committee hearing concluded Wednesday.

The hearing, conducted by the Senate Homeland and Governmental Affairs Committee, focused on the attempted recruitment of young Somali-American men by al-Shabaab, “a violent and brutal extremist (Somali) group” with significant ties to al Qaeda, according to the U.S. State Department.

“Over the last two years, individuals from the Somali community in the United States, including American citizens, have left for Somalia to support and in some cases fight on behalf of al-Shabaab,” noted the committee’s chairman, Sen. Joseph Lieberman, I-Connecticut.

Al-Shabaab — also known as the Mujahedeen Youth Movement — was officially designated as a terrorist organization by the U.S. government in March 2008.

If you’ve been following this, Somali youths from all over the US have been “disappearing” to end up half-way around the world engaged in war in Afghanistan. This is pretty much the same model as has affected the UK (although their particular group consists mostly of Pakistanis). The obvious next step is, instead of radicalizing them and exporting them to far off places, to do what was done with the 7/7 bombers in the UK and do it here.

The recruitment is made easier by the apparent isolation of the Somali community. The extremists pick off clusters of dissatisfied youth and radicalize them. The apparent distance between the Somali culture and the American culture are so vast that some simply cannot overcome that – or so the theory goes.

This is a situation which bears very close watching (and, hopefully some remedial effects brought on by positive intervention) – this is where AQ could put together a group that could travel thorough America with little difficulty and help foment an attack or attacks.

On another terrorist front, we already have home-grown terrorists (besides William Ayers) operating here:

The recent fire-bombing of a university professor’s car here appears to be part of a trend of animal-rights activists targeting the personal lives of researchers, rather than just the labs or companies where they work. The idea is to scare the scientists into reconsidering using animals in their research work.

Despite tightening laws, California saw an uptick in attacks last year with 21 reported incidents – of 36 nationwide – ranging from vandalism to firebombs, mostly targeting University of California researchers, according to data compiled by the Foundation for Biomedical Research. By contrast, the state saw just four or five such incidents the previous two years.

“The tactics [of animal-rights activists] have changed. They’ve gotten very personal,” says Frankie Trull of the National Association for Biomedical Research, an organization that advocates for the responsible use of animals in research.

The latest incident occurred early last Saturday outside the Westwood residence of Dr. David Jentsch, a neuroscientist at University of California, Los Angeles (UCLA). The professor’s vehicle was engulfed in flames and destroyed, though no one was hurt.

If terrorism is “the calculated use of violence (or the threat of violence) against civilians in order to attain goals that are political or religious or ideological in nature; this is done through intimidation or coercion or instilling fear”, these acts fit.

So while we may have an international brand of terrorism on the rise, we already have our own domestic terrorists at work on the West Coast. My guess is, though, they’re considered a “law enforcement” problem, not one of terrorism.

~McQ


D.C. Voting Rights Bill — Still Unconstitutional (Updated)

I‘ve written about this issue before, and said all I think there is to say about it. The fact is that any bill coming out of Congress granting voting rights to D.C. sua sponte is plainly unconstitutional. What’s more, Congress is already well aware of this fact. The Congressional Research Service, the legislative analysis advisors to Congress, deduced the following about H.R. 328 (the most recent precursor to current D.C. voting rights bill):

… it is difficult to identify either constitutional text or existing case law that would directly support the allocation by statute of the power to vote in the full House to the District of Columbia Delegate. Further, that case law that does exist would seem to indicate that not only is the District of Columbia not a “state” for purposes of representation, but that congressional power over the District of Columbia does not represent a sufficient power to grant congressional representation.

In particular, at least six of the Justices who participated in what appears to be the most relevant Supreme Court case on this issue, National Mutual Insurance Co. of the District of Columbia v. Tidewater Transfer Co., authored opinions rejecting the proposition that Congress’s power under the District Clause was sufficient to effectuate structural changes to the federal government. Further, the remaining three judges, who found that the Congress could grant diversity jurisdiction to District of Columbia citizens despite the lack of such jurisdiction in Article III, specifically limited their opinion to instances where the legislation in question did not involve the extension of fundamental rights. To the extent that the representation in Congress would be seen as such a right, all nine Justices in Tidewater Transfer Co. would arguably have found the instant proposal to be unconstitutional.

Can Congress vote itself more members?

Can Congress vote itself more members?


During hearings before Congress on the constitutionality of the D.C voting rights bill, Deputy Assistant Attorney General John P. Elwood provided an excellent breakdown of how legal authorities had consistently found that the only way to grant D.C. citizens the right to congressional representation was through a constitutional amendment or by admitting D.C. as a state. Simply passing a law would not suffice.

Despite all the analysis presented, however, Congress continues to press forward with an unconstitutional bill:

Debate opened Monday on a bill to give the 600,000 people of Washington D.C. a full vote in the House. A new Democratic president, Barack Obama, and heftier Democratic majorities in Congress have improved the prospects for the decades-long effort that would certainly ensure another Democrat lawmaker in Congress.

Democrats outnumber Republicans by some 4-to-1 in the capital.

In a bit of horsetrading to offset the Democratic pickup, the bill would award a fourth House seat to Republican-leaning Utah, which narrowly missed getting that extra seat after the 2000 national census. With the two new seats, the House would have 437 representatives.

The time is ripe, said Ilir Zherka, executive director of the advocacy group DC Vote, to end a situation where “we are the only capital of a democracy on the planet that denies voting representation in the national legislature.”

The time is ripe because Democrats have a huge majority in both houses of Congress, and control of the White House. The fact that D.C. votes reliably, and overwhelmingly, for Democrats is the real reason for the bill’s support amongst that party, and one of the main reasons for many Republicans being against it. To overcome the opposition, therefore, Democrats have thrown a sop to Utah in the way of an extra representative, which would also appear to be unconstitutional without a census. Either way, the fact that the bill is plainly contrary to Article I, Section 2 of the Constitution seems to be merely a convenient excuse for some Republicans and a minor inconvenience to some Democrats.

Jonathan Turley has consistently echoed the above, and eloquently explains why Congress should not pass this law, and why the President should not sign it:

Like many, I believe that it is a terrible injustice for the District residents not to have a vote in Congress. As Justice Black stated in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” However, the great wrong done to the District residents cannot be righted through the violation of the Constitution itself.

This is not a debate about the ends of legislative action but the means. In a nation committed to the rule of law it is often as important how we do something as what we do. This is the wrong means to a worthy end.

[...]

[Our Constitution] is the world’s most successful constitutional framework because it is carefully balanced with limited powers between the three branches. It is a design that can be frustrating at times when injustices demand quick action. Yet, the very stability and integrity of our system demands that we remain faithful to its provisions, even when our principles stand in the way of our passions.

Just as there is no debate over the need for a vote for the District, there is no debate that such a vote can be obtained by other means. Indeed, there is no longer any claim to be made that the District (or the Democratic Party) lacks the votes needed to take a constitutional course. The political realities and expediencies that gave raise to this idea no longer exist. With control of both houses and the White House, the sponsors can secure a lasting and unassailable vote in the House of Representatives through either retrocession or a constitutional amendment. Indeed, some republicans have expressed their support for a constitutional amendment that would allow a voting House member for the District.

Like Turley, I am in favor of D.C. residents having a vote in both the House and the Senate. And also like him, I am fervently opposed to any extra-constitutional means of accomplishing that goal. Instead, let’s draft an amendment, or begin the process of retroceding D.C. back to Maryland. Let the Maryland officials be accused of wanting to oppress D.C.’s denizens for a while, instead of those of us who simply want to uphold the Constitution.

We know how to make it happen, and yet Congress insists on doing it the wrong way. Much of it, of course, is sheer laziness and want of expediency. But that is no excuse for elected officials to blatantly disregard their roles as stewards of the contract between the people and their government, and the very source of those officials’ power. Minor as some of these indiscretions may be, when Congress takes it upon itself to decide which parts of the Constitution are worth following and which are not, then we become a rudderless ship of fools.

However it’s done, I heartily agree that we start the process of welcoming our D.C. brothers and sisters to the circus known as Congress. In order to make that welcome worth something, however, I recommend that we go about it in the way that passes constitutional muster.

UPDATE: As it turns out, a bill has been introduced by Rep. Louis Gohmert (R-TX, 1st Dist.) to retrocede D.C. back to Maryland. Funny how this bill hasn’t received any news attention.


Bagram/Gitmo – What’s The Difference Again?

Promises, promises:

Detainees being held at Bagram Air Base in Afghanistan cannot use US courts to challenge their detention, the US says.

The Justice Department ruled that some 600 so-called enemy combatants at Bagram have no constitutional rights.

Most have been arrested in Afghanistan on suspicion of waging a terrorist war against the US.

The move has disappointed human rights lawyers who had hoped the Obama administration would take a different line to that of George W Bush.

Prof Barbara Olshansky, the lead counsel in a legal challenge on behalf of four Bagram detainees, told the BBC the justice department’s decision not to reform the rules was both surprising and “enormously disappointing”.

Uh, just for clarification, that’s Eric Holder’s Justice Department making the ruling. The Eric Holder who works for Barack Obama.

So the big one-two this week is the declared Obama human rights policy (the US won’t let human rights get in the way of economics, the enviroment or security concerns) and detainees held by the US in Bagram (but not Gitmo).

Heh … old boss/new boss.  At least Glenn Greenwald will have something to write about for a while, won’t he?

Wow, this governing is much harder than just flapping your gums about stuff, isn’t it?

“Just words …”

~McQ


Jindal Turns Down Federal Funds Because Of Unconstitutional Mandate

That is how the headline should have been written.  

However, Think Progress chose to characterize it this way: “Jindal Rejects $90 Million In Recovery Funding That Would Have Benefited 25,000 Louisiana Residents“. Says Think Progress:

Today, however, Louisiana Governor Bobby Jindal announced his intention to oppose changing state law to allow his Lousiana citizens to qualify for the second two unemployment provisions.

So why did Louisiana Governor Bobby Jindal do what he did?  Well here’s what his office says in a press release:

The Governor said the state will not use a portion of the stimulus package that requires the state to change its law to expand unemployment insurance (UI) coverage to qualify for up to $32.8 million of the federal stimulus funding because it ultimately would result in a tax increase on Louisiana businesses.

Sounds like a governor who feels he and his legislature should be deciding their law and not the federal government.

Isn’t that what he’s elected to do? Doesn’t that sound like a perfect 10th amendment defense? Someone point out to me where the Constitution specifies that the federal government can reach down and, without debate or legislative or executive input, force a change of state law as a requirement to receive the aid.

Think Progress says:

But it is not clear why participating in the expanded unemployment insurance program would result in tax increases for business. By Jindal’s own estimate, the recovery package would have funded his state’s unemployment expansion for three years, at which point the state could — if it chose to do so — phase out the program.

Here’s a better idea – pull the requirement at a federal level. Why isn’t that the Think Progress position instead?

TP quotes a real expert in this area to close out the post:

As New Orleans Mayor Ray Nagin suggested earlier today, perhaps Jindal’s presidential ambitions are “clouding” his judgement. “I think he’s been tapped as the up-and-coming Republican to petition a run for president the next time it goes around. So he has a certain vernacular, and a certain way he needs to talk right now,” Nagin said.

Leave it to Mr. “Chocolate City” to see it that way instead of understanding Jindal’s position is the right position for his state. You have to wonder how Nagin would feel if Jindal told him the state would only pay for levee repair if he changed the law in New Orleans and did something the state required, even if it wasn’t in the city’s best interest?

We’d hear him hollering “no way” clear to Atlanta.

~McQ


Dissent and Hate Speech

Apparently signs equal threats to some of our police:

An Oklahoma City police officer wrongly pulled over a man last week and confiscated an anti-President Barack Obama sign the man had on his vehicle.

firstamendment-757857The officer misinterpreted the sign as threatening, said Capt. Steve McCool, of the Oklahoma City Police Department, and took the sign, which read “Abort Obama, not the unborn.”

Chip Harrison said he was driving to work when a police car followed him for several miles and then signaled for him to pull over.

”I pulled over, knowing I hadn’t done anything wrong,” Harrison said in a recent phone interview.

When the officer asked Harrison if he knew why he had been pulled over, Harrison said he did not.

”They said, ‘It’s because of the sign in your window,’” Harrison said. 

When did cops start pulling people over for political bumper stickers or signs?

Anyway, Harrison tried to explain what the sign meant, they disagreed and he was issued a a slip of paper that said he was a part of some sort of investigation. They took his sign. Later, he’s contacted by the police saying the policeman misunderstood and asking him if he wanted his sign back. They had contacted the Secret Service about the sign, and they had told the police it wasn’t a threat. Except apparently they were blowing smoke:

”The Secret Service called and said they were at my house,” Harrison said.

”When I was on my way there, the Secret Service called me and said they weren’t going to ransack my house or anything … they just wanted to (walk through the house) and make sure I wasn’t a part of any hate groups.”

Harrison said he invited the Secret Service agents into the house and they were “very cordial.”

”We walked through the house and my wife and 2-year-old were in the house,” Harrison said.

He said they interviewed him for about 30 minutes and then left, not finding any evidence Harrison was a threat to the president.

Walk through my house? Uh, get a warrant.

Hate groups? They knew what the sign was about, what was the rest of this about?

Which segues nicely into the next portion of the post – hate speech.

Eugene Volokh has a very interesting post up about a UCLA Chicano Studies Research Center study titled Hate Speech on Commercial Talk Radio.

It’s a fascinating post which demonstrates how hard certain groups are working another angle aimed at talk-radio (and read the comments, where commenters take the study’s assertions aparat). Hate-speech is a lever that various groups on the left have been trying to enable for years. From the study, here’s their definition of hate speech:

Types of Hate Speech

We identified four types of speech that, through negative statements, create a climate of hate and prejudice: (1) false facts [including "simple falsehoods, exaggerated statements, or decontextualized facts [that] rendered the statements misleading”], (2) flawed argumentation, (3) divisive language, and (4) dehumanizing metaphors (table 1).

Hate speech or controlled speech

Hate speech or controlled speech

 

Then the examples:

Table 1. Analysis of Hate Speech from The John & Ken Show

EXAMPLE
“And this is all under the Gavin Newsom administration and the Gavin Newsom policy in San Francisco of letting underage illegal alien criminals loose” (from the July 21, 2008, broadcast).

TARGETS
Vulnerable group: foreign nationals (undocumented people).
Social institutions: policy and political organizations (city policy and mayor’s office).

FALSE FACTS
The sanctuary policy preceded Gavin Newsom’s tenure as San Francisco’s mayor, and neither Newsom nor the sanctuary policy supports “letting underage illegal alien criminals loose.”

FLAWED ARGUMENTATION
Guilt by association is used to make the hosts’ point. Undocumented youth and those who are perceived as their endorsers at the institutional level are stigmatized by being associated with criminality.

DIVISIVE LANGUAGE
Criminalized undocumented youth and their perceived validators (Gavin Newsom and the sanctuary policy) are depicted as a threat to San Francisco citizens, setting up an “us versus them” opposition.

ANALYSIS The language depicts the hosts’ targets (undocumented people, city policy, and Mayor Gavin Newsom) as dangerous, criminal, and collusive. In addition, the focus of that policy (undocumented people) becomes reduced to “underage illegal alien criminals.”

Talk about over-analysis. The bottom line is this matrix of assessment is based in pure biased opinion disguised as objectivity. Hate speech, in this case, is nothing more than saying “letting underage illegal alien criminals loose” is wrong.

As Volokh says:

The vagueness and potential breadth of the phrase “hate speech” is a pretty substantial reason — though just one among many — to resist the calls for a “hate speech” exception to the First Amendment. And the vagueness and potential breadth is also a reason to be skeptical of uses of the phrase even outside the law: It’s very easy to define “hate speech” as you like (or leave it undefined, as some arguments do), and use it to condemn people who express a wide range of views that you disapprove of.

One of the most defining phrases in the history of America free speech is “I may not agree with what you say, but I will defend to the death your right to say it.”

It has never been “I don’t like what you say and it sounds like “hate speech” to me so you should be silenced”.

~McQ


Be An Irresponsible Idiot And Make Millions

I‘m always a little amazed at stories like this.  I’m not sure why, given they happen quite often.  

A Manhattan jury awarded $2.33 million to a man who lost his leg after drunkenly stumbling onto the path of an oncoming subway train.

Now, you’d think, given that sentence, that there’s no way a jury could hold the subway folks liable because this drunk stumbled in front of their train right? Heck, he had a blood/alcohol level of .18. That’s smoked folks. That’s twice the legal limit if you’re on a highway. But check out the reasoning his attorney used and, obviously, the jury bought:

According to Dibble’s lawyer, Andrew Smiley, NYC Transit rather than Dibble bore primary responsibility for the accident because the subway driver had time to stop the train but did not.

Smiley added that Dibble’s drunkenness did not excuse the driver, who said in a court deposition that he mistook Dibble for an inert object.

“They don’t get a free pass as to why the person was on the tracks. They are trained to be able to look out for people on the tracks … and people are known to be intoxicated by night,” the lawyer said.

“Trained to be able to look out for people on the tracks”?  Uh, even if that’s true, how does that excuse Dibble of responsibilityfor being on the track?

That comes in the second line – “people are known to be intoxicated by night”?

No kidding? So tell me Mr. Smiley, had your client been on the road in the same condition, do you supposed a state trooper would have just said,  “aw forget it, sir. People get drunk at night. Take it easy?”

And you can bet your house (or the bailout you’re getting for it) that the state trooper would have only held one person responsible for the state Mr. Dibble was in at the time he stopped him.

In this case, my guess is two things happened. One – Mr. Smiley made sure that Mr. Dibble appeared in court looking as pathetic as one could look and used that to play on the sympathy of the jury. Emotional theater. And, two, the MTA was represented by lawyers (not victims) and was thus easy to ignore emotionally. And besides, I’m sure the New Yorkers felt the MTA had deep pockets or insurance or something with which to pay this pathetic creature, right? Of course if their fares go up because of this, they’ll be the first to bitch as well.

But back to the trial. This was my favorite part:

The jury ruled Tuesday that Dibble was 35 percent responsible for the accident, so his monetary compensation was also reduced by 35 percent — from $3,594,943 to $2,336,713.

Really? Good thing I wasn’t on that jury because at worst, it would have been a hung jury. I, unlike this bunch, would have found Mr. Dibble 100% responsible for being where he was and in the condition he was in when the train hit him, and he wouldn’t have gotten a red cent.

If that makes me a cruel and heartless you know what, well so be it.

~McQ


Foreclosure Imminent? Call ACORN

Of course part of the huge and porky “stimulus” bill was billions to Community Development Block Grants (CDBG) program. Of the the past beneficiaries of that program has been our old buddies at ACORN. But, you say, the election is over – ACORN can’t collect taxpayer money for fraudulent voter registration anymore.

Never fear, ACORN has found itself a new line of work. Civil disobedience:

The community organizing group Acorn unveiled the campaign with a spirited rally on Friday at a Brooklyn church and will roll it out in at least 22 other cities in the coming weeks. Through phone trees, Web pages and text-messaging networks, the effort will connect families facing eviction with volunteers who will stand at their side as officers arrive, even if it means risking arrest.

“You want to haul us out to jail? Fine. Let the world see how government has been ineffective,” Bertha Lewis, Acorn’s chief organizer, said in an interview. “Politicians have helped banks, but they haven’t helped families in the way that it’s needed, and these families are now saying, enough is enough.”

Yes friends, your hard earned money (or that which has been borrowed from the Chinese or printed on that nifty little printing press the government has) is now going to fund ACORN’s civil disobedience shenanigans.

While no one likes to see anyone lose their home, if you’re a believer in private property, then you understand the concept that you have to pay for someone else’s property or they have recourse. ACORN, dealing on emotion and your money, have unilaterally decided that’s just wrong and intends to demonstrate that by attempting to disrupt lawful procedures to foreclose homes. Instead of using the money to help the family that is losing the home to find other accomodations and by doing so ameliorate the trauma, ACORN has decided to add to the trauma instead.

Acorn’s strategy is modeled on a movement the group led in the 1980s, when squatters occupied and set out to renovate thousands of abandoned city-owned buildings in New York, Philadelphia and Detroit, among other cities. The motivation was to solve what Ms. Lewis has called “the working family’s housing crisis.”

In cities like Orlando, Fla., which has one of the nation’s highest foreclosure rates — and Boston, Houston, Baltimore, Oakland, Calif., and Tucson, Ariz. — Acorn organizers have been creating networks to alert a homeowner’s neighbors when an eviction has been scheduled or deputies are on the way. Some volunteers will summon friends and relatives to converge at the home, while others will be in charge of notifying the news media. Organizers are also recruiting lawyers willing to defend for no fee those who are arrested.

The campaign, called Home Defenders, enlisted about 500 participants during meetings held Friday and Saturday in New York and five other cities. Ms. Lewis and other organizers said that they believed the number will reach into the tens of thousands within weeks.

Yessiree, just what we need – a taxpayer funded organization with obvious socialist roots attempting to deny the proper property owner’s rights while a sympathetic press looks on. ACORN’s model isn’t even a righteous model. As noted, the buildings in question in the ’80s were abandoned. The foreclosed houses aren’t abandoned, just empty. The quickest way to get in one, beside taking it unlawfully, is to buy it or rent it.

ACORN, however, would much rather spend its funds making a splash than a difference. But I’m not sure what else you’d expect from a bunch of marxist community organizers.

~McQ


Lawyering The War on Terror

If there is one sure way to roll back any gains the US has made in the War on Terror over the past eight years, it would be to shift the focus from military and intelligence gathering, to a crime fighting stance. That is exactly the position the Obama DOJ appears to be taking:

The Justice Department, probably more than any other agency here, is bracing for a broad doctrinal shift in policies from those of the Bush administration, department lawyers and Obama administration officials say.

Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects.

Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future.

“This will be a sea change of what went on before,” said an Obama administration lawyer, noting that the principal authority over detention policies will move from the Defense Department under the Bush administration to the Justice Department.

What to do with the GITMO prisoners is a piddling concern compared to how the administration plans to fight terrorism. Released prisoners can potentially be tracked. The hands of national security however, once tied, are difficult to free. handcuff-terroristFighting terrorism as if it were an issue of law enforcement will potentially, and dangerously, bind our hands in that endeavor:

The department has to decide by next month whether it will reverse course from the Bush administration, which had repeatedly invoked the so-called state secrets doctrine to shut down legal challenges to several lawsuits dealing with national security. Officials also face a February deadline on whether to extend habeas corpus rights to detainees at Bagram Air Base in Afghanistan.

Above are two prime examples of how the policy switch advantages the enemy at the expense of the citizens. In the first, the folly of fighting terrorism through the courts could not be clearer. It is nearly impossible to build a public case based on state secrets. In the law enforcement model, the prosecution is not allowed to have secrets, and defendants are entitled to see the evidence against them as well as to confront all witnesses. That is because our nation is founded on the principle that the people, from whom the government derives its power, should enjoy the benefit of presumptions and the government should be required to make its case. When trying to confront our nation’s enemies, however, we do not want to allow them the same benefit. By engaging them in courtroom battles rather than in military/intelligence ones, we do just that.

Specifically, allowing state secrets to become part of a legal case allows the enemy to see what cards we’re holding. It is a surefire way to devalue our national intelligence. Indeed, any time sensitive information is available to more than a few people it eventually becomes public, and lawyers sworn to secrecy are no different (see e.g. Lynne Stewart). Yet, despite these dangers, the Obama DOJ may be considering backing off the positions staked out by the previous administration:

The case dealing with the state secrets doctrine, which allows the government to rebuff lawsuits by invoking national security concerns, involves al-Haramain Islamic Foundation. A federal trial judge in San Francisco ruled that the government could not invoke the doctrine to block a lawsuit by al-Haramain, which has asserted that the government illegally listened in on its conversations.

The Bush administration used the doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position.

Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course.

The Justice Department has to file a new brief by Feb. 13. Jon B. Eisenberg, who represents al-Haramain, said the schedule meant that “Holder and company have to decide pretty quickly if they want to keep opposing this case with the state secrets doctrine.”

If the DOJ opts to forego the state secrets doctrine as a defense, then it will be left with two undesirable choices: (1) make national intelligence discoverable in a court of law, or (2) drop the case altogether and set the defendant free. Neither choice is satisfactory, but both are the inevitable outcome of pursuing terrorism under the rubric of law enforcement.

Similarly, extending habeas corpus rights to prisoners detained on the battlefield is an exercise in futility. Of course, that ship sailed with the ruling in Boumediene v. Bush. I’m not sure what argument the government could make that any prisoners under the control of the U.S., regardless of where they are being held, are not entitled to some sort of habeas proceeding. And since the very procedures deemed constitutionally valid by the Supreme Court in Hamdi were struck down as inadequate in Boumediene, I don’t know what options are actually left to the Obama administration other than the unsavory prospect of field executions.

Again, these are the inevitable results of waging war as if we were fighting crime. The two arenas are decidedly distinct, and the tactics and strategies of one do not translate well into the other. If we insist on treating terrorists as criminals, cloaked with the protections of our Constitution and privy to the secrets that ensure our security, then we invert the promise of a national defense. The end result is to allow the enemy to be in control of our security interests rather than the other way around.