Patterico's Pontifications


Judge Richard Posner Gets With The Program

Filed under: Civil Liberties,Public Policy,Terrorism,War — Justin Levine @ 10:11 am

[posted by Justin Levine]

Why is it that the legally minded are always ‘stunned‘ when they hear common sense articulated?

— Justin Levine

36 Responses to “Judge Richard Posner Gets With The Program”

  1. At last a voice of reason in the wilderness! I saw a headline on Drudge to the effect that the Bush Administration has rejected the stupid subpoenas issued by Congress for White House records on just about everything they can think of. I’m so sick of them trying to invent some kind of criminal activity by Bush and Co. How much time and money is wasted by these people with their shinanigans.

    Jackie Warner (41f17a)

  2. “Judge Richard Posner, a supposedly liberal-leaning jurist”
    That’s a laugh.
    Almost as much as “get’s with the program”
    The constitution is great, except in a crisis.
    The rule of law is great, except in a crisis.

    AF (4a3fa6)

  3. another laughers: considered by many as a future supreme court candidate.

    until we have secret courts and indefinite detention, we will never be free.

    Moops (8fcb37)

  4. No LAT posts this morning. Here’s surprise news…

    ‘L.A. Times’ M.E. Frantz Quits Suddenly, Without Explanation

    NEW YORK – Los Angeles Times Managing Editor Doug Frantz has quit the paper, the newspaper announced today. In a short Web story, the paper revealed that Frantz, a former New York Times staffer, would leave July 6 after 20 months on the job.

    “I felt like I had done as much as I could in this job,” Frantz said in the story, which noted that he did not have another position lined up, “but he would like to return to being a reporter.”

    “My true love is reporting and writing,” he added in the report, which offered no explanation for his sudden departure. “This is a great newspaper filled with great people … I’m sure it will continue to pursue excellence in journalism. I’m sorry I won’t be around.”

    Editor James O’Shea described Frantz as “a solid leader, guiding the editorial department through some troubled and rugged days. He is an extraordinary journalist and a dedicated editor who cares deeply about the newspaper and the staff.” (E&P)

    More instability… a difficult newsroom that must be.

    Vermont Neighbor (95b069)

  5. Fascism is the common-sense approach?

    Judge Posner does not possess, himself, a “legal mind”?

    A dissenting conservative view:

    Mr. Cheney claimed authority to detain American citizens as enemy combatants indefinitely at Guantanamo Bay on the president’s say-so alone, a frightening power indistinguishable from King Louis XVI’s execrated lettres de cachet that occasioned the storming of the Bastille.

    Andrew J. Lazarus (7d46f9)

  6. Patterico, my respect for both you and Posner is waivering based on the content of this post and its linked content. Damn, is all I can say.

    There’s no question that Posner is smart. He’s managed to hit us right on the nerve endings.

    He’s pinpointed the clash of assumptions between those who assume that the threat to freedom from an unleashed government is more dangerous than the threat to safety from terrorism, and those who assume the opposite.

    Being from the former camp, I have an observation about the latter camp: You, in fact, have less faith in America’s system of government than those in the former camp. Because you think the terrorists are strong enough to beat us unless we have secret surveilance, secret trials, etc. We, on the other hand, think the U.S., as it is, is stronger than the terrorists, and doesn’t need these KGB-style tactics to win.

    Of course, because we believe the U.S. government is stong enough to beat the terrorists without acting like the KGB, we’re also much more frightend of what it can do without accountability and checks and balances.

    You guys say “lion isn’t going to be able to protect us unless we take it off it’s leash! We say “that’s a LION, you idiot, if you take it off it’s leash it’ll kill us all.”

    Who’s right? We won’t know until we’ve let the lion off the leash, I guess.

    Phil (427875)

  7. Yo, Phil,

    See that bold line that reads “[posted by Justin Levine]” between the headline and the body of the article? It means that you’re barking at the wrong person.

    Just thought you might like to know…

    Manuel Boy (ae580c)

  8. #6 Phil, I quite like the LION metaphor, except I see the LION as Al Queda like-minded terrorists, and the leashholder as the Muslim world. If Islam would strongly indicate that cutting off dhimmi hostage heads, flying planes into buildings, blowing up pizza parlors, shooting rockets at civilian neighborhoods, etc. was bad behavior (grabbing the leash) all this would go away.

    Your trust in “the U.S., as it is, is stronger than the terrorists” is based on what?

    Phil, we could lose this thing. Wake up.

    TimesDisliker (5f383a)

  9. Well, it just seems that “Phil” and his friends just haven’t been “mugged” yet.

    Another Drew (8018ee)

  10. “If Islam would strongly indicate that cutting off dhimmi hostage heads, flying planes into buildings, blowing up pizza parlors, shooting rockets at civilian neighborhoods, etc.”

    If the Pope would stop blowing up buildings in Belfast.
    [For the sake of argument lets just pretend it’s 1998]

    AF (4a3fa6)

  11. #10 AF – here’s a flash: it’s not 1998. The Pope never cut off women’s private parts, blamed the miserable ignorance and poverty of 1 billion followers on the Palestinians, wanted to destroy Western Civilization (which produced the Guttenberg press) to maintain that ignorance, kill Jews for simply being Jews, or condoned taking a schoolbus full of children hostage or slaughtering 400+ innocents in a high school in Beslan, or demanded that those who did not practice his religion be banned from any country. For the sake of argument.

    TimesDisliker (d1b446)

  12. AF – Do you have any of your magic cut and paste jobs indicating the Pope condoned violence in Northern Ireland. Can you get any more irrelevant or off topic – or if tangentially related – what personal liberties did the British violate on fighting the violence. Never mind, even that is not relevent to the U.S.

    Again – No credibility. Can’t stay on topic. Needs others for his talking points.

    daleyrocks (906622)

  13. Breaking: judge makes sense…

    I’ve pretty much given up on following the bizarre machinations of the judicial branch simply because I suspect none of it really makes sense, and that at the appellate level it’s all just judges and justices picking the result they……

    JunkYardBlog (621918)

  14. Designate a group as a threat to the state.
    Ship them off to camps.
    Execute them.

    Common sense?

    Interesting opinion, to be sure.

    alphie (015011)

  15. Posner has been publicly trending toward a police state position for a while now; I’m surprised the Aussies were surprised by his comments. It sounds like someone didn’t do their homework.

    And “liberal leaning”? Ack. I think it’s a bit much to expect a reporter to be familiar with pretty arcane stuff like academia, but I also expect said reporter to act like it and not take wild stabs in the dark.

    jpe (95d5d3)

  16. A review of a Posner book. Remarkable how all the authoritarians are coming out of the closet.

    Andrew J. Lazarus (27328c)

  17. Designate a group as a threat to the state.
    Ship them off to camps.
    Execute them.

    Where do you see that?

    Gerald A (6b39c1)

  18. Irony, Gerald?

    You’re not supposed to “see” it.

    How were we to know?

    alphie (015011)

  19. Police State? That’s a laugh.

    Let’s get to the heart of the matter.

    Little Eichmans. Liberals find the “little people” and their lives not worthy of protection. Instead they prefer the absolute civil liberties be extended to non-citizens, caught on foreign battlefields, in violation of all rules of war (non-uniforms/isignia, war crimes etc) and think the “rights” of illegal alien combatants outweigh anything else.

    It’s the same process that leads them to weep for Tookie while celebrating his murders and body count. They do indeed love the killers, particularly since the killers victimize ordinary people who liberals despise.

    An example of this is the boy of 15, picked up on the battlefield of Aghanistan, and held in Gitmo for years now. This is all Liberals say about him. They don’t say he was in on uniform, murdered in cold blood a US Army Medic treating a wounded soldier, and is hard-core AQ. What do we do with this guy?

    Libs say: let him go, it was “cool” that he murdered that Medic, he’s a “minuteman.” This is also the position of the Liberal Legal Establishment (which is most lawyers). Some want to try him in an OJ style circus that is sure to be an acquittal given the high-powered media-chasing Liberals and the inability to use battlefield accounts as CSI-style evidence.

    What Liberals don’t figure on is the American people. Libs argue that Americans should just bend over and “take it” with one terrorist atrocity after another being “a fact of life.” What’s a few dead American cities, after all? They’re just filled with Little Eichmans.

    The danger of the failure of political leadership (The Legal System has comprehensively and completely failed under stresses on the WoT, unable to deal with men like Osama or KSM) is that people will do things themselves. Elitists of the Whigs had Martin Van Buren block any dealings with Creeks and the Seminoles, so when Jackson finally won, he instituted the Westerner’s desires and exiled the Creeks most cruelly, and conducted a semi-war of extermination against the Seminoles.

    What clueless libs like Andrew don’t get is that if we lose a football stadium or a city, Americans will get that Silverado moment. Where Kevin Kline realizes Linda Hunt is right, the Dennehy character can’t hurt her if she’s dead. Given that Muslims and Islam have defined themselves as our enemy, over and over again (Rushdie, Embassy Hostages, Cartoons, South Park, Van Goh, 9/11, Madrid, London (again), Bali, Belsan, Khobar Towers, Beirut, Pan Am 103, etc. etc. etc.) we must do everything in our power to avoid that.

    Lose another 50,000 to 5,000,000 Americans, and there will not be a Mosque left standing. Nor will there be any Muslims not in internment camps left alive. Nor will there be 1 Billion Muslims world-wide. Rather, considerably less.

    The Flip Side of Islamic Rage boy is that Americans view Muslims as the enemy, and don’t care what is done to them as long as they stop killing us. And they can’t hurt us anymore if they’re all dead.

    Judge Posner obviously sees this danger. The danger of failure to address the problem, sit in elitist platitudes, tell the masses to bend over and take more terrorism, while pampered and debased elites sneer at the masses. The legal system only exists as long as the mass of people give it legitimacy. Once it becomes a measure of oppression by the elites through pet killers you get … vigilantism at best, revolution at worst.

    Besides, Liberals can’t have it both ways. If it’s right and fair to discriminate against Straight White Males in all areas of employment, education, and housing, for Affirmative Action, then it’s fine to do the same to Muslims when they pose security threats.

    The threat is not the police state. It is failure, celebration of impotence. Which leads to vigilantism or worse.

    Jim Rockford (e09923)

  20. Jim Rockford: It is failure, celebration of impotence.

    General Jack D, Ripper: I can no longer sit back and allow Communist infiltration, Communist indoctrination, Communist subversion and the international Communist conspiracy to sap and impurify all of our precious bodily fluids.

    I’m seeing a pattern here.

    We are not talking here only about foreign combatants, although our treatment of them doesn’t comport with solemn treaties we ratified. We’re also talking about US Citizens like Padilla and resident aliens in lawful immigration status like al-Marri. Tell me Jim, why do you think a police state is a cure for impotence?

    Andrew J. Lazarus (7d46f9)

  21. @20

    you mean the solemn treaties which state:

    Article 4
    A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

    1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

    2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

    (a) That of being commanded by a person responsible for his subordinates;
    (b) That of having a fixed distinctive sign recognizable at a distance;
    (c) That of carrying arms openly;
    (d) That of conducting their operations in accordance with the laws and customs of war.

    3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

    4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

    5. Members of crews [of civil ships and aircraft], who do not benefit by more favourable treatment under any other provisions of international law.

    6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

    B. The following shall likewise be treated as prisoners of war under the present Convention:

    1. Persons belonging, or having belonged, to the armed forces of the occupied country…

    So those are the people defined as Prisoners of War. I guess under paragraph 6 you could make the case that members of the Taliban are entitled to POW status, until they waive that status by doing things like setting off car bombs to blow up kids and other non-combatants in attacks that are clearly not aimed at NATO forces. In other words the civilians were not collateral damage. They definately can’t qualify under paragraph 2.

    Article 5

    Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

    Competent Tribunal – You know like the ones defined in the Military Commissions act that people keep trying to overturn.

    Surprisingly given that everyone keeps harping on how the Military Commisions Act violates the Geneva Convention here is how it defines a combatants status:

    “The term `unlawful enemy combatant’ means —

    `(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

    `(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”

    Under the law,

    “The term `lawful enemy combatant’ means a person who is —

    `(A) a member of the regular forces of a State party engaged in hostilities against the United States;

    `(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or

    `(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.”10 U.S.C. 948a (Section 1, Subchapter I)

    Beyond that though I think it would be possible to declare the majority of the prisoners in GITMO mercenaries and thus deprive them of any recognition of status:

    Art 47. Mercenaries

    1. A mercenary shall not have the right to be a combatant or a prisoner of war.

    2. A mercenary is any person who:

    (a) is specially recruited locally or abroad in order to fight in an armed conflict;
    (b) does, in fact, take a direct part in the hostilities;
    (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
    (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
    (e) is not a member of the armed forces of a Party to the conflict; and
    (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

    Now what about keeping these guys in GITMO. Here is what the Geneva Convention has to say about that:

    Article 19

    Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger.

    Only those prisoners of war who, owing to wounds or sickness, would run greater risks by being evacuated than by remaining where they are, may be temporarily kept back in a danger zone.

    Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone.

    Article 20

    The evacuation of prisoners of war shall always be effected humanely and in conditions similar to those for the forces of the Detaining Power in their changes of station.

    The Detaining Power shall supply prisoners of war who are being evacuated with sufficient food and potable water, and with the necessary clothing and medical attention. The Detaining Power shall take all suitable precautions to ensure their safety during evacuation, and shall establish as soon as possible a list of the prisoners of war who are evacuated.

    If prisoners of war must, during evacuation, pass through transit camps, their stay in such camps shall be as brief as possible.

    There is a whole bunch more about the required treatment of POWs, which the US generally complies with, but since the prisoners at GITMO don’t qualify as POWs isn’t really applicable.

    In all it seems to me that the administration is on pretty firm ground under the MCA and I actually wouldn’t be surprised if the court took this up for review to reverse it’s decision from last year.

    chad (582404)

  22. Chad, your argument (with respect to the GC) falls apart on one error of fact: most of the detainees at Gulagtánamo haven’t faced any tribunal five years on. Plus there are serious doubts that the tribunals as arranged by the Bush Administration (and that only after rebuke from the courts) are fair and hence are not competent in the sense intended. If we have evidence that we have captured war criminals, let’s see it. Until then (as you yourself quote) the detainees should be confined under conditions suitable to lawful POWs. They aren’t. Bush and Rumsfeld declared all of these captives illegal combatants wholesale in violation of the very treaty you cited.

    I notice you didn’t even bother with the International Convention Against Torture.

    Article 2

    1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
    2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
    3. An order from a superior officer or a public authority may not be invoked as a justification of torture. [my emphasis]

    It’s hard to wriggle out of “whatsoever”.

    Andrew J. Lazarus (e270a0)

  23. Chad – Good job. Progressives, however, aren’t actually interested in understanding the Geneva Conventions, except perhaps for the section on torture. They have meme’s to follow. Inconvenient facts disturb them. During the debate on the MCA last year I don’t recall a single liberal blog accurately describe U.S. obligations for the treatment of prisoners of war. The smoke and mirrors continue to this day. To paraphrase Confederate Yankee, Full Meme Ahead.

    daleyrocks (906622)

  24. My full response to chad is stuck in moderation queue. In the meantime, re-read carefully where he refers to “until such time as their status has been determined by a competent tribunal”. We have held these prisoners as “unlawful combatants” for five years. Most have never had any competent tribunal; indeed the entire process at Gitmo is so perverse the SCOTUS granted cert today, I imagine to slap Bush (again) for his inability to understand correct treatment of POWs. I’m omitting links in the hope that will let this comment post unhindered.

    Isn’t it telling that even our allies in Iraq the Brits and Aussies don’t see us as fulfilling our obligations to POWs?

    Andrew J. Lazarus (e270a0)

  25. Andrew – Does the phrase “Should any doubt arise” at the beginning of Chad’s lift from Article 5 help you out with your issue with tribunals. It seems with most of these foreign prisoners only one side has doubt, aided by the ACLU, hordes of hunan rights organizations, liberal lawyers, and various other camp followers. How many of these innocent turnip farmers that have been released have wound up back on battle fields again or committing acts of terror Andrew? Wasn’t there an incident in Russia this past week with a former GITMO prisoner?

    daleyrocks (906622)

  26. “The Flip Side of Islamic Rage boy is that Americans view Muslims as the enemy, and don’t care what is done to them as long as they stop killing us.”

    Americans do indeed care, Jim.

    Collective punishment is a foreign idea.

    Where y’all from?

    alphie (015011)

  27. @23

    From my reading all the prisoners at GITMO have had combatant status reviews. If you can show otherwise feel free to point it out. I believe they were completed by March 2006. Of course they would have been completed sooner except people kept suing.

    Regarding the British and the Australians. I have a lot of respect for the fact that they have stood by us through all this, but that doesn’t mean I have to agree with them on GITMO. Neither one of them enforces snactions against Castro either it doesn’t mean that the US shouldn’t. And before you get too high and mighty on quoting the British on this subject you might want to look into Operation Demetrius and Long Kesh prison.

    chad (582404)

  28. Alphie –
    Collective punishment is a foreign idea.
    Do you mean in Islamic fundamenalist countries where the religion is in effect the state and the practice of other religions is restricted or banned. Are you talking about countries where the meaning of Islam as submission and the conversion, willing or unwilling of infidels is the ultimate goal. What foreign lands or ideas do you have in mind Alphie or are you just stirring the shit as part of your act as usual?

    daleyrocks (906622)

  29. Why daley, you seem a little stressed today.

    Are you saying that you agree with Rockie?

    No matter who attacks us, we should go slaughter a bunch of innocent Muslims in retaliation?

    That doesn’t sound like a very good defensive strategy to me. It would give 3/4 of the world’s countries the ability to attack us with impunity.

    alphie (015011)

  30. Now, now Alphie, please point out where I suggested slaughtering innocent people, muslim or otherwise.

    Methinks you are just doing your normal shit stirring routine of avoiding answering questions you yourself raise. What is your “defensive” strategy again wise one?

    daleyrocks (906622)

  31. You should try Wikipedia. They have a transcript from a CRST of March 2007.

    The follow-on tribunals have run into some problems, too.

    Your remark about “suing” would be better taken, except that so much of the time they win their suits. Doesn’t that also suggest major problems?

    The issue here, like in Padilla, quite simple. At first, George Bush, saved Christian who can do no wrong and therefore is not bound by the letter of the law, the omniscient and omnipotent, declared that we would put anyone we wanted in Gitmo and toss away the key. Since the courts and the world didn’t approve of this opinion, he has been in an evasive retreat ever since, enabled by those who parrot 9/11 the way an earlier generation sang of the Reichstag Fire.

    Andrew J. Lazarus (ffa74e)

  32. Stuck in queue again… would it really help to abandon Firefox?

    Andrew J. Lazarus (ffa74e)

  33. Great to know how many people think the Constitution is a sunny day kind of thing.

    AF (4a3fa6)

  34. Another brilliant comment by AF, an individual who advocates lawbreaking as a legitimate form of protest, given that Posner has only expressed an opinion and has not openly suggested violating the Constitution, nor, do I believe, have the commenters here. Which Constitution are you reading AF?

    daleyrocks (906622)

  35. “Which Constitution are you reading AF”
    The one he Posner refers to when he says it’s “not a suicide pact.”

    As someone else on the right- someone who’s versed in these sorts of debates- the difference between the actions of the state and of the people, in defense of liberty. Ask Bob Barr.

    AF (4a3fa6)

  36. Barr turned libertarian, which took away his reasoning and credibility on most matters.

    daleyrocks (906622)

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