When The Clocks Don't Stop

"Stop all the clocks, cut off the telephone. Prevent the dog from barking with a juicy bone. Silence the pianos and with muffled drum, Bring out the coffin... let the mourners come. Let aeroplanes circle, moaning overhead, Scribbling on the sky the message: He is Dead." (From W.H. Auden's "Funeral Blues")

The above snippet comes from what may be the most eloquent expression ever written about the emotional disconnect suffered by the bereaved. The poem ends "For nothing now can ever come to any good." I'm pretty sure many progressives, liberals and even moderate conservatives felt that way over the last two days. It seemed as if the world we had known had stopped, that someone important and beloved had died. The passing of Bush's iniquitous torture bill marked, in a very real way, the end of the shining city on the hill.

this is an historic bill that will be looked back on with disgust. Either it will eventually be repealed, in the way the Alien and Sedition Acts were repealed, in which case it will be a dark blot on America's history, or it will not be repealed, in which case it will be looked back on as the formal declaration that the American experiment in divided government and human rights was over. It is not an exageration in the least to say that if this bill passes and stays in force, that the America we knew, and that many of us loved, is dead. An America without Habeas Corpus, where the President can lock up people and have them tried in Kangaroo courts is not the America the Founders fought for and I will not defame their memory by pretending it is.

Yet life continues and the news keeps coming as the Torturer in Chief and his sicko-phants keep churning out new outrages. We can give up and continue to live in the mourner's emotional dislocation or we can keep on fighting where we can.

Update I'm a bit unclear on where the fightback on the detainee bill itself can begin. Jack Balkin says that the bill is clearly unconstitutional, in particular where it "suggests that DoD determinations themselves are conclusive".

Many people have been asking about whether the new MCA applies to citizens. The answer seems pretty straightforward.

(1) Yes, a few parts of the MCA do apply to citizens; and

(2) the MCA is probably unconstitutional in many of its applications to citizens; and

(3) some constitutional applications of the MCA to citizens are deeply troubling.

A U.S. citizen may be an unlawful enemy combatant under section 948a.

Section 948a(1) defines an unlawful enemy combatant as

"(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."

...what if the DoD determines that a U.S. citizen is an alien in a Combatant Status Review Tribunal, claims that its determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo? As I noted before, section 948a(1)(ii) is probably unconstitutional to the extent that it suggests that DoD determinations are conclusive. The citizen should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction. To the extent that the MCA would prevent such a determination, it is unconstitutional.

And it certainly looks like many legal experts agree that the whole thing will end up back in front of the Supremes:

"I have no doubt that this is headed for the Supreme Court. Once again, the administration has overreached, and that makes it more likely that the court will strike it down," Stanford University law professor Jenny Martinez said.

"It allows the use of coerced evidence, which our laws have rejected since the founding of this country. It also denies noncitizens, including those in the U.S., access to court for fundamental human rights violations like torture," she said.

..."I believe that the court will conclude that the habeas- stripping provision is unconstitutional," said Eugene R. Fidell, a Washington attorney and military law expert who is president of the National Institute of Military Justice.

Michael Ratner, president of the New York-based Center for Constitutional Rights, which represents hundreds of Guantanamo prisoners, vowed to challenge the removal of the habeas corpus rights.

Ratner said such an opportunity could arise when the administration moves to dismiss pending Guantanamo cases in order to apply the new rules. Defense lawyers could then respond by challenging the rules' constitutionality.

But the administration is already laying out a path to a simple refusal to allow the Supreme Court any such option.

Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president's pre-eminent role in foreign affairs. "The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime," the attorney general told a conference on the judiciary at Georgetown University Law Center.

If pointed advice, basically a threat, turns into a point-blank order to the Supreme Court to submit to the will of the President in wartime, what then?