Topic: Couldn't be so...
Fantasy and Avoidance
The week began with the usual madness.
"It is not very comfortable to have the gift of being amused at one's own absurdity." - W. Somerset Maugham, Of Human Bondage
That said, Zacarias Moussaoui, is now quite comfortable.
Why? On Monday, April 3rd, he got what he wanted -
Charming. So he gets convicted, now he's made "eligible" for being removed from this world by the state, and the jury will hear days of "impact" testimony, from the widows of the World Trade Center attack of course, and hear lots of the audio tapes of distress calls that day, and decide if, since he's now eligible, he wins the prize.
Dahlia Lithwick, the attorney who does legal analysis for the online Slate site and the Washington Post (and now and then appears on MSNBC) nails the absurdity here -
Yep, there is convincing testimony that his al Qaeda buddies thought him a useless fool and generally ignored him as a tiresome incompetent, and he seems to have resented that. Now he's the big man he always said he was when his friends all shrugged that Arabic equivalent of "whatever, big guy. He showed them all. Waleed bin Attash, Sayf al-Adl, and Khalid Shaikh Mohammed were wrong ion their testimony. He was important. The jury said so. So there.
Lithwick on the dynamics -
That's the rub. Even the judge was saying this was odd, new legal ground being opened here. This is the death sentence for conversations that did not happen - if, hypothetically, way back when, he had been truthful on this one date about these particular things, which he wasn't, then the authorities might have done this thing or that thing, hypothetically, which they didn't. That's a curious if-then reason to kill him. But the jury made the leap. There might have been this alternative, better reality. You never know.
Of course that leap assumes the swift-acting and highly competent FBI that would have leapt into action and collated all the information, working seamlessly with all levels of law enforcement, and stopped the plot cold. Well, they might have. You never know. All real-world, empirical evidence suggests otherwise, but they might have. You never know - if the conversation that never happened had happened, they might have done what they don't quite seem capable of doing. It's possible.
But as Lithwick concludes, this exercise in alternative realities works out fine for everyone -
It's a funny thing, and almost as if we're all in one of those fifth rate science fiction tales where someone travels back in time and bumps off Hitler's grandfather and WWII never happens and the world is a far different place that the one we've got, or the other tale where someone goes back in time and changes something that seems insignificant but turns out to be critical and a means the someone who went back was then never born so really didn't go back and change that one things, so that person was born and did go back, and so on and so forth.
The case law established here, with its hypothetical realities, is perhaps the legacy of those "Back to the Future" movies where Marty and the mad professor are always trying to work out such problems. And it is fun. But it's an odd way to run a legal system, where you execute people for the hypothetical "might have been."
But then, yes, here all parties get what they want - the real essence of the law, not what is logical.
And it's better than just punting.
That's what happened with the Supreme Court, Monday, April 3rd, as noted here - "The U.S. Supreme Court on Monday rejected an appeal by terrorism suspect Jose Padilla and avoided deciding whether President George W. Bush can order Americans captured in the United States to be held in military jails without criminal charges or a trial."
The question is, can, as the administration asserts, the president order the arrest of an American citizen on American soil and hold that citizen without charges, without any right to an attorney much less to any appeal, and certainly with no trial, for as long as he chooses (in this case, nearly four years) on the president's declaring that this person is really an enemy combatant - with the reason for that designation not open to any examination by any other branch of government, and certainly not the courts, as such actions are within his constitutional, plenary powers as commander-in-chief time of war.
It's an interesting question. In a time of war, does the president have the right to declare that some citizens have forfeited their rights as citizens by some action or planned action, on evidence he has been presented, evidence that should not be presented to any court, as that would interfere with his waging the said war, which is his job, after all? That the person may be innocent, in these cases, not relevant. The decision has been made - for the safety and security of the nation. This is too important.
Then are we at war? The administration says we are, but the Attorney General in the first NSA hearing says, strictly in terms of the law, we're not. But close enough?
And with the Jose Padilla case it's complicated. He was held four almost four years as someone who had, in the judgment of the president, forfeited his rights as a citizen - for planning to blow up something or other with a dirty bomb. Then the administration dropped that whole idea and charged him with an actual crime, transferring him to civilian custody (discussed in these pages here last December). The administration asked the Fourth Circuit Court of Appeals to vacate its prior ruling that he was someone the president could hold forever because he was so very dangerous. He was, really, just a criminal, so he did have rights - to know what he was being charged with, the right to an attorney, and to a trial and all that. They changed their minds. The Fourth Circuit Court of Appeals was not impressed.
So the question comes up to the Supreme Court. What's with this original ruling by the Fourth Circuit Court of Appeals that the president could hold him for four years? That doesn't seem right, that the president can order the arrest of an American citizen on American soil and hold that citizen without charges, without any right to an attorney much less to any appeal, and certainly with no trial, for as long as he chooses, upon the president's declaring that this person is really an enemy combatant - with the reason for that designation not open to any examination by any other branch of government, and certainly not the courts, as such actions are within his constitutional, plenary powers as commander-in-chief time of war.
What's with that? Is that right?
By a six to three vote the court Monday the 3rd said, well, it's moot. They tell the attorneys for Padilla, that since the guy is no longer locked up with no rights but is being tried on actual criminal matters, now is not the time to decide whether the president can do such things. But they say if it happens again Padilla can certain come back and ask about it. No problem. Let us know. Keep in touch.
This - "Keep in mind that Padilla has not been charged as the dirty bomber. My guess is that the evidence against him wouldn't hold up in civilian court. Backed into a corner the Administration had two choices: let Padilla's appeal go through and risk losing the 'right' to detain Americans forever - or charge Padilla only on broad ties to terror and hope that the Supreme Court would let their swindle stand."
This - "The importance of this case and this area of law in post-9/11 America should not deter judicial review, it should invite it so that it can be settled once and for all, lest the ambiguity invite more and more abuses."
Or this, noting that it was Justice John Paul Stevens' "dissenting opinion two years ago that concluded that Padilla's case implicated 'nothing less than the essence of a free society.' Today, he appears to be the critical vote to deny review."
So they're kicking that can down the road. Later.
So we roll on.
Ah well, make of it what you will. And how it's reported will be as an outrage, or a sound legal decision, or as a curiosity. But nothing was settled. Smiles in the White House on this particular Monday evening.
But be careful. The president is said to be an impulsive fellow. And this site you're now reading had a logon last week from the CIA, and one from the Department of Homeland Security, and Monday, April 3rd, one from the Sergeant of Arms at the US Senate. And the Customs Department has been reading the various items here on visas and entry to the United States, the items on Farley Mowat and the musings of Ric Erickson, editor of MetropoleParis, who has commented on such matters. We live in odd times.
Or we live in fine times. It depends on what you believe. It depends on what you read or see.
Is the media biased and messing with your mind? That's hard to say.
But then, here Jack Shafer points to a new and interesting study by Matthew Gentzkow and Jesse M. Shapiro, two economists from the University of Chicago - Media Bias and Reputation (PDF format).
Economists? Math? Complex formulae and all that? Yep. Just something that will appear in the April issue of the Journal of Political Economy, everyone's favorite magazine.
But Shafer makes it easy stuff, with this summary -
Jack Shafer uses this to do a riff on CNN versus Fox News and all the rest, and if you're a news junkie you can click on the link and read all that. You believe who you trust, and the economics are such they give you what you want, so you trust them, and they make money. It's a self-reinforcing economic loop. And if they're biased it's on things no one can verify at the moment, or the next day.
The idea here is that if you don't want bias you have to break the loop - split up the big media giants and all that. That's unlikely. And these two Chicago people say if you want to combat all that anti-Americanism in the foreign media, instead of trying to get Al Jazeera off the air, or get them censored, you stimulate completion for them, funding anyone who want to play - flood the market with start-ups, no matter what they broadcast. That's unlikely too. The president is on record thinking it might have been a good idea at one time to bomb the main Al Jazeera headquarters. The president is said to be an impulsive fellow.
Should we bomb the Washington Post for reporting this on the same Monday morning?
Or we go after the New York Times for reporting that over there the Shiite bloc now appears willing to chuck out Prime Minister Ibrahim al-Jaafari - the Kurdish and Sunni members of the National Assembly are ticked. The dynamic duo of our Secretary of State Rice and the UK Foreign Minister Jack Straw make a surprise visit and tell them all they really have to get it together - a government of some sort three months after the damned elections is something we expect - and as the Times says - "The developments suggested that a new phase in Iraq's convulsions might have started by opening a possibly violent battle for the country's top job between rival Shiite factions, which both have militias backing them. The incumbent prime minister, Ibrahim al-Jaafari, has said he will fight to keep his job, and his principal supporter is Moktada al-Sadr, a rebellious cleric whose Mahdi Army militia has resorted to violence many times to enforce his wishes."