Porkopolis calls Bullshit on 'Rock-Star' Senator Barack Obama

(Update: The February 21, 2009 New York Times article entitled ‘Obama Upholds Detainee Policy in Afghanistan’ show's then Senator and now President to be the "propagandist, bullshit artist and lying politician" originally asserted in this post.)

'Rock-Star' Senator Obama is proving to be the perfect vehicle for political projection.

While Obama was a major sponsor of the Coburn-Obama legislation just passed, he's a poltical neophyte not worthy of the praise and consideration some, like David Brooks (Run, Barack, Run), are giving him.

Moreover, he's a propagandist, bullshit artist and lying politician. Here's the evidence:

Senator Obama was a guest of the Diane Rehm Show discussing his book, The Audacity of Hope: Thoughts on Reclaiming the American Dream. The following statement from the interview will serve as a backdrop (Real Audio, Windows Media at approx. 06:15; emphasis added):

Diane Rehm: ...Earlier this week the President signed into law the Military Commissions Act; the new law that gives the President quite far reaching authority on the war on terror. You voted against the measure. Tell us why.

Sen. Obama: I think it was a sloppy piece of legislation. It was rushed in part to match the election schedule. And had we stepped back and thought this through there was a way of making sure that the military could do it's job in charging and trying those persons who seek to do us harm, but do so in a context was consistent with our core constitutional principles. This wasn't that bill.

One of the most disturbing aspect of the legislation was the elimination for the first time in our history of the principle of Habeas Corpus. And those that are familiar with our jurisprudence know that Habeas Corpus predates the American Revolution; it's a principle going back to the 13th Century.

And the basic principle is one that should be so obvious to people that I think all of us take it for granted. That is, if the government grabs you and hauls you into custody they have an obligation to charge you and allow you to answer those charges. And this piece of legislation said for the first time that it is permisible for this adminstration or the military to capture people and not give them that basic hearing in court...

One would think that the Harvard Law School grad would know well that President Lincoln suspended Habeas Corpus during the Civil War. His statement that the act would result in "elimination for the first time in our history of the principle of Habeas Corpus" is wrong and a lie. This is one of the most fundamental principles taught in all law schools; especially the top law school in our nation.

By his statments, Senator Obama would seek to extend the rights of U.S. citizens to enemy combatants. That in itself would be unprecedented.

In addition, Mr. Obama claims that a "basic hearing in court" would be denied to combatants is a flat out lie; unless Mr. Obama is claiming that he didn't read the very bill he voted against.

The detainees will potentially have access to the U.S. Court of Appeals and the U.S. Supreme Court.

From the actual text of the legislation signed into law:

Sec. 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court

`(a) Exclusive Appellate Jurisdiction- (1)(A) Except as provided in subparagraph (B), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.

`(B) The Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted.

`(2) A petition for review must be filed by the accused in the Court of Appeals not later than 20 days after the date on which--

`(A) written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or

`(B) the accused submits, in the form prescribed by section 950c of this title, a written notice waiving the right of the accused to review by the Court of Military Commission Review under section 950f of this title.

`(b) Standard for Review- In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law.

`(c) Scope of Review- The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of--

`(1) whether the final decision was consistent with the standards and procedures specified in this chapter; and

`(2) to the extent applicable, the Constitution and the laws of the United States.

`(d) Supreme Court- The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28.

This Fox News report (transcribed below), further emphasizes the point that detainees will have more rights than any previous combatants in U.S. history; even more than U.S. servivemen and women (emphasis added):

Reporter Bret Baier:

Even after the President signed the Military Commissions Act into law Tuesday it was still stirring controversy. Critics have said for months the system the law sets up is unfair and unconstitutional.

Senator Patrick Leahy (D):

It would perpetuate the indefinite detention of hundreds of individuals against whom the government has brought no charges and presented no evidence without any recourse to justice whatsoever.

Bret Baier:

This line of criticism was continued even after the bill was signed into law.

Jennifer Daskal, Human Rights Watch:

What this means is that detainees who are locked up by the government cannot get get to court to challenge the legality of their detention even if they're innocent; even if the goverment made a mistake.

Bret Baier:

But senior administration officials say these statements are just flat wrong. They say its all laid out in the 38 pages of the new law.

A detainee first goes through a process to determine his or her status. A U.S. military panel called a Combatant Status Review Tribunal determine is the detainee is an "unlawful enemy combatant".

The detainee has the right to challenge that status determination in federal court. Specfically the D.C. Circuit Court of Appeals; considered the second most powerful court in the country.

If the court of appeals upholds the tribunals judgement, the detainee has the right to petition the most powerful court, the U.S. Supreme Court, to address the issue there.

David Rivkin worked in the Reagan and first Bush adminstration. He is now a United Nations human rights expert who has written extensively about Military Commissions Act.

He points out while detainees don't have the full judicial rights U.S. citizens have to challenge detention in U.S. courts, know as Habeas Corpus, under this law detainees can challenge their detention.

David Rivkin:

The way it works is if you're properly classified as an enemy combatant, then you're detention is appropriate. If you're not an enemy combatant, than obviously your detention is not appropriate; you should be released.

Bret Baier:

But the appeals don't stop there. If a detainee is tried in a military commission and is found guilty, the entire commission record is reviewed by the convening authority.

Then the detainee has the right to appeal the commission verdict in front of a three judge sitting on a Court of Military Commission Review. If that panel upholds the conviction the detainee has the right to appeal to the D.C. Circuit Court of Appeals.

And if that court upholds the commission verdict, the detainee can appeal to be herd at the U.S. Supreme Court.

David Rivkin:

There is more due process and more involvement by the civilian courts than in any other situation in human history involving enemy combatants. And actually someways more than you would get as U.S. serviceman put for court marshall; because you do have a shot at the court of appeals.

Bret Baier:

Detainee appeals built into what White House officials now call a misunderstood and mischaracterized law.

Update and Response to "Screamin' Demon" in the comments:

Screamin' Demon argues that:

...Lincoln didn't eliminate Habeas, he temporarily suspended it. Last week the Cheney administration and the Rubber-Stamp Republican Congress voted to permanantly eliminate it.

But since you're determined to paint Obama as a filthy liar, you've decided to try to blur the distinction.

Idiot.

The "Rubber-Stamp" Screamin' refers to includes 12 Democrats in the Senate and 32 Democrats in the House.

Obama was incorrectly arguing that our nation never had to address the writ of Habeas Corpus during a time of war in our history. Screamin' argues over the words 'elimination' and 'supsension'. This is a distinction that surely was lost to the copperhead democrats arrested and imprisoned under military authority in 1862 by President Lincoln. The distinction is specious in and of itself, but more so as one looks closely at what was supposedly 'eliminated'.

Andrew C. McCarthy, a former federal prosecutor and a senior fellow at the Foundation for the Defense of Democracies, correctly argues that "Al Qaeda Terrosist Have No Constitutional Rights". McCarthy goes on to show that "Congress has already given al Qaeda detainees the very rights the critics claim have been denied" (empahsis added):

The New Detainee Law Does Not Deny Habeas Corpus
Fear not, New York Times, al Qaeda’s lawfare rights are still intact.

By Andrew C. McCarthy

There are innumerable positives in the Military Commissions Act of 2006, the new law on the treatment of enemy combatants that President Bush will soon sign. Among the best is Congress’s refusal to grant habeas-corpus rights to alien terrorists. After all, the terrorists already have them.

That the critique on this entirely appropriate measure has been dead wrong is given away by its full-throated hysteria. Typical was Richard Epstein, a distinguished constitutional law professor at the University of Chicago, who admonished the Senate Judiciary Committee that the Bush administration and a compliant Republican Congress were unconstitutionally “suspend[ing]” the great writ. The New York Times editorial board, in its signature hyperbole, railed that “[d]etainees in U.S. military prisons would lose the basic right to challenge their imprisonment.” What bunkum.

AL QAEDA TERRORISTS HAVE NO CONSTITUTIONAL RIGHTS
First, Congress cannot “suspend” habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans — that is, according to the Supreme Court, U.S. citizens and those aliens who, by lawfully weaving themselves into the fabric of our society, have become part of our national community (which is to say, lawful permanent resident aliens). To the contrary, aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it, do not have any rights, much less “basic rights,” under our Constitution.

Indeed, even when the Supreme Court, in its radical 2004 Rasul case, opened the courthouse doors to enemy fighters in wartime for the first time in American history, it relied not on the Constitution but on the federal habeas corpus statute. So put aside that Rasul was an exercise in judicial legerdemain whose holding depended on a distortion of both that statute and the long-established limitations on the Court’s own jurisdiction (which does not extend outside sovereign U.S. territory to places like Guantanamo Bay, Cuba). Even in its willful determination to reach a result that rewarded al Qaeda’s lawfare, the Court declined to rule that alien combatants have fundamental habeas rights. Instead, they have only what Congress chooses to give them — which Congress can change at any time.

AL QAEDA TERRORISTS HAVE NO TREATY RIGHTS
But wait. Isn’t habeas corpus necessary so that the terrorists can press the Geneva Convention rights with which the Court most recently vested them in its 2006 Hamdan case? Wrong again.

To begin with, although its reasoning was murky, the Hamdan majority seems technically to have held that Geneva’s Common Article 3 applied to military commissions because of a congressional statute, the Uniform Code of Military Justice. Again, if a right is rooted in a statute, not in the Constitution, Congress is at liberty to withdraw or alter the right simply by enacting a new statute. Such a right is not in any sense “basic.”

But don’t some human-rights activists contend the Hamdan ruling means Common Article 3 applies not just because of a statute but because of its own force as part of a treaty that the United States has ratified? Well, yes, they do make that claim — and (as I recently argued here) they have gotten plenty of help from the recent debate prompted by Senators John McCain, Lindsey Graham, and others who insisted Hamdan meant Common Article 3 controls interrogation practices.

Even with all of that, though, it remains a settled principle that treaties are compacts between sovereign nations, not fonts of individual rights. Alleged violations are thus grist for diplomacy, not litigation. Treaties are not judicially enforceable by individuals absent an express statement to the contrary in the treaty’s text. By contrast, Geneva's express statements indicate that no judicial intervention was contemplated.

This, no doubt, is why the Geneva Conventions, qua treaties, have never been judicially enforced. Consequently, if Congress had actually denied al Qaeda detainees a right to use Common Article 3 to challenge their detention in federal court (and, as we’ll soon see, Congress has not done that), that would merely have reaffirmed what has been the law for over a half century.

If the political representatives of a nation believe one of its citizens is being unlawfully held at Gitmo, the proper procedure is for that nation to protest to our State Department, not for the detainee to sue our country in our courts. In fact, several nations have made such claims, and Bush administration has often responded by repatriating detainees to their home countries … only to have many of them rejoin the jihad. In any event, though, there would be nothing wrong with declining to allow habeas to be used for the creation of individual rights that detainees do not in fact have under international law.

AL QAEDA TERRORISTS DO GET TO CHALLENGE THEIR DETENTION
But let’s ignore that the critics are wrong about the entitlement of al Qaeda terrorists to constitutional or treaty-based rights to habeas. There is an even more gaping hole in their attack on the new law. Congress has already given al Qaeda detainees the very rights the critics claim have been denied.

Last December, Congress enacted the Detainee Treatment Act (DTA). It requires that the military must grant each detainee a Combatant Status Review Tribunal (CSRT) at which to challenge his detention. Assuming the military’s CSRT process determines he is properly detained, the detainee then has a right to appeal to our civilian-justice system — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court.

This was a revolutionary innovation. As we’ve seen, Rasul did not (and could not) require Congress to allow enemy combatants access to the federal courts. Congress could lawfully have responded to Rasul by amending the habeas statute to make clear that al Qaeda terrorists have no more right to petition our courts in wartime than any other enemy prisoners have had in the preceding two-plus centuries. Instead, Congress responded by giving the enemy what are in every meaningful way habeas rights.

For the enemy combatants, habeas corpus, to borrow the Times’s articulation, is simply a “right to challenge their imprisonment” in federal court. So what does the DTA do? It allows a detainee who has been found by the military to be properly held as an enemy combatant to challenge his incarceration in federal court. Under DTA section 1005(e)(2), that court (the D.C. Circuit) is expressly empowered to determine whether the detention is in violation of the Constitution and laws of the United States — which, of course, include treaties to whatever extent they may create individual rights.

Thus, the DTA has already granted to our enemies the very remedy critics claim is now being denied. Moreover, the new Military Commissions Act (MCA) does not repeal the DTA. It strengthens it. That is, because the Supreme Court’s Hamdan decision created confusion about whether the DTA was meant to apply retroactively to the 400-plus habeas petitions that were already filed, the MCA clarifies that all detainees who wish to challenge their imprisonment must follow the DTA procedure for doing so. But, importantly, the right to challenge imprisonment is itself reaffirmed.

That the DTA does not refer to this right as habeas corpus is irrelevant. It’s not the name of the remedy that counts; it’s the substance. The DTA gives the detainee exactly what habeas provides. Therefore, it would have been pointless for the MCA to add yet another round of habeas.

To understand why this is so, one need only consider the legal restrictions on imprisoned American citizens. If they wish to claim their detention is baseless, they are not permitted to file habeas petitions which simply re-allege claims they have already made (or at least had a fair opportunity to make) during prior legal proceedings (such as the appeal of a criminal conviction, or a previously filed habeas petition). Repetitious claims are instantly disregarded by courts as a form of procedural default known as “abuse of the writ” of habeas corpus.

Given that habeas would not be available to an American for the purpose of rehashing a previously unsuccessful challenge to his imprisonment, why on earth should we extend habeas to an alien al Qaeda terrorist so he can re-litigate under the MCA an argument against his detention that has already been heard and rejected by a federal appeals court under the DTA?

WHO’S MANIPULATING HISTORY?
Epstein’s arguments are especially unbecoming. First, for all his bombast about the storied history of the habeas writ, he neglects to mention that the thousands upon thousands of alien enemy combatants our military has detained outside the U.S. in the long history of American warfare have never had a right to challenge their detention by calling on the judicial branch of our government at the very time the political branches have taken our nation into battle. It was Rasul that broke with tradition here. Even if enemy combatants had been denied habeas in this war — which, of course, has not happened — that would not have been a departure from tradition at all.

Second, it is simply preposterous to suggest, as Epstein does, that the government is likely to frustrate the DTA’s judicial review procedure by such shenanigans as starting a CSRT but then suspending it indefinitely without ruling on a detainee’s status (so the DTA right to appeal to the D.C. Circuit would never be triggered). The DTA not only directed the Defense Department to come up with CSRT procedures, including an annual review of the status of detainees found to be enemy combatants; it expressly contemplated oversight by the Armed Services committees in both Houses of Congress. There is no basis to believe either that the Pentagon is engaged in the kind of gamesmanship Epstein imagines or that Congress would tolerate such antics were they to occur.

It would be the height of folly to confer additional rights on alien enemy combatant terrorists — which, by the way, would be far better rights than honorable alien enemy combatants who do not mass-murder civilians get under the Geneva Conventions — for no better reason than to prevent an abuse that is virtually inconceivable in the real world. Such thinking reflects the same September 10th mentality that gave us the Justice Department’s infamous “wall” — which prevented criminal investigators and national security agents from pooling threat information in order to forfend hypothetical and empirically unheard-of civil-rights violations.

Been there done that.

Update: Senators John McCain, John Warner and Lindsey Graham wrote a Wall Street Journal essay that reinforces the arguments Andrew McCarthy makes. The Senators also backup Porkopolis' argument that Obama is a liar and propagandist. From the essay:

Habeas Corpus : Another myth is that, under our bill, detainees would lose the basic right to challenge their imprisonment. Actually, both the Detainee Treatment Act and the Military Commissions Act allow an individual to challenge his status in administrative and judicial fora. These challenges are in excess of what our soldiers would be afforded as prisoners of war.

And here's there statement on access to the courts:

Judicial Review : Other critics [ed. like Obama] claim that our civilian courts would have no power to review any aspect of the military tribunal system, except verdicts by military tribunals. The truth is that our federal courts today already have the right to review the decisions made by military Combatant Status Review Tribunals.

For completeness, the essay is included here (emphasis added):

Look Past the Tortured Distortions
By John W. Warner, John McCain and Linsdey O. Graham, Wall Street Journal
October 2, 2006

WASHINGTON -- Negotiating a complicated piece of legislation with wide-ranging implications is always a difficult endeavor, and the Military Commissions Act of 2006 was no exception. We worked with the administration to achieve a fair system for the prosecution and conviction of suspected terrorists. The proposed legislation also reaffirms and underscores our nation's commitment to the Geneva Conventions, which we must uphold as a matter of principle and to protect our service members in this and future wars. We believe that we have succeeded in this effort.

(+)

We also believe that the American people deserve to have this important legislation properly described. Some recent reports, in our view, have not reflected accurately the bill we negotiated. The following points deserve clarification in order that this important legislation may be fully understood by the American people.

Criminal Waiver : A number of recent articles state that in our compromise with the president, we included a waiver for crimes Americans may have committed in interrogating detainees. In fact, our bill contains no waiver for such crimes, nor immunity for any individual. Anyone who has committed a crime may be prosecuted under the torture statute or the War Crimes Act. This legislation actually makes it easier to win a prosecution, because the War Crimes Act as currently written is so broadly worded that a prosecution would likely fail on grounds of vagueness.

Enemy Combatants : Other reporting asserts that the definition of "illegal enemy combatant" in the bill could subject a broad category of people to arrest and indefinite detention with no hope of appeal. Actually, the proposed legislation simply establishes the jurisdiction of military commissions. That jurisdiction extends solely to aliens who have engaged in hostilities against the United States or who have purposefully and materially supported hostilities against us.

We make no apology for wanting to try by military commission both the people who shoot at us and those who aid and abet the trigger-men. Because we believe in the American system of justice, we also do not apologize for giving these individuals the right to appeal their convictions, all the way up to the Supreme Court.

The Geneva Conventions : Another misunderstanding is that the bill gives the president the power to reinterpret unilaterally the Geneva Conventions. In fact, the president, under this legislation, has no power beyond that already given him in the Constitution: the authority to interpret treaty obligations binding on the executive branch. From the beginning, we stood with the five former chairmen of the Joint Chiefs of Staff and the 50 other general and flag officers who strongly resisted any legal redefinition of the Geneva Conventions.

Some critics state that any determinations made by the president could stay secret. In fact, this legislation requires the president to publish his determinations as to what offenses constitute "non-grave breaches" of the Geneva Conventions in the Federal Register. His interpretations will have the force of administrative regulations, and so can be trumped by congressional action at any time.

Habeas Corpus : Another myth is that, under our bill, detainees would lose the basic right to challenge their imprisonment. Actually, both the Detainee Treatment Act and the Military Commissions Act allow an individual to challenge his status in administrative and judicial fora. These challenges are in excess of what our soldiers would be afforded as prisoners of war.

Judicial Review : Other critics claim that our civilian courts would have no power to review any aspect of the military tribunal system, except verdicts by military tribunals. The truth is that our federal courts today already have the right to review the decisions made by military Combatant Status Review Tribunals.

Coerced Evidence : A number of articles state that coercion is defined so as to exempt anything done before the passage of the 2005 Detainee Treatment Act. This, also, is incorrect.

The bill excludes any evidence obtained through illegal interrogation techniques, including those prohibited by the 2005 act. Any evidence obtained before the 2005 law would have to pass a legal reliability test -- and, as applied in practice, the greater the degree of coercion, the more likely the statement will not be admitted. To admit any such evidence, the judge would have to make an additional finding that doing so serves the interest of justice.

Secret Evidence : Some argue the bill weakens the legal standard against withholding evidence from the defendant. In fact, under this legislation, any evidence shown to the jury must be shared with the defendant. This was a key change from the administration's proposal.

Offenses : Finally, there is some confusion about the definitions of torture and rape within the bill. As is made explicit in the legislation, these definitions are for the purposes only of enumerating war crimes -- offenses so serious that they are all potentially punishable by death. They do not affect other legal definitions for the same terms (including torture and rape) contained elsewhere in law. The bill's definition of rape is based on the meaning used in the International Criminal Tribunal for the Former Yugoslavia.

It is axiomatic that a compromise makes no one happy. Our mission was to help our nation in the war on terror and to give protection to our men and women in uniform, particularly if they are captured. Anyone may disagree with elements of the final product, but an accurate understanding of the legislation is essential to all sides of the debate.

Messrs. Warner, McCain and Graham are Republican senators for Virginia, Arizona and South Carolina, respectively.