Republicans and Teabaggers Finally Embrace Big Government 5MAI10

For more than a year now, we've been hearing from Republicans, tea party people and Glenn Beck's chalkboard about how big government is destroying American liberty and freedom. Much of the shrieking is literally accompanied by the yellow Revolutionary War "Don't Tread on Me" flag.

Every tea party lawn concert and misspelled sign regatta features people dressed in colonial drag with tea bags dangling from their tri-corner hats, waving banners in support of tax cuts, liberty and freedom and against the allegedly tyrannical Obama government. They're really scared and they want their country back from the (somehow) black liberal Nazi.

We've heard about how the "czars" are unconstitutional, even though the name "czars" was invented by the press as clever pseudonym for "advisers."

We've heard about how the Recovery Act, which has created hundreds of thousands of jobs and cut taxes for 95 percent of working families, is unconstitutional and an attack on states' rights and individual liberty. We've heard about how it's "generational theft" for the government to spend money to solve an economic crisis. We've heard about how the tax cuts in the Recovery Act are just a scam and should be returned to the government in protest.

We've heard about the crazy conspiracy theories involving the IRS invading our neighborhoods with armed goon squads -- rounding up anyone who purchased one of Glenn Beck's dozens of McBooks. Of course this meme turned out to be entirely untrue as there is no enforcement mechanism in the health care reform law should you simply choose not to pay the tax penalty for not buying insurance.

Republican attorneys general across the nation are challenging the health care law in court because, they say, it's unconstitutional. House minority leader John Boehner once called the bill "Armageddon" because of the tax penalty for Americans who choose not to buy insurance. Armageddon!

Throughout all of the misinformed and contradictory right-wing antics of the past year, I've been wondering how post-Bush Republicans and conservatives can possibly square all of their newly found affinity for freedom, liberty and the Constitution considering their eight year support for Bush era policies. Policies like illegal wiretaps of American citizens, the USA Patriot Act, suspension of habeas corpus (it's in the Constitution) and all the rest of it.

Have they at long last abandoned their support for these obvious trespasses against liberty and the Constitution? In fact, Glenn Beck said recently that he failed to speak out back then but, "It doesn't matter. I'm here now." Convenient timing. History appears to have skipped the first decade of the 21st century.

Put another way, are the Republicans suddenly joining up with civil libertarians to denounce policies that infringe upon basic constitutional rights? Maybe Rush Limbaugh teaming up with the ACLU during his drug case was a sign of things to come. A civil liberties-oriented conservative movement, eh?

Not a chance in hell.

This week, Rep. Peter King (R-NY) said about the failed Times Square car bomb suspect, "Did they Mirandize him? I know he's an American citizen but still."

I know he's an American citizen but still. This easily catapults to the top of the list of awful, creepy, dangerous things Republicans have said in the context of terrorism since 9/11 -- the same list that includes: "None of your civil liberties matter much if you're dead," and, "I have had it with members of your party undermining our troops, undermining a commander in chief while we are at war."

Republicans from King to John McCain to John Cornyn and Jon Kyl are engaged in some sort of weird penis-measuring contest over the Faisal Shahzad case, each attempting to prove how quickly they can subvert the basic rights of American citizenship in order to appear "tough" on terrorism.

Marco Rubio, who is the tea party favorite for the U.S. Senate from Florida, said, "If this individual has information that could help us prevent future attacks and loss of life, nothing should stand in the way of that, including Miranda."

So nothing except, again, the basic rights of American citizenship.

Pseudo-Republican Joe Lieberman wants to change the law in order to strip would-be terrorists of their American citizenship. Hey, why not expand that to encompass all violent crime. Before long, we're not going to need Amendments Four, Five, Six, Seven, Eight and Fourteen.

Liberty! Freedom! Constitution! Except when we're scared.

At the same time, a new poll from the New York Times and CBS shows that a narrow majority of Americans support the Arizona anti-immigration law even though a wide majority also believes that it will involve racial profiling. Concurrent to this poll, a Gallup survey shows that 75 percent of Republicans support the Arizona law with only 17 percent opposed.

Knowing full well that American citizens who happen to be brown will be swept up in the law enforcement dragnet, regardless of whether or not they've actually broken the law and regardless of whether or not they've lived in Arizona longer than many of the white people there, the Republicans and tea party people appear to be perfectly comfortable with the idea of government overreaching and engaging in a clear violation of the Fourteenth Amendment, among other things.

Liberty! Freedom! Constitution! Except if you're brown.

And finally, as the Deepwater Horizon disaster in the Gulf of Mexico rapidly buries any previous records for oil spills, dumping perhaps as much as 25,000 barrels of oil per day into the sea -- dooming jobs, wildlife and natural resources for decades to come, suddenly big government spending and "redistribution of wealth" isn't so bad after all.

Republican lawmakers are quickly stashing their "Don't Tread on Me" banners and tea bag hats in the nearest closet and demanding that the federal government come to the rescue of the Gulf States.

As documented by Dana Milbank this week, Republican David Vitter worried that BP couldn't do the job alone and that "federal and state" government agencies pitch in.

Talk radio and Fox News, meanwhile, lied about the administration's allegedly slow response, implying that the government should be doing more -- even though we've been told by everyone of Ayn Rand to Sarah Palin that the free market ought to be able to handle these things on its own. (For the record, the administration has been on the ground and at sea since day one of the BP crisis.)

The governors of Mississippi, Alabama and Florida, all run by small-government Republicans demanded more support from the National Guard. Small government senators Shelby and Sessions promised the full support of the federal government.

Bobby Jindal, who famously joked about federal spending for volcano monitoring and tried to stop any Recovery Act money from entering Louisiana, isn't so concerned about federal spending now. He issued a statement demanding "critical" federal government resources.

I think you get the idea.

But maybe we should just slow things down. Before we spend any government money, before we spread the wealth around and engage in generational theft, maybe we should start over. I know there's a crisis here, sort of like the one in which the economy was rapidly sinking into another Great Depression or the one in which American families are filing for medical bankruptcies every 30 seconds or the one in which there are 9/11-level deaths every month due to a lack of health insurance, but let's just slow down and start over.

In his University of Michigan commencement address in front of 92,000 people last weekend, President Obama made a rational, reasonable case for government. It was a far cry from Reaganomics and President Clinton's declaration about the end of big government. He said, "There are some things we can only do together, as one nation... So what we should be asking is not whether we need a 'big government' or a 'small government,' but how we can create a smarter, better government."

Perhaps, despite the inchoate rage of the tea parties and the posturing of the Republicans, they really do understand that we live in an era of unprecedented national crises and that with many of these problems only the federal government is adequately suited to repair the damage. If we could all meet up on these terms, on the terms of "smarter government," I think we'd be able to accomplish anything and mitigate any crisis.

After all, how bad can it be. The grandfather of the tea party movement, libertarian Ron Paul, receives government Medicare benefits.

Senator Lieberman's Latest Constititonal Buffoonery 6MAI10 UPDATE TO LIEBERMAN'S CITIZENSHIP REVOKING LAX POSTING BELOW

I am tired of right wing fanatics like Joe Lieberman of attacking the liberties and rights granted and guaranteed in our nation's Constitution. They are committing terrorism by their own definition by being "engaged in, or purposefully and materially support[ed], hostilities against the United States". They seek to destroy the Republic by their attacks on the document that is the foundation of what we are as a nation, and so are a real threat to the liberties and civil rights of all Americans. And Lieberman is so blinded by his fanaticism that he can not see that his own proposed law can be used against him!

In response to supposed legal restrictions on the interrogation of U.S. citrizen and suspected Times Square SUV bomber Faisal Shahzad, Senator Lieberman today proposed a bill that would strip American citizenship from anyone who has "provid[ed] material support or resources to a foreign terrorist organization" or "engaged in, or purposefully and materially support[ed], hostilities against the United States" or any of its allies.

Unfortunately for Senator Joe, the Supreme Court has made it crystal clear over the last four decades that the federal government simply has no power to take away U.S. citizenship. In Afroyim v. Rusk (1967), the State Department tried to strip citizenship from an American who'd voted in an Israeli election. The Court held that in the wake of the Fourteenth Amendment, Congress lacks "any general power, express or implied, to take away an American citizen's citizenship without his assent." Because the people are sovereign under our constitution, that document "defin[es] a citizenship which a citizen keeps unless he voluntarily relinquishes it." This idea that citizenship can only be voluntarily relinquished with the citizens' "assent" was reaffirmed in Vance v. Terrazas (1980), where the Supreme Court held that merely doing an act (there, naturalizing to Mexican citizenship) that the government claims is per se evidence of your intent to relinquish your U.S. citizenship is not enough. Even if the citizen "voluntarily" did the act (in Terrazas, he knew he was filling out Mexican citizenship forms and did it willingly), the burden remains on the government to prove that that act was done with the intent to renounce U.S. citizenship (rather than, say, to gain dual nationality). That's the law regardless of whether you are a birth citizen or naturalized (though fraud in the process of a naturalization application may be invoked to invalidate the naturalization).

Thus, most of the things people think might cause you to automatically lose citizenship - and which are listed on the State Department website as such, and in the federal statute books (8 U.S.C. § 1481) - do no such thing. There are cases where someone signed Israeli citizenship papers without reading them, so he didn't know that they said he was renouncing any other citizenship -- and the courts held he hadn't voluntarily renounced his U.S. citizenship. The State Department warns that serving as a policymaking official in a foreign government can cost you your citizenship, but Meir Kahane won his case where DOS said he'd renounced his citizenship by serving in the Israeli Knesset. If Lieberman's staff had done a bit of research on this, they'd notice that many of the things listed in 8 U.S.C. § 1481 actually don't operate to automatically strip citizenship, absent the dispositive element of "assent" to voluntarily give up your citizenship (e.g. serving in a foreign military, taking a foreign nation's oath of allegiance, etc.). Good thing, too - other statutory provisions provide for stripping citizenship for refusal to testify to Congress about one's subversive activities. (See 8 U.S.C. § 1451(a).) Like many Jim Crow laws enforcing segregation, these things sit on the books, unenforceable, because Congress refuses to clean up its own mess.

A series of draft-dodging cases in the wake of Afroyim also establish that citizenship stripping can't be done administratively - a court needs to confirm intent to give up US citizenship if assent is disputed. So it's a bit of a mystery why Lieberman thinks this will somehow help interrogate suspects immediately after capture.

Lost in this constitutional debate is the fact that no one can identify any defects in the handling of the Times Square bombing suspect sufficient to motivate any change in law (though Lieberman seems to think some quick (and illegal, as I've noted above) administrative citizenship stripping process (maybe by a Guantanamo-style Combatant Status Review Tribunal?) would have made it easier to interrogate the suspect). The suspect, Shahzad, was interrogated immediately (there is an "immediate public safety" exemption to the Miranda warning rule); then Mirandized (that is, told of his right to remain silent and of his right to request a lawyer); supposedly he provided valuable information throughout. Terrorism suspects in detention rarely have an incentive to spill accurate information once detained, and defense lawyers usually help mediate the process of acquiring accurate information from them through the plea bargain process. The ordinary, time-tested system seems to have been applied here, and seems to be working - so again, what's the problem?

All of this is putting to one side the problems with the notion of criminalizing something as broad and vague as "material support" itself. (Those interested in the details can click here.) Lower courts have six times held that the "material support" statute is unconstitutionally vague. Lieberman's bill would propose to strip citizenship for violating a law that federal courts have repeatedly held unconstitutionally vague. The Justices of the Supreme Court heard the government's appeal from those cases in Holder v. Humanitarian Law Project in February, and most commentators felt that at least seven justices were highly skeptical of the government claims as to the law's broad reach.

Moreover, the government argued to the Supreme Court that our HLP clients, members of domestic humanitarian groups who proposed to train rebel groups on the State Department's blacklists in non-violent conflict resolution -- pure speech seeking to turn groups away from violence and criminal activity -- would be guilty of providing "material support" if they did so, and thus could have their citizenship stripped under Lieberman's bill for doing so.

Finally, I would be remiss if I concluded without saying the following: as an occasionally-proud Yale Law School grad, I would like to apologize on behalf of my alma mater for producing Joe Lieberman. On the other hand, no one ever accused Yale of providing a black-letter legal education. And we were frequently encouraged to think outside the box. Maybe society did this to him.

--May 6, 2010

Lieberman's Citizenship-Revoking Law Slammed As 'Draconian' 5MAI10

I think Joe Lieberman would have loved living in Nazi Germany (yes I know he is Jewish). He has become more fascist in his political views, so much so that I can see him licking the boots of Hitler and his cabal and the Gestapo and SS and turning in his fellow Jews and others declared enemies of the state until they finally came for him. That is what is so unfortunate about people like Lieberman, instead of actually standing up and defending the Constitution and our civil rights and liberties, Lieberman and his like are willing to throw that all away to protect what? And what makes him so sure his law couldn't be used against him? After all, his attack on the foundations of our Republic, our civil liberties and civil rights, is terrorism against thw American people.

Sen. Joseph Lieberman (I-Conn.) has yet to formally introduce legislation that would strip Americans involved in terrorism of their citizenship and already legal experts, including a former Bush administration official, are calling it "draconian."

The Connecticut Independent is planning to unveil on Thursday a proposal that will supposedly free up law enforcement in their efforts to try terrorist suspects, by giving the State Department the right to revoke the citizenship of those suspects who are American.

The substance of the proposal has yet to be unveiled, though it does have supporters in the House and Senate. But already a host of legal officials are raising red flags. For starters, the legislation would not, on its surface, solve the most immediate crisis for which it is seemingly designed. Lieberman is lamenting the fact that the Obama administration read the Miranda rights to Faisal Shahzad, the suspect in the attempted Times Square bombing. But even if Shahzad were deprived of his citizenship, his Miranda rights would still be read to him, so long as he was held in a criminal setting.

"Miranda applies if somebody's going to be charged with a crime, and that applies to somebody whether they're a citizen or not," said Anil Kalhan, a law professor at Drexel University.

Indeed, what Lieberman is attempting to do is to pave the way for terrorists with American citizenship to be thrown into military tribunals once they are captured. And it would give the State Department the power to make that determination.

"It sounds like a draconian solution," said John Bellinger a legal adviser to the United States Secretary of State during the Bush administration. "I assume the Senate has thought through the constitutional issues but I would want to see what the standards are for stripping someone of their citizenship and what opportunities they would have for notice and to challenge the decision... It certainly seems like a far-reaching step."

As Bellinger notes, the issue of revoking citizenship has been litigated to the highest levels of the justice system already. And as it stands now, the standard is set fairly high.
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In Afroyim v. Rusk (1967) the Supreme Court ruled that a United States citizen could not be deprived of his or her citizenship involuntarily. The burden of proof falls on the government to determine that the person intends to revoke his or her own citizenship. There are additional elements to the law. As Emily Berman of the Brennan Center notes, a naturalized citizen can have his or her citizenship revoked if it is proved that he or she obtained their citizenship through fraudulent means. There are also complexities with regards to Americans who have joined "the armed forces of a state engaged in hostilities against the United States," says Kalhan. And this, indeed, may be the subset of the law that Lieberman is hoping to expand (to include non-state terrorist organizations).

But these remain fairly well established elements of immigration law. And an expansion of power to the State Department, as Lieberman seems to be envisioning, will almost assuredly be challenged on constitutional grounds, these experts say.

"With respect to people who are born American citizens I believe this would be an unconstitutional statute," said Berman. "I don't think the Congress has the power to give the State Department that right."

There are non-legal questions surrounding Lieberman's proposal as well. For starters, what would distinguish a member of al Qaeda from a domestic terrorist? Could a homegrown terrorist like Timothy McVeigh be denied citizenship rights? How would the State Department define what constitutes ties to terrorism? And what happens if the person is wrongfully accused?

"The slippery slope is there but also there's great potential to apply that kind of rule in a very arbitrary and discriminatory way," said Kalhan.

Perhaps the issue proving most bothersome to the legal community, however, is the slight Lieberman's bill sends to America's criminal justice system, which has, statistically, proven far more effective at trying citizen and non-citizen terrorists than its military counterpart.

"There is an ongoing and often irrational debate about what do we do with people who are suspected terrorists who are captured in the United States," said Berman. "The thought that we should be doing anything different than what we always have done is remarkable. I don't think anyone has ever been able to contradict all the evidence that the criminal courts are perfectly capable of locking these people away quite effectively."

Holder prefers keeping option of civilian courts for terrorism suspects from WashPost 15APR10

Consider these words from the film 'Judgment At Nuremberg' taken from the decision of Judge Dan Haywood (Spencer Tracy).
There are those in our own country too who today speak of the "protection of country" -- of "survival." A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient -- to look the other way.

Well, the answer to that is "survival as what?" A country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult!

Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth, and the value of a single human being.

I can picture Joe Lieberman as a Kapo in the Jewish Ghettos, sending his fellow Jews off to the death camps while he licks the boots of his Gestapo master John McCain. They are disgusting.

THE WASH POST STORY
A proposal before the Senate to try all foreign terrorism suspects before military commissions would "seriously harm our national security," U.S. Attorney General Eric H. Holder Jr. said Thursday, criticizing legislation introduced last month by Sens. John McCain (R-Ariz.) and Joseph I. Lieberman (I-Conn.).

"The proposal by some respected leaders in Congress to ban completely the use of civilian courts in prosecutions of terrorism-related activity obscures some basic facts and allows campaign slogans to overtake legal reality," Holder said at an awards dinner for the Constitution Project, a bipartisan legal advocacy group. "There's no question that if such a plan advances, it would seriously harm our national security."

Civilian courts and military commissions are both effective weapons that should be selected case-by-case, he said. Civilian courts can consider a wider range of offenses -- giving the government more opportunities to disrupt plots and use leverage to negotiate cooperation -- and enjoy greater credibility with foreign allies with less likelihood of appeal until commissions become more established, Holder said.

Supporters of military commissions say that foreign terrorism suspects are enemy combatants in an open-ended war who should not be treated in the same way as criminals. They argue that evidentiary rules should reflect battlefield conditions, and they note that recent congressional reforms have solidified the legality of commissions.

THE ENEMY BELLIGERENT ACT OF 2010 from MOJO

Hitler and Stalin would have loved this!!!! God help us all and the Republic if it ever becomes law!!!

Marc Ambinder wrote about John McCain's and Joe Lieberman's "Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010" a couple of weeks ago, but I missed it. It's basically designed to allow us to detain enemy belligerents indefinitely if they meet certain criteria:

The bill asks the President to determine criteria for designating an individual as a "high-value detainee" if he/she: (1) poses a threat of an attack on civilians or civilian facilities within the U.S. or U.S. facilities abroad; (2) poses a threat to U.S. military personnel or U.S. military facilities; (3) potential intelligence value; (4) is a member of al Qaeda or a terrorist group affiliated with al Qaeda or (5) such other matters as the President considers appropriate. The President must submit the regulations and guidance to the appropriate committees of Congress no later than 60 days after enactment.

The bill applies to US citizens as well as foreign nationals, and the determination of whether someone is "high value" is made by the High-Value Detainee Interrogation Team and confirmed by the secretary of defense and the attorney general. Glenn Greenwald provides his usual mild-mannered commentary:

It's probably the single most extremist, tyrannical and dangerous bill introduced in the Senate in the last several decades, far beyond the horrific, habeas-abolishing Military Commissions Act. It literally empowers the President to imprison anyone he wants in his sole discretion by simply decreeing them a Terrorist suspect—including American citizens arrested on U.S. soil. The bill requires that all such individuals be placed in military custody, and explicitly says that they "may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners," which everyone expects to last decades, at least. It's basically a bill designed to formally authorize what the Bush administration did to American citizen Jose Padilla — arrest him on U.S. soil and imprison him for years in military custody with no charges.

Well, sometimes mild-mannered commentary is just what the doctor ordered. This bill sounds every bit as bad as Glenn says it is. Basically, it reminds me of the Alien and Sedition Acts, which we've long since decided was not exactly a shining bright spot in our nation's history.

My hope is that the reason this bill has gotten so little attention is that no one thinks it has any chance of passage. Unfortunately, given the current mood of the country and the obvious angst of centrist Democrats about attacks on their terrorism-fighting credentials, that hardly seems plausible. Of course it has a chance of passage. This is well worth keeping an eye on.