Glennzilla versus White House: Stomp, stomp, stomp…

(noon. – promoted by ek hornbeck)

Glenn Greenwald opining on civil liberties encroachments by a unitary executive:

As usual, it doesn’t pay to engage Greenwald in a counter-struggle.  Many species of prey simply fall into an autonomic state of hyperarousal and “tonic immobility” when attacked, because any struggle would be merely a further incentive for the predator to finish the kill.  I’m looking forward to his Monday article on alternatives to Elena Kagan.  

In the meantime, I’d like to address a couple of items on Elena Kagan by BTD/Armando.

On Kagan’s views on preventative detention of enemy combatants, Armando says “there is nothing Kagan said in her testimony that I disagree with.”  I did not find his argument a ringing endorsement.

Elena Kagan believes we are at war, a long war of indefinite length and scope, but it’s unclear if she agrees with Lindsey Graham that we have been at war since the bombings in Tanzania and the USS Cole.  It’s also unclear with whom she thinks we are at war, if those wars are just, and if they are not just, if she thinks her views on indefinite detention of enemy combatants would continue to apply.  

Elena Kagan agrees that normal criminal law does not allow indefinite detention without a trial, that “enemy combatant” is an appropriate designation for those captured on the battlefield, and that an enemy combatant can be held indefinitely, but deserves “substantial,” but utterly unspecified “due process” by an “independent judiciary” of a completely unspecified nature.  What does she think of due process for enemy combatants given Wilkerson’s sworn statement that most GITMO and Abu Ghraib detainees were innocent?

Elena Kagan appears to believe that the entire world is a battlefield.   She agrees that “a person” can be “part of a battlefield,” e.g., a person operating in the Philippines captured by intelligence for being suspected of financing terrorists.

Elena Kagan may or may not believe that “hearts and minds of the Islamic world,” places in “our nations,” and virtual cyber-worlds are battlefields, because she doesn’t answer audibly into the microphone, but the context suggests her indicating agreement that every one, everything, and every place is a potential battlefield, as after she responds off-mic, Lindsey Graham says, “I certainly do too.”

Whereas Armando finds nothing to disagree with, I find nothing to agree with, in a two-fold sense.  First, I simply do not believe the hyped threat of terrorism, and do not support the hypertrophic efforts to combat this undefined threat in indefinite wars of unlimited scope and cost, so I fundamentally disagree with Kagan’s support of this hypertrophic militaristic, state of affairs.  Defending oil lanes from disruptive attacks is one thing, but engaging in unjust resource wars is quite another.  Second, even if one were willing to grant some legitimacy to the war-mongers’ arguments, Kagan’s tesitmony is perfectly cryptic about her views on what due process actually means.

We know from Kagan’s work as Solicitor General that she assumes and favors very low thresholds for being designated a terrorist or one who abets terrorism.  In this respect, her views lumping everyone together as terrorists are very similar to Dick Cheney’s.  In her view, even bringing a so-called terrorist group into the international legal process is “abetting terrorism.”  

Since 1997, the State Department has listed the Kurdistan Workers Party, or PKK, as a foreign terrorist group, which means that Fertig could go to prison for giving “expert advice or assistance” to Kurdish leaders.

Kagan agreed that Fertig could be prosecuted. She also agreed that an American citizen could be prosecuted for drafting a legal brief or writing a newspaper article in coordination with a banned group.

For his part, Cole urged the justices to rule that the 1st Amendment protects those who speak out on behalf of or advise foreign terrorist organizations, as long as they advocate only peace and nonviolence.

As I wrote earlier:

Drafting a legal brief is perfectly acceptable behavior, an act that explicitly and implicitly embraces the rule of law.  Denying anyone the embrace of the law is an act of tyrants.  As Justice Breyer asked:

“What’s the government’s interest . . . in forbidding training in international law?”

Damned good question, Stephen.

And writing a newspaper article?  Are you kidding me?  The Supreme Court has given unlimited free speech to corporations, but considers actual people endowed with freedom of expression to be non-persons?  You pulling my leg?  What is the government’s interest in suppressing free speech?  Especially free speech concerning lawful and peaceful advocacy?

This law conflating peaceful, lawful activity with terrorism is purely tyrannical.

Armando also argues that Kagan’s view of the unitary executive is progressive with respect to regulatory enforcement, but we have seen with our own eyes how executive power in war trumps all other concerns, so I don’t find this aspect of the unitary executive argument as “progressive” very meaningful or compelling.  Having the president steer regulatory issues in the absence of specific congressional mandates strikes me as a “pedestrian” concern, a “no-brainer,” if you will.

(By the way, if the president lobbies for and signs such weak-ass legislation as health care reform, and the only way to salvage it is to exert unitary control over its implementation, that strikes me as a pretty weak-ass argument for more presidential control over the process.)

Normally, I find Armando (a centrist) to be far more effective than most progressives in arguing the progressive case, but not in this case.

I am far more concerned with Kagan’s views on the war on terrorism, because that’s where the president really throws his weight around in extremely arbitrary and deadly ways.  That is the issue that makes or breaks Kagan, and I think what can be ascertained of her views makes her a non-starter.

The fact that she comes from a prominent family of radical neoconservatives long calling for regime change in Iraq doesn’t help her in my view.  If you say guilt by association is unfair, I’d say (a) childhood rearing conditions have profound influences on development, and (b) when has this ever been a fair fight?