I don’t plan on abandoning Babel Frog, despite the recent lack of activity here. Perhaps this new venture will serve as a shot in the arm for this poor site.

Terrorism is simultaneously the single most meaningless and most manipulated word in the American political lexicon.  The term now has virtually nothing to do with the act itself and everything to do with the identity of the actor, especially his or her religious identity.  It has really come to mean:  ”a Muslim who fights against or even expresses hostility towards the United States, Israel and their allies.”  That’s why all of this confusion and doubt arose yesterday over whether a person who perpetrated a classic act of Terrorism should, in fact, be called a Terrorist:  he’s not a Muslim and isn’t acting on behalf of standard Muslim grievances against the U.S. or Israel, and thus does not fit the “definition.”

Greenwald is, of course, referring to Joseph Stack, a man who flew a plane into a Texas IRS building presumably to protest taxation. Although he left a very clear suicide manifesto behind, few have been willing to label Stack a “terrorist.”

As has been observed before, “one man’s terrorist is another’s freedom fighter.”

And it certainly seems that Rep. Steve King (R-Iowa) sees the other side of the coin. King stopped short of explicitly praising Stack’s actions, but one can detect a certain underlying approval — after all, as King claims, he’s been trying to “abolish” the IRS for some 30 years, establishing a national sales tax and (although you’ll never hear this inevitable consequence from King) sending the bill for America’s wars, roads, police, and fire departments to the middle and lower classes.

At any rate, Greenwald seems to have forgotten something in his definition of terrorism. He neglects to mention how quickly the right wing was to pin the “terrorist” label to Bill Ayers, once they had established even the weakest of linkages to then-candidate Barack Obama.

As TPM reports:

R.J. Gerard, communications director for the Indiana Democratic Party confirmed to TPMDC that the state Democratic Party would be able to select a new candidate to run in November’s general election if no one files petitions with 4,500 signatures (500 within each of the state’s nine House districts) to run in the primary.

So the state Democratic Party is going to pick the candidate for November’s general election. Bayh had been leading in the polls against his Republican challenger, Dan Coats, by a healthy 20-point margin, and Bayh’s exit means that will probably be largely forfeit.

It remains to be seen what Democrats across the country have learned from Scott Brown’s unexpected victory in Massachusetts.

Is it me, or does that photo of the admittedly portly Smith look like it’s been significantly stretched on the horizontal axis?

Every course I’ve ever taken on journalism ethics has emphasized the idea that unduly manipulating photographs is verboten. Consider the case of the infamous TIME Magazine cover of O.J. Simpson’s mugshot, which was desaturated and otherwise altered, presumably to make Simpson appear more menacing.

CNN’s post this morning might not be quite as odious as TIME’s gaffe, but it’s certainly a cheap attempt to make Smith look larger than he actually is.

UPDATE: Looks like they’ve fixed it. Compare the current version with my screen capture.

I: A working, operational definition of terrorism

In order to justify trying, convicting, and sentencing terrorists under a system of rules other than those described in the constitution, advocates of military tribunals will have to create a working and operational definition of terrorism — one that distinguishes it from other forms of criminal activity that we already deal with effectively in the civilian judicial system. Terrorism is vaguely defined by Merriam-Webster as the systemic use of terror as a means of coercion, but this will hardly do as a legal foundation for extra-constitutional handling of a “special” breed of criminal. Is terrorism defined by its target — that is, do a certain class of targets, such as government buildings, make an act “terrorism” — or by its motives? In the latter case, what motives would qualify as “terroristic”? Is a hostage situation terrorism if the hostage-taker has certain demands? Does a bomb threat to a school qualify as terrorism? And how, if the tribunal system is going to rely on usually-accepted rules of evidence and fact-finding, is the prosecution expected to prove motivation, particularly when these kinds of motives often have little direct connection to the crimes themselves?

II: Demonstrate the inability of the existing legal edifice in handling terror suspects

Handing terror suspects over to military tribunals represents a major expansion of executive power, and a subtraction of power from the judiciary. To justify this shift, advocates of military tribunals need to explain how the judicial branch is unable to effectively handle terror suspects, and further, why the supposed potential for “intelligence gathering” outweighs the people’s interest in a government limited in its ability to abrogate constitutionally-guaranteed human rights.

Further, the positive case must be made that military tribunals themselves can address whatever shortcomings exist within the civilian legal system. Contrary to certain strains of popular belief, the evidence does not suggest that tribunals are the foolproof terror-detectors they’re sometimes made out to be.

III: Explain the institution

As it stands now, military tribunals are exclusively the jurisdiction of the executive branch. Some new institutional arrangement needs to be created in order to guarantee that these tribunals will be somehow held accountable, and that the institution itself is stable. Returning to point I, the definition of terrorism must either be set in stone, to avoid a creeping expansion of the power of this new parallel justice system; or it must be fluid, in order to be useful to as-yet-unforeseen forms of terrorism. A gargantuan quandary faces anyone who choses either of these tracks. Beyond this, how can we inoculate this system from corruption and misuse?

—

So, there it is. Since it is the advocates for military tribunals who are making the case for a change to the system we have, I submit that it is their job to show the compelling need for them, and how they will actually benefit — rather than harm — the United States’ interests.

From the Huffington Post:

Rumors are flying that the New York Times is set to publish a bombshell scandal regarding New York Governor David Paterson.

Note the use of weasel words, “Rumors are flying.” This is in their lede. In the next paragraph, “Members of the media are abuzz about the alleged story.” Members of the media? Abuzz? Weasel words. They’re designed to provide cover for an organization trafficking in unsubstantiated and potentially libelous rumor.

The Times has officially disavowed any knowledge of the story, and claims to have had no part in starting the rumor.

Put up or shut up, guys. This is, as Paterson himself put it during his appearance on Larry King Live, “Kafkaesque.”

I’m not a Paterson fan, but the treatment of this non-story (at best, it’s a story about a possible story) is beyond disgraceful.

Tuesday on The Daily Show with Jon Stewart, former Republican Speaker of the House Newt Gingrich argued against Mirandizing the Christmas Day Underwear Bomber, Umar Farouk Abdulmutallab. Stewart countered:

STEWART: Didn’t they do the same with Richard Reid, who was the shoe bomber?

GINGRICH: Richard Reid was an American citizen.

Well, that certainly wasn’t true — Reid, who was brought to justice under the Bush administration through the civilian court system, is a citizen of England. Gingrich later corrected himself, via Twitter:

@newtgingrich: On daily show was wrong re: ShoeBomber citizenship, was thinking of Padilla. Treating terrorists like criminals wrong no matter who is Pres.

(By the way, Newt — love the “Washington Crossing the Delaware” background.)

This prompted The Atlantic’s politics editor, Marc Ambinder, to respond:

The trouble @newtgingrich, with your Padilla example is that Padilla did not talk while he was in military custody.http://twurl.nl/0ol5bw

Ambinder’s link goes to Greg Sargent’s blog at WhoRunsGov. Sargent points out that Gingrich’s “correction” makes the issue even more confused — particularly since Gingrich followed up his above Tweet with one saying that it is wrong to treat any terrorists as common criminals in any case, regardless of who is president:

Yesterday, he suggested it was okay to Mirandize a terror suspect provided he were an American citizen. Today, he seemed to transfer that opinion onto Padilla in his Tweet — but then in the very next sentence added that treating any and all terrorists like criminals is wrong in all cases, no matter who is president.

Well, the issue was taken up Thursday morning in a White House press briefing with Robert Gibbs, in which Gibbs said:

“Jose Padilla was made an enemy combatant so that we could get him to talk,” Gibbs said. “And guess what happened when we made him an enemy combatant, he didn’t talk. He did talk when he was transferred back into a civilian court.”

The Weekly Standard’s Thomas Joscelyn is at pains to point out the inaccuracy of this statement, and you can read his spirited defense of the arbitrary use of military tribunals here. (I lifted Gibbs’ quote from the morning’s press briefing from his piece.)

As Joscelyn has it, Padilla — an American citizen, mind you; albeit a lousy one — wouldn’t talk until he was transferred to military custody in Guantanamo Bay, Cuba. He concludes:

If anything, Jose Padilla’s case shows why the Obama administration’s approach can be woefully inadequate.

So, the question seems to have shifted from whether we should try foreign nationals identified as possible terrorists in civilian courts, to whether anybody, American or not, should be handed over to the military to be detained indefinitely and possibly tried at some undetermined point in the future by a military tribunal. Do I have this straight?

I argued before that it seems a little weird to have people who profess a fervent belief in limited government and the constitution demanding unchecked power for the executive branch. Joscelyn is arguing that because Padilla talked while in military custody (and while subject to whatever forms of “interrogation” used during that time), that this must be what we do when it comes to individuals accused of “terrorism.” Torture works, therefore it is not wrong. Military tribunals “work,” therefore they can be used whenever we see fit. As Christopher Hitchens puts it in God is Not Great,

The totalitarian principle, which is often represented as “systematic,” is also closely bound up with caprice. The rules might change or be extended at any moment, and the rulers had the advantage of knowing that their subjects could never be sure if they were obeying the latest law or not. (p. 231)

In my post, I wrote that citizenship doesn’t enter into the calculus of rights — and apparently, that’s exactly the case being made (in complete reverse) in The Weekly Standard: If a person is accused of terrorism, he forfeits all rights to due process, regardless of whether he’s a U.S. citizen or not. The apparently conservative Joscelyn is arguing point-blank for totalitarianism — for a system in which the State determines whether or not you have rights at all. 1984 references have become so common as to be annoying, but one can hardly help but be reminded of the Ministry of Love.

UPDATE: Gee, here’s another pretty solid argument.

Lost in these analyses are the different sets of implications for any Democratic coalition in the Senate. Counterintuitively, 59 may be a more powerful majority that 60, at least from the perspective of Democratic party leadership.

Some political science geekery, if I may. The theoretical models of group bargaining all depend heavily on the concept of “veto players,” at least since Anthony Downs popularized the idea of two-dimensional “policy space.” Without getting to deeply into the arcane calculus of this framework, it’s well-established that the “veto player” — whoever in the bargaining group with de facto veto power over a proposition — and his preferences have a lot to do with the outcome of the group’s bargaining.

This is easiest to illustrate with a simple example. Imagine three people have to decide on whether to buy a new television for their apartment. They’ve decided to make the decision democratically, with a 2-1 vote in either direction determining whether or not the TV gets purchased, and all three will contribute equally if the decision is to buy the appliance. Roommate A is all for it, and Roommate B is staunchly against. This means that Roommate C is in a very powerful position, and has the opportunity to court either A or B (or both) with her prospective vote in their favor.

Democrats’ 60-vote majority in the Senate gave each individual Senator this Roommate C leverage — leverage that very few politicians are unwilling to bring to bear. Losing that magic 60th vote meant that the filibuster-proof coalition would disappear, meaning that a simple threat of a “Nay” would send party leadership scrambling to win it back. Witness, for example, the $300 million promised to Louisiana Senator Mary Landrieu in one version of the Senate’s health care reform bill, and the popular shrieking that followed suit. It may indeed look like “extortion,” but in Congress, that’s called politics.

Now, with only 59 Democrats holding Senate seats, no Democratic Senator has the ability to hold the bill hostage for special treatment. Instead of being able to look at the health care reform bill as an opportunity for specialized treatment for their districts, Democrats’ primary interest is in seeing the bill passed — it’ll be better for their party label, and make a much better talking point next time they’re up for re-election than a loss would. Sure, a filibuster is as close to inevitable as makes no difference, but filibusters are politically costly (here’s NRO’s Ramesh Ponnuru making the point in 2005, about judicial nominees) and are eventually subject to high risk of defection.

The take-home message here is that 59 is a much less-fragile number than 60 is, at least in the Senate. And it’s still well above the 50+1 mark needed to pass a bill. Expect to see Democrats bringing a much more united front to the table on health care reform and any other measures they choose to pursue in the near future.

During her keynote speech to “Tea Party Nation” in Nashville Saturday, former Alaskan governor and media sideshow Sarah Palin elicited cheers when she complained vociferously about the fact that a Nigerian man from Yemen named Umar Farouk Abdulmutallab — now more commonly-known (and more easily-pronounced) as the Underwear Bomber — has been granted legal representation in criminal proceedings against him stemming from his failed attempt to blow up a passenger jet as it landed in Detroit Christmas day.

“Our U.S. constitution,” she called it, pointing out veterans in the audience, and derisively lambasting the president for extending its protections to non-citizens.

I hate to project too much into anything Palin says, because I’m not convinced she does a whole lot of deep thinking about it, but the fact is, her statement expresses a very specific — and foundational — legal theory on what the constitution is and how it works. This theory, roughly, is that by virtue of being a United States citizen, a person is granted specific rights that he or she would otherwise not have. Being a citizen of the United States is like being a member of an exclusive country club — by becoming a member, you gain access to things like the nice golf course, the well-appointed bar, and Miranda warnings. The key element here is that citizenship theoretically confers upon someone something they didn’t have before.

I don’t think that’s what the framers had in mind. Perhaps a legal scholar or con-law student could correct me on this if I’m wrong, but my understanding of the framers’ own words is that the constitution does no such thing. Rather, it recognizes rights already inherent in human beings. The most often cited passage from the Declaration of Independence reads,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

This is exactly the opposite of Sarah Palin’s understanding of the idea of “rights.” The framers of the constitution based much of their thinking on the work of John Locke, who, among others, established the notion of an individual’s rights being established within himself. In his Second Treatise on Government, Locke wrote:

[E]very man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this labour being the unquestionable property of the labourer; no man but he can have a right to what that is once joined to….

If this seems a bit esoteric, the fundamental point of Locke’s thinking here is that a man’s “possession” of himself is inherent to his existence. No one may “grant” a man possession of himself; by virtue of being, he possesses himself.

This may come across as a bit tautological,  but it’s worth bearing in mind. (The framers themselves, it’s worth pointing out, might have done well to bear this bit of Lockean wisdom in their minds when it came to discussing their plantation staffs.)

All this is basically to say that the constitution of the United States isn’t a list of benefits you are granted when you become a citizen, but rather a recognition of rights you have innately. It expresses the way that the United States’ government is going to behave vis a vis its citizens.

Consider the contrary: Let’s say, for argument’s sake, that the government did actually dispense rights to its citizens. The implications of this would be drastic, and negative: it would mean that the government would be the arbiter of rights, that it would be able to determine worthiness for specific rights, granting them here and taking them away there. The citizen himself would have no standing to “demand” his rights be respected, because if his rights were “granted” by the state, then the state could just as easily take those rights away.

This is the very definition of totalitarianism, and I don’t think anyone is really arguing for that. But when we’re talking about the way the constitution works, it’s important to follow thoughts to their logical conclusions.

Let’s shift gears for a bit, and return to the present and concrete. As a reporter covering a small town police beat a couple years ago, I sat in court watching a steady parade of rapists, child molesters, wife beaters, drug dealers, and miscellaneous thugs march through the county court. Many were imprisoned or otherwise punished, and the occasional few were acquitted and set free — in other words, afforded their constitutionally-recognized rights to due process.

Does the rapist qua rapist “deserve” or “earn” this right to months of legal wrangling and trial by jury? Not at all — he’s in court because he’s very seriously abrogated the rights of someone else, and the state’s role is to protect the innate rights of the victim. His status as a citizen isn’t at issue. A criminal is someone who violates the innate rights of another person, and we lock them up to make sure it doesn’t happen again. The criminal’s “innate rights” to freedom are being denied to him, sure, but that’s in order to protect the rights of others.

Which brings us to the Underwear Bomber, and hopefully the end of this lengthy post. Sarah Palin scoffed at the fact that he had “lawyered up,” taking advantage of a constitutionally-guaranteed right to legal counsel. This may offend the sensibilities of those who pragmatically want to see terrorists (who really are just a specific brand of criminal, at least in this case) locked up or killed as quickly as possible, but the Tea Partiers might take solace in the fact that by granting this man counsel, the government — which they seem to be so hell-bent against — is taking on the role prescribed to it by the very framers of the constitution they say they love so much. There could not be a better example of government acting in its proper, limited capacity.

Again, consider the counter-factual: in cases where the government determines, on its own, that a person has committed a terrorist act, and further decides to deny him the rights of counsel and trial, it is overstepping its constitutionally-described role, and instead becoming a totalitarian entity that grants and takes away the rights of individuals under its power.

We don’t give trials to rapists and Underwear bombers for their sake. We do it for ours.

-30-

Note: I defer to the opinion of any constitutional law expert who might stumble across this post. My experience with the subject is limited to having sat around in several courtrooms, both military and civilian, and having read a bunch of dusty old books approximately 10 years ago. Corrections and clarifications are welcome and encouraged.

My first instinct was the correct one — it was a thing to be skipped. Palin deals in warmed-over conservative feel-good cliche, and she had at least 46 minutes worth of those Saturday evening, addressing the attendees of the “Tea Party Nation” in Nashville, who had each paid something like $600 per ticket.

Palin had clearly been prepped, but felt enough in her own element that she seemed to go “off-script” occasionally, often losing track of where she was in a sentence, and escaping by adding a string of dependent clauses which she would use to trail off wistfully before launching into a new statement.

Predictably, she made countless references to Ronald Reagan — which brings me to her first instance of where Palin should have felt a strong sense of cognitive dissonance. Early on in her speech, she lambasted President Barack Obama for the administration’s response to what has come to be known as the Christmas Day Panty Bomber incident. She decried the fact that the would-be bomber, one Umar Farouk Abdulmutallab, has been granted legal representation. She drew cheers as she repeatedly stated that Abdulmutallab had “lawyered up,” and suggested that he will now not be providing law enforcement with intelligence about where he was trained, who he had worked with, or if any more plans for attacks were in the works.

I said she should have felt strong cognitive dissonance, and here’s why: Palin paints herself as a strict constitutionalist, and that is apparently where a significant portion of her appeal to Tea Parties lies. But in the very same constitution she professes to hold so dear, it says this:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(That would be the Fifth Amendment, in the Bill of Rights. Emphasis is mine, of course.)

This is one of those cases where the constitution is actually pretty clear. Notice how the amendment does not specify “citizen,” it says, “No person shall.” It’s a crucial difference. Palin, however, reads into the constitution, and adds the popular idea that this document was only ever meant to apply to citizens. The idea of this “inalienability” was an important concept for the original Tea Partiers — the “self-evident” truth that “all men are created equal,” and that the ideas expressed in the Declaration of Independence are universal, not particular.

But never mind the constitution for now. Her hero Ronald Reagan wouldn’t have approved of her approach to the Christmas Day terrorist. Indeed, it was the official policy of the Reagan administration to treat terrorists as common criminals by trying them in civilian courts. (H/t to Salon.com’s Glenn Greenwald).

Furthermore, it seems that since “lawyering up,” Abdulmutallab has begun offering up “actionable intelligence” to the FBI (same link as above). Palin says she loves the constitution, but she has no faith whatsoever in the system of criminal laws that flow from it, despite the fact that the criminal justice system has evidently gleaned answers to all her questions about the Panty Bomber — using legal, constitutional means instead of patently unconstitutional ones, such as waterboarding or extraordinary rendition or violation of habeas corpus.

Palin, constitution and Reagan fan extraordinaire, soldiered on nonplussed.

She drew more cheers by shouting, “We need a Commander-in-Chief, not a professor of law!” This is another strange statement for someone who professes to have so much faith in the constitution, and ought to have caused more cognitive dissonance. Again, returning to the very document she brings up so often, law is a pretty important element of any nation, and the U.S. constitution recognizes this. It further requires civilian control of the military — see Article II, Section 2. The “professor of law” is the Commander-in-Chief anyway, so this is more or less a meaningless statement.

Palin smiled as she said the current president is “0 for 3″ on elections. No trace of cognitive dissonance on the former Alaskan governor’s face, even though as recently as October she had backed failed weirdo Doug Hoffman to represent New York’s 23rd Congressional District, which handed an unexpected seat in the House to democrats. The year before, she managed to pin her star to the failing McCain presidential campaign — and there’s an argument to be made that she herself dashed whatever hopes McCain had left after the financial collapse in 2008.

I found her repeated excoriation of “elites” to be confusing, given that the Tea Party movement seems generally to support the ideas of Ayn Rand, an atheist transplant from Russia, who wrote books about how the only people in the world who matter are elites.

There’s no real need to go on pointing out the glaring incongruities in Palin’s apparent platform. Her fans have demonstrated themselves to be immune from reason, and will not have their minds changed by such pointy-headed intellectuals as will make these observations to them.

But then again, F. Scott Fitzgerald once said that the “true test of a first-rate mind is the ability to hold two contradictory ideas at the same time.”