On a quick read, the federal court's issuance of a temporary injunction against enforcement of the major provisions of the Arizona immigration law appears specious.
In essence, Judge Susan Bolton bought the Justice Department's preemption argument — i.e., the claim that the federal government has broad and exclusive authority to regulate immigration, and therefore that any state measure that is inconsistent with federal law is invalid. The Arizona law is completely consistent with federal law. The judge, however, twisted to concept of federal law into federal enforcement practices (or, as it happens, lack thereof). In effect, the court is saying that if the feds refuse to enforce the law the states can't do it either because doing so would transgress the federal policy of non-enforcement ... which is nuts.
The judge also employs a cute bit of sleight-of-hand. She repeatedly invokes a 1941 case, Hines v. Davidowitz, in which the Supreme Court struck down a state alien-registration statute. In Hines, the high court reasoned that the federal government had traditionally followed a policy of not treating aliens as "a thing apart," and that Congress had therefore "manifested a purpose ... to protect the liberties of law-abiding aliens through one uniform national system" that would not unduly subject them to "inquisitorial practices and police surveillance." But the Arizona law is not directed at law-abiding aliens in order to identify them as foreigners and subject them, on that basis, to police attention. It is directed at arrested aliens who are in custody because they have violated the law. And it is not requiring them to register with the state; it is requiring proof that they have properly registered with the federal government — something a sensible federal government would want to encourage.
Judge Bolton proceeds from this misapplication of Hines to the absurd conclusion that Arizona can't ask the federal government for verification of the immigration status of arrestees — even though federal law prohibits the said arrestees from being in the country unless they have legal status — because that would tremendously burden the feds, which in turn would make the arrestees wait while their status is being checked, which would result in the alien arrestees being treated like "a thing apart."
Showing posts with label Andy McCarthy. Show all posts
Showing posts with label Andy McCarthy. Show all posts
Thursday, July 29, 2010
Thursday, February 25, 2010
Andy McCarthy says White House launching new attack on interrogation methods
The Obama Democrats have outdone themselves.
While the country and the Congress have their eyes on today’s dog-and-pony show on socialized medicine, House Democrats last night stashed a new provision in the intelligence bill which is to be voted on today. It is an attack on the CIA: the enactment of a criminal statute that would ban “cruel, inhuman and degrading treatment.” (See here, scoll to p. 32.)
The provision is impossibly vague — who knows what “degrading” means? Proponents will say that they have itemized conduct that would trigger the statute (I’ll get to that in a second), but it is not true. The proposal says the conduct reached by the statute “includes but is not limited to” the itemized conduct. (My italics.) That means any interrogation tactic that a prosecutor subjectively believes is “degrading” (e.g., subjecting a Muslim detainee to interrogation by a female CIA officer) could be the basis for indicting a CIA interrogator.
The act goes on to make it a crime to use tactics that have been shown to be effective in obtaining life saving information and that are far removed from torture.
“Waterboarding” is specified. In one sense, I’m glad they’ve done this because it proves a point I’ve been making all along. Waterboarding, as it was practiced by the CIA, is not torture and was never illegal under U.S. law. The reason the Democrats are reduced to doing this is: what they’ve been saying is not true — waterboarding was not a crime and it was fully supported by congressional leaders of both parties, who were told about it while it was being done. On that score, it is interesting to note that while Democrats secretly tucked this provision into an important bill, hoping no one would notice until it was too late, they failed to include in the bill a proposed Republican amendment that would have required full and complete disclosure of records describing the briefings members of Congress received about the Bush CIA’s enhanced interrogation program. Those briefings, of course, would establish that Speaker Pelosi and others knew all about the program and lodged no objections. Naturally, members of Congress are not targeted by this criminal statute — only the CIA.
More to the point, this shows how politicized law-enforcement has become under the Obama Democrats. They could have criminalized waterboarding at any time since Jan. 20, 2009. But they waited until now. Why? Because if they had tried to do it before now, it would have been a tacit admission that waterboarding was not illegal when the Bush CIA was using it. That would have harmed the politicized witch-hunt against John Yoo and Jay Bybee, a key component of which was the assumption that waterboarding and the other tactics they authorizied were illegal. Only now, when that witch-hunt has collapsed, have the Democrats moved to criminalize these tactics. It is transparently partisan.
In any event, waterboarding is not defined in the bill. As Marc Thiessen has repeatedly demonstrated, there is a world of difference between the tactic as administered by the CIA and the types of water-torture methods that have been used throughout history. The waterboarding method used by the CIA involved neither severe pain nor prolonged mental harm. But it was highly unpleasant and led especially hard cases like Khalid Sheikh Mohammed (i.e., well-trained, committed, America-hating terrorists) to give us information that saved American lives. The method was used sparingly — on only three individuals, and not in the last seven years. The American people broadly support the availability of this non-torture tactic in a dire emergency. Yet Democrats not only want to make it unavailable; they want to subject to 15 years’ imprisonment any interrogator who uses it.
What’s more, the proposed bill is directed at “any officer or employee of the intelligence community” conducting a “covered interrogation.” The definition of “covered interrogation” is sweeping — including any interrogation done outside the U.S., in the course of a person’s official duties on behalf of the government. Thus, if the CIA used waterboarding in training its officers or military officers outside the U.S., this would theoretically be indictable conduct under the statute.
While the country and the Congress have their eyes on today’s dog-and-pony show on socialized medicine, House Democrats last night stashed a new provision in the intelligence bill which is to be voted on today. It is an attack on the CIA: the enactment of a criminal statute that would ban “cruel, inhuman and degrading treatment.” (See here, scoll to p. 32.)
The provision is impossibly vague — who knows what “degrading” means? Proponents will say that they have itemized conduct that would trigger the statute (I’ll get to that in a second), but it is not true. The proposal says the conduct reached by the statute “includes but is not limited to” the itemized conduct. (My italics.) That means any interrogation tactic that a prosecutor subjectively believes is “degrading” (e.g., subjecting a Muslim detainee to interrogation by a female CIA officer) could be the basis for indicting a CIA interrogator.
The act goes on to make it a crime to use tactics that have been shown to be effective in obtaining life saving information and that are far removed from torture.
“Waterboarding” is specified. In one sense, I’m glad they’ve done this because it proves a point I’ve been making all along. Waterboarding, as it was practiced by the CIA, is not torture and was never illegal under U.S. law. The reason the Democrats are reduced to doing this is: what they’ve been saying is not true — waterboarding was not a crime and it was fully supported by congressional leaders of both parties, who were told about it while it was being done. On that score, it is interesting to note that while Democrats secretly tucked this provision into an important bill, hoping no one would notice until it was too late, they failed to include in the bill a proposed Republican amendment that would have required full and complete disclosure of records describing the briefings members of Congress received about the Bush CIA’s enhanced interrogation program. Those briefings, of course, would establish that Speaker Pelosi and others knew all about the program and lodged no objections. Naturally, members of Congress are not targeted by this criminal statute — only the CIA.
More to the point, this shows how politicized law-enforcement has become under the Obama Democrats. They could have criminalized waterboarding at any time since Jan. 20, 2009. But they waited until now. Why? Because if they had tried to do it before now, it would have been a tacit admission that waterboarding was not illegal when the Bush CIA was using it. That would have harmed the politicized witch-hunt against John Yoo and Jay Bybee, a key component of which was the assumption that waterboarding and the other tactics they authorizied were illegal. Only now, when that witch-hunt has collapsed, have the Democrats moved to criminalize these tactics. It is transparently partisan.
In any event, waterboarding is not defined in the bill. As Marc Thiessen has repeatedly demonstrated, there is a world of difference between the tactic as administered by the CIA and the types of water-torture methods that have been used throughout history. The waterboarding method used by the CIA involved neither severe pain nor prolonged mental harm. But it was highly unpleasant and led especially hard cases like Khalid Sheikh Mohammed (i.e., well-trained, committed, America-hating terrorists) to give us information that saved American lives. The method was used sparingly — on only three individuals, and not in the last seven years. The American people broadly support the availability of this non-torture tactic in a dire emergency. Yet Democrats not only want to make it unavailable; they want to subject to 15 years’ imprisonment any interrogator who uses it.
What’s more, the proposed bill is directed at “any officer or employee of the intelligence community” conducting a “covered interrogation.” The definition of “covered interrogation” is sweeping — including any interrogation done outside the U.S., in the course of a person’s official duties on behalf of the government. Thus, if the CIA used waterboarding in training its officers or military officers outside the U.S., this would theoretically be indictable conduct under the statute.
Tuesday, November 17, 2009
Lynn Stewart, abettor of terrorists, going to jail
Perhaps Lynne Stewart should have quit while she was behind. Convicted of abetting terror while acting as an attorney for the Blind Sheikh, Omar Abdel Rahman, Stewart had remained free on bail while appealing her conviction. Today, the federal appeals court not only upheld her conviction and revoked her bail, but they also sent the case back to the district court for reconsideration of the shockingly light 28-month sentence Stewart initially received (via JWF):
Disbarred radical lawyer Lynne Stewart is going to jail – maybe for a lot longer than she thought.
A federal appeals court Tuesday upheld her conviction for smuggling messages to her jailed terrorist client, and said she deserves more than the 28 months she got because she may have lied at her trial.
Stewart, 70, is to surrender to U.S. Marshals immediately. The Brooklyn resident has been free on bail since 2006.
Andy McCarthy, who prosecuted Rahman and faced off against Stewart in the courtroom, explains the issue of sentencing more clearly than the initial news reports:
Yes, the sentence — that’s the interesting part. The court has sent Stewart’s case back to the trial judge for reconsideration of her absurdly short 28-month jail term (after the government asked for 30 years). The sentence has divided the appellate panel. All three judges agree that the sentence needs to be reconsidered. But two judges, Sack and Calabresi, seem to be narrowing the complaint down to whether Stewart committed perjury at her trial, which — if she is found by the sentencing judge to have done so — would call for a modest increase. In dissent, Judge Walker’s point is that a 28-month sentence for the terrorism-related offenses Stewart committed is a travesty whether or not she committed perjury.
Disbarred radical lawyer Lynne Stewart is going to jail – maybe for a lot longer than she thought.
A federal appeals court Tuesday upheld her conviction for smuggling messages to her jailed terrorist client, and said she deserves more than the 28 months she got because she may have lied at her trial.
Stewart, 70, is to surrender to U.S. Marshals immediately. The Brooklyn resident has been free on bail since 2006.
Andy McCarthy, who prosecuted Rahman and faced off against Stewart in the courtroom, explains the issue of sentencing more clearly than the initial news reports:
Yes, the sentence — that’s the interesting part. The court has sent Stewart’s case back to the trial judge for reconsideration of her absurdly short 28-month jail term (after the government asked for 30 years). The sentence has divided the appellate panel. All three judges agree that the sentence needs to be reconsidered. But two judges, Sack and Calabresi, seem to be narrowing the complaint down to whether Stewart committed perjury at her trial, which — if she is found by the sentencing judge to have done so — would call for a modest increase. In dissent, Judge Walker’s point is that a 28-month sentence for the terrorism-related offenses Stewart committed is a travesty whether or not she committed perjury.
Subscribe to:
Posts (Atom)
