Put down the scalpel, son, and nobody gets hurt

One of the few rewards that comes from the work required to pen the longer pieces I write for Raw Story is seeing my memes spread. (Money would be another welcome reward. Hypothetically.) My last piece about the parallels between the Military Commissions Act and the Enabling Act of 1933 generated relatively few comments at Raw, but but has been linked to and "reprinted" quite a bit.

Another reward that I have not really had the pleasure of receiving is real and thoughtful engagement from those who disagree. Sure, there are trolls throwing potshots, but when I took on dangerous nonsense from Victor Davis Hanson or Richard Cohen, or argued against the excesses of the Bush cabal, I cannot recall any real attempts to dispute my logic, or seriously dispute my facts. As noted in a previous post, the Enabling Act piece was the backdrop for a few rounds of The Dozens on a conservative site, but the level of discourse never climbed above "so's your mother."

Anyway, while wandering through Technorati a few days ago, I stumbled upon what appears to be an attempt to debate on the merits. (It is a month old, but my vanity is also amateur -- I don't search for myself that often, but having found it, I want to respond.) Behold:

Kannard's Random Stuff: An Answer to John Steinberg

I am flattered -- or would be, if I could find some meat on these bones. So please bear with me while I dispose of Kannard's canards. (Don't worry; it won't take long.)

Among other things, Kannard accuses me of using a "poor form of argument," so I will be correcting his paper on that score as well.

First, Mr. Kannard devotes roughly two-thirds of his riposte to an explanation of why the Geneva Conventions do not apply to "insurgent forces." So here is the only sentence of my piece that so much as mentions them:

Forget, for the moment, that the proposed “compromise” torture legislation effectively abrogates the Geneva Conventions.

That's it. So Kannard is not exactly meeting me on the playing field here. (The logical fallacy is the straw man. Or red herring. Up to you.)

But Kannard does eventually make an attempt to come within hailing distance of the issue.

In regards to the Bush Administration’s “Enabling Act”, as Mr. Steinberg calls it, pay particular attention to the use of the word “alien”. No one is suggesting that this power be used to detain or imprison American citizens. If it were, I would be the first to lead the charge against the Capitol Building. Mr. Steinberg’s logic here is that foreign nationals are afforded the rights and privileges of a United States citizen; namely our Constitutional right of due process. I once again fail to see how a foreign national that presents a clear and present danger to our national interest operating outside our borders can be mystically granted the privilege of our Constitutional protection. The extension of Mr. Steinberg’s argument is that all foreign nationals are protected under all of our laws, at any time and any place. I will leave you to ascertain the dynamics this implies.

The first highlighted statement is false. The exact reach of the MCA is not clear, but many people in positions of authority have indeed suggested that it applies to citizens. (Appeal to anonymous authority, perhaps. Or error of fact. Take your pick.)

As for the second highlighted statement, I need only point out that Kannard seems to divide the world into U.S. citizens and "insurgents." So I assume that in that bleak world, Kannard is okey-dokey with this:

In 2001, al-Marri, a citizen of Qatar, was in the United States legally, on a student visa. He was a computer science graduate student at Bradley University in Peoria, Illinois, where he had earned an undergraduate degree a decade earlier. In Peoria, he lived with his wife and five children.

In December, 2001 he was detained as a "material witness" to suspected acts of terrorism and ultimately charged with various terrorism-related offenses, mostly relating to false statements the FBI claimed he made as part of its 9/11 investigation. Al-Marri vehemently denied the charges, and after lengthy pre-trial proceedings, his trial on those charges was scheduled to begin on July 21, 2003.

But his trial never took place, because in June, 2003 -- one month before the scheduled trial -- President Bush declared him to be an "enemy combatant." As a result, the Justice Department told the court it wanted to turn him over to the U.S. military, and thus asked the court to dismiss the criminal charges against him, and the court did so (the dismissal was "with prejudice," meaning he can't be tried ever again on those charges). Thus, right before his trial, the Bush administration simply removed Al-Marri from the jurisdiction of the judicial system -- based solely on the unilateral order of the President -- and thus prevented him from contesting the charges against him.

Instead, the administration immediately transferred al-Marri to a miltiary prison in South Carolina (where the administration brings its "enemy combatants" in order to ensure that the executive-power-friendly 4th Circuit Court of Appeals has jurisdiction over all such cases). Al-Marri was given the "Padilla Treatment" -- kept in solitary confinement, denied all contact with the outside world, including even his own attorneys, not charged with any crimes, and given no opportunity to prove his innocence. Instead, the Bush administration simply asserted the right to detain him indefinitely without so much as charging him with anything.

The ability to "disappear" legal U.S. residents without charges, without process and without recourse is the exact danger I warned against. It is a danger Kannard is either unconcerned with, or refuses to recognize.

It does not necessarily follow, as Kannard believes, that I want to extend the Constitution to all people everywhere. (False dichotomy.) I am primarily concerned with what happens right here, though our behavior on foreign soil far from the battlefield complicates the analysis quite a bit. Where does al Mari fit into your dichotomy? Not a citizen, therefore an enemy combatant? Are you sure?

Finally, Kannard levels his conclusory charge:

Finally, Mr. Steinberg uses a poor form of argument by bringing up the German Enabling Acts. The Enabling Act has nothing to do with the topic at hand and is called a non sequitur argument. If Mr. Steinberg wishes to present his views on a piece of legislation the Bush Administration is presenting, then stick to that.

A serious flaw if true. But is it? I did not say Bush is Hitler. I did not say Republicans are Nazis. I merely cited the text of two laws, and argued that each allows the executive unchecked power. Most constitutional scholars agree. The argument is only a non sequitur in the sense that Kannard can neither dispute the premise nor accept the conclusion, so he must deny the logic without ever explaining why it is inappropriate. (Further deduction for finding a flaw where none exists, K.)

Is there an emotional aspect to my argument? Hell, yes. But that is only a fallacy if the logic is suspect. And Kannard has failed to make a case for that argument.

The question Kannard refuses to confront is this: do you want to give the President of the United States the unchecked power to declare legal residents (and perhaps citizens) beyond the reach of any legal process, forever and ever amen? Will your answer be the same for President Hillary? If the answer is still yes, I congratulate you on your consistency, but you are arguing for a system Madison, Hamilton and Jefferson would not recognize.

I read once that J.S. Bach's kids messed with him by playing the keyboard in the house and stopping with an unresolved chord, forcing him to drop whatever he was doing and play a final resolving chord in order to put his mind at rest.

I'm going back to work now.