Prominent conservative lawyers joined liberal colleagues Tuesday in opposing Bush administration anti-terror tactics, arguing that an immigrant held as an enemy combatant has a right to seek his freedom in court.I'm glad to see that at least some of the libertarian/Federalist whackjobs are coming around to the idea that holding people indefinitely without trial on the Bush administration's say-so might be just a weensy tad bit out of sync with the Constitution, really I am. But despite what Epstein says, I would be willing to bet that its apologists and enablers still far outnumber the light-seers in that particular demographic. They portray themselves as fierce, noble, and independent, but behind the pose they are craven, selfish, and intellectually dishonest.
The legal brief, filed in the case of suspected al-Qaida sleeper agent Ali Saleh Kahlah al-Marri, argues that a new military commissions law is unconstitutional.
The argument has been made in this and other detainee cases, but Tuesday's brief is notable for the bedfellows created by the politics of anti-terrorism. Staunchly Democratic law school deans Harold Koh of Yale and Laurence Tribe of Harvard were joined by lawyers such as Steven Calabresi, who served in the Reagan and first Bush administrations and helped found the conservative Federalist Society.
"It shows the phrases 'conservative' and 'libertarian' have less overlap than ever before," said Richard A. Epstein, a University of Chicago law professor and Federalist Society member who signed the brief. "This administration has lost all libertarians on all counts." [Yeah, right.]
In June, the Supreme Court said the Bush administration's handling of detainees violated U.S. and international law. Bush then pressed for, and got, a new law that he said would help the government prosecute terrorists.
The Military Commissions Act allows the military to hold detainees indefinitely and strips them of the right to challenge their imprisonment in U.S. courts. The Justice Department did not immediately have a comment Tuesday night but has defended the law as a constitutional and necessary tool to combat terrorism.
"This involves the executive branch changing the rules to avoid challenges to its own authority," Koh said Tuesday. "Serious legal scholars, regardless of political bent, find what the government did inconsistent with any reasonable visions of the rule of law."
Epstein, who said he regards Koh as "mad on many issues," said the al-Marri case is "beyond the pale."
"They figured out every constitutional protection you'd want and they removed them," Epstein said.
I would be happy to offer them a deal, however: Stay away from government, and government will stay away from you. No vote, no political advocacy, no taxes, no recourse to government benefits or infrastructure of any kind. Go nuts with your bad selves. Just don't kill or otherwise harass any of the sane people, okay?
I would be willing to soften this to, say, limited taxes and limited government benefits, maybe even some kind of "a la carte" system - just stay the hell away from the polls and the media.
Sadly, as with everything else, it's not up to me.