# A kinder, gentler authoritarianism (Giuliani, Romney, and Pres. imprisonment power) **URL:** \ **Category:** The BBQ Pit\ **Created:** [April 1, 2007, 5:53pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320 "2007-04-01T17:53:39Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 1, 2007, 5:53pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/1 "2007-04-01T17:53:39Z")
The Corner’s [Ramesh Ponnuru](http://corner.nationalreview.com/post/?q=M2FiNjU1ZGY5Y2NiY2EyOWIyY2Q2ZWUyNmJlZmQ2NzE=) reports: > [@](#): > > Crane says he was disappointed with Romney’s answer to his question the other night. Crane asked if Romney believed the president should have the authority to arrest U.S. citizens with no review. Romney said he would want to hear the pros and cons from smart lawyers before he made up his mind. Crane said that he had asked Giuliani the same question a few weeks ago. The mayor said that he would want to use this authority infrequently. So if this is correct, the leading candidate for the GOP nomination thinks the President should be able to lock up Americans without any sort of review, but would only use this power ‘infrequently.’ And another prominent candidate would need to check with lawyers before making up his mind. Ummm, dudes: ever hear of the [Magna Carta](http://en.wikipedia.org/wiki/Magna_Carta#Content_of_Magna_Carta)? [Habeas Corpus](http://en.wikipedia.org/wiki/Habeas_corpus#United_States)?? The GOP used to claim it was for limited government. Now? Not so much. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 1, 2007, 6:01pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/2 "2007-04-01T18:01:41Z")
“I do state, but not under oath, that I will generally execute the office of President of the United States, and will for the most part, preserve, protect and defend the Constitution of the United States as I see fit and subject to the advise of my legal staff.” ---
**Author:** ![El\_Kabong](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/el_kabong/32/496_2.png) [@El\_Kabong](https://boards.straightdope.com/u/El_Kabong)\ **Post date:** [April 1, 2007, 6:11pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/3 "2007-04-01T18:11:54Z")
[Quote=RTFirefly] The GOP used to claim it was for limited government. Now? Not so much. [/Quote] Ah, but they never claimed they were for limited authority, did they? Huh? Huh? Anyway, since when does the President get to arrest people at all? I’d insist he at least go through Police Academy first. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 1, 2007, 6:35pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/4 "2007-04-01T18:35:48Z")
The worst part is that both Romney and Giuliani are, on that point, civil-libertarian ideologues compared to the POTUS we’ve got **now.** ---
**Author:** ![Sublight](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@Sublight](https://boards.straightdope.com/u/Sublight)\ **Post date:** [April 2, 2007, 1:39am UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/5 "2007-04-02T01:39:29Z")
[QUOTE=Little Nemo] “I do state, but not under oath, that I will generally execute the office of President of the United States, and will for the most part, preserve, protect and defend the Constitution of the United States as I see fit and subject to the advise of my legal staff.” [/QUOTE] Hey, you weren’t supposed to make a transcript of that! ---
**Author:** ![Malodorous](https://avatars.discourse-cdn.com/v4/letter/m/e47774/32.png) [@Malodorous](https://boards.straightdope.com/u/Malodorous)\ **Post date:** [April 2, 2007, 2:40am UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/6 "2007-04-02T02:40:48Z")
How do the other Prez candidates (McCain, Hillary, Obama) answer this question? I can at least sort of respect the arguments behind holding non-citizens in places like Gitmo under the “enemy combatant” status. I certainly don’t agree with it, but I can at least see how someone could argue for it without completely wiping their ass with the constitution. But claiming the authority to arrest citizens without due process really is indefensible, it’s doing something that’s specifically forbidden. I don’t care which party they belong to or what other postitions the other guy might have, I’ll vote for just about anyone else before I vote for someone who has basically been asked whether they would obey the constitution as president and answered in the negative. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [April 2, 2007, 2:51am UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/7 "2007-04-02T02:51:31Z")
The context is citizens who are enemy combatants. I remind the board that the uber-Democrat, Franklin Roosevelt, faced this situation with an American citizen who had returned to Germany and then came to America again to commit acts of sabotage. The position of his administration was that the controlling aspect of his case was his status as an enemy combatant, not his protections due as a citizen. The Supreme Court agreed, and that man was hanged. At the very least, this complicates the case law. ---
**Author:** ![What\_Exit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/what_exit/32/10652_2.png) [@What\_Exit](https://boards.straightdope.com/u/What_Exit)\ **Post date:** [April 2, 2007, 2:52am UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/8 "2007-04-02T02:52:03Z")
:rolleyes: Would it be too much to ask for a Cite to what Rudy said and the actual context. This looks like a bullshit slam to me. Who the hell is Ramesh Ponnuru and why should I care about an uncited and unsupport paragraph by him? Jim ---
**Author:** ![Malodorous](https://avatars.discourse-cdn.com/v4/letter/m/e47774/32.png) [@Malodorous](https://boards.straightdope.com/u/Malodorous)\ **Post date:** [April 2, 2007, 3:51am UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/9 "2007-04-02T03:51:47Z")
[QUOTE=Mr. Moto] The context is citizens who are enemy combatants. I remind the board that the uber-Democrat, Franklin Roosevelt, faced this situation with an American citizen who had returned to Germany and then came to America again to commit acts of sabotage. The position of his administration was that the controlling aspect of his case was his status as an enemy combatant, not his protections due as a citizen. The Supreme Court agreed, and that man was hanged. [/QUOTE] The Hamdi case overturned that decision, no? ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [April 2, 2007, 12:32pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/10 "2007-04-02T12:32:04Z")
[QUOTE=Malodorous] The Hamdi case overturned that decision, no? [/QUOTE] Looks like it modified it, but _ex parte Quirin_ hasn’t been overturned. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 2, 2007, 12:41pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/11 "2007-04-02T12:41:52Z")
[QUOTE=What Exit?] :rolleyes: Would it be too much to ask for a Cite to what Rudy said and the actual context. This looks like a bullshit slam to me. Who the hell is Ramesh Ponnuru and why should I care about an uncited and unsupport paragraph by him? Jim [/QUOTE] He’s author of _The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life_, and a senior editor of the _National Review_. IOW, he’s right in the mainstream of the wingnutocracy. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 2, 2007, 12:51pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/12 "2007-04-02T12:51:13Z")
[QUOTE=Mr. Moto] The context is citizens who are enemy combatants. I remind the board that the uber-Democrat, Franklin Roosevelt, faced this situation with an American citizen who had returned to Germany and then came to America again to commit acts of sabotage. The position of his administration was that the controlling aspect of his case was his status as an enemy combatant, not his protections due as a citizen. The Supreme Court agreed, and that man was hanged. At the very least, this complicates the case law. [/QUOTE] Could you be specific about the applicability of _Quirin_ here? Did Roosevelt claim a right to hold them without any judicial review of the validity of doing so, and did _Quirin_ uphold that? Because it says [here](http://en.wikipedia.org/wiki/Ex_parte_Quirin#Quirin_and_the_Guantanamo_Bay_Military_Commissions) that the _Quirin_ defendants were able to seek review, and were represented by counsel in so doing. ---
**Author:** ![interface2x](https://avatars.discourse-cdn.com/v4/letter/i/c0e974/32.png) [@interface2x](https://boards.straightdope.com/u/interface2x)\ **Post date:** [April 2, 2007, 1:04pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/13 "2007-04-02T13:04:47Z")
Kind of reminds me of the Simpsons episode that shows the future with Lisa as president. Her head security guard (Nelson) reminds her that “Come on, every president gets three secret murders. If you don’t use them by the end of the term, then pfft, they’re gone.” ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [April 2, 2007, 1:35pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/14 "2007-04-02T13:35:56Z")
The _Quirin_ defendants were tried by military commission. The validity of those military commissions were upheld by the Supreme Court, and most of the defendants were hanged. Where this impacts on the current case is with the case of Herbert Haupt, one of the saboteurs. He was a naturalized American citizen before returning to his native Germany and becoming an agent for the Abwehr. [QUOTE=ex parte Quirin] Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case that the law of war ‘can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed’. Elsewhere in its opinion, the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court’s statement as to the inapplicability of the law of war to Milligan’s case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as-in circumstances found not there to be present and not involved here-martial law might be constitutionally established. The Court’s opinion is inapplicable to the case presented by the present record. We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform-an offense against the law of war. We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission… [/QUOTE] So basically, if you take up arms against your country and are then captured as an unlawful combatant, you aren’t entitled the full protections of the courts granted to normal criminal defendants. You ceded those by your actions. Now, nobody supposes that you aren’t entitled to some protections under the law, many of which are guaranteed by treaty obligations entered into by us and by that tribunal process that is by now pretty well established, and which we are now trying to make more applicable to current conditions. But the case law here cannot be ignored, and neither can the fact that the criminal courts aren’t appropriate to try these cases, even on the rare instance where a citizen might be involved. A well run tribunal system ought to be the goal here. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 2, 2007, 3:19pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/15 "2007-04-02T15:19:34Z")
[QUOTE=Mr. Moto] Now, nobody supposes that you aren’t entitled to some protections under the law, many of which are guaranteed by treaty obligations entered into by us and by that tribunal process that is by now pretty well established, and which we are now trying to make more applicable to current conditions. But the case law here cannot be ignored, and neither can the fact that the criminal courts aren’t appropriate to try these cases, even on the rare instance where a citizen might be involved. A well run tribunal system ought to be the goal here. [/QUOTE] With all due respect, **Mr. Moto** , you are not responding to the issue posed by the OP: > [@](#): > > Crane says he was disappointed with Romney’s answer to his question the other night. Crane asked if Romney believed the president should have the authority to _ **arrest U.S. citizens with no review.** _ The question was whether the President should be able to order an arrest with no review by the courts, which Messrs. Romney and Guiliani waffled on. You cite _Ex parte Quirin_. However, as I read that case, it certainly does not support the postion taken by either Romney or Guiliani. In _Quirin_, both the lower federal court and the Supreme Court reviewed executive detention and trial by military commission, via an application the detainees brought for _habeas corpus_. The federal court and the Supreme Court both dismissed the applications on their merits, but they expressly affirmed that the courts had jurisdiction to review the detention by the executive. The federal government argued that the detention was unreviewable: > [@Chief Justice Stone](#): > > The Government challenges each of these propositions. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President’s Proclamation undertakes in terms to deny such access to the class of persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing. So you have the government arguing for unreviewable executive detention. And the Court rejected it, upholding the courts’ jurisdiction to review the detention by executive order and to examine whether or not the detainees were within the jurisdiction of the military tribunals > [@Chief Justice Stone](#): > > But **there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case**. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners’ contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission. So as I read _Ex parte Quirin_, it stands against the waffling positions taken by Messrs. Romney and Guiliani. By your post, you indicate that it is a given that everyone is entitled to some protections under the law. But again, the question posed was a power of the president to detain an American citizen without any review. So you appear to be supporting the OP by your arguments and case citations. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 2, 2007, 3:21pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/16 "2007-04-02T15:21:24Z")
[QUOTE=Mr. Moto] The _Quirin_ defendants were tried by military commission. The validity of those military commissions were upheld by the Supreme Court, and most of the defendants were hanged. Where this impacts on the current case is with the case of Herbert Haupt, one of the saboteurs. He was a naturalized American citizen before returning to his native Germany and becoming an agent for the Abwehr. So basically, if you take up arms against your country and are then captured as an unlawful combatant, you aren’t entitled the full protections of the courts granted to normal criminal defendants. You ceded those by your actions. [/quote] Exactly. Correct me if I’m wrong, but AFAICT there needs to be, and still is, a right to a judicial determination that that is in fact what you’ve done, before you’re stripped of those protections. You can’t just do it on the government’s say-so, or else they can imprison whoever they damned well please, for whatever reasons they damned well please. That’s the issue here: Giuliani apparently wants that power, and Romney doesn’t seem to think it’s out of the question. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 2, 2007, 3:23pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/17 "2007-04-02T15:23:52Z")
And what **Northern Piper** said. Very nice post. ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [April 2, 2007, 3:33pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/18 "2007-04-02T15:33:58Z")
[QUOTE=RTFirefly] You can’t just do it on the government’s say-so, or else they can imprison whoever they damned well please, for whatever reasons they damned well please. [/QUOTE] Oh yeah? Well what if your neighbor has a nucular weapon what about THAT! I guess a librul like you won’t be happy until your city is a smoking radioactive CRATER! Do you really want to block the police from preventing a bad guy from shoving a fistful of Anthrax up your BUTT! Why would you WANT that! WHY! Love it or leave it, pinko SCUM! huh huh huh, BUTT ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 2, 2007, 3:40pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/19 "2007-04-02T15:40:31Z")
[QUOTE=Mr. Moto] So basically, if you take up arms against your country and are then captured as an unlawful combatant, you aren’t entitled the full protections of the courts granted to normal criminal defendants. You ceded those by your actions. [/QUOTE] Your \*alleged \* actions. So Quirin did away with “innocent until proven guilty” as well? All I have to do is accuse you of terrorism, and your rights are suspended? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 2, 2007, 3:47pm UTC](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320/20 "2007-04-02T15:47:13Z")
[QUOTE=Mr. Moto] I remind the board that the uber-Democrat, Franklin Roosevelt, faced this situation with an American citizen who had returned to Germany and then came to America again to commit acts of sabotage. The position of his administration was that the controlling aspect of his case was his status as an enemy combatant, not his protections due as a citizen. The Supreme Court agreed, and that man was hanged. [/QUOTE] I’m afraid your _tu quoque_ argument isn’t of much help. Constitutions protect civil liberties from all governments, not just when a party you disagree with is in power. Civil rights assume that all governments need to be kept in check, not just the governments you disagree with. As usual, [Mr. Madison](http://www.constitution.org/fed/federa51.htm) puts it well: > [@Federalist # 51](#): > > If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. The protections of the Bill of Rights are there to protect citizens, regardless whether the President of the day is a Dem, or a Pubbie, or a Whig, or a Federalist…and pointing to the example of a president from another party pushing against civil rights just helps to show that those civil rights need to be vigourously defended in all cases, even if you support most of the policies of the current incumbent of the White House. [Next page](https://boards.straightdope.com/t/a-kinder-gentler-authoritarianism-giuliani-romney-and-pres-imprisonment-power/398320.md?page=2)