I struggled with how I was going to address the issue of what the Congress had done to legal rights. I finally decided that even if this were the last time I ever taught I would have to address the subject in all my classes, not just with my brilliant AP students, but even with those who struggle to read at a junior high school level. After all, reading level will not serve as a protection if the Decider classifies you as an enemy combatant.
I apologize that I will not be able to dialog on this diary but briefly, as I am at my alma mater Haverford College for a series of meetings of alumni volunteers (I do admissions work). But before I get to my students, I thought I would share one line from dinner last night. John Whitehead is one of most eminent alums, and he was getting recognized for all he did. Aryeh Kosman is the Whitehead professor of philosophy and in speaking about John he mentioned John `s service as #2 in the State Department under Reagan. Now, as a Quaker institution Haverford is quite liberal in its orientation. When Aryeh quipped that to the liberals at Haverford right now the Reagan administration was actually looking pretty good, the entire place cracked up, including John Whitehead.
Now to my students.
I made it clear that I would be speaking from my personal perspective. As always I reminded them that they were not required to agree with what I said, but because I was passionate on this subject I was going to speak to it directly. I reminded them that I had previously told them I had struggled with whether or not I could continue to teach government honestly, and that I had continued because they were our hope, the future of our country. I had previously told them that I hoped they could learn what our politicians on all sides seemed to have forgotten, how to disagree without being disagreeable, how to argue merits of an argument without denigrating one's opponent.
I then began with Bush's words about the Democrats, the party of FDR and Truman, in which he all but stated that Democrats were not concerned about keeping Americans safe. I reminded students of polling data that showed the only subject on which a majority of American s approved Bush's actions were on fighting terrorism, which might be why the push to bring the focus back there.
I talked about Hamdan. I walked them through how the administration was pretty consistently being slapped down by Courts in its actions - in the paper yesterday was the report of the judge in Idaho (!) who had ruled that former AG Ashcroft could be held personally liable for the illegal incarceration of a person as a material witness in the war on terror. I talked about how this administration and its supporters want to remove the power of judicial oversight over its actions.
We revisited the constitution. We looked at Article I section 9 and the prohibition against suspending Habeas Corpus, and remembered how old that right of Habeas Corpus is. They heard the finding of Ex Parte Milligan. To provide context, we also looked at that part of Article III which allows the Congress to define the appellate jurisdiction of the Supreme Court and its ability to establish all other courts, and briefly discussed Ex Parte McCardle in which the right to restrict judicial review even after a case had been argued at and submitted to SCOTUS was removed from its oversight before a judgment was issued, and this actions was affirmed by the Court.
I try to provide context. And the next necessary context is that the Constitution does not, in its legal guarantees, make a distinction between citizens and non-citizens - the fifth and fourteenth amendment due process guarantees are to PERSONS not citizens.
I walked them through previous examples of military tribunals, our relationships with international law, Common Article III of Geneva, the Hague Convention (which one could argue now means that those members and senators who voted for this legislation could now themselves be the subjects of prosecution for violations of international law), and that many of the provisions of these agreements are also codified in US law. I described waterboarding (that itself will quite possibly result in my getting a formal reprimand), explained that we had derived the technique from people like the Khmer Rouge (thanks David Corn) who did not use it to obtain information but to force show confessions. And I explained why torture is unreliable as a means of obtaining information - that because one being tortured will say anything to stop the pain if you are serious about investigating "leads" generated from such an interrogation you will waste valuable time chasing false trails. To this I contrasted how the FBI broke the first WTC bombing in 1993, and what military interrogators believe about how to investigate, and the objections that have been offered by the JAG leaders to what we are doing.
Of course I described the provisions of the Bill. I tried to give them an example which would bring it home. I noted for those of my students who are not citizens (we have many in our school) it would not matter were they taken into custody in the United States, that they could be referred to the military tribunals. I explained how the legal "protections" built in to the legislation could be suspended by the president at his discretion - I tried to illustrate this by the example of a policeman whom the law prohibits from beating a confession out of you having the power to decide it is important enough so is able to beat you with impunity.
I then used myself as an example. I described the diary I posted yesterday. I noted how widely read it was. I asked rhetorically if it was protected by the First Amendment. I noted that I had disclosed neither military secrets nor intelligence sources, methods or identifies of assets, because I knew none. I had not advocated violent overthrow of the US Government nor urged violence against the president. Normally one would say that what I had written was protected speech.
But the top two leaders of Al Qaeda both know English (bin Laden has talked with people in English in the past, and knew it as university in Saudi Arabia). Suppose hypothetically they were surfing the net and encountered my diary, and in the next tape they released they quoted something from me affirmatively. Would that qualify me as an illegal enemy combatant, even though I never met them, and had never left the US, and was a US citizen? My answer was that given this legislation I did not know, because this legislation gives the president authority with no oversight from anyone to make such a determination.
I was as blunt as I could be. I pointed out that there I could not understand how senators who believed that parts of the legislation were clearly unconstitutional could nevertheless vote for the bill and hope the courts would fix the problems. I raised the issue of having standing to get the issue before the courts. I noted that I had lived through McCarthyism, Watergate and Iran Contra, and considered this legislation potentially the greatest threat to our constitutional liberties in my lifetime.
I told the students that they might feel that I was only saying this because I had opposed Bush in both elections and also opposed our actions in Iraq. I acknowledged that such a reaction had some cogency. But then I asked that if they were willing to give Bush this authority whether they would be willing to give the same authority to a President Clinton, Bill or Hillary. If they were, then I would grant there was intellectual consistency to their position, and while I disagreed I would respect our differences. For my part, I would not give such authority to George Washington or Abraham Lincoln.
I have notified my department chair of what I did. I may be reprimanded, I amy be suspended. I don't know. It depends on what my kids do. Some of my more conservative kids were upset not with me but with the implications of the bill.
In retrospect I probably could have addressed it differently, doing it all by questions, posing hypthotheticals and eliciting their ideas. Form a pedagogical standpoint there was too much of me and not enough opportunity for them. Given the force of my personality some might have felt they could not disagree with em. Thus there is room for legitimate criticism of HOW I did the lesson - had I structured it differently I would have been "protected" to some degree from disciplinary action. But I was tired and did not use good judgment with respect to how I approached the subject. I acknowledged that to my department chair.
As of midnight I had no emails raising any issues, either at home or at school. That could well change over the weekend, especially if students talk about the class with their parents.
Anyhow, some had wondered what I would do with my students. I did mentally struggle with whether I should address it at all. In retrospect I think I handled it poorly, but I was not wrong to address it. And the poor judgment I displayed in how I handled it is sufficient grounds for disciplinary action to be taken against me.
On the other hand, several students did thank me for doing it. So who knows. So far I am not on my way to Guantanamo, so maybe Al Qaeda doesn't read dailykos?
