600,000 excess deaths in Iraq since U.S. invasion

A sample of 12,801 individuals in 1,849 households and in 47 geographical locations shows that the death rate in Iraq increased from 5.5 people thousand people before the U.S. invasion to 13.3 per thousand after. This is almost entirely due to a vast increase in the number of violent deaths.

This implies that about two hundred (200) times as many extra Iraqis have been killed since the U.S. invasion as the number of Americans killed on 9/11. While most of the deaths in the first year were attributed to the U.S.-led forces, most of the deaths since are attributed to insurgents. The study controlled for reporter bias by checking actual death certificates and finding them in 92% of the cases -- pretty good record-keeping and truth-telling for such a chaotic land.

Here is the study. Here is a good discussion of the study.

Just one.

Visual mathematics

Symbols are indispensible, but we lost something when symbolic algebra replaced geometry as the main medium of mathematics. My math is quite rusty but I understood these proofs within a few seconds. Via Teeming Multitudes.

Prosecute U.S. Justice Department lawyers as war criminals?

In an article most Americans (not including me) will find outrageous, but many international legal scholars and overseas judges will not, Scott Horton argues that U.S. Justice Department lawyers who advised executive officers that acts such as "extraordinary rendition," waterboarding, and so on were legal, when they should have known that they were war crimes, can and should themselves be prosecuted overseas for war crimes, along with the officers who ordered or carried out the alleged war crimes. I have previously discussed how many lawyers in and the bureaucratic culture of the Justice Department, and not just the current President, are morally responsible for the expansions of power, in violation of the U.S. Constitution and international law, that have occurred in the U.S. executive branch in former as well as recent years. Now Horton argues that these lawyers can also be held legally responsible for war crimes under international criminal law when they advised, having actual or constructive knowledge to the contrary, that those criminal acts were legal.

Horton starts with a premise that should be self-evident: "In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn." Horton cites the Nuremburg war crimes case United States v. Altstoetter. German Justice Department lawyers had drafted detailed regulations implementing commander-in-chief Adolf Hitler's "Night and Fog" (Nacht- und Nebelerlass) decree which authorized secret detentions, i.e. "disappearing" or "extraordinary rendition" in wartime, a violation of the Hague Conventions:

The [German] Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, "not farmers or factory workers," they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were "recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war." That is to say, they were customary international law. Further, the United States charged, this decree "would probably cause the death of human beings," grounding a charge of homicidal intent.

After trial, the two principal Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years' imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.

Horton also makes the interesting observation that Military Commissions Act, recently passed in the U.S., by so clearly preventing prosecutions within the U.S. for violations of international law, makes the assertion of overseas jurisdiction against U.S. citizens far more clearly legal in "universal jurisdiction" countries. Of course, practical politics will almost surely prevent overseas courts from exerting coercive process over employees of the world' s sole superpower, but it's nevertheless a quite interesting argument:

Clearly there will be no prosecutions in the US, certainly not under Attorney General Alberto Gonzales, who would figure near the top of anyone's list of criminal conspirators and whose name has already appeared in a criminal indictment relating to Abu Ghraib. But what about universal jurisdiction processes? Spain, France, Belgium, Germany, Switzerland and Italy all have universal jurisdiction statutes. Germany has already entertained a complaint against Rumsfeld, Tenet and others over detainee abuse questions. That complaint was dismissed without prejudice by the German Federal Prosecutor. In his opinion, the Federal Prosecutor stated that the first predicate of the statute had not been met since there was no showing that a prosecution for the crimes shown in the home nation of the defendants would not occur. Considering the political and military position of the United States, the invocation of a universal jurisdiction statute against sitting officers of the government has to be viewed as more than an uphill task. But I think passage of the [U.S. Military Commissions] Act has just made it a whole lot easier.

Reaching U.S. citizens with coercive process could be very difficult. But these universal jurisdiction countries could establish a war criminal suspect watch list for use in their airports, just as we have terrorist watch lists. Many Justice Department lawyers could then find themselves sadly limited in their vacation itineraries.

Hungarian Revolution anniversary

October 23rd will be the fiftieth anniversary of the Hungarian Revolution. It was a glorious lost cause; glorious enough that Hungary, and the world, won in the long run.

The Hungarian American Federation has a great 1956 page. Wikipedia has a good article. My alma mater happens to have a good collection of historical documents related to the Revolution, along with an introduction to the events. Here is an old newsreel that provides a good overview. Even Quentin Tarantino helped make a movie about the Revolution and a nasty game of water polo.

My dad was one of those students who wouldn't put up with tyranny. Besides communism being defeated in the end, there was a bright spot for myself and my siblings in particular: it brought my dad to America to meet my mom, making us possible. :-) But thousands of Hungarians didn't make it through November.

Liberty and habeas corpus (II)

The long reach of habeas corpus was reaffirmed by the U.S. Supreme Court in Hamdi v. Rumsfeld, in 2004, when it ruled that U.S. citizens detained in Guatanamo Bay, a U.S. military base on long-term lease from Cuba, were on U.S. territory and therefore have a right to plea to a U.S. federal court for habeas corpus and thereby enforce certain minimal liberty rights under the Due Process Clause. The companion case, Rasul v. Bush, declared that aliens (non-citizens) held at an overseas U.S. military base also have this right. However, recently passed legislation, the Military Commissions Act, has suspended habeas corpus protection for all aliens, even the tens of millions of aliens visiting or residing inside the United States proper. It also jeopardizes many of the legal protections U.S. citizens have against arbitrary detainment once we have invoked habeus corpus.

In Hamdi Justice Scalia, unusually joined by Justice Stevens, quoted William Blackstone's 18th century legal treatise, parts of which had also been quoted by Alexander Hamilton in Federalist #84:

"Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities. ... To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. ...

"To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, ... that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him." 1 W. Blackstone, Commentaries on the Laws of England 132-133 (1765) (hereinafter Blackstone).

Scalia added:

It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing. Cf. Kansas v. Hendricks, 521 U. S. 346, 358 (1997) ("A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment").

Both Scalia and Stevens held that this applied to military detentions of U.S. citizens as much as to imprisonment by civilian courts. However Scalia, but not Stevens, made a strong distinction between U.S. citizens and aliens. "Citizens aiding the enemy have been treated as traitors subject to the criminal process," and thus when imprisoned entitled to invoke the federal courts via habeas corpus.

The Great Writ has been often been suspended in areas and periods of warfare, allowing armies to capture enemies en masse without incurring legal overhead, but such suspensions have often led to unjust deprivations of liberty. Liberty, as well as life, property, and truth, is a common casualty of war. Without habeas corpus severe political oppression and deprivation of liberty through the practice of disappearing becomes all too easy.

Blackstone wrote about the conditions under which the writ might constitutionally be suspended:

"And yet sometimes, when the state is in real danger, even this [i.e., executive detention] may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing... . In like manner this experiment ought only to be tried in case of extreme emergency; and in these the nation parts with it[s] liberty for a while, in order to preserve it for ever." 1 Blackstone 132.

Among other constitutional problems with the recently passed legislation, the Military Commissions Act, suspending habeas corpus for aliens, is that it has done so until repealed by Congress, rather than "for a short and limited time." It's also absurd to argue, as some have, that the U.S. currently in a state of "invasion" or "rebellion" as required by the Constitution:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Art. I, §9, cl. 2.

In Eisentrager v. Forrestal, the Court had held that German citizens captured in China during World War II and imprisoned in Germany did not have the right to invoke habeas corpus in U.S. federal courts. The special conditions quoted in Eisentrager were as follows: the defendant " (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." Although Eisentrager was decided by a court similar to the Court that decided the notorious case of Korematsu, legitimatizing wholesale confiscation of property and internment in concentration camps of innocents in wartime, it does set at least some minimal bounds on what alien combatants may be arbitrarily derived of their liberty.

As Justice Stevens wrote in his majority opinion in Rasul:

this Court has recognized the federal courts' power to review applications for habeas relief in a wide variety of cases involving Executive detention, in wartime as well as in times of peace. The Court has, for example, entertained the habeas petitions of an American citizen who plotted an attack on military installations during the Civil War, Ex parte Milligan, 4 Wall. 2 (1866), and of admitted enemy aliens convicted of war crimes during a declared war and held in the United States, Ex parte Quirin, 317 U. S. 1 (1942), and its insular possessions, In re Yamashita, 327 U. S. 1 (1946).

Stevens distinguished the facts in Rasul from those in Eisentrager:

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

In concurrence, Justice Kennedy distinguished the Guantanamo Bay detentions from those in Eisentrager as follows:

The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the [habeas corpus] petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities....The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify "a limited opening of our courts" to show that they were "of friendly personal disposition" and not enemy aliens. [citation omitted] Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

During the debate over the Military Detentions Act some Senators, such as Arlen Specter (R-PA), argued that the habeas corpus provision of this Act was unconstitutional, but then, pathologically, voted for it anyway. In the early years of the Constitution, it was Congress, not the Courts, who were mainly responsible for making sure legislation stayed within constitutional bounds, and constitutional issues were often debated in Congress and were considered the most decisive issues. Voting for an admittedly unconstitutional Act was a highly irresponsible act. We have a seriously paranoid and unstable situation with Washington D.C. culture and it cannot be predicted how the highly divided Court with two new conservative membes will vote. Not just the Supreme Court, and not just the Executive, but all U.S. citizens, including Congress, are responsible for obeying the Constitution and ensuring that it is obeyed by our leaders.

New fun legal specialty

What could be wrong with more fun jobs for lawyers?

The Lex Gabina: ancient Military Commissions Act?

Historical novelist Robert Harris writes a good article on the parallels between Pompey's war on piracy, accompanied by the Lex Gabina, and the modern war on terror and accompanying expansion of unchecked executive power. The ancient Greek historian Plutarch wrote that the Lex Gabina, a response to piratical terrorism at Rome's main port, Ostia, ceded "what amounted in fact to an absolute authority and uncontrolled power over everyone." Literally Pompey was granted an authority to wage war that extended fifty miles inland from any coast, which included Rome and most other major cities and towns of the Republic. Perhaps not far from the arbitrary detentions now allowed under the new Military Commissions Act. The MCA grants the U.S. military the authority to detain either U.S. citizens or foreigners anywhere in the world and try them before military commissions with a bare minimum of due process. If you are not a U.S. citizen, there is no appeal to normal U.S. courts as habeas corpus for you has been suspended, regardless of whether you reside in the U.S.

Pompey did far better than our modern terror warriors: he is reported to have eliminated the pirate threat all across the Mediterranean within three months. But this was not followed by a rescinding of his powers. Rather, military jurisdiction over civilians came to be seen as normal, and political opposition to these powers came to be seen as a form of aid and comfort to rebels or pirates, and thus legally categorized alongside rebellion and piracy. Julius Caesar, followed by Augustus Caesar, would soon usurp Pompey's power, ending the Republic and creating the totalitarian Empire. (Yes, the political plot of "Star Wars" was loosely based on these all too real events).

Another parallel closer to our time was the Reichstag Fire, a terrorist attack which was followed by the Enabling Act. This statute, however, was a far more overt assumptions of arbitrary executive power and abrogation of the constitution than the Military Commissions Act.

The conversion of democratic fear into totalitarian power is a very ancient and devasting pattern.

Hello Kitty people

Nicholas Carr complains about the lack of human intervention in the calculation of many web search engine rankings. This popular viewpoint is like the silly final scene in the original Star Wars movie: turn off that darned machine and "trust the force, Luke." Never mind that web searches, like the torpedo or whatever that destroyed the Death Star, necessarily require complex technology, or that the algorithm can make billions of decisions in the time it would take Carr or myself or a Chinese firewall operator to make one. Carr bitterly complains that some commentary that he and I and Martin Luther King would find quite disagreeable comes first when you Google for "Martin Luther King." Out of trillions of possible short search phrases, Google's algorithm can be shown to produce an occasional poor result -- oh my!

Carr would thus like to substitute human judgment -- or more precisely, the judgment of some human who agrees with him -- for Google's algorithm. He makes the robotic assumption that a human is automatically more trustworthy than robot. After all, we are much more cuddly than robots. Like the humans that run the Chinese firewall, he fails to add.

But automata have often served as authority to great human benefit. In late medieval times, mechanical clocks replaced more erroneous or subjective time measures such as the sun or personal inclination. The result was that we be became better coordinated in all sorts of ways. The calculator on a cash register cuts way down on disputes over counting change. Entire professions like accounting, auditing, and the law, among others, exist because human strangers cannot, and should not overly pretend to, trust each other without some highly evolved, verifiable, and often repeatedly mechanical institutions. In other words, processes and rules.

Human trust requires being able to tell the "good guys" from the "bad guys." That only occurs among people who know each other well (and otherwise, in fiction). People who have gotten a close look underneath often misleading robes. For every other kind of relationship we depend on those loathsome processes and rules, as objective as possible. Whether we like to admit it or not, and we usually don't. And the people who don't are proud to say so. They sound like much more agreeable people if they just trust everybody, and expect everybody to trust them, regardless of how well they know or are known. Call them the Hello Kitty people. Until proven otherwise, each and every one of the six-plus billion people on the planet are angelic and adorable fuzzballs who can be fully trusted by everyone. Until disillusioned, Hello Kitty people purr with content. And thereby they come across as the most adorable of us all. As opposed to computer programmers or lawyers with our cold hard rules.

The Hello Kitty people are those teenagers who put their personal lives on MySpace and then complain that their privacy is being violated. They are the TV viewers who think that the Hurricane Katrina rescue or the Iraq war were screwed up only because we don't, they belatedly discover, have actual Hello Kitties in political power. When inevitably some of world's Kitties, unknown beyond their cute image, turn out to be less than fully trustworthy, the chorus of yowling Kitty People becomes unbearable cacophony.

The people who run search engines and other remote Internet companies are generally not our families, nor our close friends. They are not organizations we can come to trust merely based on their humanity. When it comes to strangers, human judgment is often far less verifiable, and thus far less accountable, than an algorithmic intermediary. When stranger trusts stranger, human judgment all too easily turns into human corruption. How many examples of strangers, or nearly so, killing each other, lying to each other, stealing from each other, and so on do you need in the news every day to be convinced that many strangers have other things on their mind besides your welfare? (Hint: the headlines are just the tip of the iceberg. Strangers harming strangers are vastly more common than an algorithmic Google ranking we'd all agree is erroneous).

With large institutions staffed by strangers (e.g. a big search engine company), the human appearances can be far more deceiving than for the people we know and therefore can rationally trust without the help of verified performance of rules. Among strangers a computer program, at least an open source one or one whose results can readily be tested by third parties, is often much fairer and far less corruptible than human judgment. The highly controversial area of web search rankings is probably one of the areas where this is the case. I usually trust simple objective ranking algorithms (e.g. those based on counting links) long before I trust the censorship of ideologized strangers like Carr or the censorious bozos on the Chinese firewall. But our emotional instincts evolved in small little tribes, and so there will always be countless Hello Kitty People to decry all these cold hard rules and programs in favor of their own fuzzy and cuddly illusions. If the world were just a fiction movie, or just a little happy tribe, I'd quite agree with them.

Liberty and habeas corpus (I)

The writ of habeas corpus is an order from a national court to a local entity that has imprisoned a person to (1) produce that person at the national court, and (2) provide that court with a good reason for the imprisonment. Habeas corpus is is an extraordinary writ, and for that reason runs much farther than the normal jurisdiction of the national court. The local entity commanded by the writ can be any entity within the nation, or any within any territory of that nation (including military bases), or on any of the nation's ships at sea: any entity at all that claims the right to detain people. Habeas corpus is almost a millennium old, and in various forms it is probably much older. It has been and remains the main way by which legal rights against the arbitrary detention of a person by any kind of entity are enforced. Habeas corpus well deserves its other traditional name: the Great Writ.

Two cases help illustrate how crucial habeas corpus has been to the development of liberty. The core meaning of the word "liberty" itself is simply freedom from bodily constraint without due process of law. For many hundreds of years in legal systems derived from English law, habeas corpus has been the main, and often the only, mechanism by which this most essential of freedoms has been enforced.

Dr. Bonham's Case, in 1610, played a key role both in the history of American and Commonwealth constitutional law and in the ending of the power of the guilds. Guilds were somewhat like labor unions or business cartels, but often with an extra power -- the power to themselves convict and imprison those operating in the guild's business.

Besides guild courts, there were a large number and variety of other franchise courts in England: church courts, merchant's courts, manorial courts, mining courts, colonial courts, municipal courts, the courts of private counties, and so on. The king's courts generally had no jurisdiction to hear appeals from franchise or military courts except by extraordinary writ -- the most important of which was habeas corpus.

Dr. Bonham was imprisoned by the London physician's guild for practicing medicine in London without their license. Habeas corpus made it possible for Dr. Bonham to appeal his imprisonment. The Court freed Dr. Bonham, holding that his due process rights had been violated by the guild: the guild's conviction had not been obtained before a proper court.

Somerset's Case, in 1772, played a crucial role in the abolition of slavery. Somerset was a (former, it was argued) slave (formerly) owned by a merchant from the American colonies. When Somerset escaped from his master, he was recaptured and put on a boat for the British territory of Jamaica. An abolitionist petitioned on Somerset's behalf for habeas corpus, which Lord Mansfield granted. Still on the high seas, the writ of habeas corpus ordered the British captain to bring Somerset to London to be produced before the King's Bench. Slavery was no ordinary kind of property: it was also a deprivation of bodily liberty. As such, habeas corpus made it possible for the slave to challenge his status as bodily detained property. The high court's writ of habeas corpus reached far beyond Great Britain to the United Kingdom's colonies and its ships as sea. Once Parliament banned slavery across the British Empire, the Great Writ was crucial in implementing the ban to abolish slavery throughout that globe-spanning enterprise.

The Great Writ has been often been suspended in areas and periods of warfare, leading to great abuse but also to the ability to efficiently and ruthlessly fight the war without the legal overhead. The U.S. Constitution specifies that habeas corpus may be suspended only by Congress, and only with respect to invasion or rebellion (it may not be suspended domestically due to a foreign war or mere domestic crime), and even then only so long as public safety requires the suspension. Article I (listing the powers of Congress) states:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Art. I, §9, cl. 2.

More about the habeas corpus , military detention, and the Military Commissions Act coming soon in a subsequent post.

UPDATE: Here are some subsequent posts on habeas corpus and the MCA:
The Lex Gabina: ancient Military Commissions Act?
Liberty and habeas corpus (II)

More on arbitrary detainment and habeas corpus suspension

More good comments on the monstrous legislation from Jack Balkin, Jack Balkin, and Glenn Greenwald. The best comments are from a bunch of law professors, who attach the text of the Senate bill. I am no Democrat, but I couldn't agree more with Greenwald that our most urgent and important tasks here in the U.S. this fall are to end one-party rule of the federal government and to punish politicians who have voted away our freedoms. Toward that end here is the list of Representatives who voted for and against arbitrary detainment. See my prior post to determine how your Senators voted.

Per Balkin's comments, and the comments of many who supported this legislation, an individual right of action in court -- i.e. habeas corpus -- has for many hundreds of years been the first line of defense against illegal imprisonment. Often it the only way for a prisoner to make his case heard. Without a right of action in court, any and all of the Bill of Rights, the Geneva Convention, and so on are just theoretical. That the a member of the executive branch would be doing something illegal by detaining innocents indefinitely, committing torture, and so on is moot unless it leads to impeachment or a court hearing. The possibility of impeachment, extremely unlikely even if the Democrats win in November, and no matter how many illegal acts the executive branch adds to the probable thousands it has already recently committed, is no substitute for the right of a person to defend his or her own rights in court. Furthermore, even if the President were impeached this would be not nearly enough to disincentivize the failure of much of the rest of the executive branch, as the Constitution commands them, to "take care that the laws be faithfully executed." The fate of a short-term denizen of the White House is not that big a deal to a career bureaucrat who is doing the immediate law breaking. Faithful law enforcement depends crucially on the ability of the targets of that enforcement to defend themselves in court.

Arbitrary detainment and suspension of habeas corpus

I am horrified by the legislation the U.S. Senate passed today. It will, short of a miracle, be signed by President Bush into law. The bill:

(1) Suspends habeas corpus for all aliens, including tens of millions of aliens within the United States and its territories. This means resident aliens can be imprisoned, tortured, etc. without recourse to U.S. courts to challenge the legality of any kind of detention or treatment, no matter how despicable or illegal that treatment may be. Habeas corpus has protected the rights of all residents imprisoned in English and United States territory, by ensuring them appeal from abusive detention to the normal courts of the land, under English and United States law for over 900 (that's nine hundred) years. Habeas corpus is the wellspring of all other legal protections we have against abuse of the power to detain or imprison. For a substantial part of the U.S. population, and for all foreigners, it is now gone. (It should be noted that there has been traditionally and does need to be an exception for aliens on an actual battlefield, otherwise the ability of our military to fight would be severely compromised. But this legislation excludes all aliens from habeas protection, including the tens of millions of aliens living peacefully within or peacefully visiting the U.S.).

(2) Subjects all persons, including all U.S. citizens, at the whim of the executive branch, to arbitrary detention, for indefinitely long periods of time, as "enemy combatants." Although U.S. citizens still have an appeal to normal courts via habeas corpus, the tendency of recent courts to defer to legislation over fundamental liberty rights disturbingly suggests a large free hand for the executive branch, regardless of the party of the President, here too.

The vote was mostly along party lines; here are the exceptions (h/t Glenn Greenwald):

Democrats in favor (12) - Carper (Del.), Johnson (S.D.), Landrieu (La.), Lautenberg (N.J.), Lieberman (Conn.), Menendez (N.J), Nelson (Fla.), Nelson (Neb.), Pryor(Ark.), Rockefeller (W. Va.), Salazar (Co.), Stabenow (Mich.).

Republicans against (1) - Chafee (R.I.).

Sununu (R-NH) and Specter (R-PA) tried to reverse the suspension of habeus corpus, but failing that voted for the final bill despite their objections.

While the media focused attention on the more dramatic issue of what kinds of torture or inhumane treatment would be considered technically legal under the bill, for aliens this question is now moot, because, at the whim of the executive branch, they will not be able to raise the issue in front of anything but a military tribunal. And if they are not charged with any crime they will not even get a military tribunal, because the bill allows for indefinite and arbitrary detention of aliens defined, at the whim of the executive branch, as "enemy combatants."

Marty Lederman also has a good description of this legislation.

That this bill will be signed into law is now fait accompli. The only recourse we have now is the ballot box this fall to punish the Representatives and Senators who have surreptitiously stolen some of our most basic and hard-won freedoms.