Sure, It's a stumbling block. But all this means is now the Legislature needs to rubber stamp Bush's dictates, and have we seen any sign they'll stand up to him?
...Dwayne was hoping that he would pay exactly the right amount of attention to Francine's clitoris.
The supremes said the executive is in fact bound by congressional law, and through the UCMJ the Geneva Conventions. ie he is a war criminal under US law. It also means he's on the hook for dodging FISA authorizations. This will somehow not not be realized by anyone in congress.
tnt needs to track moderation. stats page!
Or rather would be if it weren't ruining the prisoners' lives, and in the end making the world a more dangerous place by confirming that the US (and by the same token, most of the West for not condemning it) doesn't give two craps about the lives or rights of non-westerners.
http://www.guardian.co.uk/guantanamo/story/0,,1809981,00.html
What shocks me is the number of lawyers, judges, and military personnel who probably have real qualms with how things are being run and the direction they're going in, but don't rock the boat.
It was by no means a smackdown, but now Congress will have to bless POTUS's actions.
The only thing of interest is if the GOP members have the stomach to put their vote behind the President.
Personally, I think that the President is trying to set the table for Armageddon. Maybe he is one of those Christians that believe that the sooner we can provoke Armageddon, the sooner Jesus will return. I don't think he is trying to contain and resolve the situation; his policy seems to be "balls to the walls." We aren't coming home anytime in the near future. My Grandchildren will still be dying in this war.
The Hamdan decision proves once again that the text of the Constitution and the statutes passed by Congress are but piddling barriers to five crusading justices intent on imposing their personal beliefs on the law. On December 30, 2005, the United States Congress, the elected representatives of the American people, passed the Detainee Treatment Act. The Act unambiguously states that no judge, justice or court has jurisdiction to hear a habeas application from a Guantanamo detainee.
Per the plain language of the statute, the Supreme Court lacked jurisdiction to hear appeals from detainees. In Bruner v. United States, the Supreme Court summarized centuries of law by stating, "This rule, that, when a law conferring jurisdiction is repealed without any reservation to pending cases, all cases fall with the law, - has adhered to consistently by this Court."
Lesser judges who believe that hundreds of years of precedent and the actual text of the law are at least somewhat important might have blanched at completely ignoring settled principles of jurisprudence and dismissed Hamdan's appeal. Luckily for Hamdan and other similarly situated Al-queda operatives, Jude Stevens and his compadres follow a school of jurisprudence whose only tenant is that the Court can overturn the Congressional and Executive branches or the Constitution whenever a judge's personal sense of right and wrong directs them to do so. Reason, logic and the Constitution are no match for the emotions of five liberal justices.
As if by magic, the Hamdan five decided that the detainee statute only applies to appeals filed after December 30, 2005. The author of Hamdan, the aged Justice Stevens, apparently forgot his opinion in the case of Landgraf v. USI Film Products, in which he stated "We have regularly applied intervening statutes, conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or the lawsuit was filed." As Justice Scalia noted, the Court was unable to cite a single case in the history of Anglo-American law in which a jurisdiction stripping provision was denied an immediate effect in pending cases absent an explicit statutory reservation.
Upon reflection, maybe there is something to be said for Stevensizing American jurisprudence. After all, we can get rid of lawyers and law schools, which wouldn't be a bad thing. In Stevens's world, every law or social policy he likes is constitutional, every law or policy he doesn't like is unconstitutional, and everything else is window dressing. You certainly don't need any specialized training to interpret the law if the only test of a law's constitutionality is whether it meets the judge's subjective sense of fairness.
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Oh, those activist judges...
Mon Jul 03, 2006 at 10:17:27 PM EST
4.50 (astute, astute)
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Your main point, if I can make it out underneath the heaping spoonfulls of snark and bile, seems to be that the Supremes simply shouldn't have been allowed to hear the case in the first place. As zyxwvutsr has already pointed out, that's nonsense. Read Article III, Section 2 of the Constitution (yes, even the last six words) and explain how it is somehow inapplicable in this case.
So, the formalist argument about jurisdiction just doesn't hold water, but to me (go ahead... you can call me "emotional" if you want) the part that rings especially hollow is the moral indictment that you lay on the Hamdan Five* for their role as activist judges. Given your concern for legal objectivity, I'm wondering what you think of the policies that led to the Hamdan case in the first place. Time and again, the White House legal counsel has justified the administration's actions using remarkably creative interpretations of executive powers, effectively arguing that the administration can do whatever it feels like. The Hamdan decision has essentially told the Bush White House for the first time "no, actually, you can't." In my view, this is a fine example of checks and balances in action, but clearly some feel that it is better to leave this administration unchecked.
So, is it really a good thing that the the Bush Administration has gone to such lengths to covertly work around domestic privacy rights, or suspend habeas corpus for detainees? And for that matter, is it his strong commitment to the rule of law that compels the President to add weasel-wordy "signing statements" to a great deal of the legislation he signs?
-secretpath
* "The Hamdan Five," eh? That's cute. Like the Jackson Five, or the Chicago Seven. Now I want a poster for my wall, with the majority justices from this case posing as pop stars or would-be '60s revolutionaries.
Everything that needs to be said has already been said, but since no one was listening, we must begin again. -Andre Gide
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Talking Points?
Tue Jul 04, 2006 at 01:01:59 PM EST
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Yeah, that "Hamdan Five" bit has a bit of a ring to it, the slight sniff of a focus group, or at least an Internet cliche. So far, though, only one article turns up on Google, outnumbered by references to a college football game. Might be worth checking on in a week or so, though.
That article also seems to summarize the main argument underlying the "why" whenever calls justification are made. "They're too wicked to treat the old ways" seems an unbiased enough summation*. A curious assertion, given that US courts have been able to handle decades of cases involving international drug cartels just fine. Who needs history, though, when there's an election to be won?
A bit snarky perhaps, but almost all the conservative commentary I've read so far treats this case as a zero sum game- that Sun article is a good example- assuming somehow that a "victory" one way must be a "defeat" the other way. Jonah Golberg quipped once that, "the real racists are those who count heads by race every time they enter the room", and it sure seems, to follow that argument, that the real partisans are those only able to view events through a Left-Right filter. The possibility that this is constitutional checks and balances working as they should seems an impossibility to the New Right.
I at least have to wonder if these critics would be so sanguine if it was a President Gore or Kerry calling for these measures. Yes, it's a hypothetical, but after years of shelving their production during the Clinton 90s, I feel comfortable asserting that 'reigning in the imperial presidency' would be just fine by them. Personally, I would oppose Gore or Kerry trying to assert these new powers, so I have no problem celebrating when Bush gets reigned in too-- but then I'm just a dumb liberal, and am unable to grasp what this all has to do with terrorism anyway . . .
*For a biased response, though, I can't help but think of Monty Python's line, "You can't face the peril-- it's too perilous" from Holy Grail.
Ex ignorantia ad sapientiam; e luce ad tenebras
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Seperation of Powers
Tue Jul 04, 2006 at 04:38:23 PM EST
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As Zxywuster has pointed out, that's nonsense
Well, as I pointed out above, Zxywuster's point ignores the plain language of the Constitution and 200 years of salutatory authority and case law. But I'm willing to be enlightened.
Given your concern for legal objectivity, I'm wondering what you think of the policies that the Hamdan case in the first place
Although I'm not sure which policies you're referring to, I have no problem with indefinitely incarcerating foreign combatants during a time of war. It seemed to work with the Germans during WWII.
In my view this a fine example of checks and balances in action
Actually, it's a terrible example of checks and balances and serves as a fine example of judicial usurpation of legislative power. In order to reach the merits, the Hamden Five* ignored a statute passed by a Congress exercising its express Constitutional power to limit the court's jurisdiction. A power grab is a power grab, and designating it as an application of checks and balances because it suits your ideology doesn't make it so.
Of course the court has the right to evaluate Bush's use of executive power and will no doubt do so in the future. Given the congressional action stripping it of jurisdiction, this was not the approiate case to do so. By overstepping its bounds and encroaching on the legislative powers, it certainly weakened its authority to hold that the Executive branch has overstepped its own authority in future cases.
The authority of the Court should be unimpeachable, and decisions like this tarnish its reputation. Its important that the Court be viewed as reaching decisions based on law and reason, not ideology. If the perception becomes that Supreme Court is merely a grown up playground, in which five judges working together are always able to impose their views on the weaker four, regardless of the law, then its credibility will disappear. And as Andrew Jackson said when faced by an unfavorable decision rendered by an unpopular court, "let's see them enforce it."
* Copyright, Jack Keefe, Inc. 2006
Somehow, I don't think this decision will be the stake through the heart Bush's detractors wish for -- and in my opinion, likely quite the opposite.
The decision itself is rather narrowly defined: the Executive has no current legal standing to prosecute detainees by tribunal. It says nothing about changing the status of the detainees in any other way, nor does it foreclose legislative remedies.
I'm seeing this as a short-term loss but a long-term win for the Republicans. It forces the national security issue to the front of the line again in the run-up to the 2006 election. GOP leadership will doubtless seek to grant the president authority to use military tribunals (Sen. Frist has already scheduled time for that debate after the break). The Democrats who push for civilian trials or even full military court proceedings will get pasted in the upcoming election season as being "soft on terror." Those who go along but complain about it will look indecisive on security issues. Those who fully support Bush will earn endless bitching from the Angry Left. The only real way for the Republicans to lose support in this case is to not do anything, and even they aren't that inept.
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Narrow? Maybe
Fri Jun 30, 2006 at 10:10:22 PM EST
5.00 (astute)
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Just in my daily rounds on the Net, I found an argument to the opposite, though the writer is hardly a dispassionate observer. If nothing else, the question, "if this isn't big, what are the alternatives?" is interesting to ponder.
I'll have to dissent on the importance of this decision when it comes to the midterms, where "getting out the base" is usually key. How many undecided voters are there on this issue, really? How will this affect the areas- spending, gay marriage, immigration- where the Republicans have been hemorrhaging support for the last year or so? The risk Republicans face this fall is voter apathy, and drumming up an issue that's already pretty much a lock for most of the base may not be the answer. Even one shirt I saw attributed to Hugh Hewitt read, "Reduce the government. Defend the borders. Keep America strong", or something like that. Barring some compromise between the House and Bush, this decision doesn't change that 1-for-3 average with conservative cheerleaders. (Damn I wish I could find that link!)
Much as I agreed with Charlie Cook when he opined that the Democrats harping on corruption wasn't going to change the electoral field much, I think this court decision lacks the potential to change too many minds in a midterm. (Were this a presidential election, sure, but it's not.) The only thing that's going to turn things around is genuine good news out of Iraq (lower gas prices would help too), and that really has little to do with legislative battles over the construction of military tribunals.
Man, I can't wait for the next two years to be over.
Ex ignorantia ad sapientiam; e luce ad tenebras
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Dissembling
Sat Jul 01, 2006 at 01:37:15 AM EST
4.25 (astute, astute)
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Somehow, I don't think this decision will be the stake through the heart Bush's detractors wish for -- and in my opinion, likely quite the opposite.
Did you ever stop to think that many people are concerned about these issues, because they want to see the right thing happen, and don't want to see human beings abused?
You make it sound as though the only reason anyone would be opposed is for political reasons, to hurt Bush.
Why do you care so much about what it means for competing parties (like a baseball game) instead of the reality of what is happening to people, and the abuse of power that is going on?
It seems you don't really care about the issues, but whether your side is winning, and having the chance to stereotype people who question these events.
snarkism
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What the Decision Says
Fri Jun 30, 2006 at 05:59:39 PM EST
4.00 (informative, astute)
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The decision itself is rather narrowly defined: the Executive has no current legal standing to prosecute detainees by tribunal
That's not what the decision says. It says that the tribunal,
as currently constituted is illegal. There is law governing the way that military tribunals should be run (it's in the Uniform Code of Military Justice, or "UCMJ"), and many of the rights of accused persons that are guarded under the UCMJ (to examine evidence against them, have true representation by a lawyer, cross-examine witnesses, etc.) were denied in the Guantanamo tribunals:
Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan's commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial...Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. There is no suggestion, e.g., of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. It is not evident why the danger posed by international terrorism, consider-able though it is, should require, in the case of Hamdan's trial, any variance from the courts-martial rules.
In other words, if the president either 1) constituted a new tribunal that adhered to the UCMJ, including all its protections for the rights of the accused, or 2) got Congress to pass a statute modifying Article 36 of UCMJ, then he's back in business.
The reasoning under the Geneva Convention portion of the decision is basically the same, at least for the wider question of whether or not anyone in Guantanamo can be tried by a military tribunal. For Hamdan specifically, though, there was an important piece in the decision:
The crime of "conspiracy" has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions...Because the conspiracy charge doesnot support the commission's jurisdiction, the commission lacks authority to try Hamdan
C-Span was running a tape of the oral arguments last night, and I listened to the ending of Clement's argument and the beginning of Katyal's.
Clement struck me as being woefully incompetent. He was rattled by the questions that were asked of him, and failed to answer them adequately. I was surprised that someone so shaky would be assigned a case of such importance.
I just read the latest...It seems that the GOP is fuming over the SCOTUS ruling. Wait a min...isn't this the court THEY wanted?
Hey fellas...check the warranty more closely next time.
It's the end of the world as we know it, and I feel fine
