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June 30, 2006

SCOTUS to POTUS: RTFM

The upshot of yesterday's Hamdan decision seems to be that the Supreme Court has rather vigorously slammed the door on the idea of an imperial presidency, the one where our executive branch takes input from the legislative and judicial branches under advisement -- if it feels like it -- before doing anything it damn well feels like doing. That's my takeaway from it, anyway.

Naturally, I'm pleased. I'm against the concept of an imperial presidency in a general sense, and I'm particularly against it in this specific instance, because I've never gotten past the feeling that the Bush people think of the Constitution as anything other than an annoying old document that they don't understand why they have to pay attention to, because they're not like other people. Well, guess again, Mr. President. Not even a war lets a president get away with this. As Senator Lindsey Graham -- a Republican, I'll note -- said yesterday: "There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role. It's sincere, it's heartfelt, but after today, it's wrong."

The fact that comment comes from a Republican -- and that more than a few Republican and conservatives felt uncomfortable with the administration line regarding its power -- points out something that I've noted before, which is that the administration's attempted power grab over the last several years has nothing to do with Bush's nominal political orientation. There's nothing inherently Republican -- certainly nothing inherently conservative -- in the Bush administration's posit of an executive branch supreme above the legislative and judicial branches; it's a political philosophy cooked up entire in the Bush administration itself, and sprung not from a genuine and coherent foundation of ideas, but required because of the personal opinion of the president (and his advisors, such as the vice-president) that they shouldn't have to consult the courts or the legislature. It's the ultimate version of putting the cart before the horse.

This is, thankfully, why the Bush theory of executive power was doomed: It's built on irrational premises, and it was required to compete with a rational theory of executive power, which is to say, the one encoded into the Constitution. The Bush folks are clever enough to attempt to spin a political philosophy out of their leaders' unwillingness to follow the Constitution; they were not wise enough to make a durable argument from it (or alternately, not wise enough to realize it couldn't work). Personally, I think it was vitally important that the Bush Theory of Executive Supremacy was whacked down while Bush was still in office. I don't think it would survive anyway (I try to spin scenarios in which a Hamdan-like decision comes to the Court in a Democratic administration, and Scalia and Thomas don't vote against it, and I just can't), but all things told it's better it dies with its creator still in office.

There are some folks out there who suspect that this doesn't change anything; that an adminstration that would posit a theory of executive power would not feel obliged to listen to the court, and that Bush will pull an Andrew Jackson, basically daring the Court to enforce the decision while doing what it wants to do anyway. I think these people need to chill the hell out. There's a difference between promoting a legal theory and proceeding from it in the absence of a ruling, and proceeding from it after it's been discredited. Maybe I'm dumb, but I don't see examples of where the Bush adminstration has gone out of its way to do the latter. This administration may view the Constitution as inconvenient, but it's not comprised of stupid people, either. It wants to expand what is seen as the legitimate power of the executive branch -- not have the executive branch seen exercising illegitimate power. I strongly suspect it'll abide by the ruling. It will wriggle and twist and turn in all ways to try to preserve its theory of executive power under the constraints of the ruling, of course -- how could it not -- but it'll follow the ruling.

And if it doesn't? Well, then. Impeach the president. Most readers here know I am generally virulently against impeaching the president (any president, but even this one) under nearly all circumstances. But in the almost unfathomably improbable circumstance that George Bush decides to ignore the Supreme Court ruling and do things his own way, thereby placing himself both outside and above the rule of law, then impeachment, trial and removal from office are reasonable and rational remedies (I suspect the impeachment, trial and removal from office of the vice-president will happen concurrently. Hello, President Hastert!). But of course, if Bush & Co. see themselves as above the law, it's not likely they would respond to impeachment, now, is it. And then we'd have all sorts of interesting Constitutional crises. I don't see this happening.

What I see happening is the Constitutional rule of law re-established, and the executive branch of the government returned to its co-equal position with the legislature and the judiciary. I'm pretty happy about that.

Posted by john at June 30, 2006 10:19 AM

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Comments

darren | June 30, 2006 10:29 AM

I heard about this yesterday and breathed a sigh of relief myself. It's nice to know that (for this instance anyway), my fears about the stacking of the Supreme Court seem to be unfounded.

John Scalzi | June 30, 2006 10:49 AM

Possibly, Darren, although Alito was in the minority and its reasonable to assume Roberts would have been as well, because the case overturned an appellate ruling he signed to.

FYI for everyone -- I'm not likely to be contributing much to this comment thread because of writing commitments today. Have fun without me. Also play nice.

Mary | June 30, 2006 10:49 AM

I think fears about the new justices are pretty well-founded actually:

"Chief Justice John Roberts was sidelined in the case because as an appeals court judge he had backed the government in this case last year."

The other three conservative justices,
Antonin Scalia,
Clarence Thomas and
Samuel Alito, strongly supported the government.

So Alito and Roberts, who will be serving a lot longer than Bush himself, both think the the executive branch should have imperial powers.

Mary | June 30, 2006 10:50 AM

I meant to link the source of that quote.

CoolBlue | June 30, 2006 10:56 AM

John Scalzi

I strongly suspect it'll abide by the ruling.

I think you are correct in this. And though I believe that SCotUS is terribly wrong with regards to how they decided this case (and this is the same crew that also (wrongly) decided Kelo), this is now case law and unlikely to be overturned while Bush is in office. (Perhaps Hillary will be able to do something about it).

Given that, I think this is a relief to the President. As I blogged yesterday, now the likes of Kennedy, Murtha and Leahy will have to figure out what to do with these folks.

And they will have to figure out how to try them.

Or let them go.

All in the run up to the mid-term election.

The fun has just begun.

mythago | June 30, 2006 11:00 AM

They probably will abide by the ruling openly, but it's pretty silly to insist that those who are concerned they may not should "chill the hell out". It's not as though this Administration has acted as though they have any respect for the judiciary.

John H | June 30, 2006 11:01 AM

So Alito and Roberts, who will be serving a lot longer than Bush himself, both think the the executive branch should have imperial powers.

Like John, I wonder which side they would have come down on if this had come up after Bush left office - especially if a Democrat follows him. I'm sure the suggestion that their decisions would be politically motivated will draw some nasty responses, but why should Alito and Roberts be any different than their role models Scalia and Thomes?

Kafkaesquí | June 30, 2006 11:05 AM

Lesson for the week: If you burn the flag, you don't have to worry about ending up at Gitmo.

John H | June 30, 2006 11:12 AM

CoolBlue

Given that, I think this is a relief to the President.

Oh, I'm sure Dubya is just pleased as punch. </snark>

This decision repudiates everything the White House claims it has the authority to do at Gitmo. To try and spin this as a win for Bush is laughable.

CoolBlue | June 30, 2006 11:23 AM

John H

This decision repudiates everything the White House claims it has the authority to do at Gitmo. To try and spin this as a win for Bush is laughable.

I do not think this is a win for Bush. More importantly, it is not a win for the office of the President and its inherent war-time powers.

And this decision will persist when a Democrat is in power.

However, this is not a win for those who have been vocal on their criticism of Gitmo as they will now have to take responsibility for what goes on there.

And I believe that many of these critics will find their past positions coming back to haunt them as they have to deal seriously with what to do with dangerous people who were captured on a battlefield, far from any hope of the ability to collect evidence that will hold up in a court of law. They will not be able to simply criticize.

Wait and see if Bush's original plan to hold military tribunals, and/or just holding people without them, is not confirmed by the Congress because, well, there's not much else you can do.

Jon Marcus | June 30, 2006 11:29 AM

Cool Blue

On the policy side, that's an interesting juxtaposition there (Hilary & uber-executive power). Would you be in favor of President Hillary Clinton being able to lock up citizens indefinitely, simply on her own say-so?

On the political side, re your blog post: Yes, this is happening in the run-up to a mid-term. But Leahy's not up for election. How do you figure this is going to be a challenge for Leahy, Kennedy & Sanders, as opposed to...oh, say Frist, Santorum & Hastert?

darren | June 30, 2006 11:42 AM

"I wonder which side they would have come down on if this had come up after Bush left office - especially if a Democrat follows him. "

I think that is a pretty short walk. These cons are all of the same stripe and follow the same patterns. They can't see their own hypocrisy. I can't find a link, but I remember certain Republicans that changed rules when a democrat was under investigation because they were appalled that a member of congress could still serve his term while under investigation. They all blustered and puffed out their chests with self righteous indignation and forced the offending democrat to step down with rule changes. Then, in an ironic twist of fate, one of those same blustering self righteous republicans found himself under investigation and suddenly wondered where that ridiculous rule about not being able to serve while under investigation came from and successfully changed the rule back. Their was barely a blip on the U.S. population's collective radar screen.
In six months, very few will remember how these justices voted on this issue. I'd go so far as to say very few even know the issue came up and was voted on by the Supreme Court. I can name twenty or so people that I know personally whom if I brought this up would say "Supreme wha?', Alito who?, Gitmo where?, Oooooh, that sounds good. I think I'll Gitme, Alitol, Supreme burrito from the Taco Bell." So there will be no surprise to us and folks like the ones I've just mentioned won't even realize it happened if the issue comes up again with a dem in office and Scalia, Thomas, and Alito suddenly don't support imperial power of the President.

CoolBlue | June 30, 2006 11:46 AM

Jon Marcus

Would you be in favor of President Hillary Clinton being able to lock up citizens indefinitely, simply on her own say-so?

First, you should know that Hamdan is not a US Citizen; he was OBL's driver and bodyguard.

Second, I would most definitly be in favor of Ms Clinton having the ability to execute her Congressionally conferred war-time powers in the way she saw fit to protect the American people.

This may come as a surprise to some, but if (and that's a big if) she makes it through the Democrat primary to become a Presidential candidate, I am seriously considering voting for her. I think she will make an excellent and tough war-time President. I may disagree with her on a host of other issues, but I disagree with Bush on a host of other issues.

But none are the defining issues of this time and place in history.

And if it becomes a contest between Senator Clinton and Senator McCain, it's a no-brainer: Hillary will get my vote. Clinton v Giuliani will be a tougher choice.

Yes, this is happening in the run-up to a mid-term. But Leahy's not up for election. How do you figure this is going to be a challenge for Leahy, Kennedy & Sanders, as opposed to...oh, say Frist, Santorum & Hastert?

It doesn't matter that Leahy and Kennedy are not up for re-election; their bloviating tend to paint the Democrat party as a whole, making everyone in it seem more leftist. That's bad for the Democrats.

Murtha has, all of a sudden, a real chance to lose his seat. Which would give no small amount of joy. And this issue may just push his opponent over the top.

And Sanders, though likely safe in this most leftest of east coast states, will still have to explain to people why he thinks terrorists should be set free, or explain his reversal of opinion.

I believe, and I could be wrong, that most people are down with keeping potential martyrs for Islam locked up and will suspect those who want to set them free.

Jim | June 30, 2006 11:47 AM

John H.

What war time powers? The President only gets that when and if Congress declares war. Congress specifically did not declare war precisely because they didn't want to give those to the President. They crafted several specific laws and one big-loop hole in case anything strange came up.

Personally I feel that was a mistake. Congress should have declared war, that would have forced them to state concrete goals and a point when the war would be over.

Bobarino | June 30, 2006 11:50 AM

This was essentially a 5-4 decision, folks, Roberts having been sidelined for ruling on this case in the White House's favor while serving on a lower court. I don't think I'd be getting all comfy with the assumption that court-stacking has been ineffective. With an 86-year-old justice on the bench and two and a half years to go for this administration, I'd bet we'll see another Supreme Court nomination on Bush's watch.

CoolBlue | June 30, 2006 12:07 PM

Jim

What war time powers? The President only gets that when and if Congress declares war.

If such were the case, then why didn't the SCotUS strike down the whole thing based on that argument? They didn't because they couldn't.

Here's a big clue I'm giving you for free: They didn't say anything about the legality of the detentions at Guantanamo, or the treatment of the prisoners, or tell the President he had no authority to set up military commissions.

Bobarino

I don't think I'd be getting all comfy with the assumption that court-stacking has been ineffective.

There has been no court-staking. Court-staking is what FDR tried to do when he attempted to double the number of Supreme Court Justices and appoint nine Justices at one time! All because the Supreme Court had struck down most of the New Deal as being unconstitutional; including, but not limited to, his proposed NRA which would have introduced fascism to the US becuase, you know, it worked so well in Italy.

With an 86-year-old justice on the bench...

An 86-year-old Justice who is arguably the most liberal on the court.

and two and a half years to go for this administration, I'd bet we'll see another Supreme Court nomination on Bush's watch.

One can only hope...

Branko Collin | June 30, 2006 12:07 PM

Slam the door? You like strong words, eh?

Certainly the bushites will be angry. Is this what they appointed arch-conservative judges for? But to slam the door in the face of emperor-building there first needs to be an aspiration of having an emperor. Barring a few folks at the top of the Republican Party I don't think there are many that have that ambition.

What seems to me has been the driving force behind much of the RP's policies is the idea that even when they are wrong, they are still right.

Bush and his people will get over the anger, and will then conclude that the SCOTUS must have erred. And they will then start working on a solution, if I may borrow that euphemism from an abandoned European party with much the same methodology, that will let them do as they wish.

OK, so I guess one could claim that thinking you're right even when you're wrong differs not much from l'etat c'est moi, but I find it hard to believe that Bush, who believes his power stems from his god, and the French kings of yesterday, who believed the same, think exactly alike.

(Insert obligatory weasel statement of how I as a Dutchman don't understand anything of US politics anyway.)

darren | June 30, 2006 12:07 PM

Coolblue:

"I think this is a relief to the President."

"what to do with dangerous people who were captured on a battlefield"

The Schrub:

"I'd like to end Guantanamo. I'd like it to be over with."

"I understand we're in a war on terror, that these people were picked up off of a battlefield."

Right out of potus' mouth and into the talking points memo.

CoolBlue | June 30, 2006 12:20 PM

Darren

Right out of potus' mouth and into the talking points memo.

And here is preciely the problem for Democrats: are you going to say that these people are not dangerous people? That they should be simply released? That Bush picked them up and had them detained "just because"?

If not, what is your position precisely?

darren | June 30, 2006 12:20 PM

"she makes it through the Democrat primary....Democrat party"

Um, Democratic (ic) primary and Democratic (ic) party.

"I believe, and I could be wrong, that most people are down with keeping potential martyrs for Islam locked up and will suspect those who want to set them free."

I don't know anyone that doesn't want to lock up would be martyrs for Islam. You're trying to frame the arguement so that the reasonable, rational concepts of actually making sure these folks are potential martyrs for Islam before they are locked up and tortured instead of after seem like far left wing, bleeding heart concepts. What's the matter with us, don't we know these prisoners come from the middle east? They must be terrorists. Don't take offense to this Coolblue because I mean it with sincere concern for the welfare of my country, but your statements sound like you're a very short push away from brown shirts, marching in lock step, and Islamic concentration camps.


John Scalzi | June 30, 2006 12:29 PM

We're skirting very closely toward Godwin territory here, and it's barely after noon. Let's try to do better.

darren | June 30, 2006 12:33 PM

"are you going to say that these people are not dangerous people? That they should be simply released? "

Apparently that is exactly what has happened. Hundreds of people in Gitmo were determined after several years of being imprisoned to have had nothing to do with anything. They weren't picked up on any battlefield. They were handed over by foreign authorities, despots, and dictators.
If they had nothing against the United States, and no wish to become a martyr for Allah at that time, they may very well now. If after four or five years of false imprisonment and torture, these guys go home to find they have no home and their hopelessness leads them down a path to a terrorist plot against the U.S. will you then try and pull an I told you so? I see this administration using a self fullfilling prophecy like that and saying that if the democrats hadn't made us let them go this never would have happened.

Q | June 30, 2006 12:40 PM

Can we at least ask CoolBlue to consider changing his name to CoolRed? /smirk

Jon Marcus | June 30, 2006 01:09 PM

CoolBlue

Re citizenship, thanks for the catch. I was confusing Hamdan w/ Hamdi.

But re "potential marytrs for Islam" that were "picked up on the battlefield" that's certainly the spin, but it doesn't seem to be true of many, possibly most of the people who've been imprisoned there for years.

Many of the men and boys there were in the wrong place at the wrong time, or were turned in to Pakistani or the Northern Alliance for reward money. (http://law.shu.edu/news/guantanamo_report_final_2_08_06.pdf)

The really scary guys aren't in Guantanamo. Presumably they were been shipped off to "black sites" or "rendered" for questioning by our buddies in Jordan, Egypt, and Syria.

CoolBlue | June 30, 2006 01:25 PM

Jon Marcus

Many of the men and boys there were in the wrong place at the wrong time, or were turned in to Pakistani or the Northern Alliance for reward money.

OK. The question still remains what to do with them. Bush had one plan, now Congress will have a say. And despite (what I believe to be) the wrongness of the SCotUS decision on this matter, I'm cool with that.

My point is that some decisions will have to be made. Now Congress gets to quit griping and wrestle with the facts of the matter.

And live or die by their decisions.

Surely we can all agree on that.

My guess is that many who are criticizing Gitmo now, will not be happy with the result because I don't see it as coming out to be substancially different from what the President proposed in the first place.

We'll see.

The really scary guys aren't in Guantanamo. Presumably they were been shipped off to "black sites" or "rendered" for questioning by our buddies in Jordan, Egypt, and Syria.

Which is probably too good for them. Though I doubt Syria is being much of a help to us.

Other Stephen | June 30, 2006 01:48 PM

CoolBlue:
"Murtha has, all of a sudden, a real chance to lose his seat. Which would give no small amount of joy. And this issue may just push his opponent over the top."

No Way In Hell Murtha will not be re-elected.

I'm from Western PA, and I know. Here in the rust belt, we don't get rid of a long-term pork provider and replace them with a freshman congresswoman, regardless of what they might say on TV.

Phillip J. Birmingham | June 30, 2006 01:48 PM

CoolBlue
Given that, I think this is a relief to the President.

If the price we pay for ending this abomination is relieving the President, I'd call it a good deal.

CoolBlue | June 30, 2006 01:57 PM

Other Stephen

I'm from Western PA, and I know. Here in the rust belt, we don't get rid of a long-term pork provider and replace them with a freshman congresswoman, regardless of what they might say on TV.

There's that.

Though I didn't say it would be easy.

Bobarino | June 30, 2006 02:23 PM

There has been no court-staking. Court-staking is what FDR tried to do when he attempted to double the number of Supreme Court Justices and appoint nine Justices at one time! All because the Supreme Court had struck down most of the New Deal as being unconstitutional; including, but not limited to, his proposed NRA which would have introduced fascism to the US becuase, you know, it worked so well in Italy.

Ah, I see: Bush hasn't attempted to pull the court right in the most egregious way possible, so it isn't court-stacking. It's all clear now.

Bush is often defended by singling out the worst things other presidents have done, and then arguing he hasn't done anything quite that bad. I suppose it's some consolation that Bush isn't quite as awful as an amalgam of the worst that was.

Lenny Bailes | June 30, 2006 02:49 PM

Can we chill out by continuing to watch the Bush administration and Republican-led congressional committees like hawks? Write to congressional reps and request pressure on the Bush administration to live up to its [cough] new legal obligations:

a) speedy trials by peer juries for inmates of Guantanamo;

b) Congressional inspection of prison facilities to insure compliance with the Geneva Convention.

I know you've probably been here, but some of your Whatever readers may not have seen this.

Here's Trent Lott on the SCOTUS decision:


LOTT: I think some people are probably laughing at us. This is ridiculous and outrageous. Now in legal speak, let me say, I have not read the entire opinion, nor the dissents. But preliminarily my opinion is they probably didn’t even have jurisdiction. They shouldn’t have ruled the way they did. This is not a bunch of pussycats we’re talking about here. These are people that have made it clear in many instances that they would kill Americans if they got out. This is Osama bin Laden’s driver. And this is one other example of why the American people have lost faith in so much of our federal judiciary. This is a very bad decision in my opinion.

Cheney (through Bush) and others in the NeoCon coterie show every indication of trying to end-run the Supreme Court decision. Why shouldn't we expect continuing administrative delays in scheduling inmate trials and resistance to prison inspections?

Even now, Bush is trying to get Congress to pass a bill authorizing and rubber-stamping the Guantanamo Military Tribunal setup they had in place. The whole thing may back bounce to the Supreme Court again on a new case, where Justice Roberts will not recuse himself from voting.

CoolBlue | June 30, 2006 02:59 PM

Babarino

Ah, I see: Bush hasn't attempted to pull the court right in the most egregious way possible, so it isn't court-stacking. It's all clear now.

Snide is unbecomming. I didn't say he hasn't attempted (and seemingly succeeded) in pulling the Court to the "right".

But that is not the same as "stacking".

Lenny Bailes

But preliminarily my opinion is they probably didn’t even have jurisdiction.

It's pretty clear they didn't hev jurisdiction and that is just one of the problems with their decision. I don't have much time right now, I'm preparing a trip to Long Island. But consider the Detainee Treatment Act of 2005, where it clearly states

"no court, justice, or judge" has jurisdiction to hear applications for habeas corpus from any prisoner detained at Guantanamo. The Act also provides, in another provision, that pending challenges to decisions of military commissions on matters such as the detainee's status could not be heard except by the U.S. Court of Appeals for the D.C. Circuit.

Gotta go. Perhaps I'll get to check in later.

John Scalzi | June 30, 2006 03:01 PM

Lenny Bailes:

"Can we chill out by continuing to watch the Bush administration and Republican-led congressional committees like hawks?"

By all means. I'm not saying I don't think the Bush administration won't reach into its bag of tricks and try to pull a new stunt. I am saying that it will not explicitly go against the SCOTUS ruling because doing so will illegitimize its claim to power.

Jim | June 30, 2006 03:06 PM

CoolBlue,

Two issues, why do you feel the Kelo case was wrongly decided? What the SCOTUS rulled was that there is nothing in the constitution or in federal law that defines what constitutes public good. Only that takings for the public good must be compensaited. Therefore there is no legal basis for them to rule for the plaintifs. All in all a most conservative decision.

In regards to Hamdan, Presidental War Powers are much more extensive then just tribunals; additionally last year Congress did give him permission to form them. SCOTUS just rulled that the the President must follow existing law in their formation.

Lenny Bailes | June 30, 2006 03:48 PM

I'm not a lawyer, but I do have a high school education and sometimes read and write in English. The paragraph cited by Cool Blue cites a law passed by the United States Congress prohibiting traditional courts from hearing pleas from Guantanamo inmates for habeas corpus or ruling on the status of detainees.

As far as I can see, what the Supreme Court just ruled is neither of those two things. Here are Glen Greenwald's thoughts.

Since Marbury v. Madison, the Supreme Court has had the power to conduct judicial reviews of federal statutes. I'll leave it to actual lawyers to argue whether a decision that [surprise!] the United States is obligated to abide by the terms of treaties it has signed -- and that Bush's Military Tribunals aren't duly constituted courts-- *also* implies a declaration that the "Detainee Treatment Act of 2005" is unconstitutional. I wouldn't think so, but I'm not a lawyer.

If the Court continues to refuse what Cheney/Bush wants, maybe Karl Rove will pull a few strings and project his voice through a sockpuppet chorus about the unconstitutionality of "Marbury v. Madison."

mythago | June 30, 2006 07:38 PM

That they should be simply released?

The only alternatives to an unconstitutional kangaroo court is to release the prisoners immediately? That's not even a good false dilemma.

Smurf | June 30, 2006 10:48 PM

Bush should be on live TV, 24/7/365. I don't care if he's defecating... you simply can't trust the SOB, and it pays to be able to keep an eye on him..

Djscman | July 1, 2006 03:14 AM

Two quick comments, tangential if not off-topic:

1) Regarding Bush's "I'd like to end Guantanamo" quote: he's just talking about Camp X-Ray, not the entire naval base, right? I don't know what penalties we'd face for breaking our perpetual lease with Cuba, but they'll be pissed about having to find new renters on such short notice.


2) So what if Salim Ahmed Hamdan, former bodyguard and driver of Osama Bin Laden, is released due to due process's lack? Are we worried that he might find a job driving some other terrorist leader around? Oh no! Ayman al-Zawahiri will shave a few minutes off his drive-time commute! He could use those minutes to despicably plan the toppling of the John Hancock building with a blimp!

Simon | July 1, 2006 08:20 PM

The worry that Bush might ignore the Supreme Court decision and then ignore impeachment proceedings as well - that worry also came up under Nixon, while the tapes case was pending.

And a few years later, there was a thriller novel about what would have happened if he had. The Last President by Michael Kurland and S.W. Barton. 1980 paperback from an imprint called Critic's Choice.

Hard to find now, I expect, but probably good reading at this point in history.

Anonymous | July 1, 2006 09:48 PM

Quoth mythago:

The only alternatives to an unconstitutional kangaroo court is to release the prisoners immediately? That's not even a good false dilemma.

What else would you do with them, then?

mythago | July 1, 2006 11:04 PM

You mean you really can't think of anything between those two extremes? Say, an actual trial? (Even Saddam Hussein is getting one of those.)

I know the people screaming about the loss of Star Chamber: Gitmo are not so stupid as to believe that there is no alternative than to release people unconditionally. That suggests to me that they really do want a rigged trial without any proof other than "Well, you look like a terrorist" needed.

Phillip J. Birmingham | July 1, 2006 11:21 PM

I know the people screaming about the loss of Star Chamber: Gitmo are not so stupid as to believe that there is no alternative than to release people unconditionally. That suggests to me that they really do want a rigged trial without any proof other than "Well, you look like a terrorist" needed.

I think it's less that than that they need the President to be right, and if the facts say he's in the wrong, well, the facts be damned.

Jeffrey S. Frawley | July 2, 2006 11:53 AM

Of course the Supreme Court has jurisdiction to determine the constitutionality of Federal statute. The only way to alter the unconstitutionality of a practice is to alter the Constitution by way of an Amendment - and I certainly hope and believe neither Congress nor the states would provide the votes necessary to that in this instance.

Steve Buchheit | July 2, 2006 05:19 PM

Some people just don’t get it, including the SCotUS dissenters who basically said, “whatever the Prez wants, we should let him do.” Fewer people even remember that President Bush had to be drug, kicking and screaming, to even do the Military Tribunals. We were just going to hold non-state combatants indefinitely with no trials or reviews, no status at all.



So they came up with a rigged system to save themselves any embarrassment and now five justices have said it isn’t good enough, we have to abide by our laws and the treaties we’ve signed. Say, remember the other treaties we walked away from? Geneva isn’t one we should abandon.



If we’re at war (which, except for our kids dying and being maimed physically and emotionally, doesn’t seem to be the case) then this makes these people POWs. There are rules for such, we should follow them. As for the rhetorical black-and-white arguments (i.e. “well, what are we gonna do just release them”) and those who perpetrate such brain-dead propaganda (and that’s exactly what it is, even though some who repeat it for lack of mental capacity aren’t the mad men who created it) I can point to them and say, “coward.” There are many options. That you can’t think of them doesn’t mean the rest of us are so challenged. Give them trials (real ones), return them to country of origin, declare them POWs, put them in with our general prison population (defacto death-sentence), render them to the Hague as enemies of humanity, those are just off the top of my head.



Hamdan was OBL’s driver. This doesn’t mean he wore a little black uniform and hat, he was also highly trained (militarily) and swore undying fealty to Al Qada. He is an enemy combatant, sworn to the other side. He is a POW. After having left Qada in the late 90s, he has no intelligence value that hasn’t been squeezed out of him by now.



This is a war about us, not about who Qada is or wants. This war is about law and order, about rules, about being better (and I’m not talking about better military power). This war is going a way we don’t want it to, and it’s being directed by Qada. They are causing the pieces to be moved. Russia is now getting involved more directly. Putin has put a hit out on those who killed his citizens and directed his special forces to carry it out. Russia isn’t a part of the “Coalition of the Willing,” so their operators will be in Iraq illegally. What will happen if one of them gets spotted by one of ours, or a Blackwater merc? Very dangerous things we’re playing with. Qada is playing to this President/Administration’s weaknesses, and they are playing them well.



So how do we handle these people? Do we let dangerous people back in the world just because our laws don’t let us hold them? Live free or die. It isn’t just a slogan. Declare real war, with objectives, an opponent, and goals for success. Hold these people that you can prove were combatants (one was turned in for the only reason his potential in-laws didn’t like him, the Uighurs we released, the 4 Saudis, the Australians, I could go on) as POWs and release the others.



Want another option? Since we (at least This Present and Administration) no longer care for law or due process, after having been in detention for over four years some of these people no long have value. If they are still considered dangerous, kill them. You want to be “I’m Mr. Tough-Guy I can protect you better than those wimps” prove it. I am a liberal and I agree with the first CIA operative to go back into Afghanistan when he was told his mission was to find Osama and bring his head back. He didn’t argue but merely pointed out that finding dry-ice in country was going to be a problem. If you’re not willing to do this, then follow the law. Process them, count them as POWs (which includes rights we don’t want them to have) and hold them for the duration, or release them.

Steve Buchheit | July 2, 2006 05:21 PM

Sorry about the double spaces, was having problems with the preview not showing paragraphs.

John Scalzi | July 2, 2006 05:46 PM

Yeah, that's why I note that preview doesn't show paragraph breaks right above the comment form.

Mark | July 3, 2006 12:58 PM

Following the rule of law: Good step in the right direction. Probably one of the countries best rulings ever. But why wasn't this done earlier if the Democrats supposedly are so interested in the 'rule of law.'
Will facinating to resaerch and coffee over the next few years.

It's hard for me to place blame solely on Bush for this as I see this as more a money and power grab from both sides and even before and after Bush.

I see this is a great first step for the country and the world in a new era but I don't see the politicians changing. The dems have supported the operation faults as well.

Maybe this is a first start though in a new direction as I feel wherever that leads.

Jeffrey S. Frawley | July 3, 2006 01:47 PM

The comment attributed to Phillip J. Birmingham (July 1, 2006, 11:21 pm) is by me, and the one attributed to me (July 2, 2006, 11:53 am) is not. That said, I agree with what this person - perhaps Mr. Birmingham - has to say. Many people who disagree with the Supreme Court decision claim that the Court had no authority to rule on this, because of the previous passage of a law excluding the matter from court oversight, but Marbury vs. Madison and many other decisions clearly establish that the Supreme Court has the authority to rule federal statutes in violation of the Constitution. It's been about two centuries: The Justice Department has had ample time to read the decision. Many also bray that Al Qaida is not a signatory to the Geneva Conventions. That is entirely true; It is also very obvious that the United States is a signatory: It must take its obligations seriously, and never console itself that it can sink exactly, or nearly, as low as its opponents. By that reasoning, summary execution of all German, Italian and Japanese POWs during WWII would have been peachy-keen, since the German, Italian and Japanese empires had all committed crimes exceeding summary execution of POWs (murder of civilians, torture-killing, genocide and near-genocide, etc.). Of course, those enemies would have also been fully entitled to execute Allied POWs as well, as there are always instances of terrible war crimes being committed by all sides during war (unfortunately, including ourselves). I certainly wouldn't want to further degrade the rules and practices of war and make conditions for our own troops correspondingly worse. So, for our own benefit, as well as because it is right, we must not weasel out of full observation of the Geneva Conventions.

Jeffrey S. Frawley | July 3, 2006 01:51 PM

OK, I see now that I was incapable of reading the proper attributions of statements (attaching my name to the following entry, rather than my own). Steve Bucheit's entry, following my own, was the one I thought misattributed. In any case, he makes fine sense. Phillip J. Birmingham's entry, before my own, is good, but is not the one to which I was referring.

Pedro | July 4, 2006 03:50 AM

Necon's suck and so do radical liberals. Libertarians just do it better.

The Republican party will need a very, very big change, starting with even (unfortunately) basic principles, if they are to even stand a chance in 2008.

Dave Bell | July 4, 2006 05:11 PM

Remember when the Geneva Conventions were signed.

What the US Government is doing--detention without trial and torture in particular--is directly comparable to what the German and Japanese Governments did in WW2. Go and read some of the accounts by the people who were there; who were waterboarded by the Gestapo in France.

There's this gigantic elephant of evil in the middle of the room, and it sickens me how so few Americans want to deal with it. Quibble all you like over whether the Supreme Court has jusridiction. Scream in fear at the prospect of a terrorist actually having to face a trial. The debate in America suggests it has already sunk "into the abyss of a new Dark Age made more sinister, and perhaps more protracted, by the light of perverted science."


CoolBlue | July 4, 2006 05:23 PM

Phillip J. Birmingham

If the price we pay for ending this abomination is relieving the President, I'd call it a good deal.

If you think that we will be ending this "abomination" any time soon, I think you're dreaming.

Time will tell and you can call me on it if I'm wrong.

Jim

Two issues, why do you feel the Kelo case was wrongly decided? What the SCOTUS rulled was that there is nothing in the constitution or in federal law that defines what constitutes public good. Only that takings for the public good must be compensaited. Therefore there is no legal basis for them to rule for the plaintifs. All in all a most conservative decision.

Kelo was wrongly decided in my opinion because I don't believe the intent of the "Takings Clause" of the 5th Amendment intended that "public use" should be interpreted as giving land to private individuals. Taking property for a freeway or a Dam or some such thing that is publically owned is one thing. This decision says you can take property from someone and give it to some other private individual.

Private property ownership is a cornerstone of liberty. While we all swallow hard and recognize that some "taking" of private property by the Government for the public good is necessary, this should be severly constrained. The (Left side of the) Supreme Court removed the constraints with the Kelo decision.

The destruction of private property rights is a Leftist position. Make no mistake about that. To say this is a "conservative" decision is just flat wrong.

But even many on the Left have criticized this position for obvious reasons: Just how many mansions do you think will be razed to build a shopping mall as opposed to the homes of poor folks? My guess? None.

In regards to Hamdan, Presidental War Powers are much more extensive then just tribunals; additionally last year Congress did give him permission to form them. SCOTUS just rulled that the the President must follow existing law in their formation.

Is that so? Which law? And what part of it is Bush not following?

From my reading of the "Detainee Treatment Act of 2005", the President is specifically authorized to alter the design of the Military Tribunals if he sees fit to do so. But perhaps you are referring to a different law of which I am unaware.

Lenny Bailes

the Supreme Court has had the power to conduct judicial reviews of federal statutes. I'll leave it to actual lawyers to argue whether a decision that [surprise!] the United States is obligated to abide by the terms of treaties it has signed -- and that Bush's Military Tribunals aren't duly constituted courts-- *also* implies a declaration that the "Detainee Treatment Act of 2005" is unconstitutional. I wouldn't think so, but I'm not a lawyer.

You are confusing a number of things here.

First, the SCotUS did not rule any law made by Congress unconstitutional with this decision: They simply read the Detainee Treatment Act and interpreted it in a way that allowed them to hear the case so this is very far away from them ruling it unconstitutional.

In fact, no where in the decision did they make any Constitutional findings whatsoever. None. Zip. Nada.

Second, when you say "the United States is obligated to abide by the terms of treaties it has signed", I assume you are alluding to Common Article 3 of the Geneva Conventions which is the linchpin of their analysis. This is probably their most egregious error in my opinion because they have attemted to put this on a par with the Constitution which it clearly is not. And legally is not.

Common Article 3 is part of what is in effect a treaty we signed with other signatories. And the first thing to note is that al Qaida et. al. has not signed it. Second, al Qaida et. al. is not a State with signing power. Third, they do not nor ever have abided by any part of the Geneva Conventions.

Worst of all, by doing this the SCotUS opens the door for criminal liability for American citizens, soldiers and government officials by any group of people out there since neither being a state nor a signatory of the Conventions is apparently important to the court.

Now given the Geneva Conventions is a treaty and not the Constitution, Congress can in effect unsign the treaty if it so desires. And what's worse, Congress may very well have to opt out of the treaty thanks to this awful decision by the Court unless they can find a way to amend the Conventions to explicitly state that it applies only to States and signatories who are States.

Mythago

The only alternatives to an unconstitutional kangaroo court is to release the prisoners immediately? That's not even a good false dilemma....You mean you really can't think of anything between those two extremes? Say, an actual trial?

An actual trial, huh. See this is where the problem lies. In a criminal investigation you have a crime scene from which you can collect evidence, establish chain of custody, and present this evidence according to the rules of the court. For many (if not all) of these people this is simply impossible.

But as I said before, the great legal minds of the likes of Senators Leahy (he was a prosecutor, you know) and Kennedy get to figure out how this could be done if they don't want Military Tribunals. And if they can't and they still don't want tribunals, there is only one other option.

Can you say it?

Release them.

Jeffrey S. Frawley

Of course the Supreme Court has jurisdiction to determine the constitutionality of Federal statute. The only way to alter the unconstitutionality of a practice is to alter the Constitution by way of an Amendment - and I certainly hope and believe neither Congress nor the states would provide the votes necessary to that in this instance.

Again, I repeat, because it seems this discussion continuously goes off the wire by us not all using an accurate set of facts, the SCotUS did not make any constitutional ruling at all with this decisions.

They did not rule that the "Detainee Treatment Act of 2005" was unconstitutional. They did not rule that detaining these prisoners at Gitmo is Unconstitutional.

As a result, no Amendments are required to continue doing what is already happening.

CoolBlue | July 4, 2006 05:31 PM

Dave Bell

What the US Government is doing--detention without trial and torture in particular

This is ridiculous. Are you saying that only the Germans and Japanese captured soldiers on the battlefield and didn't let them go until the end of the war?

Are you saying that the Geneva Conventions do not allow you to capture and detain combatants until hostilities end?

You are wrong on both counts.

And if you think for one minute that FDR did not allow the interrogation of POWs, read deeper into your history books. I would focus on, but limit my investigations to, the OSS.

If we have any civilians in Gitmo, thank the Islamists because they do not follow the Geneva Conventions by wearing uniforms so everyone knows the difference between combatants and non-combatants.

Phillip J. Birmingham | July 4, 2006 11:35 PM

CoolBlue

If you think that we will be ending this "abomination" any time soon, I think you're dreaming.

Oh, I'm not underestimating the beef-witted determination of the Bush Administration to value giving the finger to its opponents over ending a counterproductive, un-American policy. I'm just saying that for me, seeing the President in trouble is less valuable than seeing him do the right thing.

Lenny Bailes | July 5, 2006 03:32 AM

Cool Blue: We agree that the Supreme Court did not declare your "Detainee Act" unconstitutional. What it did declare is that Bush's Military Tribunals are not "regularly constituted courts." Therefore, by Article 3 of the Geneva Convention, to which the U.S. is a signatory, those tribunals don't have the authority to try detainees captured in armed conflict. The terms of the Geneva Convention don't specify that detainees must be citizens of nations that signed the treaty. Article 3 of the Geneva Convention specifies that "any and all detainees captured in armed conflict can be tried only by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

I suspect that you understand this as well as any of us do. But you've attempted misdirection, several times with distractors: "the Supreme Court has granted the right of habeus corpus to detainees, in contradiction of the "Detainee Act;" "the Geneva Convention is not the Constitution."

I can only assume that you do this out of fear-- fear that temporarily trumps your belief in the ability of civilized men and women to apply the rule of law to antisocial acts committed against society.

You're not alone in being led into that mindset.

Yes, Congress could become horridly fearful of stateless thugs, as you appear to be, and revoke U.S. participation in the Geneva Convention. But, to be clear, *so far, Congress has not done so.*

Fear-driven torture and despotism are not the way to combat the fear, torture, and despotism that already exists in the world. If you disagree, you certainly have the right to try and convince people to change the law of the land -- with straightforward arguments or with disingenuous ones. But my wish for you (and for Richard Cheney) is that your sense of fear may lessen to the extent that your faith in law and reason is allowed to resurface.

Jon Marcus | July 5, 2006 11:46 AM

Cool Blue

Re your argument about Al Qaeda not being signatories, a couple of points. First, as I pointed out above, most people at Guantanamo aren't members of Al Qaeda. But regardless, the Convention says:

"Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it..."

That's what we signed, and that's what the Congress ratified. So it's got the power of law. If the Executive doesn't comply, the court can and should correct that. That doesn't require putting the treaty on par with the Constitution.

Re Mythago's false dilemma. No one's said that military tribunals are wrong per se. They've objected to these "special tribunals", set apart from the UCMJ with no right to outside appeal, with the defense not allowed the hear the charges against them, etc, etc. One option would be legitimate tribunals. Another might be to treat the detainees as prisoners of war. There are certainly others.

CoolBlue | July 5, 2006 02:04 PM

Jon Marcus

"Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it..."

That's what we signed, and that's what the Congress ratified. So it's got the power of law.

Well the problem with your argument is that the SCotUS doesn't agree with you, which is why they chose to base their interpretation on Common Article 3. Justice Stevens, writing for the Court wrote specifically on this issue:

the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories],each Party to the conflict shall be bound to apply, as a minimum,”certain provisions protecting “[p]ersons . . . placed hors de combat by. . . detention,” including a prohibition on “the passing of sentences . . . without previous judgment . . . by a regularly constituted court affording all the judicial guarantees . . . recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ”

Now, up until this point, everyone thought, including the people who were writing the Conventions, thought that by this article they were protecting the various sides of a Civil War; the participants of which were ovbiously non-State non signatories and more importantly, not international in nature because it's, well, a Civil War. But the Court chose to reinterpret Common Article 3 to justify their conclusion.

That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms.

But not only did they need to reinterpret the Conventions, turing a provision intended to cover Civil Wars to include all non-State, nonsignatories, they also had to ignore the fact that Islamists do not meet the standards imposed by their own caveat, to wit: so long as the nonsignatory “accepts and applies” those terms. which clearly al Qaida et al do not.

More importantly, whether a "Power" signatory or not, once they cross international borders to attack another country, they immediately come under the purview of Article 4 of the Conventions and unfortunately for the Court, Article 4 is very strict regarding whom it protects.

Ultimately, in order to find the tribunals illigitimate, the Court had invoke Article 3.1.d but in order to do that they had to pretend the invasion of Afghanistan was an "armed confict with no international border."

Completely bogus in my view.

And ultimately a non sequitur because while it holds that the military commissions devised by the Administration violate Common Article 3, Congress can pass a law authorizing the procedure anyway.

This is as confused as a decision gets.

Q | July 5, 2006 03:23 PM

CoolBlue:

Well the problem with your argument is that the SCotUS doesn't agree with you, which is why they chose to base their interpretation on Common Article 3. Justice Stevens, writing for the Court wrote specifically on this issue:

Actually, your own quote shows that the SCoTUS doesn't necessarily "disagree" with the notion that both parties need not be signatories of the Geneva Convention...

"the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories."

It notes that the appeals court "disagreed" withthis notion, but goes on to say the Court doesn't need to decide the merits of that, since other provisions apply. They sidestep the issue, but they don't necessarily disagree.

Lenny Bailes | July 5, 2006 04:34 PM

CoolBlue:

Now you've fallen back to criticizing the Supreme Court decision for not explicitly declaring the "Detainee Treatment Act of 2005" to be unconstitutional.

I guess that's progress. You're down to complaining about the Supreme Court being hypocritical instead of offering false assertions that it exceeded its authority.

Repeating what I said upstream: I'm not a lawyer. All I have is an editor/teacher/journalist's opinion that the Supreme Court decision did not need to address the constitutionality of the "Detainee Act" in order to rule that Bush's tribunals are not "regularly constituted courts."
Again, see Glen Greenwald for a more eloquent, coherent discussion of this point.

If you're truly interested in raising lawyerly objections to the Supreme Court decision, you're not making your case very well by continuing to throw up red-herring distractions that equate oranges with apples.

To me, it looks like your actual goal is to use any inconsistent syllogisms you can come up with -- to persuade people to share this unsavory belief:

1) It's too expensive or too much trouble to determine whether detainees actually *are* threats by according them trials by a "regularly constituted court." You don't think they're worth it and don't want to pay for it.

But more importantly, the big lie:

3) The Cheney-Bush-Rumsfeld implementation for providing "national security" (which is not dissimilar to the strategies employed by history's most infamous despots) is a) effective, b) ethical, c) already the law of the United States.

The "national security" strategy that the Supreme Court just struck down is none of those things.

Jon Marcus | July 8, 2006 09:21 PM

Cool Blue

Oops, got me again. That'll teach me to skim the decision. Although they didn't disagree with me. They just said my point wasn't necessary.

Slightly more importantly, why do you say that everyone thought that CA3 only applied to civil wars? If they were specifically trying to limit themselves to that, why not say so? My read of the writers' intent was that they were trying to cover all forms of war, and be as general as they could.

Finally, you told Jim that this decision didn't say anything about detention or the other guys in Gitmo. But if the court's saying we have to abide by CA3, then that's a precedent. Bush v. Gore aside, SCOTUS decisions aren't about a single case. If we have to abide by CA3 for a few prisoners, then we have to abide by it for all of them.

Re the political side, do you think it'll go over well if we do decide to pull out of the Geneva Conventions? Seems like there'd be a significant downside there. (I personally think it'd be an unthinkably bad move as policy, but I think it'd be risky politics too.)

narciso79 | July 10, 2006 10:09 PM

When did Glenn Greenwald (atty for white supremacists like Matt Hale, become the
arbiter for anything. The court didn't cite
Youngstown, which would have give them some
latitude, it mis-represented Qurin, which is
the touchstone in these matters. It went around
Johnson v. Eisentrager (which is really the
closest parallel (a POW camp in China, for German
POWs)It rested its major holding on Councilman v.
New; a case concerning a enlisted navy noncom; how
that equals a 'unlawful combatant' like Osama Hamdan; I'll never know: neither Article 3 or Article 4; of the Convention apply.

Lenny Bailes | July 11, 2006 03:48 PM

Rovian smear-distractor, Narciso. Glen Greenwald once had a client that you can point to as "unattractive." Therefore Glen Greenwald is unattractive, therefore don't read anything he says about anything else?

Are you an attorney? Do you have any links or cites to attorneys, judges, or legal scholars who agree with your criticisms of the Supreme Court decision? Can you explain your objections in English to a non-lawyer.

Also, if you can bring yourself to engage with the commentary that Glen Greenwald has written about the decision -- why is he wrong?

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