After all, the Court yesterday did exactly what critics of the administration have long been urging someone -- anyone -- to do: they imposed meaningful checks and limits on the President's powers, and they resoundingly rejected the plainly un-democratic claim that invocations of "national security" vest unchecked power in the President. At least as a legal matter (though admittedly not as a political one), this decision -- for reasons I explained yesterday and A.L. elaborated on this morning -- is a stake in the heart of the authoritarian theories of executive power under which our government has functioned since September 11. Peter Baker and Michael Abramowitz explain why in their superb analysis in The Washington Post:
For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.
Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush's military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate. . . . .
Even the administration's supporters recognize the significance of this decision in legally slaying the monarchical views of this administration:
"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," Sen. Lindsey O. Graham (R-S.C.), who has resisted the administration's philosophy, said in an interview. "It's sincere, it's heartfelt, but after today, it's wrong."
As Bruce Fein put it: "This idea of a coronated president instead of an inaugurated president has been dealt a sharp rebuke."
Despite this undeniable defeat of the Bush administration's claims to unlimited power, there is much cynicism regarding the significance of the decision, typically based on the premise that this administration is so lawless and acts with such disregard for limitations on its power that no Supreme Court decision is going to make any difference. That view was expressed yesterday by, among others, Digby, who labelled my praise of yesterday's decision "optimistic" and "pretty"and said:
But from a political standpoint, I'm with Atrios about the practical effect of this ruling:
My quick take is that it's certainly an important symbolic victory, but this administration's contempt for the law, the constitution, and the balance/separation of powers that our system rests on isn't going to be very affected by what 5 people in black robes say. . . .
This decision will ultimately feed into conservative boogeyman number 438: judicial activism. Look for Justice Sunday IV: Vengeance is Mine Sayeth Delay. And expect many more calls to spike John Paul Stevens' pudding with arsenic. This is the beauty of the conservo-machine. When your primary political tools are both intimidation and victimization, you can spin anything to your advantage.
I understand the sentiment and agree with the factual premises. Yesterday's decision is but a step towards re-affirming the core principles of our constitutional system and is by no means an ultimate victory in any sense. George Bush is still the President. Congress is still controlled entirely by his corrupt political loyalists. Democrats are likely to be as meek and muddled as they have been, particularly on national security issues (the probability that they will oppose Congressional authorization of military tribunals is roughly zero). The media will still be lazy and maddeningly deferential to the administration, thereby enabling the administration's followers to get away with all sorts of distortions and smears, etc. etc. etc. All of that is true enough.
And even beyond that, I think there is a very real question as to whether the Bush administration even considers itself bound by Supreme Court decisions which it perceives to encroach on the constitutional powers of the President. This is an unpleasant question which hasn't been examined, but it may need to be now. After all, the administration's theory is that the Constitution vests unlimited power in the President to make decisions to defend the country, and nobody -- neither Congress nor the courts -- has any power to interfere with those decisions. Those decisions are, as the Yoo Memorandum put it, "for the President alone to make."
Indeed, in several of the President's signing statements, the administration seems to have pointedly emphasized the limitations on the Court's power to interfere with the President's decision-making when it comes to defending the nation. Here, for instance, is what the President said in his signing statement regarding the McCain anti-torture amendment:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.
Thus, if the President decrees that compliance with a Supreme Court ruling would impair his ability to defend the nation, is it certain -- or even likely -- that the administration would comply with the ruling? It seems far more likely that the administration would simply assert that the Court has no authority to interfere with the President's constitutional obligation to defend the country, and that any ruling which does that lacks validity and therefore can be ignored. When asked about the Court's ruling yesterday, the President's answer seemed to suggest (albeit ambiguously) exactly that view:
At any rate, we will seriously look at the findings, obviously. And one thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people. People have got to understand that.
Isn't the President saying here that no matter what the Court says, he is "not going to . . . jeopardize the safety of the American people"? Thus, if compliance with the Supreme Court's ruling would -- in the President's view -- impair his ability to defend the nation, isn't it quite likely that the President would simply refuse to comply with the ruling on the ground that the Court has no authority to impair his functions as Commander-in-Chief? And if he asserted that power, is there any doubt that his followers would trip over themselves with praise, wallowing in bravado fantasies of Andrew Jackson's heroic challenge to the Court's authority?
Although the administration and Senate Republicans paid lip service yesterday to their intended compliance with the Court's ruling, they did so by making clear that they were willing to comply because doing so was easy and would not interfere in any way with the military commissions they want to conduct. In other words, their willingness to comply with the Court's order is contingent on the Order's not really interfering with what they want to do. On balance, it seems far more likely than not that if the Court's ruling genuinely impairs or limits what the President wants to do in the national security area, he will assert the power to ignore the Court's rulings (just as he has asserted the power to ignore the laws enacted by Congress) because -- as the Yoo Memorandum asserts -- such decisions "are for the President alone to make." And his supporters in Congress and elsewhere would unquestionably cheer on such defiance.
Nonetheless, the Supreme Court yesterday did everything it could possibly do and everything one hoped it would do. One of our three branches of Government stood up -- finally -- to the Bush administration's claims of unchecked power and ruled that its conduct was illegal. Astonishingly, it even arguably laid the foundation for finding that the President has engaged in war crimes by systematically violating the mandates of the Geneva Conventions. And it resoundingly rejected as the unconstitutional atrocities that they are the President's theories of executive power.
Additionally, court opinions historically have a political impact as well as legal effects. Despite the concerted, destructive attacks on the credibility of the Supreme Court by the likes of Mark Levin and Rush Limbaugh, who hate and wage war on any institution (such as the media) which dares to challenge the Powers of the President, Americans still retain a respect for the Supreme Court as an important and credible institution. The Court's proclamation that the President has been acting beyond his legal and constitutional authority strengthens that argument as a political matter.
It is also likely to further galvanize those in Congress and the media who have been gradually taking a stand against the Administration. A Supreme Court ruling that is this decisive, on an issue this significant, is virtually never confined to the legal realm, but almost always has impact, often profound impact, in the political realm as well.
An immediate and complete solution to the problem of Bush lawlessness does not exist, at least in any realistic sense. Restoring our country's constitutional framework is going to be a slow, difficult, and incremental process. Victories have been rare and hard to come by, but yesterday's decision is unquestionably a victory -- and it is a significant (albeit partial) victory. The fact that it doesn't achieve every goal or solve every political problem is no reason to disparage its significance. Doing so breeds a destructive cynicism that, in turn, breeds resignation and defeatism. In that regard, the excessively cynical claim that "nothing matters because they will just do what they want and ignore every law" -- a claim I hear every day here -- is not much different than the claim that "none of this matters because they control voting machines and will always win."
At least for one day, yesterday, our system of government worked the way it is supposed to work. Our core principles of government, which have been under relentless assault for several years, were re-affirmed by the nation's highest court. The President suffered a clear and resounding defeat in the exercise of his national security powers. And one of the three branches of government demanded that its constitutional role be recognized and respected and rebuked the President for failing to do so.
The impact of all of that is not merely, as Digby put it, that "some of the legal questions about presidential wartime powers seem to have been answered." Far beyond that, the Bush administration's excesses of power were dragged into the open, declared illegal, and were powerfully condemned by the highest court in our country. If one doesn't celebrate yesterday's victory, it is difficult to imagine what would be considered a success.
On the war crimes aspect, I wonder if somebody could or would use this ruling to bring charges against the administration in the Hague? Now that would be a political firestorm.
ReplyDeleteGlenn:
ReplyDeleteThank you for a balanced analysis.
Guarded optimism makes sense. If the Supreme Court hasn't totally folded yet, neither should we.
A wedge is a wedge, and I intend to hammer it as industriously as I can.
Now how do we make sure that our next elections are clean and fair?
" Far beyond that, the Bush administration's excesses of power were dragged into the open, declared illegal, and were powerfully condemned by the highest court in our country. If one doesn't celebrate yesterday's victory, it is difficult to imagine what would be considered a success."
ReplyDeleteI think it would be cause for victory if it had any real or lasting effect, or if it signaled the beginning of the end of bush's lawbreaking.
bush can continue to break the law at will..who's gonna stop them?
or, the gop will seize the moment on this to have congress give chimpco whatever they want...while democrats we'll be portrayed as being weak while they try to fight it. sos.
Yes, yesterday’s decision was significant for exactly the reason you mentioned – that the administration’s abuse of power and contempt for the law were dragged into the open.
ReplyDeleteNow, if Bush openly defies this decision in the name of “national security” it will be obvious to an increasing number of Americans that our system of checks and balances is dead, our democracy gone, and that as long as Cheney is in power, we live in a dictatorship.
Recognizing that is, as you say, a first step in what will be a long incremental process to restoring democracy.
We need to start somewhere. And once the American people accept that this administration insists that it is no longer accountable to the courts or Congress – not accountable to laws, and no longer accountable to “we the people” then, perhaps, we might be able to something about it.
But we are still so deep in the hole, that the cover has been taken off from the hole and we can now see a feeble glimpse of daylight is not exactly a reason to celebrate – it is, however, a reason to hope.
And for that, I’m thankful.
Let's go a slightly different direction here.
ReplyDeleteAnyone can to comment on what steps Republicans in Congress may take next? If they decide to introduce legislation on this issue that will protect the Administration (if that's even *possible* at this point), what would it entail and how carefully would it have to be constructed?
I wonder if somebody could or would use this ruling to bring charges against the administration in the Hague?
ReplyDeleteWaiting (in vain?) for some sort of international action such as this is the only hope I can muster for restraining this administration. Who else is going to do it? The courts can't enforce their rulings, that is left up to the executive.lol. Congress is corrupt and immovable, thanks to election theft. The media barks now and then, but the bushies have a handy muzzle to protect itself from getting bit- the right wing noise machine. Sending them to the Hague would likely start a war, but which one should we choose-liberty or safety?
Better dead than shackled.
I'm sure Arlen can come up with something that will satisfy Cheney. And just one more Bush appointee to the SC will make this a moot decision, anyway.
ReplyDeleteImpeachment?
ReplyDeleteGreat, fine. So nothing really matters except impeachment. And how exactly do you intend to accomplish that? The Democrats can't even defeat a bill right now. Impeachment is hardly realistic.
Before anything can be accomplished, you need to persuade your fellow citizens first that you are right about the administration's lawlessness and that it matters. If you can't do that, then you are just indulging pipe dreams.
The Supreme Court's decision, I think rather self-evidently, is a helpful weapon in making that case. So even those who think that nothing matters - that everything is meaningless - until George Bush is dragged out of the White House in handcuffs and brought to the Hague as a war criminal would, I think, have to look at yesterday's decision as a meaningful victory.
The idea that nothing matters until impeachment is akin to someone who wants to build a tall building with a penthouse, but keeps scoffing at every step along the way - "oh, who cares about the foundation. I want a penthouse!" - "oh, who cares about the third floor - that's nothing - I want a penthouse!"
These things happen incrementally, not by waking up and wishing it were so, and the steps along the way shouldn't be dismissed as meaningless and irrelevant because without them, the ultimate destination is not achievable.
While this decision is a victory for the Constitution, I believe it also shows that "the old girl" is only on "life support." Why? Because Roberts recused himself after siding with the administration on the same case at the lower appellate level, and this decision was 5-3 with Stevens being the swing vote and he is 86. This means we are one vacancy away from total imperialism.
ReplyDeleteSleep well.
A lot of people seem to be overstating the result of this decision:
ReplyDelete[Syllabus]
"The Government has not charged Hamdan with an "offense . . . that by the law of war may be tried by military commission," 10U. S. C. §821. Of the three sorts of military commissions used historically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions, incorporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001.More importantly, the offense alleged is not triable by law-of-war military commission."
[Justice Stevens]
There is no suggestion that Congress has, in exercise of its constitutional authority to "define and punish . . . Offences against the Law of Nations," U. S. Const., Art. I, §8, cl. 10, positively identified "conspiracy" as a war crime.33 As we explained in Quirin, that is not necessarily fatal to the Government’s claim of authority to try the alleged offense by military commission; Congress, through Article 21 of the UCMJ, has "incorporated by reference" the common law of war, which may render triable by military commission certain offenses not defined by statute. 317 U. S., at 30. When, however, neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution."
Basically, isn't the court just telling us that they need a more clearly defined statute relating to the alleged offense to rule in favor of military tribunals? What would stop the President from working with Congress to update the UCMJ to specifically include a terror conspiracy defined as "a war crime punishable by military tribunal", and if Congress did make such a change, what would be wrong with military tribunals as opposed to public trials in the federal courts for foreign terrorists detained in a "theater of war"?
Paradox you are absolutely correct. It was the Bush v. Gore precedent of 2000 that led me to believe that they might also rubber stamp the Tribunals, and as such I was pleased to learn they had rejected the idea. However, Glen is absolutely correct in pointing out that the Judicial system is likely to be subverted by the Dictatorial Executive and a 1935-Reichstag-ish congress, so as far as a change in policy goes this will likely have next to no effect.
ReplyDeleteI feel almost like an Iraqi sometimes, with my desparation for good news clouding my rational judgement. Can the Bush Reign of Terror be put to an end? I would like to hope so, but...
Morpheous,
ReplyDeleteHave a look into the concept of command responsibility as theoretically violations of international law are violations of American law. Even if charges were brought at the hague, who's going to arrest our leaders? Do you think the FBI would? The CIA? Any other executive branch office?
Maybe a group of concerned citizens could try and make a citizens arrest... but that could easily be viewed as a coup and bring about a true dictatorship. Our options are not pleasant...
The international take on this has been fascinating to watch. It seems our Judicial branch in this ruling produced hope that Americans are taking their Bush blinders off, because if we have been alarmed the world has been outraged by what he has done in our name.
ReplyDeleteBased on the wight wing radio in Colorado, the talking points seem to be along these lines:
ReplyDelete-Justice Thomas was right to read the minority opinion from the bench.
-The minority position will be the majority position as soon as Stevens dies, since he'll never retire.
-Bush should simply delay until he can appoint another Roberts or Alito.
-Bush should continue doing what he's doing.
I'm convinced the right wing talkers are propagating the White House line. Digby and Atrios may, unfortunately, be spot on with their analysis. If the President can ignore Congress, why not the Supremes?
I have no respect for the SCOTUS. I lost any semblance of respect with the 2000 decision to appoint a president rather than allow a proper election.
ReplyDeleteAll the court can do now is work damn hard to reverse the damage done by 2000 OR setup the country for a new revolution by screwing the Constitution and Bill of Rights in accord with the desires of the GOP. Respect? They have a LOT of work to do to get that back. Right now they're just treading water.
From the f.l.y. at 11:03am:
ReplyDelete"Basically, isn't the court just telling us that they need a more clearly defined statute relating to the alleged offense to rule in favor of military tribunals? What would stop the President from working with Congress to update the UCMJ to specifically include a terror conspiracy defined as "a war crime punishable by military tribunal", and if Congress did make such a change, what would be wrong with military tribunals as opposed to public trials in the federal courts for foreign terrorists detained in a "theater of war"?"
Amazingly, I think the fly's onto something here.
Yes, in a real sense the Court has kicked this back to Congress with the implication it could resolve the disputes over the President's authority in this regard by more careful, more detailed statutory action.
Given the Administration's current record however, it remains questionable if the Administration can or will respect any new limits or parameters the Court sees fit to place upon its actions.
Additionally I don't believe anyone is talking about 'public trials' versus military tribunals for detainees in the first place. Its more a question of guaranteeing legal proceedings and hearings take place for these detainees, with equally guaranteed legal protections for those subject to them that are in line with both the UCMJ, US Code, and applicable international treaties.
Or am I misreading this?
Well said. I agree that cynicism now can lead beyond a defeatist view to actual defeat. I'd add that the best response we can offer to bolster the Court's action is to express what's occurred in a soundbite and trumpet it repeatedly:
ReplyDelete"The Republican Supreme Court determined Bush broke the law and said the president's criminal behavior must stop."
That's all that's necessary, that's the nut of the story and while Bush loyalists can argue the details ad nauseum, there is no refutation possible for that essence.
"The Republican Supreme Court determined Bush broke the law and said the president's criminal behavior must stop."
I'm sure law abiding citizens concerned about the details understand that the 5-3 decision is really a 5-4 decision which rests on the tenuous threads of the 86 year old John Paul Stevens' continued health and the oft-unpredictable swing vote of Anthony Kennedy.
But we'd be unwise to waste time publicly fretting about that when we have a better message for America:
"The Republican Supreme Court determined Bush broke the law and said the president's criminal behavior must stop."
The Bush/Rove/Cheney/Addington core will lobby for more presidential power without let-up and will view this as speedbump, not a blockade. The only part of the Baker/Abramowitz argument I disagree with is the suggestion that Bush's choices are rooted in intelligence officers' needs or military wants. Cheney and Addington want the president to exercise increasing power by simply claiming the right to, not because it's needed at all.
And you're right; he may ignore the Supremes completely and do so secretly. Or he may get his trained-dawg Congress to fetch him fresh authorization of the power that was just denied.
But it still doesn't negate the power of a citizenry convinced that:
"The Republican Supreme Court determined Bush broke the law and said the president's criminal behavior must stop."
The ultimate check on power resides in the citizenry. Usurping Congressional oversight and disregarding the Supremes is far less likely to happen if the citizenry demands that the President accept this limit on his power. And the best way to arouse the citizenry to make that demand is to convince a majority how simple the truth is:
"The Republican Supreme Court determined Bush broke the law and said the president's criminal behavior must stop."
What would stop the President from working with Congress to update the UCMJ to specifically include a terror conspiracy defined as "a war crime punishable by military tribunal", and if Congress did make such a change, what would be wrong with military tribunals as opposed to public trials in the federal courts for foreign terrorists detained in a "theater of war"?
ReplyDeleteNothing. This is a minor victory as far as habeas corpus and trials for detainees is concerned, but it's a major one (as far as any court case can be) in the ongoing war against the president-as-king philosophy. The ruling explicitly affirms Congress's authority to regulate the president's powers, time of war or not. If Congress passes a law allowing military tribunals, instead of Bush deciding to start them up no mater what the statute says, then fine - that's how the system's supposed to work, even if you don't like the result. It also - in black and white - says that detainees are subject to Article III of the Geneva Conventions. That's a win.
It's not just that the adminstration feels that they can ignore the ruling of the court, it's that they believe that the powers of the executive branch provide them with the powers of the Supreme Court to determine Constitutionality.
ReplyDeleteIn her remarks to the Senate Judiciary Committee, Deputy Assistant Attorney General Michelle Boardman (link below) defended Presidential signing statements as an executive branch determination of Constitutionality. For example.
"In short, where a President has no choice but to avoid a constitutional violation, the President’s best course is to announce publicly his intention to construe the provision constitutionally. Where the constitutional violation stems not from the substance of a provision but from its mandatory nature, as with the Appointments Clause, the President’s best course is to note the deficiency, leaving the President free to act in accordance with the provision as a matter of policy."
The adminstration does not believe that the choice is between vetoing a law perceived as being unconstitutional or allowing the courts to decide. No, the question of constitutionality is left to the "Decider".
http://judiciary.senate.gov/testimony.cfm?id=1969&wit_id=5479
Nicely said Glenn. We didn't lose the rule of law in a day and we won't retrieve it in a day, if we ever do.
ReplyDeleteThe real question remains: does a significant enough fraction of the US population care whether we have a government of laws? Or is a vast majority permanently immobilized in a stew of complacency, ignorance, indolence and fear? If the latter, it will be a very long and bitter time before we recover even a livable equilibrium.
While I look forward to the demise of American empire, I don't look forward to living through it.
This comment has been removed by a blog administrator.
ReplyDeleteBasically, isn't the court just telling us that they need a more clearly defined statute relating to the alleged offense to rule in favor of military tribunals.
ReplyDeleteYes and in so doing so it acknowleges Congress's standing to regulate such matters. Its extremely important because it cuts to the heart of all this "Article II powers" certain people keep droning on about.
And its forcing the talking heads to actually have to address the issue of Presidential overreach, which is not something that normally seeps into our national consciousness.
It is so amusing to read the screaming headlines in the Donkey press this morning. For example, my local paper's headline over the LAT wire story read:
ReplyDeleteCOURT: GITMO TRIBUNALS ILLEGAL
Justices strike down pillar of Bush anti-terror policy
Despite the press' fondest fantasies, the Court decision did no such thing.
The Supremes merely held that UCMJ standards must apply to military commissions authorized by Article 21 of the UCMJ until Congress amends those standards or the President provides a statement of particulars why each UCMJ standard not used is impractical when trying al Qeada detainees.
Because the military commission convened for Hamdan was not using the UCMJ standards, the Supremes halted proceedings for the time being.
That is it.
Mr. Bush's constitutional and statutory power to convene military commissions to try al Qaeda prisoners was reaffirmed.
Mr. Bush's constitutional power to detain Hamdan until the cessation of hostilities was recognized in both plurality opinions.
Indeed, Mr. Bush's statutory authority under the UCMJ to unilaterally modify impractical UCMJ procedures for military commissions was recognized and detailed.
All Mr. Hamdan's attorneys have done is delay his trial until Congress amends the UCMJ this fall to expressly authorize modified procedures for military tribunals and reverse the Hamdan decision. Congress is now scheduling hearings on reversing this decision immediately after the Independence Day break and is scheduling a vote for this fall just before the elections to force the Donkeys to vote for the modifications or face the voters.
If the Elephants are smart, they will also amend and make retroactive the Detainee Act restricting court appeals until after the trial and keep the Supremes from any further prospective rulings like the one yesterday.
In any case, all this is a lot of ado between lawyers which will change nothing. Hamdan will remain detained.
However, after the Supremes affirmed the Texas redistricting and made it extremely difficult if not impossible for Pelousi to become Speaker next year, I suppose you Donkeys need something to claim victory over.
Enjoy!
yankeependragon,
ReplyDelete"Additionally I don't believe anyone is talking about 'public trials' versus military tribunals for detainees in the first place."
If not Military tribunals, then it's got to be either no trial, or US federal court ["the Rule of Law that prevails in this jurisdiction"].
Note also that the court does not deny the President's authority to lock these guys up "for the duration of active hostilities", which I'm guessing roughly equates with when hell freezes over.
[Opinion page 72]
"It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."
PhD9,
"it cuts to the heart of all this "Article II powers""
Au contraire, the court does not deny the President's "Article II powers" to lock enemy combatant's up "for the duration" [see above] and is focused instead on how it might best interpret the alleged offense under the present UCMJ in determining the appropriate venue for "criminal punishment".
Texas Dean takes NYT out of libraries.
ReplyDelete"Since no one elected the New York Times to determine national security policy, the only action I know to register protest for their irresponsible action (treason?) is to withdraw support of their operations by canceling our subscription as many others are doing," Mendell D. Morgan, Jr. wrote in a June 28 email to library staff. "If enough do, perhaps they will get the point."
If anyone would like to give this "Dean" an education, you can reach him at
(210) 829-3837
morgan@universe.uiwtx.edu
.
I cringed listening to Bush yesterday: "We take this seriously" he said about the ruling. Yeah, right. He sounded like it was just another piece of information. He takes it seriously about the same as he takes seriously the world's opinions of the US--not!
ReplyDeleteAnd the Republican congress is just going to make rubber stamp laws that impinge more and more on constitutional rights.
However, As Glenn rightly states, this is a victory. The rulings on school segregation didn't change things right away--it was decades before it all played out (I know, it's still going)--but things are much better due to that ruling in the 50s.
At least for one day, yesterday, our system of government worked the way it is supposed to work. Our core principles of government, which have been under relentless assault for several years, were re-affirmed by the nation's highest court. The President suffered a clear and resounding defeat in the exercise of his national security powers. And one of the three branches of government demanded that its constitutional role be recognized and respected and rebuked the President for failing to do so.
ReplyDeleteThe impact of all of that is not merely, as Digby put it, that "some of the legal questions about presidential wartime powers seem to have been answered." Far beyond that, the Bush administration's excesses of power were dragged into the open, declared illegal, and were powerfully condemned by the highest court in our country. If one doesn't celebrate yesterday's victory, it is difficult to imagine what would be considered a success.
Yes, Glenn. Thank you so much.
Congress is still controlled entirely by his corrupt political loyalists.
ReplyDeleteGlenn, I think that's the first time I've heard you make a truly "political" statement! I'm shocked! (Or maybe I haven't been reading previous posts very carefully.)
But I agree, the decision is hopeful, even though it will bring a firestorm of rebuke against our justices. However, those most to the "left" on the court are gone so it's going to be a harder sell.
What would it take, on a legal level, for Bush to declare a national emergency, invoke martial law, and cancel/postpone elections in 2006 or 2008? Is this even possible?
perroazul del norte:
ReplyDeleteWhat if some US citizen blows a few holes in, say, Teddy Kennedy. He then claims that he is waging war against the US government.He claims POW status. To strenghten his case he is a Muslim convert and has a picture of Ossama on his bedroom wall. Should he get POW status and spend the rest of his life in relatively cushy POW camp instead of the Colorado Supermax? Just asking all of you great legal minds.
POWs (Third Protocol) are given more rights in certain respects than are civilian detainees (Fourth Protocol) in wartime. But both may be charged, tried, and convicted for common crimes and crimes against the (so-called) "laws of war". And assassination of an unarmed government official is almost assuredly both a common crime and a war crime.
OK, so if he instead attacks the Pentagon or any military base he gets POW status, right? Good news for any reincarnation of the 1980's neo-nazi terrorist group called The Order. They just have to limit their targets to military ones and eschew killing talk show hosts.
BTW, is Israel a signatory to the Geneva Convention? They have on at least a few occasions extra-judicially assasinated unarmed civilians. I am think in particular of the wheelchair-bound Sheik Yassin. Also, in the current operation they have taken a large number of what certainly seem to be hostages, also a violation of the Geneva Convention.
Before anything can be accomplished, you need to persuade your fellow citizens first that you are right about the administration's lawlessness and that it matters. If you can't do that, then you are just indulging pipe dreams.
ReplyDeleteCall this a pipe dream, if you want but I'm still on board with it.
Of course, all assassinations are extra-judicial!
ReplyDeleteWhy is it either or with Bush? Comply with the law, and we can't defend the country. Defend the country and we can't comply with law. I think you can defend the country just fine and do while obeying the law.
ReplyDeleteOn the one hand, I rather doubt there will be much in the way of practical effect. A victory is only meaningful if it is followed up on, and I wonder who will do that? Not Congress, who if anything will simply rubber-stamp the Bush plan.
ReplyDeleteOn the other hand, there is one immediate effect that is worthwhile: the comedic one. It's funny as all get out to watch the self-labeled "tough guys" of the Wargasm Party running around in circles wetting their pants 'cause the Mooslims under their beds are gonna get em. (Comic exaggeration, yes, but only slightly.)
I sometimes comfort myself with the idea that this comic effect may actually do some real good. One thing these guys really can't handle is being laughed at, and it tends to bring their true natures out in the open. That may help some Americans see just what kind of people our so-called "leaders" are.
What do you think of this argument?
ReplyDeleteStupid Ruling
To be able to fall within the framework of the the Geneva Conventions requires an organization to be this thing called a ‘State’ or ‘Nation’ or ‘Nation State’. Non-recognition for the Geneva Conventions can only be read in this Context as the US did not sign the 1977 expansion to include terrorists within this reading. By specifically not signing this part of the Conventions it is NOT in-force as the Law of the Land and must be considered to be specifically and categorically repudiated by the United States.
For the Supreme Court to rule that any member of a terrorist organization falls within the framework of the Geneva Conventions is to not only specifically go against the policy of the United States and its Constitution, as Treaties are of co-equal status to the Constitution itself although only to clarify agreements and not *amend* the Constitution. Thusly, in doing this, the Supreme Court has adjudicated that al Qaeda is at the level of a ‘State’ or ‘Nation’ to even fall within the parameters of the Geneva Conventions.
(...)
If one doesn't celebrate yesterday's victory, it is difficult to imagine what would be considered a success.
ReplyDeleteA 9-0 ruling instead of a an (implicit) 5-4 ruling?
I'm sure law abiding citizens concerned about the details understand that the 5-3 decision is really a 5-4 decision which rests on the tenuous threads of the 86 year old John Paul Stevens' continued health and the oft-unpredictable swing vote of Anthony Kennedy.
Please don't look to "law abiding citizens". That's a dinasour on its way out.
The party in power has created the situation we now face and the other party (cosmetic, of course, we really have a one party system) wants to insure that "law abiding" citizens" become a minority in this country by shoving this bizarre notion that law breaking non-citizens be allowed to take over the country.
The real question remains: does a significant enough fraction of the US population care whether we have a government of laws? Or is a vast majority permanently immobilized in a stew of complacency, ignorance, indolence and fear? If the latter, it will be a very long and bitter time before we recover even a livable equilibrium.
When the only oppposition to a monarchy is a "party" who wants to supplement the numbers of complacent, ignorant, indolent and fearful people who already constitute the vast majority with tens of millions of people whose very premise and philosophy when enterting this country is that the laws don't apply to them, things do look bleak.
When almost everyone on this blog cannot, for reasons of party loyalty, misplaced sympathy or the fact that they swallow propaganda whole, fail to see the inconsistency of asking the President to follow the law when they sanction tens of millions of new entrants breaking the law as their very first act upon putting their feet in this country, things do look bleak.
The Democrats' Election Year Stunts. A neutering in full stride
A broken party, like that of the Democrats, will never be able to challenge the stubborness of the Republican establishment, which is nearly unwavering in its call for more war and occupation.
....The Tides aren't changing. Nor is the direction of the Democratic Party or this war..."
Who doesn't want to be an optimist or a realist who has reason to hope?
But the reality is, if for thousands of years, one concept has prevailed:
The dogs bark but the caravan moves on.
it does give one pause.
From Cass Sunstein @ UofChicago Law School:
ReplyDeleteJustice Stevens' opinion seems to be animated by the idea that Congress must speak quite clearly if it is going to authorize the President to conduct trials in military commissions. (This is a major departure from Ex Parte Quirin, in which the Court seemed to bend over backwards to find congressional authorization when it was hardly clear.)
In this way, Hamdan seems in line with a long series of cases in which the Court has demanded that the President find unambiguous congressional authorization for an intrusion on civil liberties -- and especially for a departure from ordinary judicial procedures. It is interesting and potentially important that Justice Stevens did not say this explicitly -- but an idea of this kind does seem implicit in the case. There was remarkably little discussion of the President's power as Commander-in-Chief, apparently on the assumption that whatever power he has in this domain, it is legitimately subject to congressional limitations. (See note 23.)
Glenn:
ReplyDeleteThe fact that it doesn't achieve every goal or solve every political problem is no reason to disparage its significance. Doing so breeds a destructive cynicism that, in turn, breeds resignation and defeatism. In that regard, the excessively cynical claim that "nothing matters because they will just do what they want and ignore every law" -- a claim I hear every day here -- is not much different than the claim that "none of this matters because they control voting machines and will always win."
Actually, we might -- despite the sanguinary carnage that may ensue -- actively cheer on any maladministration attempts to defy the courts. Maybe things need to come to a head. In the end, the resolution here has to be political and come from the people themselves; if the political will is there for Dubya's vision of gummint, even the Constitution itself can be changed to achieve that, so the end we seek (and which Glenn's book exhorts) is that we return to the gummint that our founders intended and that we at least praise in name. That may require impeachment and trial of the malefactors that have tried to pervert and usurp our Constitutional system, but that in the end requires political will to do so. If there is a show-down between the executive and (one of) the co-ordinate branches -- a "Fight In The Cage" to the death -- it may galvanize the political will to take the necessary steps to bury these protofascists once and for all.
Cheers,
misneach:
ReplyDeleteMaybe a group of concerned citizens could try and make a citizens arrest... but that could easily be viewed as a coup and bring about a true dictatorship. Our options are not pleasant...
Well, maybe after someone tells the Chimperor about Pinochet's little legal tussles, they may advise him to cut down on his foreign visits....
;-)
Cheers,
Thomas attacks Stevens in Hamdan opinion.
ReplyDeleteJustice Clarence Thomas refers to Justice John Paul Stevens’ “unfamiliarity with the realities of warfare” in his dissenting opinion. ACSBlog notes: “Stevens served in the U.S. Navy from 1942 to 1945, during World War II. Thomas’s official bio, by contrast, contains no experience of military service.”
http://thinkprogress.org/2006/06/29/
thomas-attacks-stevens-in-hamdan-opinion/
Gotta love it.
Propagandee
. In that regard, the excessively cynical claim that "nothing matters because they will just do what they want and ignore every law" -- a claim I hear every day here
ReplyDeleteBut that is just what has happened for 6 and one half years- reality has been ignored as has law. We are dealing with a group that claims to invent reality as it sees fit and spins everything as good, things any person would be ashamed to boast of. But boast they do and threaten they do. It is like a restraining order on an abusive spouse- it is law but who will stop the abusers?
A victory is only meaningful if it is followed up on, and I wonder who will do that? Not Congress, who if anything will simply rubber-stamp the Bush plan.
ReplyDeleteAn interesting point on this issue was brought up this morning on Amy Goodman's program "Democracy Now." There is a pending criminal case against Rumsfeld in the German courts that accuses him of committing war crimes and requests that he be sent to the International Criminal Court in The Hague for trial. The German court suspended prosecution of the case on the grounds that it could not proceed under the rules of the ICC unless it was clear that the United States would not prosecute Rumsfeld under its own laws. Hamdan, if it does nothing else, holds that common Article 3 of the Geneva Conventions applies to the actions of American officials. Rumsfeld has violated Article 3 by ordering torture of detainees at Guantanamo and Abu Ghraib (and elsewhere). If there is no sign that the U.S. government ever plans to prosecute him under 18 U.S.C. section 2441 (which makes it a war crime to violate Article 3), the German court should revive the case and order Rumsfeld's extradition.
The Bush gang will naturally ignore any such move by the Germans, but at least this will make it impossible for Rumsfeld (or any other of his minions who carried out his orders) to travel to any country outside the U.S. that has a reciprocal extradition treaty with Germany -- unless, of course, Rummy only travels with a brigade of the 101st Airborne to protect him from arrest.
It's not much, but it's a start.
HWSNBN whistles past the graveyard of the "Unitary Executive":
ReplyDeleteMr. Bush's constitutional and statutory power to convene military commissions to try al Qaeda prisoners was reaffirmed.
"[S]tatutory" only. Guess who passes statutes....
Mr. Bush's constitutional power to detain Hamdan until the cessation of hostilities was recognized in both plurality opinions.
But the Geneva Convention was held to apply; the detainees must be treated in accord therewith. Which includes the requisite hearings (something that the maadministration has argued they didn't need to do, but now that claim seems to be a dead horse).
Indeed, Mr. Bush's statutory authority under the UCMJ to unilaterally modify impractical UCMJ procedures for military commissions was recognized and detailed.
Yep. "[S]tatutory".
Not a good day for Yoo ... or you.
Cheers,
HWSNBN:
ReplyDeleteIf the Elephants are smart, they will also amend and make retroactive the Detainee Act restricting court appeals until after the trial and keep the Supremes from any further prospective rulings like the one yesterday.
IOW, if the Rethuglicans are smart, they'll do any legal manoeuvring they can to avoid for the longest period possible any further slap-downs from the Supes.
As "jao" said, the preznit is afraid to take his substantive arguments to court.
Cheers,
bart: "If the Elephants are smart, they will also amend and make retroactive the Detainee Act restricting court appeals until after the trial and keep the Supremes from any further prospective rulings like the one yesterday."
ReplyDeletearne: "IOW, if the Rethuglicans are smart, they'll do any legal manoeuvring they can to avoid for the longest period possible any further slap-downs from the Supes. As "jao" said, the preznit is afraid to take his substantive arguments to court."
Good point! You don't have much faith in the strength and validity of the president's legal arguments here, do you, bart? If you did, you'd be eager to have the Supremes make their rulings.
Oh well.
Back to DUIs in Steamboat Springs for you!
Patrick Meighan
Venice, CA
vaughan said:
ReplyDeleteHowever, As Glenn rightly states, this is a victory. The rulings on school segregation didn't change things right away--it was decades before it all played out (I know, it's still going)--but things are much better due to that ruling in the 50s.
And they had to call out the National Guard to enforce some of the orders (under Eisenhower's direction). Here, could we have the curious inverse, where state governors call up the National Guard to demand that the feds opbey the law? That would be rather ironic....
Cheers,
Fly: "Basically, isn't the court just telling us that they need a more clearly defined statute relating to the alleged offense to rule in favor of military tribunals?"
ReplyDeleteYankeependragon: Amazingly, I think the fly's onto something here.
One point needs clarification here.
In the narrow sense, fly is correct: the Supreme Court was asked to decide on the appropriateness of the special commissions, and it decided that they aren't appropriate.
However, on the way to that conclusion, they made quite a few statements. Most importantly:
- That at least the weaker (non-POW) protections of the Geneva Conventions apply.
- That, in his duties as Commander-in-Chief of the armed forces, the President must respect the limitations and follow the statutes set out by the Congress.
Now, even though these are not decisions of the Supreme Court per se, they are still findings used to support a decision.
The central question is: to what degree do these findings have relevance? To what degree do they constitute legal precedent?
For example, if someone brings a lawsuit against the government where the government's actions violated a statute but they were consistent with the signing statement, how much value would the supreme court's finding that the President must respect statutes have?
Arne Langsetmo said...
ReplyDeleteBart: Mr. Bush's constitutional and statutory power to convene military commissions to try al Qaeda prisoners was reaffirmed.
"[S]tatutory" only. Guess who passes statutes....
Try actually reading the opinion or my second post yesterday reposting the pertinent parts of the opinion to rebut Glenn's assertion that this opinion somehow applies to FISA.
Bart: Mr. Bush's constitutional power to detain Hamdan until the cessation of hostilities was recognized in both plurality opinions.
But the Geneva Convention was held to apply; the detainees must be treated in accord therewith. Which includes the requisite hearings (something that the maadministration has argued they didn't need to do, but now that claim seems to be a dead horse).
Once again, try reading the actual opinion. None of the Justices said this.
Bart: Indeed, Mr. Bush's statutory authority under the UCMJ to unilaterally modify impractical UCMJ procedures for military commissions was recognized and detailed.
Yep. "[S]tatutory".
Are you a parrot? That is what I said.
Not a good day for Yoo ... or you.
Decision doesn't bother me in the least. Unless you are going to execute them, I see no reason to try any of these detainees in order to sentence them to Gitmo.
However, since Mr. Bush wants to try some of them, Congress will reverse the Supremes this fall.
"the administration's theory is that the Constitution vests unlimited power in the President to make decisions to defend the country, and nobody -- neither Congress nor the courts -- has any power to interfere with those decisions."
ReplyDeleteMr. Marbury, say goodbye to Mr. Madison.
Bart:
ReplyDeleteDecision doesn't bother me in the least. Unless you are going to execute them, I see no reason to try any of these detainees in order to sentence them to Gitmo.
Bart, when did you resign your American citizenship, and what country did you choose as your new home? Or am I misreading what you wrote, and you actually do retain some shred of affection for due process?
I see on the Federation of American Scientists web site that Sen. Specter has already introduced a bill "to provide comprehensive procedures for the adjudication of cases involving unprivileged combatants."
ReplyDeleteIn his introductory remarks, he said a number of Specteresque things, such as:
"The [Hamdan] decision that the President lacked the authority to establish the military commissions makes it obvious that the conclusion of the Supreme Court is that there is no inherent authority, an inference and a proposition which may have some weight as we consider collateral matters, for example, on the electronic surveillance under NSA."
Anyway, the whole thing is here.
Gandalf,
ReplyDelete"That at least the weaker (non-POW) protections of the Geneva Conventions apply."
I'm guessing Congress can come up with a legislative remedy for that silly idea...
dbostrom,
"Bart said: I see no reason to try any of these detainees in order to sentence them to Gitmo."
Bart makes a perfectly valid point there.
As I said up thread, the court does not deny the President's "Article II powers" to lock enemy combatant's up "for the duration".
The President could also just as easily have decided to take no prisoners to begin with.
Glenn,
ReplyDeleteI strongly agree with you. This is a great victory. It's not everything; how could it be? I love Digby, but he's wrong here. If this is not a victory, if nothing will work, I wonder why Digby is writing. Does he think his writing will change things, but a great victory at the Supreme Court won't? Buck up! No more self-pity! Fight!
Legal Expert: Congress Can’t Rubber Stamp Military Commissions Without Endangering U.S. Troops
ReplyDelete"Shortly after the Supreme Court issued its decision in the Hamdan case, Sen. Lindsey Graham (R-SC) went on television and said that all Congress needed to do was provide its “blessing” to Bush’s procedures. Many others, especially critics of the decision, have echoed Graham’s position.
"Today, Georgetown Law Professor Carlos Vazquez explained that things aren’t as simple as Graham and others would have you believe.
"Vazquez said that Congress could pass a law authorizing the procedures ruled illegal by the court. But according to the court’s decision, doing so would abrogate Common Article 3 of Geneva Conventions. This would have serious consequences because the Geneva Conventions provide essential protections to U.S. troops abroad. Watch it:
"Vazquez also noted that — contrary to some interpretations circulating in the blogosphere — the court did not find the Geneva Conventions were only relevant because they were incorporated into the Uniform Code of Military Justice. Even if you amend that law, Gevena still applies. "
Link for videos
HWSNBN sez:"
ReplyDelete[HWSNBN]: Mr. Bush's constitutional and statutory power to convene military commissions to try al Qaeda prisoners was reaffirmed.
[Arne]: "[S]tatutory" only. Guess who passes statutes....
Try actually reading the opinion or my second post yesterday reposting the pertinent parts of the opinion to rebut Glenn's assertion that this opinion somehow applies to FISA.
Oh, I did. As I said, "statutory". There's no holding there that Dubya has any power to do so without statutory authorisation, and they expressly decline to decide that. There's discussion of previous "emergency" tribunals under exigent conditions, but these curcumstances weren't before the court. The reason the tribunals failed is that the statutes that did exist prohibited such.
[HWSNBN]: Mr. Bush's constitutional power to detain Hamdan until the cessation of hostilities was recognized in both plurality opinions.
[Arne]: But the Geneva Convention was held to apply; the detainees must be treated in accord therewith. Which includes the requisite hearings (something that the maladministration has argued they didn't need to do, but now that claim seems to be a dead horse).
Once again, try reading the actual opinion. None of the Justices said this.
The Geneva Conventions were held to apply (albeit in this case particularly through incorporation in the UCMJ). Hard to dispute that. While the court didn't say so (in part because it wasn't before them to decide), if the Geneva Conventions apply, then the CSRB hearings must also.
[HWSNBN]: Indeed, Mr. Bush's statutory authority under the UCMJ to unilaterally modify impractical UCMJ procedures for military commissions was recognized and detailed.
[Arne]: Yep. "[S]tatutory".
Are you a parrot? That is what I said.
OK, I'll add some more. The court also found that any such modificatiosn must conform with the requirements of the statutes, which is to say amongst other things that the matter of "practicality" is not one solely for the preznit to "determine", but it must be objectively the case.
[Arne]: Not a good day for Yoo ... or you.
Decision doesn't bother me in the least. Unless you are going to execute them, I see no reason to try any of these detainees in order to sentence them to Gitmo.
Wait until the court gets fed up and says: "Indefinite detainment with no charges and no hope of release is impermissible. SOme day -- and that day isn't 'when hell freezes over' -- you're going to have to charge them or release them." Oh, yeah, forgot, they did say something along those lines.
However, since Mr. Bush wants to try some of them, Congress will reverse the Supremes this fall.
They can't "reverse the Supremes". HWSNBN is an eedjit.
Cheers,
HWSNBN sez:
ReplyDelete[HWSNBN]: Mr. Bush's constitutional and statutory power to convene military commissions to try al Qaeda prisoners was reaffirmed.
[Arne]: "[S]tatutory" only. Guess who passes statutes....
[HWSNBN]: Try actually reading the opinion or my second post yesterday reposting the pertinent parts of the opinion to rebut Glenn's assertion that this opinion somehow applies to FISA.
[Arne]: Oh, I did. As I said, "statutory". There's no holding there that Dubya has any power to do so without statutory authorisation, and they expressly decline to decide that. There's discussion of previous "emergency" tribunals under exigent conditions, but these curcumstances weren't before the court. The reason the tribunals failed is that the statutes that did exist prohibited such.
More on this from Hamdan:
Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated by Article I, §8 and Article III, §1 of the Constitution unless some other part of that document authorizes a response to the felt need. See Ex parte Milligan, 4 Wall. 2, 121 (1866) ("Certainly no part of the judicial power of the country was conferred on [military commissions]"); Ex parte Vallandigham, 1 Wall. 243, 251 (1864); see also Quirin, 317 U. S., at 25 ("Congress and the President, like the courts, possess no power not derived from the Constitution"). And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war. See id., at 26-29; In re Yamashita, 327 U. S. 1, 11 (1946).
The Constitution makes the President the "Commander in Chief" of the Armed Forces, Art. II, §2, cl. 1, but vests in Congress the powers to "declare War ... and make Rules concerning Captures on Land and Water," Art. I, §8, cl. 11, to "raise and support Armies," id., cl. 12, to "define and punish ... Offences against the Law of Nations," id., cl. 10, and "To make Rules for the Government and Regulation of the land and naval Forces," id., cl. 14. The interplay between these powers was described by Chief Justice Chase in the seminal case of Ex parte Milligan:
"The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President... . Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature." 4 Wall., at 139-140.21
Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions "without the sanction of Congress" in cases of "controlling necessity" is a question this Court has not answered definitively, and need not answer today.
IOW, HWSNBN is the one that apparently didn't read the majority opinion.
Hope that settles it.
Cheers,
f.l.y:
ReplyDelete"Bart said: I see no reason to try any of these detainees in order to sentence them to Gitmo."
Bart makes a perfectly valid point there.
As I said up thread, the court does not deny the President's "Article II powers" to lock enemy combatant's up "for the duration".
Yes? Read again. Bart, the lawyer, a person very careful with his words, said "sentence". As in, sentence after passing judgement, in this case without a trial. Not a death sentence, but a lynching in other particulars.
Some of the people at Guantanamo are criminals. We'll find exactly which ones deserve a sentence only if the administration abandons its world historical conceits along with its peculiar inclination to enshrine Bin Laden and his followers as more than what they are.
The main identifying characteristic of the United States is not borders, a flag, the Washington Monument, the color or creed of citizens or any other superficial trappings. The main thing that's made us distinct in the world is our admirable if sometimes inefficient and always growing system of laws, which was tasked from its inception to strive in guaranteeing fair treatment to all.
There's absolutely no reason to discard our identity just because a spoiled rich boy manages to con a bunch of inclined suckers into attacking us. The only true existential threat to the U.S. posed by our supposedly (deceptively) unique moment in history is that of us being tricked into destroying our affection for and loyalty to our system of law.
If Bart is really suggesting that sentences be passed on the detainees at Guantanamo without benefit of trial, he's abandoned his country, for he's discarded the sole thing that makes him identifiable as an American, namely the rule of law we've chosen to live by.
It looks like many current and former members of the Bush Administration are in jeopardy, including people like John Yoo:
ReplyDelete* Article VI of the U.S. Constitution makes Senate-ratified treaties the supreme law of the land: "... all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
* The War Crimes Act of 1996 makes any violation of the Senate-ratified Geneva Conventions a federal offense: "[any US national who] commits a war crime [i.e., violates Common Article 3 of the Geneva Conventions] … shall be fined … or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."
* The majority opinion in Hamdan v. Rumsfeld holds that Common Article 3 of the Geneva Conventions applies to detainees in the Global War on Terror (e.g., Hamdan): "Common Article 3's requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements."
* The Nuremberg trials established the precedent of prosecuting everyone who has a role in war crimes, including propagandists (Hans Fritzsche) and lawyers (Franz Schlegelberger).
dbostrom 3:36 AM,
ReplyDeleteGreat catch, I overlooked that distinction because I was focused on the language in the decision. I agree with you in that it seems the President has the authority to detain these people, as the court describes it, "for the duration of active hostilities in order to prevent such harm" but not so far as "sentencing" them for an arbitrary period of time without some form of trial.