GD Hamdan - Careful What You Wish For

The Supreme Court's ruling in Hamdan may represent a Pyrrhic victory for the Democrats - since Bush is now likely to go to Congress for enabling legislation, Dems may be forced into a series of potentially awkward votes just a few months before the election.

Here is the AP:

Congressional hearings on Guantanamo set

By LOLITA C. BALDOR
ASSOCIATED PRESS WRITER

WASHINGTON -- The Supreme Court's rebuff of the Bush administration's Guantanamo military tribunals knocks the issue into the halls of Congress, where GOP leaders are already trying to figure out how to give the president the options he wants for dealing with suspected terror detainees.

That way forward could be long and difficult. Congress will negotiate a highly technical legal road - one fraught with political implications in an election year - under the scrutiny of the international community that has condemned the continued use of the Guantanamo prison.

...Within hours of the high court's ruling that the military tribunals were illegal under U.S. and international law, President Bush said he would work with Congress to fix the problem. Still, Bush vowed that the result "won't cause killers to be put out on the street."

...

Senate Majority Leader Bill Frist, R-Tenn., said he would introduce legislation after the July 4 recess that would authorize military commissions and appropriate due process procedures. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., introduced a bill Thursday that did essentially that.

"To keep America safe in the war on terror, I believe we should try terrorists only before military commissions, not in our civilian courts," Frist said.

Sen. John McCain said Friday that, with the Supreme Court ruling guiding the way, "we can now get this system unstuck."

"I'm confident that we can come up with a framework that guarantees we comply with the court's order but at the same time none of the bad people are set free," McCain, R-Ariz., told NBC's "Today" show.

We will know by November whether this ruling was yet another manifestation of a Rovian plot.

MORE: I saw some promo for a t-shirt saying "F SCOTUS".  Uhh, "F THAT".  We are still the party of the rule of law; we are just having a little trouble figuring out what the law is.

And I am looking forward to lots of commentary about the Supreme Court's new ability to enter into treaties with terrorist groups - extending the Geneva Convention to Al Qaeda seems daft.

Well, Nancy Pelosi and Harry Reid can help sort through this, and good luck to them.

PARTISAN WATCH:  Brad DeLong calls me out for cynical Republican partisanship:

Hamdan is not a "Pyrrhic victory" for Democrats. Hamdan is a full-fledged victory for freedom, America, and constitutional government. "Hamdan" says that the United States is not an elective dictatorship, but rather a republic in which there is a legislative branch which legislates and an executive branch that executes the laws--executes the laws, doesn't do what it likes while ignoring Congress.

 

Well, I am sympathetic to his broad point that not everything should be loooked at through the prism of its political impact.  However, handicapping the horse race is part of the pundit's job description, a sis trying to look down the road a bit and say something other than "yea" or "boo".

That said, I didn't even manage to say anything original or even something confined to the right- Marshall Wittman, Kevin Drum, Reed Hundt, and Andrew Cochran had similar views.

That said, "lefty" John Cole also deplores this unrelenting use of the political prism.  Waddya gonna do?

As to the substance - is this decision a great day for democracy?  Well, I suppose so, especially since Bush did not put troops in the capitol or arrest the Supremes.

But I have never thought Bush was on a path to an imperial Presidency; I have believed that Congress was ducking its responsibility to involve itself in these national security issue becasue they are not an accountability-seeking institution.  It is far more comfortable for Congress to duck issues and second-guess Bush's mistakes than actually be on the hook for a decision.  But they have not lacked the institutional power to oppose the President; what they have lacked is the will.

And now the Supreme Court has forced them to do their job.  Fine.

The Anon Lib has thoughts on the approach taken by the Supremes.

Comments

[Patton]

I would love for the Congress to hold a hearing where the ACLU, Amnesty Intl, etc. would testify and also include on the panel a couple of the most vicuous and outspoken GITMO detainees.

Would love to hear the Chairman ask;
So Mr. ACLU man, do you agree with the man you are attempting to free that we should all be disemboweled and our entrails should rot in the streets??

[Carol Herman]

I love the way Bush plays his cards!

This is supposed to be the summer where the GOP moves ahead; and the donks' behind.

And, Im reminded, again, of the piece Ben Stein wrote (and you could read for free), in the American Spectator; where he said Karl Rove is down to earth. DECENT. Never raises his voice. Helps with the dishes at home. His wife's a good cook, too. Being invited to the Rove's home for dinner is a delight. And, then, Rove offered to drive Stein and his wife, home.

BEST LESSON: Rove doesn't have a mean bone in his body. Doesn't mean he can't play politics. He's not afraid of the hardball. And, he doesn't have to deliver any low blows. Ditto, for our President.

As to HAMDEN, the blog, CHESTER, says: It's time to remember Andrew Jackson's remarks: "Okay, they passed it. Now, let's see them impliment the law." This is linked at Glenn Reynolds site.

And, ya know what that means? There's more circulation to the Net than there is to the NY Times.

While, in Israel, the kidnapped soldier is probably dead. And, the gains for the arabs? About zero.

[boris]

For the Supreme court to decide constitutionality with regard to law is one thing. For them to decide constitutional questions regarding war powers of the elected branches is something more dangerous.

There are very very good reasons for keeping judges away from decisions that relate to provection of the country. There are very very good reasons those decisions should be made by the elected branches and disputes between them settled at the ballot box.

Very very good reasons. Were I a better writer, I would try to explain them.

[boris]

-- protection of the country --

[eric]

I find it interesting that there are now people advocating for the rule of law who say that the Supreme Court is having trouble figuring out what the law is. I've certainly had misgivings about certain decisions the high court has made, but my reaction is such that I wish the law was different and not that the Supremes don't know what the law is.

I've noticed that Bush is not decrying activist judges here the way he did with gay marriage. I think that says a lot.

[sbw]

My take: What Hamdan v. Rumsfeld means.

We laugh at the dramatic interpretations by pundits who argue the decision is for or against the Bush administration. It is not a judgment of who won or lost politically, but about the application of the rule of law by all branches of our government -- Executive, Legislative and Judicial. Not only is that what distinguishes our society from that of the Taliban, the Baathists, al Qaeda, and other terrorists, but it is the very process we are fighting the war to preserve.

[Pete]

I think it is just wishful think that this ruling is a victory for the Dems.

While I agree with Anonymous Liberal, that the ruling is a setback to the Bush power grab, I think that it will be used by Bush/Rove to their advantage where they can rile up their base against the "liberal judges".

[Pete]

Aargh - I meant "thinking" not "think"

[boris]

The writers of the constitution were very clear about who was to have war powers and who was not. Just sanctimonious drivel that judges have sacred right to decide whatever they want and anyone who disagrees is against rule of law.

Ther term "self defense" applies to situations where "law" is a secondary concern.

[boris]

Aargh - I meant "thinking" not "think"

"Not think" is the correct phrase.

[Pisistratus]

And Congress could not have taken this up and passed legislation already because...

The Republican congress is spirally bound, i.e. no spine.

Meanwhile the doublethink is amusing. So now this decision is a bonanza for Bush. So I suppose if Thomas et al. had been in the majority, you would have decried it as a Bush defeat? Nah.

The decision is a victory for the rule of law over the rule of men. Anonymous Lib has a great post up about Addington's head exploding b/c his/Yoo's executive supremacy theory was just shot down. That ain't changing come November-it's dead.

Republicans win again in November? Fine. We live in a democracy. But I'll sleep better knowing I'm governed by the law, not President Bush.

[Patrick R. Sullivan]

'I saw some promo for a t-shirt saying "F SCOTUS".'

Was Nino wearing one when he opened his dissent with:

'On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, "no court, justice, or judge" shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Norwithstanding this plain directive, the Court today concludes that, on what it calls the MOST NATURAL reading, EVERY "court, justice, or judge" before whom such a habeas application was pending on December 30 has a jurisdiction to hear, consider, and surrender judgment on it. This conclusion is patently erroneous.'

(Emphasis in Scalia.)

[Semanticleo]

I wonder how 'Huckleberry" Graham and Kyl are doing today?

[Pisistratus]

Hey Sullivan, get with the program. If Scalia's view had prevailed that would have been bad for Bush. This was just a "Pyrrhic victory for Dems"!

[Patrick R. Sullivan]

'The decision is a victory for the rule of law over the rule of men.'

How so, when Article III, section 2 gives Congress the power to determine the Court's jurisdiction, but 5 MEN just blew off that very thing in the DTA?

[Anonymous Liberal]

I think this may well cause some near-term political headaches for the Dems, but it is still an enormously important step forward for the country as a whole, regardless of who it helps politically.

Second, as a point of clarification, the Court did not "extend the Geneva Convention to Al Qaeda." The court's decision only addresses Common Article 3 of Geneva, which by any reasonable definition, always did apply to Al Qaeda and Taliban fighters. Second, the court only applied that section because Congress, through the UCMJ, made the Geneva conventions applicable. Congress can, and may well, change this, but for now, that's what the law says, and the President is bound by the law.

If anyone's interested, here's my take on the broader significance of the ruling.

[Anonymous Liberal]

How so, when Article III, section 2 gives Congress the power to determine the Court's jurisdiction, but 5 MEN just blew off that very thing in the DTA?

Actually, Patrick, that's not at all clear. The drafters of the DTA could have been very clear on this point, but they were deliberately vague because they knew that they couldn't get the bill through if they were explicit. There's a good discussion of the legislative history of the DTA in the majority opinion. The statements made at the time suggest key democrats only signed on to the bill once the language was changed regarding stripping jurisdiction from pending cases like Hamdan. For an interesting wrinkle on this particular issue, see the post I linked to in my last comment. The ten-second version: Senators Graham and Kyl appear to have monkeyed around with the congressional record in an attempt to influence this decision.

[Florence Schmieg]

Liberals don't understand conservatives and therefore fail to see the electoral implications of the decision. The "rule of law" most certainly must be heeded. No argument. But the "rule" is determined by 9 people on the Supreme Court. Conservatives know that if one of the 5 votes had gone the other way, the government would have won this one completely. So, how to assure this? One more conservative appointment to the court. How to get that? Guarantee the Republican majority in the Senate remains or grows. As I stated in an earlier post, I think SCOTUS has given the 2006 elections to the Republicans.

[Patton]

""The drafters of the DTA could have been very clear on this point, but they were deliberately vague ""

Actually, it is not vague at all and all prior SCOTUS rulings (i.e Precedence, Stari Decisis) INCLUDED pending cases.

[The Unbeliever]

And I am looking forward to lots of commentary about the Supreme Court's new ability to enter into treaties with terrorist groups - extending the Geneva Convention to Al Qaeda seems daft.

Well, Nancy Pelosi and Harry Reid can help sort through this, and good luck to them.

Pelosi and Reid couldn't sort their way through a sock drawer. (Unless maybe all the socks were either blue or red.) And if Pelosi is really so ecstatic about granting Geneva protections to non-signers, I don't trust her to sign off on any clarifying legislation that might come her way.

[Patrick R. Sullivan]

'There's a good discussion of the legislative history of the DTA in the majority opinion. The statements made at the time suggest key democrats only signed on to the bill once the language was changed regarding stripping jurisdiction from pending cases like Hamdan.'

Scalia thinks otherwise:

'Worst of all is the Court's reliance on the legislative history of the DTA to buttress its implausible reading of [it]. We have repeatedly held that such reliance is impermissible where, as here, the statutory language is unambiguous. But the Court nevertheless relies both on floor statements from the Senate and (quite heavily) on the drafting history of the DTA. ...The Court urges that some "statements made by Senators preceding passage of the Act lend further support to" the Court's interpretation....

'The Court immediately goes on to discount numerous floor statements by the DTA's sponsors that flatly contradict its view, because "those statements appear to have been inserted into the Congressional Record AFTER the Senate debate"....Of Course this observation, even if true, makes no difference unless one indulges the fantasy that Senate floor speeches are attended (like the Philippics of Demosthenes) by throngs of eager listerers, instead being delivered (like Demosthenes' practice sessions on the beach) alone into a vast emptiness. Whether the floor statements are spoken where no Senator hears, or written where no Senator reads, they represent at most the views of a single Senator. In any event the Court greatly exaggerates the one-sidedness....'

[Patton]

If it was Bush and not the Liberal justices, the left would be screaming that Bush has violated the DTA!!

[Patton]

The DTA provides: “[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.”

This provision “took effect on the date of the enactment of this Act,” §1005(h)(1), id., at 2743, which was
December 30, 2005. As of that date, then, no court had jurisdiction to “hear or consider” the merits of petitioner’s habeas application. This repeal of jurisdiction is simply not ambiguous as between pending and future cases. It prohibits any exercise of jurisdiction, and it became effective as to all cases last December 30. It is also perfectly clear that the phrase “no court, justice, or judge” includes this Court and its Members, and that by exercising our appellate jurisdiction in this case we are “hear[ing] or consider[ing] . . . an application for a writ of habeas corpus.”
An ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.

[Anonymous Liberal]

Scalia thinks otherwise

Scalia always thinks otherwise. :)

As for this:

Conservatives know that if one of the 5 votes had gone the other way, the government would have won this one completely.

You can go on believing that if you want, but it's just not true. If you look at the dissenting opinions, as well as past opinions, it's pretty clear that only Thomas has any real objection to the core holding regarding the Youngstown framework. Alito objected on statutory grounds and Scalia's dissent focused on the DTA/jurisdictional issue.

Even if Stevens is replaced by a hardcore conservative, I don't expect the core holding of Hamdan will be overruled. The bottomline is that the Adington/Yoo conception of executive power just isn't shared by very many jurists, including conservative ones.

[Barney Frank]

Have to agree with AL on the vagueness of the DTA. It explicitly was made retroactive to two types of cases but not explicitly the third; Hamdan's. Congress made that mess and the majority simply exploited it.
Scalia's argument was less than convincing.

And congress and Bush can clearly still institute military tribunals with one caveat; the Geneva Conventions may pose a hurdle.......or they may not.

It is not however nearly so clear that congress is responsible for the majority's inclusion of AQ within the Geneva Conventions. I think the majority opinion there was blatantly wrong and ahistorical.

[Barney Frank]

Patton,

There is a paragraph preceding the one you qoute in the DTA which mentions certain exceptions; unfortunately Hamdan's case seems to fit one of them.

[boris]

conception of executive power

The assumption that jurists are the final say on executive branch power is just wishful thinking.

It is hardly suprising that the judicial branch and it's proponents differ from executive branch on such questions. It is obvious however that many recent anti-executive branch pundits argued the opposite way when a Democrat was in the executive.

[Barney Frank]

Look, whether this is a victory for Bush or the Dems or whoever is unclear to me.

Despite what some say this is not a huge encroachment on the President's war waging powers and I suspect they are utterly wrong on its applicability to something like the NSA wiretapping.
The court has said this issue requires the involvement of congress. Big deal. How did that become a liberal victory? Conservatives are now in favor of a weakened congress and a strong executive? Since when; 2000? Certainly not in the 90's.
The dangerous and incorrect part of the decision concerns the Geneva conventions.

[Florence Schmieg]

Again, Anonymous Liberal, I was commenting on electoral politics. That is how the conservative base will see this, whether or not your conclusions regarding how Scalia etc. really feel is true or not. They will now get over their childish fury about immigration and spending and "sending a message" by not voting and come out in November to help protect the Senate majority. They won't be undergoing your informed legal analysis before deciding to vote.

[Wilson's a liar]

That way forward could be long and difficult. Congress will negotiate a highly technical legal road - one fraught with political implications in an election year - under the scrutiny of the international community that has condemned the continued use of the Guantanamo prison.

Hahahahahahahaha.

What a bunch of horse hockey. Since when has this Congress or its consituents given a rip about "scrutiny by the international community?" I think we had that debate in the 2004 election and the Kerry approach lost.

The way forward here is not difficult at all. SCOTUS gave Congress a clear road map to fix this. All they have to do is do it. Lefties will be greatly disappointed when they figure this out.

I can't wait to see Democrats having to campaign on providing due process rights to Osama's driver.

[sbw]

Let's see: The Supreme Court has the jurisdiction to interpret the constitutionality of legislative statutes that declare that the Judiciary doesn't have jurisdiction to interpret the constitutionality of a legislative statute.

Why are people having difficulty with this?

[JohnH]

"GOP leaders are already trying to figure out how to give the president the options he wants for dealing with suspected terror detainees." thank you, AP.

That's right, AP. It's all about what Bush wants, not what's right for the country. And what do you want, AP? You want it to be about how Bush was whacked by SCOTUS, but oh, yes, maybe the killers do need to stay in detention. But not Guantanamo.

Sometimes I think AP is a much bigger problem than NYT, because they are invisible to most people and so ubiquitous.

Last week my wife waved an AP story in front of me that mis-represented what the NAS said about global warming, wanting me to finally see what a big problem it was. She didnt' understand that the story was written by the AP.

[Wilson's a liar]

JohnH, that's no different from Bill Keller talking about "the Administration" rather than "the government." It's all about Bush. They're still apoplectic that he has take off the "Kick Me" sign that Dick Nixon put on the White House in 1974.

[clarice]

I must say it's amusing to watch how the left fancifully argues that stripping a war president of the necessary powers to wage war (compare FDR) is a victory for law. Stuff it. No matter how prettily you write that pose, it's horsefeathers.

[JohnH]

yes, I agree about Bill Keller. A few days ago Hugh Hewitt was discussing the NYT with C. Hitchens (available on radioblogger) and they both agreed that Keller had written some really good articles on, e.g., the probability that terrorists would use WMD in the U.S. But I find that liberals can write articles like that. It shows they are serious about terrorism, and it does not reflect positively on the administration.

When I heard Bill Keller on CNN last week defending his decision, I wanted to throw up. It was all about the moral certainty of the Upper West Side.

I think Bill Keller is morally unplugged. He got half of the DNA about morality, like "do not kill" and then the plug came out before he got "and do not allow others to kill."

[PeterUK]

"While I agree with Anonymous Liberal, that the ruling is a setback to the Bush power grab,"

"it is still an enormously important step forward for the country as a whole, regardless of who it helps politically."

Get a grip,this is about foreigners picked up in a foreign war zone,does anyone seriously think that anyone wants to have the problem of trying them? How does it represent a power grab by Bush so to do,how is it a step forward for American citizens.
This has created more problems than it has solved.Asfor the a,"Rule of Law not Men" the laws are man made constructs,the SC consists of human beings.
Get a grip girls!

[azredneck]

AL@8:32

I will drop my senator (Kyl)a thank you for appropriately representing my point of view and renew my vote of confidence via Nov election!

[Lurker]

"I can't wait to see Democrats having to campaign on providing due process rights to Osama's driver."

Or Osama bin Laden, himself!!

PUK, I agree with you. I hate it when the lefties *think* that Bush overstepped his authority without REGARD to the security of our own country. Surely, the lefties don't see how easy it would be to lose freedom if the country is not secure.

I think SC ruled more in favor of Bush and did more harm to Hamdan and his ACLU lawyers.

I also think that SC's ruling forces Congress to get its act together.

Allah was also quick to point out that if the NSA warrantless terrorist surveillance program was set before SC, the US constitution would end up be scrutinized to justify this program. Check Hot Air.

[Lurker]

Making the NY Times pay

Loved it when Mac says the following:

"A protest here, major cancellations of subscriptions there. The Grey Lady meets the piper! Michelle Malkin has the info.

Just a note, the House Resolution condeming the leak passed on greater than party lines 227-183 (Mostly Democrats in the "Nay" column). Yet it is significant that FINALLY the congress is taking a full stand with the President on this issue. It also bodes well for the "get off my back SCOTUS" legislation to come military tribunals.

Funny stuff, Rep. Barney (Bathhouses are FUN!) Frank notes on the draft."

[Patrick R. Sullivan]

'Let's see: The Supreme Court has the jurisdiction to interpret the constitutionality of legislative statutes that declare that the Judiciary doesn't have jurisdiction to interpret the constitutionality of a legislative statute.

'Why are people having difficulty with this?'

Because it isn't true. They have no such authority, the Constitution (III;2) gives Congress the authority to limit its jurisdiction.

[Lurker]

PUK, you read what AJStrata had to say about USA Today's news about the phone wiretapping program?

More Terrorist Surveillance Exposure By USA Today

"It seems our defunct news media cannot resist the need to go blabbing to everyone and anyone details about the NSA Terrorist Surveillance Program which the NY Times/Risen inaccurately exposed last December. Recall they originally claimed the NSA was bypassing FISA and spying on Americans, when it turns out the NSA was not bypassing FISA nor spying on Americans. The NSA was monitoring terrorists overseas and they were passing leads they detected concerning possible terrorist cells here in the US who were (at that time) naive enough to contact their overseas masters for direction (and probably money transfers). Being caught in a legal surveillance doesn’t require a warrant for those communications to the target of the surveillance.

The other item the NY Times and Risen screwed up was the idea that the FISA court was being bypassed. It turns out from statements we have seen by FISA Court Judges that just the opposite happened, FISA was getting these leads from the FBI who had been alerted by the NSA from their overseas surveillance that people in the US were in contact with known terrorists overseas. The FISA Court judges complained this ‘tainted’ their process because convention was, prior to 9-11, not to use military leads as part of case for probable cause. Quaint, but stupid. This is why the 9-11 highjackers were safe once they reached our shores. No matter what intel had been gathered when the highjackers were in Germany and at the final planning meeting in Indonesia, once they hit San Diego all of that intel became invisible to the eyes of the court. The FBI had to rebuild any surveillance case from scratch, starting with their actions here in the US. That is why we couldn’t use our leads to stop 9-11.

I set this stage because there is more to the media’s efforts to destroy our defenses against terrorist than just tipping them off. The news media are, ignorantly to the consequences I would guess, establishing conditions to return to the pre 9-11 world where military leads to possible attacks cannot be used by domestic law enforcement (something people like Sen Specter and certain FISA Court judges opine for)."

[Lurker]

Allah says that Protocol 1 did not get 5 votes from SC but got five votes on CA3.

What's Protocol 1?

[Lurker]

Wait 24 hours and things get reported differently...

Here is what "armylawyer" says:

Hamdan v Rumsfeld

[sbw]

Sullivan: Because it isn't true. They have no such authority, the Constitution (III;2) gives Congress the authority to limit its jurisdiction

Gosh. Help me find your reference, Sullivan. I read the Constitution this way: "Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States..."

[PeterUK]

Lurker,
It would be easier for Bush to "do a Clinton" ad pretend theses people never existed,just set them free,kick it down the road for the next incumbent.
Incidentally,Clinton didn't mind leaving a mess even if it had been a Democrat who followed him into office.Our little leftists cheer at the mess left behind,but it could have been John Kerry left holding the smelly end of the stick.

[Patrick R. Sullivan]

'Have to agree with AL on the vagueness of the DTA. It explicitly was made retroactive to two types of cases but not explicitly the third; Hamdan's.'

What in the world are you talking about?

[Lurker]

What is so vague about the DTA, Patrick? I don't see it. Do you?

[Lurker]

I see Pinch ripping apart WSJ...

[Lurker]

Oh, what a great idea, PUK!!!

[Patrick R. Sullivan]

'Gosh. Help me find your reference, Sullivan.'

Keep reading and you'll come to:

'...the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.'

'with such exceptions' is why it's called 'The Exceptions Clause'. Scalia and Thomas had no trouble finding it.

[pgl]

Entering into treaties with Al Qaeda? When I read Brad DeLong's rebuke of this post, I first thought he'd been a tad hard on you. No, Brad was way too kind. Tom - if you agree wish the National Review's America (see my Angrybear post) on this, I don't. I want to live in America that knows how to have due process, liberty, respect for our obligations to the world community, and security. In the National Review's America - we can't do the first three and have security too. Of course, if this nation is run by the types of IDIOTS who write for the National Review - maybe they are correct. Of course, American CAN do better. And one would hope you'd join the rest of America someday. BTW - you have had some rather pathetic posts in the past but this one tops them all.

[Gary Maxwell]

Kinda of a high school civics class thing. Court have jurisdiction unless Congress says they dont. But if you did not pay attention in civics you would not know this I guess.

[Sue]

Ahhh...a duel...

...this should be good. ::grin::

[Sue]

Just to refresh my memory, isn't 'pgl' the blogger that no accessed Tom when Tom spanked his hiney at his blog? The angry bear comment sounded familiar to me. ::grin::

[pgl]

Patrick Sullivan notes the Exception Clause without referencing the controversy surrounding what it means. FindLaw's discussion of Article III has a very nice summary of this debate.

BTW Sue, I am one of the Angrybears. As far as denying Tom access, Angrybear controls this (not me) and he has never denied access to anyone. Tom - you started this ugly false rumor. Would you have the decency to put an end to it?

[Sue]

Oh well, truth or not, I hope to still enjoy the duel...

[pgl]

Sue - I might enjoy it too if Tom sticks to facts and not false accusations.

[boris]

ppl: knows how to have due process

The question at hand is deciding what due process is for terrorists captured engaging in illegal combat with american soldiers. For the judicial branch to seek to find and apply portions of the Geneva convention in a situation never intended by the signers is somewhat less than helpful.

Sanctimony about how these combatants are treated is all about what a bad mean evil administration this is and how sympathetic all "nice" humane enlightened individual are to the victims of the vile out of control war criminals in the White House.

[Anonymous Liberal]

Kinda of a high school civics class thing. Court have jurisdiction unless Congress says they dont. But if you did not pay attention in civics you would not know this I guess.

It's not really that simple. The most difficult class you take in law school is 'Federal Courts'. The reason it's so difficult is because you have to grapple with incredibly complex issues like this one. Determing how far Congress can go in stripping jurisdiction without running afoul of other clauses in the constitution is a complex and convoluted issue. Yes, Congress sets the jurisdiction rules. But the Court long ago recognized that this power has its limits. It's not at all clear that Congress can do away with the right to seek judicial review of certain key constitutional rights.

But all this is neither here nor there, because the Court held that the DTA did not strip them of jurisdiction with respect to Hamdan's appeal. You guys can pretend that the DTA is crystal clear on this point, but you're just being willfully blind to the language and statutory history of the law, which are intentionally ambigous. If you have any doubt on this point, go back and reread the congressional record and listen to what people said and wrote as the DTA was negotiated and voted upon. The DTA's effect on Hamdan has been ambiguous from the beginning and the court resolved that ambiguity in a perfectly reasonable way.

[PeterUK]

pgf,
"I want to live in America that knows how to have due process, liberty, respect for our obligations to the world community, and security."

A community which contains horendous dictatorships and totalitarian states,you are going to have to pick and mix here.

[boris]

and statutory history of the law

Yet the will of congress is crystal clear in the DTA itself. Invoke political sausage making to claim words don't mean what they say is typical of your "analysis".

[Gary Maxwell]

Well here is the conclusion to the write up on the FindLaw site, just in case you think it totally unclear that Congress can limit jurisdiction in appellate cases:

There thus remains a measure of doubt that Congress' power over the federal courts is as plenary as some of the Court's language suggests it is. Congress has a vast amount of discretion in conferring and withdrawing and structuring the original and appellate jurisdiction of the inferior federal courts and the appellate jurisdiction of the Supreme Court; so much is clear from the practice since 1789 and the holdings of many Court decisions. That its power extends to accomplishing by means of its control over jurisdiction actions which it could not do directly by substantive enactment is by no means clear from the text of the Constitution nor from the cases.

Sound like a big controversy to you? I think this says if it wanted to make Slavery legal by telling the courts to but out, it could not since it can not do that which the Constitution specifically precludes. Are there such issues in this specific case? Not to my first blush.

[sbw]

Sully, perhaps you have an easier time than the Supreme Court and I do with the concept of an Imperial Congress. The Supreme Court has already kicked the shins of Nixon's attempt at an Imperial Presidency.

Perhaps you'd lay out your argument for why Congress is the superior branch of the three equal branches of our government.

[clarice]

Sully who started out with his head on straight now sees this war thru the eyes of Tom of Finland . To say he's labile is to understate it.

[boris]

the language and statutory history of the law, which are intentionally ambigous

When law is deliberately ambiguous so it can be interpreted any way the judge sees fit ... that's not rule of law, it's rule by judges.

[Barney Frank]

"Funny stuff, Rep. Barney (Bathhouses are FUN!) Frank notes on the draft."

Wait 'just one minute' there bub. You mean there's some other dude named Barney Frank?

[Patton]

I notice how quickly liberals have discovered that the courts have INHERENT CONSTITUTIONAL POWERS.....now maybe next they could find that Presidents also have INHERENT CONSTITUTIONAL POWERS.

I take it liberals believe that if Bush had ordered the shooting down of one of the hijacked airplanes on Sept 11th, then he would have committed a Federal crime, whereas others believe he would be acting within his INHERENT POWERS as Commander in Chief.

And I guess liberals would argue that if Bush could have used the military to intercepted communications between Atta and his Commander on Sept 11th, that Bush would have broken the law, unless he went running to the FISA court, and that if he didn't he would be guilty of a crime, whereas other believe Bush would have been using the INHERENT POWERS of the President to intercept those communications.

So how is today any different then Sept 11th? We are at war, the enemy is attacking us, the are planning, coordinating, commuinicating, manuervering for the next attack and Bush is using his INHERENT powers to stop the attacks and prevent future attacks.

It is no different today or next week then it was on September 11th morning. Wedon't know who they are, we don't know where they will strike, so we are intercepting communications, intercepting transaction, and using force to repeal these attacks.

The only difference is time and certainty..thus you don't have specific individual targets or specific individual identifiable actions, but you could at any moment. The next attack could be happening as we speak...yet the liberals want the President to have his hands tied, just like they tied them before Sept 11th with the Gorelick Wall, etc.

The Republicans should beat back these attempts to turn war into a legal battle and remove the courts from getting involved, and if they try to involve themselves, then cut off their funding.

[Patton]

""""You guys can pretend that the DTA is crystal clear on this point, but you're just being willfully blind to the language and statutory history of the law, which are intentionally ambigous."""

NO, we are not, YOU are being willfully blind by trying to use secondary issues (debate history, etc.) when the FIRST thing the court does is use PRECEDENT (STARI DECISIS)...so - - - FIND ANOTHER RULING WHERE THE COURT KEPT JURIDICTION AFTER CONGRESS PASSED A LAW REMOVING IT.

The Supreme court even removed itself from a case literally in the middle of arguments because Congress passed a law removing its juridiction.

[Gary Maxwell]

Congress will fix this, and the ones screaming and yelling about the rights of Teroorists will be quite apparent to the voting public just about the time they start focusing on the upcoming elections. How very deserving for the Democrats. Not fair? Tough rocks.

[Kate]

OT-but any read on the new atrocity story that surfaced today. Seems like it's every major holiday. Following the Plame case has made me suspicious of the hidden government.

I remember when Haditha broke, some reporters were gleeful that there were more atrocities "out there". This one apparently just surfaced as a result of counseling of the 101st soldiers after the kidnapping and slaughter of the 2 soldiers from the checkpoint.

This is starting to have an orchestrated feel about it. Someone in the Pentagon certainly likes to leak these stories.

[Barney Frank]

Patrick Sullivan,
@ 10:56AM:
"'Have to agree with AL on the vagueness of the DTA. It explicitly was made retroactive to two types of cases but not explicitly the third; Hamdan's.'

What in the world are you talking about?"

Sorry about the length of this but here is the actual text of the pertinent part of the DTA followed by a discussion, from over at Volokh. I find it pretty persuasive lthough certainly not cut and dried.

"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.

Section 1005(h)(2) provides:

REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.

That's pretty straightforward - as to paragraph (e)(2), which deals with "REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION," and paragraph (e)(3), which deals with "REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS," the jurisdiction-stripping provision applies with respect to any claims which were pending on the date the Act was enacted.

The only problem is that Hamdan's claim wasn't brought under paragraphs (2) or (3). His case was a habeas corpus petition, which is addressed in paragraph (e)(1) instead.

The majority's argument is straightforward and intuitive: if Congress had wanted to make paragraphs (1), (2), and (3) all retroactive, it could have simply said so. The fact that it chose to include only paragraphs (2) and (3) in the retroactivity section necessarily implies that paragraph (1) isn't included.

Scalia's argument in dissent is less persuasive, in my view, but still a colorable argument. He says, to paraphrase, that it's true that the retroactivity provision only applies to paragraphs (2) and (3), but that we shouldn't necessarily infer from that that Congress had any intent at all with respect to paragraph (1). Rather, he argues, we should regard the statute as silent as to paragraph (1), and then apply the canon of construction that says, unless stated otherwise, a jurisdiction-stripping statute should be construed to apply to cases pending as of its effective date."

[pgl]

Marshall Wittman and you might agree on these issues but to suggest Kevin Drum has the same view as yours strikes me as either requiring you to go re-read what Kevin really said or if you knew what he really was saying - a tad bit of dishonesty on your part.

[Barney Frank]

pgl,

I was going to ask who you were talking to, but after reading your first post upthread I see you are one of the "IDIOTS" who are not interested in a reasonable discussion so, never mind.

[PeterUK]

The SC decision was all in the cause of Transnationalism,they were probably singing Imagine whilst they were doing it.

[Rick Ballard]

"You mean there's some other dude named Barney Frank?"

Frankly, Barney, I find your surprise surprising.

I always knew that someday I'd be able to write that.

[Appalled Moderate]

I have believed that Congress was ducking its responsibility to involve itself in these national security issue becasue they are not an accountability-seeking institution. It is far more comfortable for Congress to duck issues and second-guess Bush's mistakes than actually be on the hook for a decision. But they have not lacked the institutional power to oppose the President; what they have lacked is the will.

Nicely said, TM. I like eloquence, even when I think it is flat out wrong.

Problem is, what Congress and the American people have also lacked is information, because this Administration actively refuses to provide it. It's hard to yell at my Congressman to do something if I don't know there is something they should be doing. And it's hard for Congressman Blohard to vote on something, if the President hasn't even asked Congress to change the laws they'd otherwise be violating.

[Gary Maxwell]

No it was "Cumbayah" Peter. But the rest of your report was spot on.

[Barney Frank]

Appallled Moderate,

You did read Tom's post right? You know we're discussing the military tribunals that Bush has sought to set up to deal with the nuts in Gitmo right? This has all been openly discussed and litigated for quite some time.
What possible info could Bush have possibly been hiding from Congress that prevented them from acting?
Example please.

[PeterUK]

Well Appalled,you know now,can we expect you to write a letter to your Congressperson (NB)to get them to act on this issue?

[pgl]

Barney - I was referring to something Tom wrote about Kevin Drum allegedly agreeing with him. As far as "IDIOTS" - the reference went to the National Review crowd. Unless you are a writer for the National Review, your little attack on me was misplaced. Maybe a self proclaimed liberal is not invited to share his views over here. Tom? It's your blog. Speak up.

[PeterUK]

Gary,
Did you have to say Cumbayah,right on cue AM has arrived in a puff of smoke.

[Patrick R. Sullivan]

Barney, that is an entirely wrongheaded argument. The paragraphs in question are regarding the Court of Appeals ability to review convictions of military tribunals and 'status' determinations.

They don't have anything to do with Hamdan's habeas petition. And, anyway, they are specifically limited to the Appeals Court. The Supreme Court isn't covered by them.

[Appalled Moderate]

Unfortuantely, I doubt John Lewis (very left Dem) will pay me much mind. Cynthia McKinney (my next nearest congressperson) will pay me less....

[PeterUK]

Gee Barney,Now look what you have done,upset a liberal,almost as bad as running over a hippy.

[PeterUK]

AM,
"Unfortuantely, I doubt John Lewis (very left Dem) will pay me much mind. Cynthia McKinney (my next nearest congressperson) will pay me less...."

Then you have no complaint then?

[Appalled Moderate]

Petey, old boy, shouldn't you be watching the world cup, complaining about the lack or warm beer in Germany, and beating folks up for waving the wrong flag?

[pgl]

PeterUK - thanks for confirming my concern here. I guess you view this to be a place where only rightwingers can opine. And if a rightwinger takes something a liberal says out of context (which is what Barney clearly did) - all the better! Which is precisely what's wrong with public discourse these days. Tom? Your blog? Speak up!

[Appalled Moderate]

(Oops, I made assumptions about you, UK. Shouldn't do that. But I might continue if I keep seeing unprompted little zingers from you based on stuff about which you know nothing.)

[PeterUK]

Apalled old girl,I take it you don't have an answer.BTW it's the World Cup,you know,the Internationsl Community.

[Anon]

This is just a thought for all you mouth-breathing Bush supporters: when some liberal that you absolutely loathe gets into office, you'll be completely happy with him exercising all these same powers, right? Arresting anyone he wants and imprisoning them without trial (corporate polluters, watch out!), listening in to every single phone call placed in the U.S. without any oversight from anyone (hmmm, let's see what the Republican strategies are for the next election), just ignoring laws that he doesn't like, and so on? You'lll be completely happy with that, right?

[PeterUK]

pgl,There is nothing worse than a whining liberal,except one who begins with accusing people with starting false rumours.

[pgl]

Anon - if Al Gore or someone like that becomes President, the National Review will be all for protecting our Constitution. I would President Gore would be too but if he tries to become King Al the First, this liberal will be opposing King Al all the way. I suspect Brad DeLong would join me. Now if the National Review and Tom wish to join us in the future on this - I'll be elated.

[Anonymous Liberal]

When law is deliberately ambiguous so it can be interpreted any way the judge sees fit ... that's not rule of law, it's rule by judges.

Boris, even by your standards that's a bizarre comment. What exactly are judges supposed to do when faced with such a law? Isn't it their job to interpret ambiguous laws? Are you actually claiming that interpreting ambiguous laws is an example of judicial overreach? That's ridiculous.

Plus, if the ambiguity of the law is what's bothering you, blame its Republican authors. They specifically amended the bill to make it ambiguous because their first draft didn't have enough support. The only reason the Democrats agreed to vote for the bill was because they thought it did NOT take away the court's jurisdition to hear Hamdan's appeal.

This jurisdictional issue has been apparent from the moment the DTA was passed, and most legal experts expected the court to rule this way on that threshold issue. Frankly I'm surprised Scalia's interpretation even garnered 3 votes.

[Barney Frank]

pgl,

Your martyr act is pretty tiring.
If I went to Angrybears or wherever you are from and started denouncing those "IDIOTS" at oh say The New Republic or the Nation and baiting the host, you would quite correctly dismiss me as an unserious little creep.
The more you post the more it seems that is what you are. If you want to discuss things rationally then don't start off with high school name calling in capital letters. But it appears you have something else in mind than rational discussion.

[Patrick R. Sullivan]

'Maybe a self proclaimed liberal is not invited to share his views over here.'

Anyone familiar with this place will realize that that is the most inaccurate comment pgl has made since he concluded that the State of Indiana was underpaid for its toll roads lease.

In case he missed it when I posted it to his blog, for the rights that pgl values at **$5 billion** (of other people's money), the other valuations were:

Indiana's audit firm: $1.9 billion
Morgan Stanley: $1.9 billion
non-bidder: between $2.2-2.5 billion
Spanish company:$2.5 billion.
Australian consortium:$2.84 billion
Winning bid: $3.8 billion

So, it's bad enough that the cursed winner paid almost a billion dollars more than they had to, if they'd listened to pgl they would overpaid by more than two billion dollars.

And that's pgl's from claimed area of expertise, economics.

[pgl]

PeterUK - read what Sue suggested. It's not true EVEN IF OUR HOST once claimed it was. Of course, our host is most welcomed to chime in on this AT ANY TIME as I asked him to do so in my 1st reply to Sue. This is not about me. It's about the integrity of Tom's blog and whether he expect civil behavior from its commentators. Got it?

[PeterUK]

BTW Appalled,Germany...it's cold beer,try and get out more,travel broadens the mind..being sedentary merely broadens the bottom.

[pgl]

LOL! Roland Patrick (alias Patrick R. Sullivan) misrepresents what I said and did not say AGAIN. Go to his blog and see more misrepresentations and notice two facts: (a) he does block comments from those not on his team; and (b) he has no members on his team. Patrick - thanks for reminding me that I should be less upset with the ill behavior here as at least Tom does not block comments. BTW - neither does Angrybear.

[Gary Maxwell]

MR mouth breathing Anon

If some liberal ever gets back into the Presidency and collect enemy combatants on the battlefield and holds them as prisoners of war for the duration of hostilities, and listens in on foreign phone calls from known terrorists, and just ingnors ignoranmuses like you, I will be plenty fine with it. The very first assumption ( ie Liberal in National office ) seems like a fantasy that the NYT is making sure will never happen but hey if it keeps you going - keep on going brother.