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

[Gary Maxwell]

Ahhh another nonresponsive response while busily playing the victim. And are reading comprehensive skills in short suppy or what. Cuz you keep accusing people of doing stuff they did not do, and no reasonable interpretation of what they posted would lead you to your accusation. For example where did anyone ask you to be Brad Delong? Take a little personal responsi... oh wait we all ready tried that with zero effect. Sigh.

[Rick Ballard]

Colin,

The administration negotiated with Daschle - remember the Jeffords switch? There is garbage related to the Dem "majority" in the Senate cluttering up most of the immediate post 9/11 legislation. There is also some material included to ensure that while the Legislative branch cannot be held responsible for anything, the Executive must play 'mother may I' in certain instances. That is neither the first instance nor will it be the last instance of that occuring.

If pols were barred from posturing they'd lie writhing on the ground like worms.

[Syl]

You know, we believe we should take the moral highground by being better than our enemies.

We are.

We don't behead our prisoners.

That's good enough for me.

Tit for Tat is only for comment threads.

:)

[maryrose]

Syl:
Agreed . When they stop slaughtering and beheading people maybe they will be deported from Gitmo-until then-jail is too good for them.

[colin]

Rick,
I read from Scalia's dissent that DTA was enacted on December 30, 2005. I agree with you about Daschle and the immediate post 9/11 legislation.

[Rick Ballard]

Colin,

I was under the impression that DTA was mending holes in the Patriot Act. At any rate, in 2005 the responsibility lay with good ole Scot's verdict. Spector (Arlen, not the 'good' Spector) generally screws up anything he touches. It seems to be his purpose in life.

[Barney Frank]

Rick,

The DTA was pretty much just about the treatment of detainees, both at Gitmo and their legal rights in general.
Co-sponsered by Sens. Graham and Kyl I believe.

[eric]

I'm sorry but I just have to laugh. I didn't realize there was so much slaughtering and beheading happening at Guantanamo! The press really *is* falling down on the job.

[Rick Ballard]

Barney,

I screwed up twice and am quitting for the evening - substitute AUMF for Patriot Act in my post above. The DTA (per my perhaps mistaken understanding) was an attempt to rectify the fact that the AUMF did not address combatant status issues at all.

[Patton]

Anon Liberal:
""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. """

Fially!, we can agree on something. The Democrats only voted for it to help out a terrorist.

[Patton]

There is good reason while the appeals court only took 20 pages to deny Hamdan's appeal and why the Supremes needed over 100 pages to overturn them.

The Appeals court answer was straight forward and easy to understand, the Liberals had to make so many excuses and backtracks and explanations in the Supreme decision, it took them over 5 times as many pages to explain their inane reasoning.

[Patton]

And the idea that article three of the Geneva convention applies is completely ludicrous. Article three covers civil wars that are not international in nature.

Article 3 states:

""In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties""

Even if you discount that, Al Queda has not signed up to it and in fact daily breaks all of its provisions.

[Patton]

Liberals are now even going tom the point to claim that Sept 11th never even happened:

Writing in the Huffington Host, Philip Slater:

"Perhaps the reason Americans seem so comfortable about bombing and invading little countries around the world is that the United States, unlike Europe, has never experienced "collateral damage". If we had ever been bombed and invaded ourselves, had our infrastructure demolished, been subject to foreign soldiers breaking into our homes at night, seen our children slaughtered and our houses destroyed, we would be, I suspect, less gung-ho about war and less cavalier about inflicting these horrors on other people.
""

Hmmmmm...ever here of Sept 11th DINGBAT LIBERAL IDIOT! WE WERE INVADED, OUR INFRASTRUCTURE WAS DESTROYED, OUR CHIDREN WERE KILLED YOU SCUM SUCKING FOOL OF A
ASSH-LE!

[lurker]

Rosa Brooks wants to try Bush for war crimes????

Flopping Ace's original idea is that the Commander in Chief is the only one having authority to pull from the Geneva Treaty. After SCOTUS' inane ruling, I would support the withdrawal from the Geneva Treaty if the GITMO detanees ended up in our court system and forcing the revelation of our classified information (read Curt's comment):

Comment #1:

"I don’t think President Bush will withdraw from the Geneva Conventions, nor openly ignore the Court’s ruling. Though it wouldn’t hurt him much politically if he did. The lefties that would howl about it hate him and every single God fearing Republican and Conservative already.

The McCarthy bit was great.

I think we’ll work this thing out, and perhaps even to our advantage politically.

As for the “war crimes” nut cases: I find it interesting that they would commit such time and effort on a fool’s errand and next to no time, nor effort protesting the crimes against humanity by people like Saddam."

Curt's response:

"Oh, I agree with you Mike, the point I was making was that if the courts tried to force him to hand over intelligence to Al-Qaeda to prepare a defense, he would take that step.

Will it happen, I highly doubt it because the congress will provide him the means to put these guys up for tribunals…I was just playing what-if."

I've a feeling that SCOTUS' ruling is already starting to backfire BIG time.

[lurker]

Hey, gang, NYT actions get worse:

N.Y. Times Retaliates Against Cheney, Rumsfeld

That is, assuming this is true.

[Bob]

lurker you jest!

"As for the “war crimes” nut cases: I find it interesting that they would commit such time and effort on a fool’s errand and next to no time, nor effort protesting the crimes against humanity by people like Saddam."

It's not interesting, it's comical. But then again for people who think Bush had the WTC bombed, this may in fact be one of their more sane efforts.

Thank God they have people like Cindy Shehan to give them guidance.

[lurker]

Michelle Malkin confirms it:

A matter of public interest????

Guess Seixon's "Privacy" post doesn't bode well for many that challenges the left. Check American Spectator for the latest Huffington tactics:

The Huffington Post's Swift Antics - Harrassing the Swift Vets.

[lurker]

Hamdan and GOP - Jonah Goldberg's comments.

[Tom Maguire]

I went over to Angry Bear and AB claims to not be pgl, if there was any question in your mind about that.

Thanks - on the side of their blog they give three different posters. Although given pgl's apparent schizophrenia, that may not be dispositive.

[lurker]

Oh pulleeeaaze! Cotton's identity was challenged. However, his letter will be entered into Congressional Record.

A note on Lt. Cotton

[lurker]

Another insane UN request to submit a resolution against Israel's attack against Gaza without submiting one against Hamas.

UN Resolution

[pgl]

BTW Tom - Maha who has a very good post on Hamdan says she has a filter that keeps out flame baiters. So she says her filter likely did ban some of your comments. Judging from the ones here, this is what this blog is about - flame baiting. Pathetic.

[lurker]

In defense of Tom McGuire, I've seen none of his posts to be "flame baiters".

[lurker]

Interesting...

Even the 9/10 banking surveillance had been taking place...without warrants.

Your Sacred and Private Bank Records

More at Big Lizards So where's the lefty decry over this? Oh, duh! We weren't at war back so this invasion of our privacy is ok.

[clarice]

I dunna know. In my experience throw a little logic and fact at the left, and they see it as a personal affront.

[Bob]

clarice, that's because "logic and facts" are not in their dictionary, so using such tactics confuses the shit out of them... literally!

[Gary Maxwell]

So she says her filter likely did ban some of your comments.

So where is the apology big guy? Multiple posts all going on and on about stuff that was either misprepresented or flat out wrong. High indignation about being misquoted only to be shown the exact quote. No response to simple question requiring only yes or no asked multiple times. Entreaty for "personal responsibility" was perhaps the funniest of all the lines, kinda of a do as I say not necessarily what I do thing eh?

You are a pathetic twisted little loser of a human being undeserving of even the pity of us seeing your shortcoming. Just go or we will laugh in your face, again.

[Barney Frank]

From pgl June 30 @ 11:34AM

"Of course, if this nation is run by the types of IDIOTS who write for the National Review - maybe they are correct."

From pgl June 30 @ 2:22PM

"As far as the National Review - I have made my concerns with their serial dishonesty on certain matters quite plain with civility."

Shouting that people you disagree with are idiots now represents civility to the left, maybe because he didn't shout "F****** IDIOTS"?

From pgl @ 6:32AM,

"Pathetic."

Indeed.

[boris]

In my experience throw a little logic and fact at the left, and they see it as a personal affront

They don't know the difference. As far as they're concerned logic is tool of oppression and fact is a 4 letter word.

[Patrick R. Sullivan]

'You're absolutely correct.
The scales fell from my eyes, quite frankly, and its hard to figure how I saw it any other way. Jeez.'

Amazing, someone changed his mind.

Btw, since Roberts had to recuse himself because he'd been on the Appeals Court that wrote the decision, so he couldn't rule on himself, wouldn't the other Justices also have to recuse themselves?

I mean, how is there not a conflict of interest for them over their own jurisdiction being at issue?

[Patrick R. Sullivan]

'They all also claim to have Phds in economics.
I read a thread or two.
Must hve got their doctorates at Romper Room U. Pitiful stuff.'

Which pgl demonstrated with his net present value for the Indiana Toll Road of $5 billion. When the highest bid was $3.8 billion, with all the rest coming in well below $3 billion.

He should change his initials to ncw; no clue whatsoever.

[Patrick R. Sullivan]

Speaking of economists, over at Greg Mankiw's blog, in the comments section for the post 'Define Hack', someone wrote:

' I'm worried that DeLong will come around and dekete Mankiw's posts on Krugman.'

[richard mcenroe]

I think we're not being ambitious enough with this.

Make Al Qaeda and similar threats formal combatants under the Geneva convention.

Then any nation or group that gives any of them any kind of support has committed an act of war against the US and we have a lawful casus belli...

[Joe Mealyus]

Condensed summary of pgl comments on this thread:

11:34 Initial comment concludes with: "you have had some rather pathetic posts in the past but this one tops them all."

11:51 Claims JOM "started [an] ugly false rumor."

1:15 Makes new accusation of JOM dishonesty based on apparent unfamiliarity with idea that "view" can mean either "opinion" or "take."

2:04 and 2:07 Complains about other JOM commenters.

2:25 Oddly substantive comment.

2:31 Mistakenly says that JOM's quotes "are from others besides me;" uses own error as springboard for "I would have thought better of you - but maybe I overestimated our host."

2:35 Asks if TM has denied something that TM denied with some passion at 2:23.

2:39 Provides requested evidence for 11:51 accusation in form of non-relevant rhetorical question ("where did Sue get this idea?") and also personal reassurance. Falsely asserts that JOM claiming innocence of 11:51 accusation is equates to "calling Sue a liar."

3:08 Plugs own site.

3:11 In response to pleas for evidence of 11:51 accusation made by TM at 2:23 and 3:07, reiterates personal assurance that accusation is sound. Discusses TM "retraction" as if TM had made one, which plainly he had not, then blames TM's "choppy style of writing" for having missed this not-made point. (And having pointedly overlooked all of TM's actual points, hot-dogs it a bit, in my opinion, by asking "And your point is???????????").

8:07 Accuses TM of "bait and switch."

8:10 Claims TM "has forgotten what honesty even means."

6:32 Demonstrates failure to follow link (and clear meaning) re Maha banning; complains about flaming at JOM (that's right, complains about flaming) and calls site "pathetic."

Conclusion? It's all a spoof. He's not this stupid. You've been punked. Duh! Why, I have no idea - too much time on his hands? (My own excuse, of course).

Okay, contrary to this theory is the fact that pgl nowhere accuses others of making false accusations about himself, which would have been the natural next step.... I guess I have no idea what's going on....

[Barney Frank]

"You've been punked. Duh! Why, I have no idea"

I think this answers your question.........

"3:08 Plugs own site."

[Barney Frank]

Patrick,

"I mean, how is there not a conflict of interest for them over their own jurisdiction being at issue?'

You forget; they're the "Supreme" court.
They're just a little more equal than the other two branches.

"Amazing, someone changed his mind."

When you're right you're right. No argument from me.

[Patton]

Steyn explains in language even a liberal should be able to understand:

http://www.suntimes.com/output/steyn/cst-edt-steyn02.html

[lurker]

Leftwing Media Dreaming

By Mac Ranger regarding leftwing media dreaming that the SCOTUS Hamdan ruling would challenge the administration's claim the National Security Agency (NSA) has the right to eavesdrop without court approval on Americans suspected of having ties to al-Qaida or other terrorist groups."

Mac says:

You're dreamin!

"The only "indication" from the ruling is that we still have leftist judges that legislate from the bench. That aside the ruling changes nothing at Gitmo other than Congress will simply turn around and give the President the authority - end of story.

It's amazing that the media continually and outright lies about how the NSA program is a "Bush deal", when it's existed for years. Additionally the only ones who can't seem to get their story straight is the media. Nevertheless, the Hamden decision has plenty of room to be re-argued on howbeit different terms base on the dissentions which were based on far greater reason that the hapless meanderings of Stevens."

"This fact is well summerized in two points by Andy McCarthy at NRO:

"1. Justice Breyer's short concurring opinion maintains that all the court has really done is invite the president to seek legislation from congress authorizing the commissions and defining their structure. Several folks, me included, have argued from time to time that this is overdue anyway — we should have a national security court, created by congress to get many of the terrorism cases out of the regular criminal justice system. But that said, Justice Breyer's unfortunate invocation of the left-wing/civ-lib-extremist talking point, to wit, that "Congress has not issued the Executive a 'blank check,'" is bombast.

There has never been a moment since 9/11 when Congress, had it chosen to, could not have prescribed a new scheme for military commissions. The president's commission plan, well known since 2001, was fully permissible under existing statutory law and venerable court precedent. But Congress was not bound by it. It could have jumped into the breach at any point. In fact, it did jump in, enacting the Detainee Treatment Act in late 2005. By doing so, it demonstrated the obvious: if congress had been unhappy with the president's commission procedures, it would have modified them. Instead, it acted in a manner precisely designed to let the commissions go forward without court interference.

This was no blank check. Congress examined what the executive branch was doing, was fully satisfied, and acted to correct the only thing it found offensive — the judicial intrusion.

2. A big issue to watch out for as congress re-examines this: the protection of classified information from al Qaeda in the trial process.

One of the principal reasons for having commissions rather than courts-martial or civilian trials is to prevent our enemies from learning what we know and how we know it. But the court held that the president had not justified procedures which call, potentially, for excluding the terrorists from the courtroom when classified information is introduced.

Now, let's compare. Alien combatants have no constitutional rights; therefore, they have no constitutional right to be present at trial. On the other hand, protecting the security of the American people — which is what classified information is all about — is the number one obligation of government. So by what law does an al Qaeda killer's purported right to be present outweigh the American people's unquestioned right to have the government protect them (by, for example, not providing the enemy with sensitive intelligence)?

It could only conceivably be Geneva's Common Article 3 — an international law provision the court had to twist beyond recognition to give the enemy its benefit. That fuzzy language talks about providing "judicial guarantees which are recognized as indispensable by civilized people." OK, but who says all "civilized people" would opt to elevate a homicidal maniac's right of access to the government's most sensitive information over the government's obligation to protect its citizens by withholding intelligence that may help those trying to kill them do just that?

Why is this question so important? Because you can bet a big part of the debate in congress will be about whether the court has left congress with any latitude here on this point.

That's why Jonah's observation about Hamdan not being constitutionally based is crucial. Congress absolutely has the power to deny al Qaeda terrorists the right to be present at portions of trial where sensitive evidence is introduced. Let's leave aside that the court's entire Common Article 3 rationale is hooey (the article doesn't apply to al Qaeda and the court owed deference to the president's interpretation to that effect). The salient point here is that when the inevitable argument is made that the Geneva Conventions now require handing over our intelligence to the enemy in wartime, congress — and more properly, the president (who has the authority to cancel treaties) — should make clear that we would withdraw from the Geneva Conventions (or at least any offending portions of them) before we do that.

The main point being that there is NO Constitutional protection for someone who is 1. Not a citizen, and 2. Commits hostile acts against the US. In this the justices erred completely."

Mac says:

So in essence, I see congress quickly acting to "reverse" the Court's decision and thus the entirety of it's effect.

I say if Congress reversing the Court's decision to be a wise decision for the future of this country.

Interesting how quiet the leftwing media has been about this SCOTUS ruling.

[Thomas J. Jackson]

This Supreme Court ruling just demonstrates how far out of kilter the balances of power has become and how weak the president is and how imperial the judiciary is.

Beyond the bizarre nature of the ruling can anyone explain how foreign legal practises have anything to do with our Constitution or where the Supreme Court gets to interpret treaties?

Bush ought to tell the court where to go. They have ridden roughshod over both the Legislative and Executive branches and need to be deeply battered and fried.

The American people do not wish to have terrorists handed the keys to the Magic Kingdom regardless of what these senile robbed ones think nor does the Constitution allow the Courts to dictate to the Executive branch how to wage war nor deal with prisoners.

[narciso]

The elephant in the room, is how the majority treats Qurin; basically mis represents it; same for Eisentrager
It's chief holding to rely on is Councilman
(a case involving US Navy enlisted personnel)Then there's this citing of General Article 3 of the Geneva Convention
that does not apply; to insurgents or unlawful combatants, The Times, Post, Miami
Herald et al; all elude that point.