Hamdan Thread

Let's have a Hamdan thread - News.Google is offering me this Breaking News from 7 minutes ago:

The US Supreme Court ruled today that President George Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees, a rebuke to the administration and its aggressive anti-terror policies.

Justice John Paul Stevens wrote the opinion, which said the proposed trials were illegal under US law and Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a body guard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the US prison at Guantanamo. He faces a single count of conspiring against US citizens from 1996 to November 2001.

Two years ago, the court rejected Bush’s claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this follow-up case, the justices focused solely on the issue of trials for some of the men.

And I want dibs on "GD Hamdan".  And spoken variants thereof.  Darn it.

MORE:  A pre-mortem from Andy McCarthy, whose travel schedule must be irking him (well, if getting away early on a Friday in the summer can irk anyone... I may need a Values Check.)

And the NRO Bench Memos will have lots.  So will SCOTUS Blog.

Comments

[Neo]

Each and every peace-loving Gitmo prisoner should be given housing with a member of the ACLU until their federal trials are complete.

[SPQR]

If as I understand, the S.Ct. affirmed that the prisoners can be held during hostilities, just that the war crimes trials are not legal, then practically this is not a defeat for the Bush administration. The administration did not really want to hold criminal proceedings but was pushed to do so politically by critics of Guantanamo Bay. I suspect that the Bush administration is actually pleased with the ruling.

No doubt we'll see a lot of silly claims about this ruling.

[Other Tom]

My take is exactly the same as SPQR's. Seems to me the result is simply that those who are not sent back to their home countries--i.e., those who are deemed still dangerous--will just sit there indefinitely.

[Sue]

Hmmm...SCOTUSblog seems to think that this decision will determine how we treat captured AQ, no interrogations, etc. As I said on the other thread...

Looks like we should kill them instead of capturing them. Oh...well...hasta la vista...bebe...

[Carol Herman]

Big deal. As SPQR points out, we can still HOLD the suckers. Just not waste military time giving them "trials." Military trials, and Stalag 17, bear similar fruit.

After the hostilities are over, some of these jerks get to be sent home. I'm sure the crew of 17 saudis are now headless in the desert.

Our system of "justice" ... which isn't really a guarantee that you get into court, anyway ... should accommodate reality.

In America ONLY 3% of all CIVIL cases ever see a judge. All the rest is without oversite; in scary depositions. And, lawyers playing poker. You'll never win.

While the lawyer's meter (like a taxi meter), flies at warp speed.

Today, there are plenty of defense lawyers (like John Edwards) crying into their beers. See if I care?

The biggest fallacy is that our behaviors would be copied by our enemies. OUR soldiers, unfortunate enough to become hostages, wouldn't be tortured. You can't sell that one, now, even in a a hollywood escape movie. GONE ARE THE DAYS THAT HEROES WERE CREATED IN la-la land. And, sales zoomed when the MSM wrote stories about the stars. You'd have better luck with astrology. Which is saying something is very bad. And, the Supreme-o's just sliced and diced at the business end of "bring em to justice." No ropes.

[Carol Herman]

A bone to pick. Since this ruling is fine with me, I take exception to Stevens' need to lasso "International" standards; whereby he needs to stick an umbrella up his ass every time I hear these "international" standards garbage. Excuse me, but our Constitution is great enough to stand on its own.

We've still got dogs on the supreme-o's. It's part of Reagan's legacy not to care much about personnel matters. Sad. But true.

[Rich]

Agreed with above. We can hold them forever, but just can't try them. Isn't this where we started, with the military commissions being the "compromise" in order to apply due process. I think this exemplifies the "Be careful what you ask for" saying for critics of Gitmo.

[Other Tom]

To the extent the Court purports to prohibit interrogation of captured Al Qaeda (haven't seen the opinion, so I'm not sure it does), I think the president is likely simply to ignore it. Recall Andrew Jackson's response when the Supreme Court ordered him not to proceed with the removal of the Cherokees: "Mr. Justice Marshall has issued his order. Now let him enforce it." He proceeded (regrettably) with the removal.

[Brian]

Ignoring the Bruner Rule troubles me. How much more unambiguous can a statute be?

When jurisdiction is repealed without reservation, no jurisdiction remains.

[Redcoat]

It looks like Stevens,etc..did the right thing for the wrong reason.

The status of Hamdan,Khalid Sheik Mohamhead,is unchanged,indefinate confinement.

Gitmo is essentially a holding pen for the E.C's picked up in Afghanistan,I imagine we got whatever information from them we could get.

Future cases will be dealt with by Rendition
and most likely go straight to places like Jordan,and not even enter the system.

The prisoners we have ,stay,and the ones we get in the future won't be going to Cuba.

Another pyrrhic victory for the left.

[TexasToast]

Sounds like you folks are afraid of due process - I've always heard it said that we can't wait to give away our liberties.

[Sue]

Funny how excited the left becomes when terrorism wins a battle against Bush. Not haha funny...

[Redcoat]

TexasToast

Sounds like you folks are afraid of due process

They have been through the process,now they'll get what they are due.

They'll refer to Gitmo as "the good old days."

No former ACLU lawyers or doddering Liberals on Arab Supreme Courts,if they evn have them.

This is a bad day for your friends.

[Jeff Mauldin]

Many of the comments seem to be indicating a thought process along the lines of "well, we can't try them, but we can hold them as long as we need to." We are also discussing what this means as far as interrogation.
But I have this question: what makes anyone think we'll be able to hold the dangerous people as long as we think we should? This ruling will start an immediate drumbeat for the "release of the illegally held detainees" or "put them on trial or let them go." At some point many or all of these prisoners will get released without a trial, or put through a trial that will be a circus and then released because there isn't enough evidence. Some americans will call this a great victory for civil liberties.
Then the terrorists will claim they have been vindicated and rescued by Allah (not, I suppose, any who happen to be nonmuslim), and they will go back to trying to kill us. They will be twice as effective because they are venerated for what they have been through.
The geneva convention should not apply to ununiformed terrorists who answer to no chain of command that can be held accountable, and do not agree to the same rights for anyone they capture. We can't give them the same protections criminals have in the U.S. any more than we could to every enemy soldier we would meet in a more conventional battlefield.

[Lurker]

No, we're not afraid of due process and will NOT give away our liberties. These GITMO's do NOT deserve due process since they do NOT honor and recognize the Geneva treaty. Look at how they have no qualms in brutually torture our soldiers. So why consider giving them the Geneva treatment when they won't give ours the Geneva treatment.

If the latest updates are correct, then I have no problems keeping them where they are alone and NOT try them until GWOT is over.

[Lurker]

Jeff Mauldin, good question. I suppose the next course for ACLU would be to file a lawsuit to get those detainees released.

[Redcoat]

By applying the Geneva Convention to them they are cut off from the legal system,they cannot be tried by anyone.

The court found they are being justly imprisoned, as P.O.W's,the only real change is in the area of interrogation.

[Anonymous Liberal]

Let's be clear.

If I understand it correctly, the opinion does not hold that enemy combatants cannot be tried, or even that they cannot be tried in military tribunals. The Court merely held that military tribunals must comply with the UCMJ and with the Geneva Conventions.

More importantly, though, the court rejected the governments arguments that article II and/or the AUMF gave the president the power to institute tribunals that don't conform with pre-existing law. That's HUGE, because those are the exact same arguments being used by the administration to justify the NSA program. If the president can't institute tribunals that violate the law, it's pretty hard to argue that he can engage in domestic surveillance that violates the law.

It would appear that the Bush administrations legal arguments have been dealt a pretty severe blow.

For my initial take, see here.

[mike d.]

on a whole number of levels, this is a massive gift to the press corps, not least of which is that it takes any discussionof the NYT SWIFT issue off the front burner.

no newspaper will ever have to mention public criticism of the NYT on the SWIFT issue ever again. they dont have to. Now they have a great vehicle to run right over that smart-aleck Bush, who any reporter worth their salt knows is much worse than osama or hitler ever were.

i can hear the cheering at the NYT/LAT now.

likewise, look for the media thread to spool out as "evil oil-torture-monger bush bitchslapped by supreme court, told his hiltlerian tactics bad for america. too bad they werent around in 2000."

that is a much more enjoyable story for the press to write about than "NYT acts as tip-off sheet for terrorists."

just one thing, though: i thot that the new Roberts court, (which according to the movemiento prgressivo moonbata embodies evil and republican fascism, assisted by the evil gnome alito), would do whatever their Rovian dungeon masters told them to do. giving captured terrorists access to american courts doesnt quite rise to that level of scary evil-doer cooperation between the executive and judicial branches.

man...that was bitter. oh well. sign of the times.

[Lurker]

"That's HUGE, because those are the exact same arguments being used by the administration to justify the NSA program. If the president can't institute tribunals that violate the law, it's pretty hard to argue that he can engage in domestic surveillance that violates the law."

1) He is not engaging in domestic surveillance; therefore, he's not violating the law. So there's no argument here.

[Anonymous Liberal]

He is not engaging in domestic surveillance; therefore, he's not violating the law. So there's no argument here.

Lurker, whatever you want to call it, it's specifically prohibited by FISA. Alberto Gonzales has straight-up admitted this. So these ruling is directly relevent to that issue.

[Lurker]

I don't believe Gonzales ever admitted that it was prohibited by FISA. Show us the links. He and Hayden defended the NSA warrantless terrorist surveillance program with AUMF as one of many reasons. Their main reason is how the Founding Fathers set up the 3 branches of government and that's their argument. They are right, which could make FISA unconstitutional.

[Patton]

We won't be hearing the words 'over turning precedent' or 'stari decisis' on this case from the left.

The liberals on the court threw out lots of former rules to come out with this decision.

I suspect the Republicans are happy because they will now go back to Congress and bring up anti-terrorist legislation to again stop the courts from acting and we will have a nice fall fight over who is tougher on terrorists.

[Redcoat]

Anonymous Liberal

It would appear that the Bush administrations legal arguments have been dealt a pretty severe blow.

Shake your magic 8-ball again,this is a narrow ruling on one issue,it does not repeal the executives article 2 powers.

And what court has held that the N.S.A program is illegal?

Talking points are not legal rulings.

[Lurker]

Patton, what do you mean by former rules?

[Redcoat]

Anonymous Liberal.

it's specifically prohibited by FISA.

Citation please.

[tongueboy]

That's HUGE, because those are the exact same arguments being used by the administration to justify the NSA program. If the president can't institute tribunals that violate the law, it's pretty hard to argue that he can engage in domestic surveillance that violates the law.

QED. And that's the end of that chapter.

[Sue]

Anon Lib,

And aren't we all so very excited that another tool in the WOT has been stripped. Yeehaw!!!

Take that Bush!

/sarcasm

[Sue]

Has no one yet figured out that the Judicial just made a treaty with a foreign power? Talk about crossing the not constitutional boundary line.

[Anonymous Liberal]

Redcoat, Lurker:

Have you two been asleep for the last six months? Within days after the NSA program was revealed, Gonzales gave a press conference and admitted the following:

"the Foreign Intelligence Surveillance Act provides--requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday.”

They've never disputed this. Their claim is that they are not bound by FISA becase 1) the AUMF overruled it, and/or 2) article II trumps FISA. The court today rejected both those arguments with respect to military tribunals.

[Sue]

In my haste to post, I named AQ as a foreign power. What I should have said was the Judiciary just made AQ a foreign power and created a treaty with them.

[Sue]

I hope our senate recognizes this and corrects it immediately.

[Redcoat]

In any event, this will most likely be addressed with legislation, and Democrat lawmakers will have to go on the record right before the fall elections.

The lefts fellow travelers on the Supreme Court have handed the Dem's a hand grenade

[Sue]

Where is the freaking outrage that the judiciary overstepped their boundary lines? AQ has been given Geneva Convention rights and they have not signed the treaty! What the hell is wrong with the left that they are happy that the judiciary has overstepped their boundary lines? Do they think the judiciary will always rule in their favor?

[Don Williams]

A few years ago, the NRA leadership was arguing that we should accept the deaths of 10,000 Americans per year in order to protect freedom –that efforts to control gun violence would hamper the American people’s power to oppose a hypothetical dictatorship that might arise sometime in the distant future.
I agreed –that’s why I joined the NRA and donated to its cause. The civil liberties and freedom of 300 million people are important.

But that same NRA leadership is now strangely silent as the President whom
it has elected and defended creates a dictatorship Today.
The NRA leadership ranted when Clinton’s “jackbooted federal thugs” merely tried to uphold the law at Waco. But what does the NRA leadership do today when President Bush discards the 1000-year old right to trial by jury?
Nothing.
When President Bush imprisons US citizens for years on end without a trial?
Nothing
When Bush’s Attorney General ignores the Constitution’s ban on “cruel and unusual punishment” and claims the right to torture US citizens?
Nothing.
When President Bush ignores the Fourth Amendment rule that search and seizures require a warrent from the Judicial Branch?
Nothing.
When President Bush claims the right to ignore laws passed by Congress?
Nothing.
When President Bush claims emergency powers under an undeclared war and then insists that those powers have no endpoint because that vague war has no endpoint?
Nothing.
When President Bush creates an enormous surveillance system to watch American citizens–even though that system will have little to no value against professional terrorists?
Nothing.
When the Republican Congress ignores its oath to uphold the Constitution and refuses to force the President to obey constitutional checks and balances –by impeachment if need be?
Nothing.
——————
Don Williams
Former NRA Member 052801824

[Sue]

Well, that certainly makes me stand up and pay attention. When a former NRA member posts something, that is.

[Sue]

I should have posted

Sue
former democrat

Does that make what I post more valid people? Do you pay more attention if I reveal the fact that I voted for Clinton? Anyone?

[Lurker]

"Redcoat, Lurker:

Have you two been asleep for the last six months? Within days after the NSA program was revealed, Gonzales gave a press conference and admitted the following:

"the Foreign Intelligence Surveillance Act provides--requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday.”

They've never disputed this. Their claim is that they are not bound by FISA becase 1) the AUMF overruled it, and/or 2) article II trumps FISA. The court today rejected both those arguments with respect to military tribunals."

Correct, Gonzales has never disputed the need for FISA but their argument for the narrow, limiting use of warrantless terrorist surveillance is valid because of the founding father's beliefs. Article II doesn't completely trump FISA. It's supposed to work with FISA.

[Clyde]

Looks like the terrorists have won.

Simple solution: Don't "bring them to justice," instead "bring justice to them," a la Zarqawi. Dead terrorists have no Geneva Convention rights, no matter how convoluted the thinking of our Black-Robed Masters.

As for Israel arresting Hamas leaders, same-o, same-o. Targeted assassination works, and you don't have to worry about some robed bozo letting them go later.

[Redcoat]

Anonymous Liberal

.They've never disputed this. Their claim is that they are not bound by FISA becase 1) the AUMF overruled it, and/or 2) article II trumps FISA. The court today rejected both those arguments with respect to military tribunals.

The Supreme Court ruled on whether Congress has the authority to limit executive power under article 2?

To finish your quote of Gonzalez

unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

And,

in 2004, the Hamdi decision. As you remember, in that case, Mr. Hamdi was a U.S. citizen who was contesting his detention by the United States government. What he said was that there is a statute, he said, that specifically prohibits the detention of American citizens without permission, an act by Congress -- and he's right, 18 USC 4001a requires that the United States government cannot detain an American citizen except by an act of Congress.

We took the position -- the United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word "detention." And the Supreme Court, a plurality written by Justice O'Connor agreed. She said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder -- the duration of the hostilities. So even though the authorization to use force did not mention the word, "detention," she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, "authorize the President to use all necessary and appropriate force."

For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance.

The S.C has already ruled that the President has broad Article 2 powers under Congress's Authorization of the use of force.

It overruled a statute in favor of the executive.

[maryrose]

Supreme Court just saved us a lot of time and money. Personally they in Guantanamo can sit and wait for the end of hostilities and then we will use rendition or deport them permanently. For some Gitmo is the best life they have known thus far.

[Sue]

Anyone want to bet we stop capturing and allow or 'host' country to do the honors?

[Other Tom]

The Court's ruling today is irrelevant to the NSA surveillance program. The administration has argued (and four federal courts have agreed) that Article II grants the president the inherent power to gather foreign intelligence, and no congressional statue can infringe on that power. The power to gather intelligence is not addressed in today's ruling.

Still not having read the opinion, it is my understanding that the Court did not hold that these men are entitled to POW status under Article 4 of the convention, merely that they are entitled to the protections of Article 3. Nothing in Article 3 prohibits interrogation.

[Anonymous Liberal]

The Court's ruling today is irrelevant to the NSA surveillance program. The administration has argued (and four federal courts have agreed) that Article II grants the president the inherent power to gather foreign intelligence, and no congressional statue can infringe on that power.

You're very, very wrong. Those court case you're referring to held that the president had that power in the absence of any relevant legislation. The president's default powers are not the same as his powers in the face of a contradictory statute. That's constitutional law 101.

Today's opinion is very much relevant to the NSA controversay. It virtually destroys the administration's AUMF theory, and it deals a pretty severe blow to their article II theory as well. After all, if the president's powers don't trump statutory law with respect to trying foriegn enemy combatants on foriegn soil, it's hard to see how they could trump statutory law with respect to surveillance involving U.S. citizens within the U.S.

[Molon Labe]

Well, if we don't get it after they've killed 3000 citizens maybe we will after 30,000. Or 300,000.

[Redcoat]

Other Tom

Nothing in Article 3 prohibits interrogation.

Correct,however the interrogation issue will be dictated by the granting of Geneva standing.

[Don Williams]

"The administration has argued (and four federal courts have agreed) that Article II grants the president the inherent power to gather foreign intelligence, and no congressional statue can infringe on that power."
---------
IMO, this is a crock. The Congress can wipe out the entire Intelligence Community --CIA, NSA,etc with a single vote. Not to just cut funding --but to also revoke the Congressional laws which created the Community.

Although I suppose the President could continue to gather foreign intelligence by calling up foreign leaders --provided Congress approved funding of his telephone.

Congress makes the policy --the "Executive Branch" executes that policy. The Bush supporters who keep trying to argue for "the divine right of kings" are wrong.

[Lurker]

Mac Ranger's concluding paragraph

"Further...a legal friend of mine tells me that the comeback from the administration is that they "sound like", they're going to tell the SCOTUS to go stuff itself through the Congress. In any case the President's words indicate that nothing is going to change. There you go. Commander and Chief trumps four ball less justices."

Thanks, redcoat and Other Tom.

[Patton]

""Patton, what do you mean by former rules?""

Refer to Scalia dissent on the Detainee Treatment Act altogether eliminating the Supreme Court’s jurisdiction over the Hamdan case.

[Lurker]

""The administration has argued (and four federal courts have agreed) that Article II grants the president the inherent power to gather foreign intelligence, and no congressional statue can infringe on that power."
---------
IMO, this is a crock. The Congress can wipe out the entire Intelligence Community --CIA, NSA,etc with a single vote. Not to just cut funding --but to also revoke the Congressional laws which created the Community.

Although I suppose the President could continue to gather foreign intelligence by calling up foreign leaders --provided Congress approved funding of his telephone.

Congress makes the policy --the "Executive Branch" executes that policy. The Bush supporters who keep trying to argue for "the divine right of kings" are wrong."

This has always been the Founding Fathers' beliefs of the 3 branches with checks and balances.

Conversely, Congress can vote to create more entities, like FISA. There is no argument for the "divine right of kings. The argument is based on the Article II, the executive authority. PERIOD.

[Lurker]

Thanks, Patton, will go look later.

Here is what Ed Morrisey says:

And he's ok with it.

[boris]

The SCOTUS liberals and "moderates" overruled the conservatives in declaring the use of military commisions for captured terrorists falls outside article II and AUMF.

Still in place are detention and surveillance and there a lot of wishful prediction that those would fall under this court as well. Maybe, but it hasn't happened yet and there's no existing challange to provoke a decision.

[Redcoat]

Anonymous Liberal

What he said was that there is a statute, he said, that specifically prohibits the detention of American citizens without permission, an act by Congress -- and he's right, 18 USC 4001a requires that the United States government cannot detain an American citizen except by an act of Congress.

That is the relevant legislation,18 USC 4001a,and an act of Congress was neither forthcoming,or required.

and it deals a pretty severe blow to their article II theory as well. After all, if the president's powers don't trump statutory law with respect to trying foriegn enemy combatants on foriegn soil, it's hard to see how they could trump statutory law with respect to surveillance involving U.S. citizens within the U.S.

See above.

[clarice]

How many Dems will vote to override the SCOTUS just before the midterms? LOL

[Don Williams]

Come to think of it, Congress could also wipe out the Supreme Court with a single vote. Since the composition of the Supreme Court is set up by Congressional statute,not
by the Constitution. Congress ,for example, could change the law to say the Supreme court consists of a single individual. And if they don't like the rulings of that single judge, they could always remove him via impeachment and put someone else in.
Come to think of it, I think they could do the same thing with Presidents. And screw Article II.

Of course, Americans could vote that Congress out of office. Except, wait -- I seem to recall that the right to vote is not called out in the Bill of Rights but is also prescribed by Congress.

[boris]

The Congress can wipe out the entire Intelligence Community --

Political suicide.

POTUS would still have the military. If Congress wipes that out, the suicide is not just political, it's actual.

[Redcoat]

Don Williams

Removing funding in no way effects the Constitutional standing of co-equal branches of Government.

Your claims of "the divine right of kings" being argued seem to be a projection of your own desire to see a Cromwellian legislature.

[boris]

Cromwellian legislature

Congress declaring war on the Executive would have a rather rapid resolution.

[Al]

A pre-mortem from Andy McCarthy, whose travel schedule must be irking him (well, if getting away early on a Friday in the summer can irk anyone... I may need a Values Check.)

Agreed. Thank God It's FRIDAY!

Hey. Heeeeeeeeeey!!!!!!

[Don Williams]

"POTUS would still have the military. If Congress wipes that out, the suicide is not just political, it's actual."
--------
And here, of course, is why we have the Second Amendment. Because, as James Madison pointed out in the Federalist, the liberty of US citizens ultimately lies in the fact that no nation's economy can support more than 2% of the population as full time time soldiers.

So the remaining 98% of the citizens, if armed, will always prevail when it gets to nut-cutting time. If the President and a military clique, for example, get too big for their britches. If they, for example, decide to ignore laws passed by Congress, are impeached ,and refuse to leave office.

That's why the militia ==defined by Congressional law as ALL US males of military age not in the active military -- is always under command of the state governors , unless Congress gives command of the militia to the President.

[Redcoat]

Boris

Congress declaring war on the Executive would have a rather rapid resolution.

Cheney and Rumsfeld vs.Soiled Harry and Pelosi in a steel cage tag-team death match.

[Pisistratus]

Williams is quite right that 9 justices is nowhere in the Constitution. The Judiciary Act of 1789 originally made it 6.

Congress could increase it to 15 justices tomorrow and let Bush make 6 more nominations.

I'd be worried about it more if I thought anyone in the Cheney Administration had ever read the Constitution to realize that.

[Other Tom]

Anonymous Lib: I studied my Constitutional Law 101 under Paul Freund at Harvard, and I strongly disagree with your interpretation of the cases. But as Freund himself used to say, we can argue about it or we can look it up.

Here is what the FISA Court itself had to say in 2002: "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."

[clarice]

A gift to Bush?

"Prediction: Bush & Congress Will Override the Supreme Court's Gitmo Decision (updated)
By Andrew Cochran

The news networks are proclaiming that the Supreme Court handed the President a "strong rebuke" in the Hamdan case by declaring the proposed Gitmo trials are illegal under U.S. law and international Geneva conventions.

Oh, really?

The decision is actually a huge political gift to President Bush, and the detainees will not be released that easily. The President and GOP leaders will propose a bill to override the decision and keep the terrorists in jail until they are securely transferred to host countries for permanent punishment. The Administration and its allies will release plenty of information on the terrorist acts committed by the detainees for which they were detained (see this great ABC News interview with the Gitmo warden). They will also release information about those terrorist acts committed by Gitmo prisoners after they were released. They will challenge the "judicial interference with national security" and challenge dissenting Congressmen and civil libertarians to either stand with the terrorists or the American people. The Pentagon will continue to release a small number of detainees as circumstances allow. The bill will pass easily and quickly. And if the Supremes invalidate that law, we'll see another legislative response, and another, until they get it right. Just watch."
http://counterterrorismblog.org/2006/06/prediction_bush_congress_will.php

BTW I understand we have not been shipping detainees to Gitmo for a considerable time.

[Papaw John]

Hey Y'all

Two thoughts. First, that there is a historical analogy to AlQuaida and the WarOnTerror (and subject of a recent movie I haven't seen) the Pirates of the 16th thru early 19th centuries. They prospered in 'failed state' situations, disrupted global commerce, destroyed major cities and mostly claimed no authorization from any Gov't for their crimes. (There were similar actions by the same bad boys under 'Letters of Marque' but that was not regarded as quite the same.)

When the Royal Navy caught these pirates they were transported to London, given trials that were as fair as trial generally were back then--and (usually) hanged.

Seems reasonable. What's the problem with us that we can't do similarly?

Second, the discussion about A-Q- trials a year or two ago involved the admissability of evidence. Like, is there any chance that SKMohammed's 'interogation' (which we are lead to believe involved torture) be used against him in any court? Obviously, no. At least not in any court that springs from the Anglo-Saxon tradition, in MHO.

Papaw John

[tom swift]

Whoa, hold the outrage for a bit. Does the Court's decision make Al Queda a de facto signatory to any of the Geneva Conventions? That would be ridiculous, if that's what the Court just did. The Court has no power to make treaties, even on a third party's behalf. But that's probably not what the Court did.

If Afghanistan was a signatory to one or more of the Conventions, and these creeps were captured while fighting in Afghansistan, then the Conventions might well apply. In that case they would be prisoners of war, which is not a criminal status. They can be detained at Gitmo or in a prison camp anywhere else until the war is over. No trial or tribunals need be involved to do that, since being a soldier in the service of an enemy power is not in itself a crime.

Now, until which war, exactly, is over, remains a legitimate question.

[Don Williams]

The Founding Fathers were not morons. Around the end of the Revolutionary War, a group of Continental soldiers actually took the Continental Congress prisoner here in Philadelphia. Congress escaped by (a) getting the soldiers drunk and (b) fleeing at night to the protection of the Princeton NJ militia.

The officer corps of the Continental Army actually discussed the overthrow of Congress at the end of the Revolutionary War but were talked out of it by George Washington. Google "Newburgh Mutiny". After some brisk
Congressional cost cutting, the federal army a few years later consisted of about 5 men at West Point.

Some of you might recall that roughly 40% of the Army's combat units are National Guard militia and are under command of state governors or the President depending upon Congress's wishes. As I recall, all jet fighters in the continental USA are flown by the Air Guard, not the Air Force.

Senator Arlen Spector may convince some of his fellow Senators to stand up for their authority. At that point, if Congress says "shit", President Bush and AG Gonzales had better squat and start making grunting noises.

[ghostcat]

SCOTUS just screwed the Dems come November.

[geoff]

The Air Force flies jet fighters within CONUS.

[tom swift]

So much of this debate is actully old news.

"And if they don't like the rulings of that single judge, they could always remove him via impeachment and put someone else in."

They actually tried that, while the ink was practically still wet on the Constitution. The Democratic-Republicans tried to remove that rank Federalist, Justice Samuel Chase, by impeachment. Chief Justice John Marshall presided over the trial. Chase was acquitted by the Senate, and that pretty much ended that tactic.

"Congress could increase it to 15 justices tomorrow and let Bush make 6 more nominations."

And FDR tried to pack the Supreme Court, to universal ridicule.

[Other Tom]

The citation in the FISA case I quoted from above is United States Foreign Intelligence Surveillance Court of Review Sealed Case No. 02-001. It is, quite simply, axiomatic that no congressional enactment can infringe upon the president's inherent constitutional powers. Such enactments can result in heightened judicial scrutiny of the scope of those powers, but if the power is there--as it has been held to be in the cases of foreign intelligence-gathering--the congress is without power to restrict it.

[ajacksonian]

My main problem with this ruling is that the Supreme Court, by ruling the way it has on the Geneva Conventions, has placed an organization that wants to be no part of the Nation State system nor adhere to any of the nicities of same to be at the same level as a group that has actually gained control of an area and declared a Nation, although it is unrecognized. There is a huge difference between these two things. By putting down a flag and setting up a means to rule or govern, those groups which have made a State, although new and unrecognized, are due the entire and full benefits of the Geneva Conventions. al Qaeda categorically rejects becoming a Nation and, in point of fact, works across many Nations.

al Qaeda adheres to no Nation and puts down no flag and raises no accountability to itself that is necessary to be a Nation. If they did so they would qualify under the Geneva Conventions which were set up to handle this. By doing none of these things they fall outside the entire framework on the agreement itself and have no basis for being made a part of it.

The Supreme Court, in ruling as it did, has given al Qaeda the same level of recognition as a non-recognized Nation. On that basis, we can now ask the good Supreme Court if they could show us where we can send ambassadors? Indeed, how can we make a treaty with this new Nation they have declared for us? And, how can we hold al Qaeda accountable to International Treaty as it has no economy, has no military, has no diplomatic corps, has no civilian population, has no industry, has no trade or commerce...

Oh, please, such wise Solons on the Bench, tell us in your Munificent Wisdom what We the People should do to open up relations with this new Nation you have decreed!

And since they have no territory nor own no land as a Nation, then these, oh so wise 9 Judges have now identified who shall try these cases. Right there in Article III, Section 2 of the Constitution. Their very own selves! 9 plane tickets to Guantanamo, please... That is what you get when you declare a new Nation that we have no capability of dealing with in a legal manner.

So good of them to volunteer for this duty!

Of course we could do like I thought we should have done after 9/11... have Congress declare War on every non-National entity that has ever rhetorically declared war on the US since 1945. So they know we take them seriously, now.

And now the Supremes have pointed the way to allow just that.

[boris]

After some brisk Congressional cost cutting, the federal army a few years later consisted of about 5 men at West Point.

Back when Congress didn't require military protection. Tables have turned.

[Redcoat]

Don Williams

The Founding Fathers were not morons. Around the end of the Revolutionary War, a group of Continental soldiers actually took the Continental Congress prisoner here in Philadelphia. Congress escaped by (a) getting the soldiers drunk and (b) fleeing at night to the protection of the Princeton NJ militia.

I doubt that outcome would occur again,with Ted Kennedy in the Senate,and his wastrel son in the House,there wouldn't be enough liquor left to give a squad a strong buzz.

Ther only hope would be if the Kennedy vehicle were the first in a convoy,and they could try and drown the Army.

[Don Williams]

"When the Royal Navy caught these pirates they were transported to London, given trials that were as fair as trial generally were back then--and (usually) hanged.

Seems reasonable"
---------
By contrast, when the Royal Navy caught American privateers during the Revolution, they stuck them in prisons like Gitmo and starved them. Considering them illegal combatants worse than pirates.

Actually, the Founding Fathers were in some respects the Al Qaeda of their day. Living in a wilderness on the edge of the civilized world. Fanatical devotees of a strange ideology called "republicanism" which had not been seen in the civilized world since Julius Caesar invaded Rome about 1800 years earlier.

Users of covert spy tactics like secret inks, encryption, and dead drops.
Terrifying the British government by sending the arsonist "John the Painter" into England to burn down English cities.

Terrorism? The atrocities in the South between Tory and Patriot factions appalled even the British soldiers. Patriot leaders desperate to forestall installation of a British puppet government realized well before Lenin that the purpose of terrorism is to terrorize. The CIA has the real history of the American Revolution at its web site --see http://cia.gov/cia/publications/warindep/intellopos.shtml#top

What goes around comes around. Active military know that so they support the Geneva Convention. Advocates of extremist measures are usually neocon chickenhawks who have never been within 1000 miles of an active battlefield.

[Redcoat]

Other Tom

Libs think their talking points have the force of law,you can throw facts at them all day long,it won't matter.

They will,however stop dancing for joy over this when their talking points evaporate and the Political left has to deal with the fall out.

[boris]

Actually, the Founding Fathers were in some respects the Al Qaeda of their day.

So for you Bin Laden is like George Washington.

neocon chickenhawks

USAF 65

[Redcoat]

Don Williams

Advocates of extremist measures are usually neocon chickenhawks who have never been within 1000 miles of an active battlefield.

Speaking of ChickeHawks,why haven't you strapped on a bomb belt like your heroes and done your part to destroy the evil Bush regime?

[Sue]

Pis,

I'm sure they never knew how Roosevelt got his social programs declared constitutional.

[Semanticleo]

Don Williams;

So what say you? Do you hate America?

Loathe freedom?

Redcoat seems aptly named in your scenario,
per his colonial sympathies.

[Don Williams]

"So for you Bin Laden is like George Washington."
-----
No, but George Bush is making Bin Laden into George Washington for 1 billion Muslims .
For political benefit, regardless of the harm it does to America's national interest.

[Florence Schmieg]

My goodness!! Don Williams and the other libs here have truly gone off the deep end. President Bush cannot become a dictator. Our presidency has a two term limit for goodness sakes! It is not Bush that is the danger here but BDS that will open the floodwaters of treason by the press and handcuffing of the military and security agencies in fighting terrorists. This could weaken the country for decades or worse. Get a grip.

[SPQR]

Anon Lib,
None of this opinion has any relevance to the NSA program at all. Existing S.Ct. opinion on the powers of the President to use departments like the NSA in wartime make it clear that any surveillance of cross border communications traffic do not violate the Fourth Amendment.

There is nothing even analogous in this opinion to relate to the NSA program and its nothing short of baffling for you to make the connection.

Don,
Your comments are nothing short of weird. First of all the NRA should not be taking positions of the kind you describe above, it has nothing to do with the interests of its membership. Second, your knowledge of history is sadly lacking, the Continental Army was careful to observe the laws of warfare of its day.

[Anonymous Liberal]

The citation in the FISA case I quoted from above is United States Foreign Intelligence Surveillance Court of Review Sealed Case No. 02-001. It is, quite simply, axiomatic that no congressional enactment can infringe upon the president's inherent constitutional powers.

Other Tom, if you went to law school, you must have skipped con law. Your statement above is just flat-out incorrect. There are two types of inherent authority, default and exclusive. Congress cannot infringe upon the president's exclusive powers, but it can and often does overrule his default powers. That's what happened in Youngstown and any number of cases after that. And no court has EVER held that the president has the exclusive authority to set the rules for surveillance of U.S. citizens.

If you were right on this point, why would this even be controversial? Why would so many legal scholars, both conservative and liberal, be convinced the program as illegal? You really think that your position is "axiomatically" true? Please.

And here's the kicker, if the president's authority "axiomatically" trumps Congress' on these issues, why would the Supreme Court have held the exact opposite to be true today.

Why don't you read the opinion. Pay extra attention to footnote 23. It reads:

"Whether or not the President has independent power, absent congressional authorization, to covene military commissions, he may not disregard limitations that Congress has, in proper exercise of its war powers, placed upon his powers."

Got that?

[Don Williams]

"Don Williams and the other libs "
---------
Lib? Gee, don't tell Pat Buchanan. I was a charter subscriber to his "American Conservative".

I assume you do know what a "conservative" is. You know --that part of the Republican Party that doesn't whore for the Rich. That faction which thinks the US government should be limited and federal debt kept small. That group which thinks the US government should not be used as an agent to establish a global empire in which the profits go to a favored few while the huge costs --in blood, money, and lost liberty --are dumped off onto the common citizens. That group which feels that lies, greed, and corruption have a stench --even when they are wrapped in the American flag.

[Patton]

Anon LIB:
"""Whether or not the President has independent power, absent congressional authorization, to covene military commissions, he may not disregard limitations that Congress has, in proper exercise of its war powers, placed upon his powers.""""

The Supreme Court should take its own advice and follw the limitations Congress put on them to hear such cases.

[Sue]

If you were right on this point, why would this even be controversial?

You're kidding, right?

[Patrick R. Sullivan]

I haven't read the opinion and dissents, but Clarence Thomas took the unprecedented (for him) step of reading his dissent from the bench. Which tells me this is hugely negative. The NY Times quotes him saying:

'"Those Justices who today disregard the commander-in-chief's wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency's wildly implausible conclusion that a storm drain is a tributary of the United States," Justice Thomas wrote. "It goes without saying that there is much more at stake here than storm drains." '

Yeah, like whether or not the Constitution really is a suicide pact.

[Lesley]

Wretchard makes an interesting point about Israel which could equally apply to the United States:

"But there remains the possibility that society, as expressed in the total sum of its attitudes, really doesn't want to continue the fight, though one shouldn't take Hamadan as a basis for concluding that. That is society's prerogative too. Israel, for example, has in the course of its own struggle already ceded certain things to its enemy which have not only determined its position on the battlefield; but also altered Israel's perception of itself; the most fundamental of which is the acceptance that its own survival under certain circumstances is illegitimate. It is the nature of experience to engender second thoughts; and if Israel is already having doubts about whether any survival in accordance with its standards of justice is possible; then there may be third or fourth thoughts, which could return to the original conception but will very probably move in new directions."

Have we in the United States concluded our nation's survival under certain circumstances is illigitimate? I wonder. If we cannot use every tool (banking & NSA surveillance, etc.) in our arsenal to defeat terrorism, what remains? Smug and self-satisfied moral superiority? It will be up to Congress to draft the legislation to "legitimize" these tools. It can't happen fast enough for me.

[Sue]

-that part of the Republican Party that doesn't whore for the Rich

Why does anyone still bother trying to converse with Mr. Former NRA?

[Matt]

Don, of course many today in the active military have certainly been worried about receiving Geneva Convention treatment at the hands of Al Qaeda.

:|

[Matt]

Sue, why does Don hate America?

[Sue]

I don't think he hates America. I know he hates Bush. Otherwise, he would wonder why the judiciary just formed a treaty with AQ, something they are not constitutionally able to do. You know, it is the constitution Don is worried about. Or so he says.

[Other Tom]

Dear Anon Lib: As I previously stated, I did not skip Con Law, I studied under Professor Freund, and practiced very successfully thereafter for many years. How about yourself?

The following makes me question whether you ever successfully completed a course in reading comprehension: "And no court has EVER held that the president has the exclusive authority to set the rules for surveillance of U.S. citizens." Neither I nor anyone I know has ever contended anything to the contrary. The NSA program was and is designed to gather foreign intelligence. No one has ever held that such intelligence-gathering powers are limited if the foreign source is talking to a U.S. citizen, and nothing in the Hamdi decision remotely suggests such a result.

If you are able to read the Youngstown case (holding that the president lacked the inherent power to seize the nation's steel mills--an utterly unremarkable proposition) you will surely understand its discussion of the limitations on the president's powers that the congress can and cannot impose. Nothing in that opinion is contrary to what I have said. Nothing in that opinion undermines the FISA court decision I have cited and quoted. I am waiting in vain for a citation to contrary authority from you. In the meantime, I hope you appreciate that I am giving you a free course in "Introduction to Constitutional Law," which I believe you should complete before applying for Con Law 101 (whatever that is--we just called it "Constitutional Law").

As to whether the NSA program in "controversial," and as to what various commentators have had to say about it, I am utterly uninterested. I simply rely on the settled law of the land, which vindicates my position and renders yours quite silly.

[Don Williams]

SPQR: "First of all the NRA should not be taking positions of the kind you describe above, it has nothing to do with the interests of its membership."
----------
That sounds like something Bill Clinton or John Kerry would say. Anyone remember the scorn NRA members had for Clinton's duck Hunting foray? Anyone remember the slogan: "The Second Amendment wasn't created to protect duck hunting"??

Better yet, anyone remember "Vote Freedom First"? Charleton Heston waving the musket and crying "From my Cold Dead Hands"?

Anyone hear from Charleton lately? Has AG Gonzales stuck his ass in a Navy brig?

[JohnH]

The Patriot Act is temporary. If the public believes at some future date that liberties are actually being lost, election results will change and Jamie Gorelick can become president.

all of this complaining by the Left about reining in the imperial president is just the whining of sore losers.

The public wants the NSA surveillance program; it wants the banking surveillance program. And it wants to be safe from terrorism. The elites don't like the decisions that the people of this country have made.

And Don Williams is priceless. Maybe he is Brian Williams' brother ("the founders could be considered to be terrorists too"). The "terror" tactics he cites are cherry picked. I suppose the British never burned anything down (the White House?) or shot any prisoners or violated anybody's rights?

Iraq's transition from fascism to democracy is happening so far with a lower death rate than any major event of this kind that you can name in the last 300 years, except perhaps that of America. What about the French Revolution? The Russian? The Chinese? The Soviet Union (slaughter in the Balkans and other areas)?

Maybe you would say India. Peaceful transition from British rule, right? No. Hundreds of thousands slaughtered.

We have the potential to make history in Iraq. Maybe the best thing to happen to Islam.

[Barney Frank]

"Anyone hear from Charleton lately? "

No, he has Alzheimer's. Classy comment.

[davod]

I can only believe the Justices have not read the Geneva Convention.

The convention was designed to protect the military and civilians.

Moving aside from the more obvious state and non-state actors.

One of the major tenets is that armed combatents minimize civilian casualties. This is the reason for Uniformed combatants. Keeping away from civilians is another way to limit civilian casualties.

Alqaeda, the Taliban, and others of their ilk, do not wear uniforms and the operate within the civilian environment. They use civilians for cover.

The Supremes, in finding that a POW status is applied to these people, have destroyed the intent of the accords.

[Don Williams]

"Have we in the United States concluded our nation's survival under certain circumstances is illigitimate? I wonder. If we cannot use every tool (banking & NSA surveillance, etc.) in our arsenal to defeat terrorism, what remains? "
-----------
The idea that a pack of goatherds from primitive countries is a serious threat to the USA is a crock, IMO.

The USA is a nation of 300 million people separated from Eurasia by two huge oceans.
Its military expenditures every year exceed those of the other military powers COMBINED -- and most of the other major military powers are our NATO allies.

The success of Sept 11 was due to the incompetence that corruption brings. The corruption that doesn't do what's needed for this country whenever such actions offend some campaign donor.

The corruption that says 1000s of foreigners can still stroll across our southern border 5 years after Sept 11.

The corruption that led the Republican Congresses of the 1990s to toss 25% of our Intelligence Community out on the street--and 40% of our military --so that $Billions could be shoveled to large corporations for white elephant projects. That's why circa 1997 $8 Billion went to the NRO while less than $1 billion went to Humint intellgence. That why's we could take pictures of tents on the plains of Afghanistan -- we just didn't know what was being discussed in those tents. The political calculus in Washington was that the big defense contractors give $millions in campaign donations while CIA spies in the Third World --like Robert Baer --don't donate shit.

Plus, let's not forget that Congress didn't hear Richard Clarke's pleas to wage a war on terror because it wasted two years waging a war on oral sex.

[Semanticleo]

Where is the freaking outrage

You are expressing it ::grin::