Hamdan v. Rumsfeld:
I have some initial reactions to today's opinion in Hamdan v. Rumfeld over at my solo blog, and hope to have more up later today.
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Hardly a novel view of the Constitution, given the language of the Necessary and Proper clause:
What's novel is the dissenting view of Thomas, Scalia, and Alito -- in Thomas's dissent -- that a president (at least this president) is free to do whatever he wants under the guise of his C-in-C role.
Ironically, they take a view of the Constitution that ignores its plain text, its structure, and the manner in which the prior 42 presidents and their counterparts in Congress approached this issue.
And as for the argument that Lincoln used the C-in-C clause to act in super-executive ways, he did so transparently and with the subsequent approval -- as his request -- of Congress. Not the case now.
Not only that but the constitution allows for special executive powers in the case of insurrection or rebellion, which the Civil War most certainly was; and which the war on terror--the "Miami Seven" notwithstanding--most certainly is not.
The Court didn't hold that Hamdan can be detained indefinitely; it declined to reach that issue.
From the beginning of Section VII, p. 72 of the majority opinion:
"It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to de-tain him for the duration of active hostilities in order to prevent such harm."
But does the DTA prevent any new claims? I get the definite impression that the five justices who joined parts I-IV of the Stevens op would, if forced to decide, reject the DTA as unconstitutional. If you can't bring a habeas claim, then you don't have a right to habeas.
When the Army declared martial law in Hawaii in 1942, it prohibited making or receiving a habeas claim. The court slapped that down and also had something to say about war emergencies. As I wrote in my layman's column in January 2002:
'The court said, among other things, "The right to jury trial and the other constitutional rights of an accused individual are too fundamental to be sacrificed merely through a reasonable fear of military assault."
'And the justices made it pretty damn clear that when they talked about a "military assault," they didn't mean some vague threat in the indefinite future. They meant the civil courts should be left alone, even in a military emergency, unless the enemy had landed or the troop transports were standing offshore. . . .
'And for those who have suggested that only citizens have constitutional rights through the civil courts or that the Territorial precedent somehow doesn't apply, (Hugo) Black wrote, "Civilians in Hawaii are entitled to the constitutional guarantees of a fair trial to the same extent as those who live in any other part of our country."
The court also referred back to a 1932 case (Sterling v. Constantin), which had ruled that "the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." '
In what way will this opinion bring about the destruction of our country?
Neal's response is--to use words acceptable to the gentler areas of the blogosphere but obviously euphemistic--deeply unserious.
If Bob were to reply, Neal simply makes a stab at spelling a disgusting glottal noise and....case closed.
We do have a resilient society which can survive even liberals. But the death of a thousand cuts eventually results in death, even though one may scoff at the importance of any one cut. METAPHOR!!!!
And, for the metaphor-challenged, this decision strikes Bob and others as one of the cuts and indicates that SCOTUS is likely make more slices as more opportunities arise.
I am not sure I agree completely, but the point is that we are extending rights here to guys who, according to the GC, have none. According to the GC, they are criminals and terrorists and have no relationship to an organized state or military force. The justices made reference to the character of the conflict--international, high signatories, and so forth, but not to the character of the captives.
I don't have a problem with civil trials, although I think that protecting jurors and their families is going to be difficult. The judge in the WTC '93 trial had, and may still have, police protection.
Probably he will go to Congress to work out new tribunals with more protections for the defendants, but not as many as are in courts martial.
That's correct, but his status is still "limbo", and I do not see that changing. This decision sets him up as a POW, which (I think) means he's stuck there until the war ends.
I think he'd have been better off in a tribunal.
“ ... and which the war on terror--the "Miami Seven" notwithstanding--most certainly is not.”
Well when do we cross the boundary into insurrection and rebellion? How many people does it take? Criminal organizations like the Italian and Russian Mafia don’t seek to overthrow the US government, but the Communist Party (another organized conspiracy) did. However the CPUSA didn’t have enough people to really constitute a rebellion. Now we come to the Muslim terrorists. Are they organized enough, or numerous enough to qualify? They certainly seek the overthrow the US government by destroying it. What else would you call an attempt to destroy the Pentagon and the White House?
The problem we have is the criminal justice system along with the civilian police are really incapable of dealing with a large organization that has the power to threaten, intimidate and bribe judges, juries and witnesses. The civilian police are not an army, and they aren’t allowed conduct door-to-door searches. We might need to do this kind of thing one day, like it or not.
If the US government ultimately proves incapable of dealing with a mortal threat to the republic it will fall. There won’t be a SCOTUS if the people lose faith in the government’s ability to insure their very survival.
Oh wait, only Ann Coulter can say stuff like that.
Stop it. I'm getting all misty at the thought of such a great benefit for the country.
Says the "Dog"
I don't understand your criticism of me. Bob suggested that the Hamdan decision was *suicidal,* and I wanted to know why he thinks that. That's not "deeply unserious," that's a fair question.
And no matter what Bob's (or your) response to my query, I would never "make[] a stab at spelling a disgusting glottal noise." I'm not sure why you make such an assumption, as I always strive to be civil in the comments here and elsewhere.
The irony here is that those who are most upset with the decision probably understand its reasoning the least, if they even bothered to read it.
I read the case as saying basically that the military commissions are improper because they violate the UCMJ and the Geneva Convention, and Congress didn't expressly authorize them. That means Congress can authorize them. A crushing defeat, indeed, for GWB.
The Bush v Gore decision was 7-2 with 2 moderates and 2 liberals joining the "right wingers" in ruling the all far left wing democratic Florida Supreme court's order on a recount was unconstitutional.
Says the "Dog"
Only because he, Cheney, &Addington insisted on their theory that the President didn't even have to ask Congress's approval. See Jane Mayer's article in the current New Yorker, which I hope they'll now make available online in celebration.
Addington, more than any other person it seems, is the force behind this administration's disregard for the rule of law. That's an awful lot of credit for any one man to take, but it seems to be deserved in his case.
The question was designed to get Bob to tell you what he thinks is wrong and dangerous with the decision. Then you will tell him how de minimis, at worst, it is in the grand scheme of things. You will not tell us that each of the other 999 cuts will be treated similarly, in isolation, if we were to bring them up. Thus, nothing Bob or others complain about could conceivably be a problem.
I've hung out with liberals long enough to learn stuff, not the stuff they were peddling, but....
Yes, it couldn't possibly be that they interpereted the rule of law the way the three dissenters plus Roberts did, they were merely trying to circumvent the law because they wish to disregard it.
Is that your conclusion about the ACLU or Al Gore or other liberals when they lose a case at the Supreme Court?
Depends on the case, doesn't it? As for Addington, his role in the torture memos is of a piece with that in the military commissions. The guy is an ideologue, not a lawyer.
Your assumptions about me are unfair and unwarranted, but never mind that. Let's stick with substance: how precisely will the Hamdan decision endanger our country? I've read the opinion and I don't see anything "dangerous" about it. I might be missing something. I would like to understand your position. Simply describing the decision as one of "999 cuts," however, doesn't really explain anything. I would appreciate it if you would spell it out for me. And since you seem convinced that I have a preconceived "liberal" response to whatever it is you may say (which I do not), I promise not to reply to your explanation.
I will hazard a try at why this is a dangerous decision. The main reason is the folly of having the courts have any role in a war whatsoever. If anything is a political decision given solely to the other branches, war making is it. Yet the court is substituting its judgment for the judgment of the other branches.
If Congress wanted to stop the President, it could. It could cut funding or pass laws banning military tribunals. Yet it hasn't. Further, in response to an earlier SC decision, Congress passed the DTA which could reasonably be interpreted as Congessional authorization for the tribunal system. The Court just brushed this aside.
Neal, I do not of course believe that this decision alone will destroy the country. We are very strong and can survive much. But the current majority believes that it is better to uphold its jurisdiction and give rights to brutal killers than win.
It is very odd to have so many assumptions being made about me when all I did was ask you a serious question, but thanks for venturing an explanation of your original comment.
Bob, don't sign yourself "from Ohio"--it might make us think everyone from Ohio is stupid.
Yes, we're in a war--and guess what? We have "laws of war" just for that occasion! How foresighted of us!
Using "war" as a justification for "throwing the laws out the window" is the kind of thing the Nazis did. You want us to be Nazis? Sorry, we'll pass.
Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.
we already have laws on the books that do just that. see stevens's opinion. the president has always been free to remove us from the geneva conventions, or to ask congress to authorize these sorts of tribunals, or to pass a law saying suspected al qaeda members get no protection from the geneva conventions. yet neither the president nor congress has done any such thing.
++++
The Bush administration has failed, though it has tried, to come up with a persuasive definition of our enemy. This is demonstrated by their convoluted and contrived distinctions between 'prisoners of war' and 'enemy combatants.'
Had they been reflective men, they would have seen this and perhaps saved everybody a lot of trouble by taking a forthright approach.
It is not obvious that conventions signed 100 years ago fit well with the kind of threat posed by Islam.
The insistence, on the one hand, on slavishly following a set of agreements that were 1) written for a bygone era and 2) never accepted by any society east of Suez; and, on the other, of essentially demanding carte blanche and hiring a bunch of pliant and compliant men with law degrees to devise sophistical arguments to justify doing what you want to do, has not served ordinary, non-ideological people well.
Harry: I thought about talking about Truman/JKKennedy liberals and how they diffred from "liberals" like Anderson here but my comment was already quite long. Do you think John Kerry for instance would have supported containment?
anonyomousss: The President may have thought the courts would continue their historic deference to the political branches in war making. I guess he did make a mistake.
if the president thinks we dont need the geneva conventions, let him repudiate them.
Some unknown number of terrs didn't know about this, until now. We lose the utility of the program because, either they stop using the vulnerable means of funds transfer, or, that those who have stopped will consider we no longer can track them this way and will take it up again.
Europeans, either because of their laws or public relations--not yet confirmed if it's either or both--stop cooperating. We lose the ability to track terr money.
Tracking terr money is a good thing. We can no longer do it this way.
Yeah, I know, how does this put a mullah in the White House.
Bob from Ohio, I suggested your remark was "stupid." Which it was, for the reasons I gave. If you don't want to have your comments described as "stupid," then try a little harder not to write stupid comments.
I mean, come on: there are laws specifically applicable to war, and you think they should be ignored because we're at war? What is that, other than "stupid"? I'm open to synonyms.
Dunno whether you're a Nazi, but I dissented from your suggesting that we should act like Nazis. Got a problem with that?
Harry: you've lost me. The 1949 conventions were 100 years ago? Afghanistan, a nation east of Suez, didn't sign? Help me out here.
Hamdan's primary problem is that it disallows interrogation which now seems to be useful. The torture issue has pretty much been put to bed--it isn't happening at Gitmo and hasn't, unless you count fake Newsweek stories, which many do.
Hamdan's second problem is that by making al Q and any other terr bunch equivalent to a high signatory--by default--they have suddenly put us in a treaty position wrt al Q.
On the other hand, these guys, not having signed, have no legal reason under GC to not torture our guys and blow up civilians. That, of course, is a major concern to them and us...not.
Hamdan does have a couple of advantages for us. By allowing the admin to have congress rejigger the trial structure so that it fits SC's latest rumbletummy, the dems will have to publicly go along with Bush, or publicly favor the terrs. Stevens says we can keep the guys as long as hostilities continue.
And we now have practical reasons to turn captives over to nations whose cultural wonderfulness has been untouchable on account of multiculturalism. What can the libs say? Would they judge another culture's ancient code of law? Not likely.
I don't see Hamdan changing the orginal GC's view of the treatment at battlefield level of francs-tireurs. Possibly it makes it more okay to shoot them immediately.
Lastly, we see the SC straining mightily to...require Congress to change the structure of the tribunals, or, on the other hand, to allow the admin to forget about trials and just keep the guys. In other words...nothing much. But it makes it look to the other side, and is advertised by the MSM and liberals, as if Bush has just been kneecapped and the war is practically won. If they can just hold on for the Kerry/Fonda/NYT axis to get some traction, the terrs must be thinking, they'll win. IMO, this is the worst part of the issue.
++++
Anderson, I'm not a lawyer, so my reference was not to particular pieces of paper but to an outlook -- zeitgeist you could call it.
The zeitgeist behind the Geneva Conventions go back to 1878 and were pretty much frozen around 1900. The 1949 statement was a rehash.
Whether any governments in Asia signed the documents or not, not one has ever paid the slightest attention to them. US prisoners of the USSR, Japan, China, N. Korea, N. Vietnam, Cambodia, Iraq have all been routinely denied any Geneva Convention protections.
Maybe I should restrain myself from going off on a tangent, but it might be timely to ask: In a clash of cultures, one which accepts the Geneva version of humane behavior and one that doesn't, can the first prevail?
I have often -- in fact, again just yesterday -- heard US officers say that if we are not judged as being rigidly committed to Geneva-style behavior, US prisoners will therefore not be able to claim Geneva protections in return.
That argument may be self-coherent, but it doesn't make sense. No US prisoners in Asia have ever benefitted from Geneva agreements.
As for the Gitmo tribunals being anything Nazi like, I guess you don't know anything about Nazis. Try reading something. Rise and Fall of the Third Reich is still a good starting point.
"Got a problem with that?" Ha. Another lion of the internet.
Bob, come back when you've read part VI of Stevens's opinion, okay? We'll wait.
In a clash of cultures, one which accepts the Geneva version of humane behavior and one that doesn't, can the first prevail?
Sure, unless we accept that morality is an impediment. Which seems to be a common assumption, particularly among conservatives these days. Very mysterious.
We should act according to Geneva-level standards because it's right and because we're who we are. Treating the immoral morally is what America should be doing to set an example.
I think that living up to our principles will do more to inspire the populations of those non-Geneva-compliant nations, and to yield us ultimate advantages, than any short-term advantage to be gained by out-Heroding Herod.
Bob, come back when you've read part VI of Stevens's opinion, okay? We'll wait.
In a clash of cultures, one which accepts the Geneva version of humane behavior and one that doesn't, can the first prevail?
Sure, unless we accept that morality is an impediment. Which seems to be a common assumption, particularly among conservatives these days. Very mysterious.
We should act according to Geneva-level standards because it's right and because we're who we are. Treating the immoral morally is what America should be doing to set an example.
I think that living up to our principles will do more to inspire the populations of those non-Geneva-compliant nations, and to yield us ultimate advantages, than any short-term advantage to be gained by out-Heroding Herod. Look at how we inspired the peoples of the Communist nations, back when we were at least semi-reliably a leader in moral decency.
To say that because the tribunals at Gitmo didn't fit the Supremes' ideas of tribunals and so we'll have to reconstruct them means we're no longer the semi-reliable moral leaders is NUTS.
Was it our moral example that inspired Eastern Europeans to leave the fold? That, too, is NUTS.
Keep in mind that our morality extended to being so weak in conventional arms that a Soviet attack into NATO would almost certainly have turned into a nuclear war. We did that because it was cheaper. And who would have been on the irradiated rosters? Right. Eastern Europeans, to start. That would inspire me, not.
The tribunals didn't fit *anyone's* ideas of civilized tribunals, except for the ideas of Bush, Cheney, Addington, and Yoo. They were an atrocity that you should be ashamed to defend. No one should ever be at risk, in an American proceeding, of being condemned to death or imprisonment on the basis of secret evidence and witnesses.
Was it our moral example that inspired Eastern Europeans to leave the fold? That, too, is NUTS.\
That word ... I don't think you mean what you think it means. The example of free markets and freedom of speech, etc. weren't an inspiration to the dissidents of Eastern Europe? Whatever.
But if you want to talk about tribunals, what is the likelihood that people around the world had a clue what the structure of the tribunals was? That's NUTS. And if they did, to figure that would ruin the great moral example (it's cheaper to nuke you guys than buy more tanks, so that's our plan)is equally nuts. BDS can't make something out of nothing, which is what this is.
POWs don't get due process, just treatment like the soldiers of the imprisoning power -- so that if you're a 160-pound American prisoner of the N. Vietnamese, you're entitled to the ration of rice and decayed fish that will keep a 100-pound Vietnamese alive.
Except, of course, N. Vietnam did not follow the Geneva Accords.
Really, the discussion, both here and in Washington, revolves around matching situations to documents, rather than to facts on the ground.
It is not at all clear, Anderson, that our morality will ever transfer to the Muslim world. The Muslims keep telling us it won't. I tend to believe them, not you, as being in a better position to know.
It is also not clear that war (or politics) waged according to western standards necesarily triumphs over war (or politics) waged according to some other standard. The example of the Netherlands is discouraging on this point -- a woman and member of Parliament exposes Muslim atrocities, her partner is murdered and she is threatened, and the state protects her attackers and turns her into a refugee.
I could present other examples, too.