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Balkin on Hamdan:
Jack Balkin has a very nice post Hamdan as a Democracy-Forcing Decision, the essence of which is:
What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.
(Read the whole thing.) It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror.

First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run.

Second: Not involving the American public directly in supporting the war. Tax increases or a military draft were not needed for this. But bond drives, resource collection, and other assistance-to-the-military programs — even better, some form of volunteer genuine militia service — in the wake of 9/11 would have given the public some ownership of the resulting policies. Many called for these sorts of initiatives at the time. They were waiting to be asked to pitch in and help. Instead the administration adopted a Vietnam-type strategy of "We'll handle things; you all go about your business." Which leads to bad reactions when "things" do not go as smoothly as expected.

The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy.

Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost.

There are important lessons to be learned here for future wars, both conventional and asymmetric. I am no expert on military strategy, etc., and for this reason do not blog about it. But this falls more into the domain of political or constitutional theory, and tells us something important about the value of the separation of powers. Jack's basic point is that the Court is giving the administration a mulligan. But the do-over will be much more difficult than the initial shot would have been. It did not have to be this way.

(Civil comments only please.)

Update: Some of the comments have concerned the militia suggestion alluded to above. I raised this possibility on 9/18/2001 (so please forgive its emotional tone) in an essay Saved by the Militia: Arming an army against terrorism. Of course, the merits of this particular form of citizen involvement are somewhat tangential to my principal point about the cost of insufficiently involving the public in a major war like the GWOT. And my original post did not concern the correctness of the Court's decision in Hamdan--especially its decision to reach the merits of the dispute. I was merely commenting on Balkin's insights about its scope and affect.

Related Posts (on one page):

  1. Rooting for Your Team:
  2. Balkin on Hamdan:
Robert Lyman (mail):
I seem to recall coming across a Michigan Militia press release right after 9/11 in which they offered their services to the President.

I know that's not what you meant by a "militia service program," and indeed I think what you say about the need to give the population a useful outlet for its wish to help is quite right. But I thought it unsurprising that the President apparently declined that particular offer.
6.29.2006 9:37pm
Robin Burk (mail) (www):
Perhaps. But as I recall, the political climate was poisonous before 9/11 and reverted to that state shortly thereafter.

I don't know how one succesfully leads for a long, less-than-all-out-military war in that climate. Bush has many limitations IMO, but I am not at all convinced that there was much chance for the sort of rallying leadership you envision.

To our great and perhaps fatal cost!
6.29.2006 9:39pm
Anderson (mail) (www):
I linked this in the comments to Orin Kerr's post, but if you want to read about the guy most responsible for mistake # 1 as enumerated by Barnett, Jane Mayer's article on David Addington is now online.
6.29.2006 9:48pm
Brian_Garst (www):
Is a decision democracy-forming when the court that renders it completely ignores its own place in that democracy? The majority blithely swept aside the stripping of it's jurisdiction by the DTA, using a puzzling justification that relied in part on the floor statements made by members of Congress as well as the legislative history of the act. Scalia, however, notes that, "We have repeatedly held that such reliance is impermissible where, as here, the statutory language is unambiguous."

In addition, a court that susbtitutes its, albeit reasonable, interpretation of a treaty in place of the Executive's reasonable interpretation is, as Justice Thomas points out, "an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority."

Seems like more democracy destroying judicial activism to me.
6.29.2006 9:51pm
Anderson (mail) (www):
The majority blithely swept aside the stripping of it's jurisdiction by the DTA

Um, no. The DTA limited 3 kinds of proceeding, then said that the limits on 2 of them applied to pending actions. Hamdan's action was the 3d kind, so Congress didn't apply the DTA to it.

What is so hard about this? Are people reading Scalia's dissent without reading Stevens's op?
6.29.2006 10:10pm
byomtov (mail):
Tax increases ... were not needed for this.

Sorry, but this statement betrays a lack of seriousness. We are spending $100 billion a year on the Iraq War. To claim that it was just fine to keep already irresponsible tax cuts in place in the light of this suggests that you are unwilling to ask for meaningful sacrifice on the part of the public.

Bond drives, "resource collection" (what do you have in mind - collecting empty tin cans?) might be symbolic, but they represent no sacrifice whatsoever. If you want the public to feel the cost of the war, or if you just think we shouldn't put it on the Visa card, advocate something meaningful.
6.29.2006 10:11pm
Bruce Wilder (www):
There's a frame, which seems the whole separation of powers, civil liberties "thing" as creating a system, encouraging the use of deliberate reason in shaping and implementing policy. It really isn't the case that Congress exists to force the patriots of the Republican Party to spend time with traitorous Democrats, who are allied Al Quaeda.

The same spirit, which did not want to "waste time" with consulting Congress, did not want to be constrained by the Geneva Convention or civil liberties or the law of war or the "dithering" of the U.N. Security Council, nor did it want to debate the wisdom of invading Iraq with anyone. The same spirit did not want to be bothered with careful planning of the Iraq reconstruction.

Bush was busily and hastily choosing unwise goals, even as he was, as Randy Barnett points out, hastily choosing expedient, but unwise means.

Brian_Garst's point seems like a complete non-starter to me. Substantive jurisdiction-stripping, even if it is technically constitutional (which is questionable), serves to undermine the basic separation of powers. It constitutes a repeal of the rule of law.
6.29.2006 10:23pm
Dilan Esper (mail) (www):
Brian:

Contrary to what Scalia says, the DTA is SILENT about whether the jurisdiction stripping provision is retroactive or merely applies to pending cases. The "plain meaning" rule only applies to a retroactivity situation where there is express language making the law retroactive. Absent such language, you have an ambiguous statute, and you have to go to legislative history.
6.29.2006 10:23pm
Steve:
It seems to me that a lot of things were done and a lot of programs were implemented in the heat of the moment - and it's rather gauche to second-guess emergency decisions. The problem is that without any sort of meaningful oversight, there was no one to say "hey, maybe we should cut back on those emergency measures a little."
6.29.2006 10:25pm
Brian Garst (www):
Um, no. The DTA limited 3 kinds of proceeding, then said that the limits on 2 of them applied to pending actions. Hamdan's action was the 3d kind, so Congress didn't apply the DTA to it.

To say that Congress didn't apply the DTA is where Steven's erred in his "negative inference". And as Scalia points out, such is a "particularly awkward and indirect way of rebutting such a longstanding and consistent practice."

And, if the majority, even as they wrongly relied on floor arguments to augment their case, hadn't cherry-picked those arguments they would have found the supporters of the bill did in fact intend to apply it to this case. But obviously if you agree with his decision it means you aren't going to find his presumption erroneous, so I suppose there's little point arguing it.
6.29.2006 10:38pm
Brian Garst (www):
Contrary to what Scalia says, the DTA is SILENT about whether the jurisdiction stripping provision is retroactive or merely applies to pending cases. The "plain meaning" rule only applies to a retroactivity situation where there is express language making the law retroactive. Absent such language, you have an ambiguous statute, and you have to go to legislative history.

I don't see that it's silent, in my reading. It seems pretty clear to me. However, even if I grant your point, the floor debate arguments were cherry-picked to support the majorities conclusion.
6.29.2006 10:42pm
Dilan Esper (mail) (www):
Brian:

Obviously, a lot of cherry-picking goes on in evaluations of legislative history. I don't disagree with you or Scalia about that. Nonetheless, the overall point was that Congress could have made the provision expressly retroactive, had the opportunity to do so, and didn't, and the reason they did it was because there were some members who didn't want a retroactivity provision in there and the sponsors wanted to get their votes.

It's important not to miss the forest for the trees. When the express retroactivity language is deliberately left out of the provision, it's perfectly reasonable to infer that Congress didn't intend it to be retroactive.

As far as the plain meaning is concerned, again, it just doesn't work the way Scalia says it works. An example of a statute that plainly means it will apply retroactively would be as follows:

"1. No federal court shall hear any challenge to the acquisition by any state, or political subdivision thereof, by eminent domain power, of any real property owned by a Justice of the Supreme Court who lives in New Hampshire and formerly served on the New Hampshire Supreme Court.

"2. This statute shall apply to all cases pending in any court at the time of enactment as well as to any case later brought."

But if the statute just has provision (1) and not provision (2), it does not carry a plain meaning of retroactivity. Rather, it is silent on the matter.
6.29.2006 10:55pm
Brian Garst (www):
Brian_Garst's point seems like a complete non-starter to me. Substantive jurisdiction-stripping, even if it is technically constitutional (which is questionable), serves to undermine the basic separation of powers. It constitutes a repeal of the rule of law.

There's nothing questionable about it. Though the court declares itself supreme in all things, it was never meant to be so (I realize saying this to a bunch of lawyers will not get me liked). Checks and balances always was intended to provide the ability for two branches of government to override the third, even as the courts wish to claim it is not so and that they trump all.
6.29.2006 10:55pm
Anderson (mail) (www):
Checks and balances always was intended to provide the ability for two branches of government to override the third, even as the courts wish to claim it is not so and that they trump all.

Based on what, besides your opinion?

Can the Congress strip the courts of jurisdiction over First Amendment cases, and then pass a law (which the President signs) making Christianity the state religion? I fail to see why not, on your theory.
6.29.2006 11:01pm
Brian Garst (www):
Dilan,

You make a good point. Though I see atleast one significant different in DTA and your example. Your example states "No federal court shall hear," while DTA states "no court, justice, or judge shall have jurisdiction to hear or consider." Now, my interpretation, and I'm guessing Scalia's, is that the statement itself is retroactive and need no (2) like the one you provide. Thoughts?
6.29.2006 11:01pm
Chris Bell (mail):
Substantive jurisdiction-stripping, even if it is technically constitutional (which is questionable), serves to undermine the basic separation of powers.

There's nothing questionable about it.

Garst,

Sure, but you have to be queasy about jurisdiction-stripping because it can be so easily abused if it is carried too far.

To bring the point home, pretend that a solid waaay Democratic majority President and Congress are elected. Now pretend that the new group passes a law saying;

(1) Any schoolteacher who hangs a copy of the 10 commandments in his/her classroom is subject to criminal prosecution.

(2) No court shall have jurisdiction to hear any challenge to this law.

Obviously a little absurd, but scary when Article III is read literally. Don't you think the constitutionality of this is a little questionable?

Don't think I'm being completely wacko either, fringe Republicans have tried to enact anti-abortion bills with provisions that prevent judicial review.
6.29.2006 11:12pm
nunzio (mail):
This post is a nice summary of some good observations. Although the Court is throwing the ball in Congress' court (or at least making the President throw it there) I still wonder whether Congress (or at least a majority of it) wants to take its responsibilities seriously. Most of them don't want to make the tough choices but instead take a wait-and-see approach.

I think the President (any President) should make Congress share the responsibility in making these decisions. Maybe this DTA is a start.
6.29.2006 11:13pm
Chris Bell (mail):
DTA states "no court, justice, or judge shall have jurisdiction to hear or consider." Now, my interpretation, and I'm guessing Scalia's, is that the statement itself is retroactive and need no (2) like the one you provide. Thoughts?

I agree with that, but then why put #2's in the other 2 parts and then leave them out of this one if they weren't required at all?
6.29.2006 11:14pm
Brian Garst (www):
Can the Congress strip the courts of jurisdiction over First Amendment cases, and then pass a law (which the President signs) making Christianity the state religion? I fail to see why not, on your theory.

Under original constitutionalism, yes they probably could do the first, though not the second. The courts are not the only branch that is required to follow the Constitution nor empowered to enforce it. Thus, a lack of first amendment jurisdiction by the courts would not grant the other branches authority to violate the First Amendment. It still exists whether the courts have jurisdiction over it or not.

Thomas Jefferson stated "You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctinre indeed, and one which would place us under the despotism of an oligarchy". The remedy to the problem of one branch running over the others, which is also identified in Federalist 48, was quite obviously to make the wishes of two branches trump the third.
6.29.2006 11:15pm
Brian Garst (www):
Sure, but you have to be queasy about jurisdiction-stripping because it can be so easily abused if it is carried too far.

Absolutely, it should be a very rare thing indeed.
6.29.2006 11:17pm
Glenn W Bowen (mail):

Second: Not involving the American public directly in supporting the war. Tax increases or a military draft were not needed for this. But bond drives, resource collection, and other assistance-to-the-military programs — even better, some form of volunteer genuine militia service


New York Guard
6.29.2006 11:17pm
Brian Garst (www):
I agree with that, but then why put #2's in the other 2 parts and then leave them out of this one if they weren't required at all?

A good question. I don't have the answer. But in the end I think that, given that the part I quoted applies to all three, that question should be moot from the court's point of view. It goes back to Scalia's point, that since the statement is not unambigious, the question need not even be raised at all as to why further retroactivity was granted in two out of the three cases. That is my point of view, anyway, though obviously there is no lack of disagreement on the matter.
6.29.2006 11:22pm
Christopher Cooke (mail):
Lindsey Graham, Republican Senator from South Carolina:

"The administration choose to deal Congress out of it and now they are paying a price for it." --CNN

My thoughts, and Professor Barnett's thoughts, exactly.

It is hard to see how this is an anti-majoritarian decision as the Supreme Court did not overturn any act of Congress (Congress never authorized these tribunals).

At most, the Supreme Court did not apply a particular statute retroactively, which this is consistent with well-established precedent holding that statutes are NOT presumed to apply retroactively unless Congress makes its intention clear that the statute should be applied retroactively. Then, and only then, would the Court have to consider whether a jurisdiction-stripping provision is constitutional.

The only scary thing about this decision is what it reveals about Alito's "President Uber Alles" view. (We already knew this about Thomas).
6.29.2006 11:32pm
cpugrud:
I differ slightly to the contention there were no opportunities to volunteer presented. There may have not been easy opportunities immediately advertised, but there are many opportunities available.

The most direct approach was followed by my former roommate: rejoining the military brought him to the frontlines with 1 year tours in Afghanastan and Iraq.

Slightly less direct is the approach of my wife and myself. As DoD contractors we directly support the war effort right here in Iraq.

Many thousands have chosen other support roles. From assembling and delivering care packages to the wounded at Walter Reed to assembling and delivering countless comfort and aid packages to military personnel, Iraqi schools, children, doctors, and citizens in general.

There are numerous opportunities to support the GWOT directly and indirectly, from simple donations of money, time and material, to much more personal commitments of direct support in theater.
6.29.2006 11:35pm
dick thompson (mail):
Where have you all been? There are all kinds of assistance to the military programs out there. Try Spirit of America, Soldier's Angels, all the people gathering school supplies and toys and candies for the soldiers to give to the kids. The Spirit of America gathered up millions of dollars to buy radio and tv equipment and other media stuff so that the Iraqis could set up their own television studios and radio programs and start printing their own newspapers and magazines. This has been going on for several years. There are all kinds of groups who have been buying baby wipes and special neck scarfs that can be used to cool the troops down. This is well publicized all over the place. Check the blogs out and check out the local newspapers. What has been missing is the major media publicizing anything to do with this stuff. With the Spirit of America initiative, when they had the stuff ready to ship and called the media, the media said they had to cover a traffic accident on the freeway so they would not be able to cover the Spirit of America stuff.

Soldier's Angels has been providing assistance and knitted items for the soldiers in the hospitals in Germany, Iraq and the US. The women involved visit the soldiers all the time.

There is a program to provide voice activated laptop computers to the soldiers who were wounded. This has been brought out in the comic strip Day by Day and on CNN when they had some of the bloggers on. There are also other initiatives to support the troops that have also been talked about on Fox News with Brit Hume.

Until you get a media that covers something other than if it bleeds, it leads, then what chance do you have to get the message out that there are other programs. Even when the president makes arrangements to ride bicycles and run with soldiers who have artificial limbs, the media does not cover it. That is where you need to look, not at the people who are involved all over the country.

Grade school classes have set up programs to write to the soldiers and the soldiers have appeared in the schools when they return but the media does not cover this. Other cases where the students have given up their presents to be sent to the Iraqi kids, but the media does not think this matters.

Check Blackfive, Mudville Gazette, Spirit of America, Soldier's Angels. How about the steak house in DC that had special Friday night meals for wounded soldiers from Walter Reed. Until the Hilton cancelled their lease they were giving free meals and drinks and transportation to the soldiers. This was funded by an Italian bank and by the owners of the steak house. The local people would come to celebrate with the soldiers. It got to the point where now Hilton is trying to get this going again in their own restaurant but the soldiers won't go back there. That was in the DC media about 2 months ago.
6.29.2006 11:38pm
Anderson (mail) (www):
Under original constitutionalism, yes they probably could do the first, though not the second.

But "not the second" is meaningless if there's no entity to stop them. You could invoke the states, but we could fix the example: say, a religious test for federal officers.

Jefferson is not a particularly powerful authority on the Constitution, IMHO.
6.29.2006 11:41pm
Brian Garst (www):
But "not the second" is meaningless if there's no entity to stop them. You could invoke the states, but we could fix the example: say, a religious test for federal officers.

There is an entity to stop them, the people with their vote. In fact, they are the only entity that protects the Constitution. The Supreme Court renders their opinion on what is and is not Constitutional, but how do they enforce it? They have no army, they have no police, they can't force compliance. If the other two branches decide to ignore the Constitution then whether the court has a say or not is irrelevent.

No, the true power is with the people. SCOTUS rulings are followed because blatantly not doing so will get you voted out of office, not because SCOTUS has any substantial power to enforce the Constitution.
6.29.2006 11:50pm
Anderson (mail) (www):
There is an entity to stop them, the people with their vote.

Okay ... and when I lose my federal job b/c I wouldn't vow belief in the Flying Spaghetti Monster, what's my remedy? Where's my relief? I wait to be voted compensation by a new Congress? What if "the people" are all big FSM worshippers and think it's damn well time that federal officers were forced to bow their knees to His Pastalicious Goodness?

In short, you've described the tyranny of the majority fairly well, but not the rule of law, or so it seems to this particular moonbat. Who must now retire from the keyboard, counting Hamdans jumping over a barbed-wire fence as he drifts off to sleep ....
6.30.2006 12:18am
Payne (mail):
I agree on the genuine danger of jurisdictional stripping. Certainly, every instance of it weakens the rule of law to some degree, if by this we mean the power of the courts. The power of the courts is vital to our national coherence/consistency and virtually every aspect of day-to-day life.

However, this is not to say that Congress and the President together, through the passage and enforcement of a law to that effect, does not have the power to do it. We can certainly come up with a case where a broad enough jurisdiction-stripping statute could bring terrible consequences. Even in lesser cases the consequences can be considerable.

These dangers, of course, extend to measures that can be taken by the Congress and Court to restrict the Executive. At some level, they are a neccessary check on the dictatorial power of the state - while at some other more extreme level they could destroy the functioning of national governance. Anderson's question about First Amendment stripping demonstrates that there is some extreme of the exercise of two branch override that would be destructive. This doesn't imply that such a power does not exist, only that it should be exercised in carefully limited scope.

One of the dangers of two power override is that it destroys so much of the third branch's power that we lose the branch more or less entirely (at least in some area). That appears to be the main issue in both the distast for jurisdictional stripping - and incidently the relectance of the Court to allow restriction of Executive emergency war powers. However, another danger is that the branch ignores the authority of the other two and we have a government whose branches are set at odds. This could potentially be the case if, for example, the Executive ignores the Hamdan rulling altogether.

Of course, the entire situation is complicated by the fact that the Court's decision, itself, can be interpreted as a "disobedience" of the other two branch's intent to use their ability to restrict the authority of the judiciary. In the current climate, if the Executive disobeyed Hamdan, that is the tact it would take. This does not constitute endorsement, I think such a decision would be a nightmare.

That's what makes this case so interesting - and potentially dangerous. The Court's decision attempts to turn the question into one where it is balancing Congressional and Presidential authority (and on certain merits throwing itself onto the side of Congress to limit Executive autonomy). However, simply taking the case was a decision, of sorts, about the inherent authority of the Courts... made by the Courts and possibly against the will of Congress.

At the least, the Court made it clear that there will have to be 100% clear restrictions on its actions before it will consider them binding - which is quite likely appropriate considering the significance of the act. I am slightly concerned by the possibility the judiciary might not obey an act striping habeus authority irregardless of wording. I am not sure which is worse - over-restriction or disobedience to the other branches - but I lean towards disobedience.

I have another question. What would have happened if the Court's did not have room to wiggle on whether DTA applied to pending cases. Let's imagine that the critical (2) did exist, that the Court took the case anyway and arrived at this same decision on the merits - with the jurisdictional justification that statute could not strip them of this particular kind of review.

Is this inconcievable? Would they have declined to review on pragmatic grounds that it would show "the emperor has no clothes" as far as checks on the judiciary? I'm really not sure - as I am also not 100% sure the Executive will obey the courts in this case. These are very spooky places for our national stability.
6.30.2006 12:24am
Brian Garst (www):
Okay ... and when I lose my federal job b/c I wouldn't vow belief in the Flying Spaghetti Monster, what's my remedy? Where's my relief? I wait to be voted compensation by a new Congress?

Essentially, yes. But now you're approaching the realm of why we have a second amendment :)

What if "the people" are all big FSM worshippers and think it's damn well time that federal officers were forced to bow their knees to His Pastalicious Goodness?

There is no real democratic remedy for a stupid populace that I am aware of. Some would argue it is government (be it through the laws and the legislature, the judiciary or what have you) that must provide that remedy, but I tend to reject that view as I don't think governemnt can. Payne summed up the various factors very well. In the end it's all just a fragile balance - not between the three branches of government - but between the three branches of government and the people.
6.30.2006 12:44am
Mark H.:
Dick Thompson said:

Where have you all been? There are all kinds of assistance to the military programs out there.


Exactly right. I've donated money, CDs, DVDs, Books, Toys etc. to a variety of destinations both direct and through this organization or that. It's not hard to do, not in the least, if you want to.

You can send checks directly to the government too, if you think your taxes are too low, but given that tax revenues have increased as result of the tax cuts, it seems nonsensical to raise taxes for everyone; that would end up reversing that trend.

I get the impression that the anti-war people among us are being disengenious when they say there is no way to sacrifice. What I think they really mean is they're mad there is no forced sacrifice (just as there is no draft) because they want to be able to point at that sacrifice as yet another feather in their cap to protest the war.

I could be wrong on that, but I doubt it.
6.30.2006 12:44am
therut:
Maybe Stevens will now retire and he can take this as the last feather he puts in his hat. I hope so. But I hope he realizes feathers are biodegradeable.
6.30.2006 1:16am
Huh:
Essentially, yes. But now you're approaching the realm of why we have a second amendment :)

Excellent suggestion, Brian. Armed resistance as a remedy for oppressed minorities has an excellent history in this country. I'm trying to think of all the examples...

Seriously, I agree with you to an extent. A congress that made stripping the courts of jurisdiction a habit would probably provoke some democratic resistance. But the idea that a oppressed minority could protect themselves with arms against the majority...well, I can't think of a single instance in which that's worked out for anybody in this country. Even when they were armed.
6.30.2006 1:29am
Brian Garst (www):
No, Mark H, you're not wrong. Though that's not the whole story. While for some it's political (like all the leftists trying who tried to bring up the draft around election time '04), for others it's a legitimate difference of philosophy.

In other words, conservatives like myself who believe in voluntary cooperative action, as Milton Friedman called it, recognize the numerous volunteer efforts cited here as a legitimate sacrifice on the part of many wonderful people. To leftists who, by definition, are more inclined to believe only government action is sufficient for social issues, lack of a government mandated program translate in their view to lack of any sacrifice. Personally, I find that view mistaken, but there you have it.
6.30.2006 1:35am
KMAJ (mail):
Prof. Ronald Cass equates the decision with their Kelo decision, bad interpretation of the law and flawed use of international law.

Hamdan v. Rumsfeld: Common Sense at War
6.30.2006 1:42am
Brian Garst (www):
Huh,

I wasn't really talking about a minority defending against a majority. The conversation at this point has been stretched out over enough posts that I can see it is getting confusing. My main point was really just that the other branches of government listen to the judiciary because the people expect them to, and that is who they ulitmately answer to, not because the judiciary has any inherent power to force them to.

Though I think the second amendment exists for the reason of an additional check on behalf of the people against government, I mainly brought it up for humor as the discussion was getting a bit too hypothetical to keep up with.
6.30.2006 1:44am
Chris Bell (mail):
Payne:

I agree completely with what you've said about jurisdiction-stripping. Theoretically, I think the Court might resist any attempt to strip them of Constitutional issues by pointing to other language.

However, it is scary to look at history (and to predict the future) and realize that often the reason that our great democracy survives is because someone who mattered acted reasonably and not because of any fail proof safeguard.
6.30.2006 1:49am
Michael B (mail):
"Perhaps. But as I recall, the political climate was poisonous before 9/11 and reverted to that state shortly thereafter.

"I don't know how one succesfully leads for a long, less-than-all-out-military war in that climate. Bush has many limitations IMO, but I am not at all convinced that there was much chance for the sort of rallying leadership you envision."

Yes, to put it mildly, to put it very mildly indeed.

Barnett's original post still makes a valid point in this regard, but to set it out w/o addressing the general environment within which it was suppose to gain traction is no small omission, in fact, it's a huge omission indeed. Practically speaking it serves to read right from the very script from which those cultural negations originate.

Valid, but narrowly focused.
6.30.2006 1:50am
dw (mail):
Your first point is absolutely right on. But I'd go one further and insist that it has to been taken together with the "signing statements" phenomenon and the extreme relunctance of the legislative branch to conduct oversight to demonstrate that we're in the middle of an unprecedented power grab by a single branch of government.

It is this, together with the fact that congress no longer formally declares war before execustive bellicosity, that makes me pessimistic in the extreme about the future of the US as a democracy.
6.30.2006 4:07am
aacxmmc (mail):
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6.30.2006 4:10am
Splunge (mail):
Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc.

I'm sorry, Congress needs to not only authorize the use of military force, but also pass numerous laws spelling out how the war is to be prosecuted, the conditions under which prisoners are kept and sorted into category dangerous and category harmless, yadda yadda? This strikes me as dangerously naive. Congress takes ten years to agree on minor revisions to the tax code. If we have to wait for them to micromanage a war via an acre of fine print in the Congressional Record, we'll all be dead. (Of course, there'll be no danger anything happened that would be offensive to "international law" or the Geneva Conventions, thank God -- and maybe we can have that comforting thought chiseled on our collective tombstone.) There's a very good reason the Founders gave broad war-making authority to the President. They had ample experience during the Revolutionary War of the utter folly of committee leadership in wartime.

Not involving the American public directly in supporting the war....[such as] assistance-to-the-military programs...

To quote a poster above -- where has the writer been? Did he miss all the President's speeches on Iraq, warning of the long slog and asking for the public's understanding and support, just because they were buried by the New York Times and their anti-war peers? Did he never visit a milblog or two and learn of the plethora of volunteer military assistance programs, perhaps because (as Hugh Hewitt never tires of pointing out) professors in the liberal arts hardly ever actually know folks in the military?

...even better, some form of volunteer genuine militia service...

And this would differ from signing up for the National Guard...how?
6.30.2006 4:53am
Dilan Esper (mail) (www):
Splunge:

What you think to be naive is actually required by Article I Section 8 of the Constitution. Congress, not the President, has the express power to make rules for the armed forces and to make rules for captures on land and water.

It's an interesting policy argument to say that this structure actually hampers the President in some undesirable fashion. But it's perfectly clear what the Constitution provides, and it is not absolute power to the President to set these rules.
6.30.2006 5:04am
Angus:
There's a very good reason the Founders gave broad war-making authority to the President. They had ample experience during the Revolutionary War of the utter folly of committee leadership in wartime.

As Dilan Esper pointed out, this conclusion is directly opposite of the experience of the founders, and of the plain language of the Constitution.

The plain text of the Constitution granted the President extremely limited war-making authority. It said he was C-in-C of the armed forces, and that's it. It gave Congress the explicit power to make all the rules the C-in-C had to follow in commanding the armed forces.

The experiences the founders were reacting to in war-making were their experiences with the King of Great Britain, and also the historical memory of Cromwell being head of state and using the army to overpower his opposition.
6.30.2006 6:06am
Angus:
Did he never visit a milblog or two and learn of the plethora of volunteer military assistance programs, perhaps because (as Hugh Hewitt never tires of pointing out) professors in the liberal arts hardly ever actually know folks in the military?

Given that 95% of Americans never visit blogs, they are a very poor method of organizing and channeling "public" support for the fight against terrorism.

The only method of involving the broad public would have been to have the feds lead the charge on public support programs, along with a massive nationwide publicity campaign, ala World Wars One and Two.
6.30.2006 6:12am
Brett Bellmore:

I seem to recall coming across a Michigan Militia press release right after 9/11 in which they offered their services to the President.

... But I thought it unsurprising that the President apparently declined that particular offer.


You do realize that, had he accepted their offer, he could have appointed their officers? No, it has been quite foolish of the government, all along, to not coopt the militia movement in this fashion they'd have no basis to object to.

The thing that really clued me into the fundamental unseriousness of the President with respect to the wars, was the failure to request an increase in troop caps. Sure, a lot of people volunteered after 9-11, even in the absence of any request for military volunteers. A lot of people got turned down, I expect, after previously set, and never increased, recruiting goals were met. And this failure led directly to the difficult troop rotation schedules we see today.
6.30.2006 7:34am
scepticalrepub:
I still don't think it's too late for a gas tax to be phased in on dips in the current price that is specifically dedicated to paying off the costs of this war and VA benefits incurred. If and when those costs are covered it could be used to replace the payroll tax for FICA.
6.30.2006 8:58am
Medis:
I just want to second the suggestion of reading Jane Mayer's article about Addington in light of Professor Barnett's post.

Unfortunately, it is a familiar story by now. A handful of people in this Administration (centered on Cheney) have taken their preconceived notions about executive power and have tried to rework the entire government to accord with this "New Paradigm". In so doing, every time they have encountered any resistance from actual experts in the relevant areas--including career military officers--they have simply admitted no possibility of doubt in the rightness of their actions, ignored any dissent, and bypassed or actualy dismissed any dissenters. And, of course, time and again, the experts have been proven right, and the ideologues have been proven wrong, and yet it is the experts who are now gone from office, and the ideologues who remain.
6.30.2006 9:08am
Medis:
By the way, I also think it is interesting to read Ronald Cass's article in light of Mayer's article, particularly the end. Mayer quotes Bruce Fein:

David Addington is a satisfactory lawyer, Fein said, but a less than satisfactory student of American history, which, for a public servant of his influence, matters more. “If you read the Federalist Papers, you can see how rich in history they are,” he said. “The Founders really understood the history of what people did with power, going back to Greek and Roman and Biblical times. Our political heritage is to be skeptical of executive power, because, in particular, there was skepticism of King George III. But Cheney and Addington are not students of history. If they were, they’d know that the Founding Fathers would be shocked by what they’ve done.”

____________

So, I think one can ask of Ronald Cass as well: is the broad deference to the President he is advocating "common sense", or is it actually ignorance of history?
6.30.2006 9:18am
dick thompson (mail):
Angus,

You really can't have it both ways. You tell us that this is an illegal war for some reason although Congress passed the AUMF. Then you complain that the press has been coopted by the administration. Then you tell us the president should be out there with all kinds of government initiatives for the public to help the troops. When the people get these initiatives going and the president does publicize them by appearng with the wounded troops and running with them and supporting them, the media doesn't cover the story. Now you complain that the government is not serious about the war because they do not have all kinds of programs to get the public involved. The public is already involved. Your media operatives are not reporting what they are doing. Send toys and schools supplies to the Iraqi children? Many are doing this but the media does not print the materials given them. Books and CD's and snacks from home for the troops? Letters to the soldiers? Schools all over the country are doing this as are church groups and other groups. Women are knitting things for the troops. People are visiting the wounded in the hospitals. Organizations are raising money to assist the Iraqis in starting companies and radio and television stations and newspapers. Materials on all these initiatives are delivered to the media. Volunteers are over there training the Iraqis in how to set up fair and workable government agencies, helping design and engineer water treatment plants, communicate with the population. This information is also being given to the media. The president has invited soldiers with prosthetic devices to run with him and bike with him when they asked to. The media is curiously not showing this even when the president is doing it in front of reporters at press conferences.

All this stuff is being done voluntarily by the people, not by the government. For some reason the media not only does not cover what is done here. They also do not cover what is done in Iraq and Afghanistan. Cities and towns and villages that never had clean water before now have water treatment plants. Schools are built and open. School supplies are handed out. What does the media tell us? 10 killed by IED's. 2 captured. Terrorists fire mortar at camp. All valid news stories. Where are the rest of the stories? The media does not deem it newsworthy that over half of our troops over there are working with the local citizens to help form their government agencies. Those stories do not exist. There is no there there for the media. We are not worthy of being told about them. Our bloggers are writing all this up but the media does not cover it. Even those who have blogs of their own and who are linked with these blogs do't bother to read and find out what is going on, else why would the writer of this posting not realize what is going on all over the country.
6.30.2006 9:37am
Freder Frederson (mail):
Obviously a little absurd, but scary when Article III is read literally. Don't you think the constitutionality of this is a little questionable?

I don't know why people insist on reading Article III as granting Congress the right to withold jurisdiction from the Supreme Court when it clearly does not. All Article III does is allow congress to change which kind of cases the Supreme Court has appellate verses original jurisdiction over (except for those specifically listed as original jurisdiction), not give Congress the right to foreclose jurisdiction completely. Even if you want to read it expansively, it would only bar Supreme Court jurisdiction, not that of other courts.
6.30.2006 10:12am
Rob Crocker (mail):
I think the solution to our "squaring the circle" dilemna re: 'Pass a law that essentially ignores the First Ammendment and also declare it out of the court's jurisdiction.' is that the law itself remains in the court's jurisdiction while they may not have jurisdiction over violators of said law if it is upheld.

I believe a challenge can be brought up concerning the Consitutionality of the law in question and the court does have jurisdiction there. So in the case of the law requiring fealty to the Flying Spaghetti Monster they wouldn't have jurisdiction over someone being prosecuted for non-belief but they could review the law in general to find that it in fact violates the Establishment Clause.
6.30.2006 10:40am
Freder Frederson (mail):
Many are doing this but the media does not print the materials given them. Books and CD's and snacks from home for the troops? Letters to the soldiers? Schools all over the country are doing this as are church groups and other groups. Women are knitting things for the troops. People are visiting the wounded in the hospitals. Organizations are raising money to assist the Iraqis in starting companies and radio and television stations and newspapers

Good for them. This war costs nearly $100 billion a year. Every penny of the cost is borrowed, mostly from countries in Asia. Who is going to pay the bill when it comes due? This president is completely irresponsible to fight a war and refuse to admit that it must be paid for (and lie about the cost of the war beforehand to make it more palatable to the American people).

Our professional military is being stretched to the breaking point. During the Vietnam war, when we had as many as 500,000 troops on the ground--three times as many as we have in Iraq--career military members could expect to be required to do two tours in Vietnam separated by a couple of years at home. My father-in-law, who was in the Marines from 1955--1978, did two tours in Vietnam three years apart. His daughter, who is in the Army, is on her second tour in Kuwait in two years.

This president is completely irresponsible and incompetent in refusing to admit the true costs and consequences of the situation he has created. His "stay the course" rhetoric is dangerous. Every day it continues leads us further down the road to certain disaster--both military and financial.
6.30.2006 10:44am
frankcross (mail):
I like the argument for not using taxes to support the military but instead relying on voluntary cooperative agreements among people to supply the military with resources.

Now that's a libertarian.
6.30.2006 11:25am
Anderson (mail) (www):
Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc.

No such authorization was needed. We are a big, smart country, and we already had laws on the books for military tribunals, etc.

The only reason for any special "authorization" would've been to *violate* those laws on the books. But why do that in the first place? Are we really supposed to put people on trial without letting them know the evidence against him? Must we really admit coerced evidence in order to convict these people?
6.30.2006 11:48am
strategichamlet (mail):
So, anyone else curious what Harriet Miers's dissenting opinion would have looked like?
6.30.2006 12:06pm
RKV (mail):
"some form of volunteer genuine militia service" Randy, you should know this stuff. Militia service in the United States has never been voluntary (see also "unorganized militia"). It has been legally mandatory from the start and remains so to this day see TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311, except at exempted by TITLE 10 > Subtitle A > PART I > CHAPTER 13 > Sec. 312 (and there are few exemptions).
6.30.2006 12:43pm
RKV (mail):
Pardon me for not being clearer in my prior post Randy. Essentially ALL male citizens ages 17-45 of the US are already the unorganized militia of the United States. That the states do nothing with this group is beside the point, the laws are already in place for this group to be called, equiped , trained and commanded.
6.30.2006 12:46pm
Freder Frederson (mail):
Essentially ALL male citizens ages 17-45 of the US are already the unorganized militia of the United States. That the states do nothing with this group is beside the point, the laws are already in place for this group to be called, equiped , trained and commanded.

What an absolute crock of shit. The law is meaningless, unenforced and unenforcable (and probably unconstitutional as well). To bring this silly archaic law that has never been enforced in the modern history of this country, and could never be enforced, is absolutely ridiculous.
6.30.2006 1:23pm
Anderson (mail) (www):
So, anyone else curious what Harriet Miers's dissenting opinion would have looked like?

"As the smartest guy I've ever met, the President is more than able to decide what judicial process is appropriate."

Actually, I like to think she would've joined Kennedy. "I'm sorry, Nino, but I don't see how to get around this Youngstown thingy."
6.30.2006 1:29pm
eddie (mail):
A. Part of the court's discussion in this case concerns the executive branch's power in the shadow of the exigency of war. This is the main argument of the administration in its claim that there is no limit to the executive power, i.e. once at war every executive act can be related to the war effort. However, you cannot have it both ways, i.e. assert that there is a war, for which the constitution provides support for some elasticity in the power of the executive and then on the other hand assert that this is a different kind of war in which the battlefield exigency should not be considered. Moreover, the constitution provides express Congressional powers with respect to wars. I suppose the argument is that this is such a different kind of war, no democratic insitution can be allowed to slow down or provide input into the prosecution thereof.

B. Did I miss the moment when an actual declaration of war occurred? AUMF is many things, but the words "declare war" or some variation of same do not appear anywhere in the text. Have we simply dispensed with this quaint Constitutional requirement by the Congressional authorization of the executive to use force (sounds like police work to me and not military)?

C. Can congress pass a law and then say that the law is incapable of being judged constitutional or not?

D. Do the knee jerk critics of this opinion really think that this is being soft on the "terrorists"? In many ways this decision has left these "combatants" in limbo, without any means of escape or due process, unless anyone thinks that a truce to this war will ever be announced, let alon victory or dare I say peace. So much attention is place on how "these people" have pledged to destroy the US. Well, didn't Timothy McVeigh at least get his day in court? Didn't Adolf Eichman get his day in court? I don't understand what the problem is: Critics of this decision are so convinced of the absolute evilness and guilt of these persons and yet are afraid to give society the privilege of its symbols of purification and self regeneration, namely a trial. Isn't the power of democracy that even Satan will have his day in court?

E. I find it absolutely depressing that members of a judicial/law discussion would even suggest that in the face of clearly anti-Constitutional law (e.g. an establishment of religion by legislation which takes jurisdiction away from the courts) the only remedy in this "democracy" is to take up arms (and laughingly say this would be a "legal" application of the Second Amendment. Rule of law be damned; might makes right!
6.30.2006 1:30pm
Cato (mail):
RKV - let's hear it for the unorganized Militia of the United States! Militia service has historically been of the most fundamental duties of citizenship in the United States, the colonies and before that in Great Britain, whence we have our understanding of the militia.

Before the creation of the national guard and the various armed forces branches reserves, the entire military power of the United States, save for the very small Regular Army and Navy, resided in the organized militias of the various states.

Although it has been much superceded, it would presumably still be legal for the federal government to call upon the governors of the various states to call forth the militia: for example to repel invasion of our borders by illegal aliens.
6.30.2006 1:33pm
RKV (mail):
The most recent changes to TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311 were made in 1956. I don't consider that archaic since I was born in that year. Your use of expletives doesn't constitute a valid argument. Generally, such an approach is indicative of weakness. As to unconstitutional - you got case law to prove that? No you don't do you? Unenforced? No. Read the law, there are two classes of milita - the National Guard is one part and it is in use as we speak. The law exists and is a tool which state governors or the US president could use if needed. Randy is the one who suggested activating the militia wasn't he. I in fact agree.
6.30.2006 1:34pm
Andy Freeman (mail):
> Don't think I'm being completely wacko either, fringe Republicans have tried to enact anti-abortion bills with provisions that prevent judicial review.

How dare those Repubs try to do the same things that Dems have done, for example Norris-LaGuardia Act of 1932.

No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this chapter.

I'll bet that there are other examples.
6.30.2006 1:36pm
Andy Freeman (mail):
> We are spending $100 billion a year on the Iraq War.

Which is a small fraction of the federal budget.

Why are tax increases always the answer/first resort?
6.30.2006 1:39pm
Randy Barnett (mail) (www):
RKV: I am well aware of this statute, which I discuss in my essay of 9/18/2001 (so please forgive its impassioned tone): Saved by the Militia: Arming an army against terrorism. The point made there is that the general militia does not need to be "unorganized," rather than "well-regulated." And organizing or regulating the general militia is among the enumerated powers of Congress—and is NOT the same as creating a "select" militia—which is the National Guard.

While compulsory militia service is constitutional, I do not think it would have been necessary in order to adequately involve the public in the war effort. I also appreciate the privately-organized donation efforts that are taking place. Remember the communities that were providing armor for their reserve units? But there was no attempt to create some formal involvement, and formality plays an important cultural role.

Finally, I was not making any comment on whether tax increases were unnecessary to fund the war; I was saying that neither tax increases nor conscription were necessary to create a formal citizen involvement with the war. Indeed, I doubt a general tax increase or surtax would have had that affect. I pay a lot of taxes (believe me) but this does not make me feel more involved in the war effort. I really wish it did because, as long as I am paying them, it would be nice to get that psychological reward.
6.30.2006 1:40pm
RKV (mail):
Thank you Cato. Like you, I think that if you benefit from citizenship, you owe the government your services, and not just money taxes. On the other hand, the government can't prevent you from owning personal arms suitable for military use. At least that's how I read the 2nd Amendment, and how the balancing act works. I ran into a bit of local history that got me investigating militia laws. I live Santa Barbara it turns out that the Naval Militia operated here during the 2nd World War. That isn't ancient history as far as I am concerned.
6.30.2006 1:42pm
Anderson (mail) (www):
No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter

How is that "jurisdiction-stripping" in any relevant sense? The statute was enacted in response to gross abuses of injunctions by factory-friendly judges.
6.30.2006 1:56pm
David Lewis (mail):
It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror.

Well, really, aren't you ignoring the most colossal error of all: believing that an invasion of Iraq had anything to do with a war on terror. Of course, the Bush administration didn't believe any such thing. They simply believed that it was good domestic politics to invate Iraq, that it would give us access to an easy source of oil which would pay for the whole thing, and maybe, some believed, it would show this President to be stronger than his father. So this whole post is based on a delusion of substantial proportions.

I hope this was adequately civil, given my continuing anger and disgust at the colossal waste of human life that this war has been, for absolutely no gain at all.
6.30.2006 2:02pm
Freder Frederson (mail):
Which is a small fraction of the federal budget.

$100 billion is a small fraction of the federal budget?! What planet do you live on where 10% is a "small fraction". And that "small fraction" is only the direct costs. It doesn't even begin to factor in the indirect costs like the additional burden on the military and VA medical care system, the increased maintenance and replacement costs for the materiel damaged and expended in Iraq and Afghanistan. Our armored vehicles are designed for peak performance in Europe, not the deserts of the Middle East. The M1 tanks, with their 13 lead acid batteries and turbine engines that suck in huge amounts of sand are particularly prone to wear and tear. Our depots (where our weapons are refurbished) are operating full bore and still can't keep up. We have to buy small arms ammunition from foreign countries.

Your use of expletives doesn't constitute a valid argument. Generally, such an approach is indicative of weakness. As to unconstitutional - you got case law to prove that? No you don't do you? Unenforced? No. Read the law, there are two classes of milita - the National Guard is one part and it is in use as we speak. The law exists and is a tool which state governors or the US president could use if needed.

I use expletives because you are making bullshit, nonsensical posts that have no relevance to the discussion, much like your unorganized militia law you are obsessed with. Of course there is no caselaw, because no one has ever been prosecuted for refusing to show up when called up as part of your mythical "militia", so there is no case or controversy to be test the constitutionality of the statute. The day when someone is prosecuted for refusing the call of the governor to join a posse to track down an illegal alien is the day we can argue about whether your "unorganized militia" actually exists or not.
6.30.2006 2:13pm
Freder Frederson (mail):
Why are tax increases always the answer/first resort?

I'm all ears, how do you propose we cut spending/increase revenue by the amount necessary to pay for the war? Let's make it $150 billion so we can pay for the medical care of veterans and replace or repair the equipment lost in the war.
6.30.2006 2:18pm
Randy Barnett (mail) (www):
To this point, the comments have been quite civil (including yours David), but the last couple are very near, if not over, the line. It is tone, not substance, with which I am concerned. (Edit: I was referring to some of Freder's posts among others, but not the one he posted immediately before this one which went up as I was posting this comment.)
6.30.2006 2:21pm
Mark F. (mail):
Randy, must you use the term "war on terror?" Literally it means a war on a feeling, which is nonsense. "War on terrorism" is better, but it's still silly as it literally means war on a tactic. "War on terrorists" seems like the best term to me. This distinguishes the U.S. government, which generally kills people and destroys property by dropping million dollar bombs from planes in an illegally occupied country, from the bad guys who do it with cheap homemade bombs. On second thought, is there much difference?
6.30.2006 2:25pm
Randy Barnett (mail) (www):
Mark, I agree with your point about "war on terror" and think the very name chosed for this war has undermined long-term support for it. I have my own preferences, all of which would involve naming an actual enemy, but I was here just using the prevailing terminology.
6.30.2006 2:28pm
PGS (mail):

First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run.


I think it's a wash either way; any explicit legislation passed early on, like the Patriot Act, would become the target of heated debate and a political football.

Now, the President can use such legislation as a club to bludgeon _the Left_ with. What senator or representative wants to go on record as favoring public defenders for terrorists?

I'm not a legal scholar, but it looks like it could be a useful political tool.
6.30.2006 2:30pm
KMAJ (mail):
Medis,

While it is fine to quote Bruce Fein, claiming the Federalist Papers provide a wealth of support for him, and make him a 'better' student of history than someone else, is a circular argument. Historians can find a wealth of information in the Federalist Papers supporting opposite conclusions, as can the debates of the Continental Congress in writing the Constitution.

I find arguments for a weak executive in war time to be lacking in strong support. Any limitations were mostly placed before the act, once at war or attacked, the Founders clearly understood the importance of a single decision maker to be able to efficiently make the quick decisions that can never be made by committees.

But that is also a deviation from Cass' main criticisms, invoking international law and circumventing the DTA. Those criticisms, while not universal, are quite valid. International law has no place being used to interpret our Constitution and the majority broke with precedent in circumventing the DTA.
6.30.2006 2:36pm
David Matthews (mail):
"What planet do you live on where 10% is a "small fraction"

What planet do you live on where $100 billion is 10% of $2.4 trillion? See Wikipedia.

I wish that $100 billion were 10% of our budget, but it's not even close, anymore. Of course, our actual costs for involvement are probably much higher than $100 billion/year (but then our actual overall expenditures were probably much higher than $2.4 trillion in 2005....)

But your point is well taken. No one should ever consider $100 billion dollars as "small," compared to anything....
6.30.2006 2:41pm
byomtov (mail):
Why are tax increases always the answer/first resort?

Why is borrowing the money, which shifts the tax increase into the future and has various negative effects, a better idea than paying now?

Barnett is endorsing the idea that it have been wise to try to get the public more directly involved, but he ignores the most obvious and serious way to do that in favor of what seem to me to be borderline frivolous suggestions.
6.30.2006 2:52pm
Freder Frederson (mail):
I find arguments for a weak executive in war time to be lacking in strong support. Any limitations were mostly placed before the act, once at war or attacked, the Founders clearly understood the importance of a single decision maker to be able to efficiently make the quick decisions that can never be made by committees.

Of course if we were actually at war, in a constitutional and legal sense, then the President might legitimately lay claim to more expansive powers since Congress, in its declaration of war, would have explicitly granted the president those powers that would constitutionally be entitled to a president during a declared war. But even the administration has never made the claim that any of the various authorizations it is operating under constitute a declaration of war.
6.30.2006 3:10pm
Andy Freeman (mail):
>> Why are tax increases always the answer/first resort?

> Why is borrowing the money, which shifts the tax increase into the future and has various negative effects, a better idea than paying now?

I've found that I can reduce my personal deficit by cutting spending, something that is apparently inconcievable when the federal govt is concerned.
6.30.2006 3:21pm
Angus:
I find arguments for a weak executive in war time to be lacking in strong support.

Apart from the text of the Constitution, that is.
6.30.2006 3:28pm
SG:

Why is borrowing the money, which shifts the tax increase into the future and has various negative effects, a better idea than paying now?


Because attempting to remake the political structure of the Middle East is clearly a capital expenditure, and capital expenditures are often (even usually) financed via debt.
6.30.2006 3:31pm
Anderson (mail) (www):
Of course if we were actually at war, in a constitutional and legal sense, then the President might legitimately lay claim to more expansive powers since Congress, in its declaration of war, would have explicitly granted the president those powers that would constitutionally be entitled to a president during a declared war.

I wouldn't go there, Freder. I don't think splitting hairs as to whether "war" has been "declared" or "military force" has been "authorized" gets us very far. Congress has rolled over on this one, and I'm none too clear how we could "declare war on" al-Qaeda.

And I *definitely* do not buy the implication that, hey, maybe kangaroo courts 4 years later &halfway around the world from the battlefield would be A-OK, *if* we were "at war."
6.30.2006 3:33pm
byomtov (mail):
I've found that I can reduce my personal deficit by cutting spending, something that is apparently inconcievable when the federal govt is concerned.

Freder has invited you to suggest appropriate spending cuts. I'll be interested to see your list. I'll also be interested in your opinion as to why the Administration didn't propose your recommended cuts instead of increasing the deficit.

Because attempting to remake the political structure of the Middle East is clearly a capital expenditure, and capital expenditures are often (even usually) financed via debt.

And when the government begins paying for current consumption out of current income, and someone explains how the Iraq War will have long-term benefits more than adequate to justify the costs I'll listen to that argument.
6.30.2006 4:00pm
Freder Frederson (mail):
I don't think splitting hairs as to whether "war" has been "declared" or "military force" has been "authorized" gets us very far.

The point is that the President has claimed these extraordinary powers while never even claiming that he has a Congressional declaration of war. AG Gonzales has stated repeatedly that we are not legally at war with anyone.

Of course if the president had just used the existing military justice system from the beginning, like the uniformed military wanted to, he wouldn't be having all these problems. But of course he knew better than the experts in military justice. And now, eventhough the military justice system is still available, he will try and get Congress to pass some horrible system that will deny basic due process rights to the detainees and it will just end up in front of the Supreme Court again (I assume he hopes when Stevens is gone and some fascist who believes in the absolute power of the President has replaced him).
6.30.2006 4:11pm
anonyomousss (mail):
Why is borrowing the money, which shifts the tax increase into the future and has various negative effects, a better idea than paying now?
Because attempting to remake the political structure of the Middle East is clearly a capital expenditure, and capital expenditures are often (even usually) financed via debt.


um, no. attempting to remake the political structure of the middle east is gambling, and financing one's gambling habit via debt is usually regarded as a very bad idea.
6.30.2006 4:36pm
luagha:
It's funny how pretty much everything Freder Frederson says ( our tanks are no good for the middle east, we don't have enough ammunitions and have to buy it from other countries, professional military stretched to the breaking point, untold secondary costs ) is a reason to spend more on our national defense, not less.

I believe Donald Rumsfeld has a project going to transform our military so it could handle all those problems mentioned and more in a more efficient way... Too bad pointless obstructionists are getting in the way.
6.30.2006 4:44pm
KMAJ (mail):
Freder,

The Supreme Court actually overreached by circumventing the DTA. If one follows the floor arguments in COngress which passed it, there is no doubt it was declining the Supreme Court the jurisdiction. What the majority on the court did was cherry pick floor statements from the minority to lamely attempt to create justification. Scalia was absolutely correct on the DTA issue and citing precedence.

No further evidence is needed than Arlen Specter's floor statement, as an opponent of DTA, as to its intent, in this excerpt from Investor's Business Daily:

Congress believed that in passing the DTA it was removing the federal courts' jurisdiction over Gitmo detainees. Senate Judiciary Committee Chairman Arlen Specter, who opposed the DTA, complained on the floor of the Senate that under the legislation, "no court, justice, or judge shall have jurisdiction to consider the application for writ of habeas corpus."

And, Specter pointed out, "the U. S. Supreme Court would not have jurisdiction to hear the Hamdan case . . . "

Now, lo and behold, we have the court pronouncing on it after all, and Stevens' opinion is typically filled with discussion of congressional floor statements and the DTA's drafting history. But it's the law that's the law — not what this senator or that congressman said during the debate.

As Justice Antonin Scalia stated in his tough dissent, "the language of the statute that was actually passed by both Houses of Congress and signed by the President is our only authoritative and only reliable guidepost."

Liberal members of Congress have even become wise to this game: When they don't like a law being passed, they take to the floor and state what they think the law does — knowing that liberal justices will later use those statements to misinterpret the statute.


To deny politics played a role in this decision, and that the SCOTUS majority played fast and loose with their power, using weak semantic arguments, is denying reality. Congress had specifically, and in no uncertain terms, denied them jurisdiction. The Supreme Court is not perfect and can, and has in the past, made bad or flawed decisions (Kelo comes to mind).
6.30.2006 4:50pm
Freder Frederson (mail):
I believe Donald Rumsfeld has a project going to transform our military so it could handle all those problems mentioned and more in a more efficient way... Too bad pointless obstructionists are getting in the way.

No, Donald Rumsfeld has irrational and unrealistic fantasies about how he wants to transform the military. He wanted to invade Iraq with even less troops than we eventually committed, ridiculed Shinseki when it was suggested that the stabilization, not the invasion, was going to be the hard part, and assured us we would be down to 30,000 troops in Iraq by the end of 2003.

Rumsfeld believes in minimal ground forces backed up by high tech weapons. He just loves expensive planes, ships, missiles and submarines. He doesn't like spending money on people and heavy ground vehicles. His policies are showing their disasterous results on the ground in both Iraq and Afghanistan.
6.30.2006 4:57pm
Anderson (mail) (www):
attempting to remake the political structure of the middle east is gambling, and financing one's gambling habit via debt is usually regarded as a very bad idea.

Hah! Brilliant!

If one follows the floor arguments in COngress which passed it, there is no doubt it was declining the Supreme Court the jurisdiction.

[Insert 20 years of "strict constructionist" argument against reliance on legislative history.]

LH is used when a statute is *ambiguous*. The DTA wasn't ambiguous. "Pending dogs and cats are prohibited" does not mean "pending snakes are prohibited too," no matter the LH to the contrary.

Besides, you're ignoring Levin's (correct) remarks. At most, you've proved that many who speak about a bill on the Congressional floor don't know what it actually says. This is not a good argument for using LH.
6.30.2006 5:04pm
Freder Frederson (mail):
If one follows the floor arguments in COngress which passed it, there is no doubt it was declining the Supreme Court the jurisdiction. What the majority on the court did was cherry pick floor statements from the minority to lamely attempt to create justification.

And I think it is pretty clear from the oral arguments that the Supreme Court skated around the DTA because they did not at this point want to come right out and declare that the DTA was unconstitutional.

That Congress, with the DTA, denied an entire class of persons Habeas Corpus and then purported to deny the courts the right to hear the claims, is a direct assault on the independent judiciary. I honestly don't see where Congress can claim that right.

I think it was reasonable for the court to very narrowly read the DTA, considering its constitutional implications, to not foreclose habeas petitions of people who were already on the Supreme Court's docket. Otherwise, the DTA would smack too much of a Bill of Attainder or Ex Post Facto law, both of which are also clearly unconstitutional.
6.30.2006 5:05pm
Andy Freeman (mail):
> I'll also be interested in your opinion as to why the Administration didn't propose your recommended cuts instead of increasing the deficit.

We're not discussing the current administration's inadequacies, we're discussing whether you can do any better. Since you're asserting that they're inadequate, that's not a very high bar that you're ducking.
6.30.2006 5:20pm
DeezRightWingNutz:
Eliminate the Departments of Commerce, Education, and Agriculture, and you've got you $150 billion. Plus there must be some goverment programs that directly benefit Freder that can be cut. Does the NEA spend money on early German expressionist film?
6.30.2006 5:25pm
KMAJ (mail):
Freder,

Do you deny that the Congress has the constitutional authority to decide jurisdiction of the courts ? That is the only grounds on which you can make such an assertion. Scalia clearly denoted the precedence against this courts rendering that it had jurisdiction. That does not even address their flawed recitation/interpretation of international law to sidestep the Constitution.

I think Jack Goldsmith actually frames what is in play, noted in this NY Times article:

In fact, said Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel in 2003 and 2004, the fact that no second attack has occurred on American soil is an achievement of the administration that is now complicating its political situation.

"The longer the president and the administration successfully prevent another attack," Mr. Goldsmith said, "the more people think the threat has abated and the more they demand that the administration adhere to traditional civil liberties protections."


Complacency has set in, and the importance of security has waned. But just wait until another attack occurs, all experts have said another attack will occur, its just a matter of when, and the shrill screams from both sides of the political spectrum will be heard, the finger pointing will ensue and those who become victims will be just as dead or have their lives shattered. The more lax and complacent we become, the sooner such an attack will occur. The more we place the rights of terrorists above the security of the people, the closer we come to that next attack.

Certainly it is a delicate balance between civil liberties and security, but hysterical accusations for partisan political gain serve neither cause well.
6.30.2006 5:29pm
Steve:
I don't particularly enjoy finger-pointing, but I have no patience for those who give Bush credit for the lack of attacks on American soil since 9/11 but fail to assign him the responsibility for 9/11 itself or, for that matter, would refuse to assign him any responsibility if another attack happened tomorrow.
6.30.2006 6:01pm
Freder Frederson (mail):
Do you deny that the Congress has the constitutional authority to decide jurisdiction of the courts ?

I think it is far from clear that Article III of the Constitution permits the Congress to denying jurisdiction to the courts, especially the Supreme Court, for any kind of case or law it wants. Such unfettered power could result in all kinds of terrible results. Habeas Corpus is one of the most treasured rights in the constitution. For Congress to deny that right is most serious indeed.

Does the NEA spend money on early German expressionist film?

Actually, the 2002 restoration of Metropolis (which, although far from complete, is probably the best that we will ever see as the missing sections are probably lost forever) was funded by a consortium of private and public German foundations and organizations with some help from Universal and the British and the Italians.
6.30.2006 6:03pm
Freder Frederson (mail):
I think Jack Goldsmith actually frames what is in play, noted in this NY Times article:

And I think Jack Goldsmith is fearmongering. "If we don't do exactly what the president wants and never question his tactics, the evil terrorists will get us, and then not only will we all be sorry, but people will want concentration camps set up and all Muslims wiped from the face of the earth and liberals strung up from lampposts."
6.30.2006 6:36pm
Anderson (mail) (www):
Wow, maybe his colleagues *were* right to shun Goldsmith when he went academic ....

I just don't see how due process at Gitmo has anything to do with our post-9/11 security. At most, I can infer that maybe a lot of our evidence was obtained via torture? If Goldsmith wants to admit that, then we can start having that conversation.
6.30.2006 6:52pm
SG:
Freder:

Do you believe that there exists some who would like to kill Americans? And would you agree there is a tension between civil liberties and security?

People can disagree over the severity of threat and how important they hold their civil liberties relative to their security. That others might draw the line in a different place than you does not mean they're evil.

Go on. Debate it. Convince me that the treat to my security is overstated, or that the threat to my liberty is greater.

Or you can assert that I long for concentration camps and genocide. Yeah, now you've convinced me.
6.30.2006 6:55pm
KMAJ (mail):
Steve,

Hmm, I find it interesting you seek to only point your finger at Bush for 9/11, but do not point your finger at Bill Clinton, too. One had 8 months in office, the other 8 years, to me, that seems to reveal a strong partisan influence in your opinion.

Feder,

Does the Constitution spell out that Congress has the right to determine jurisdiction of the courts or doesn't it ? Regardless of whether you personally think it is dangerous, that is not the question.

Article III states: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Your argument falls upons Article I restrictions, which apply to citizens and non-military situations by claiming:

"No bill of attainder or ex post facto Law shall be passed."

When the prior clause claims:

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Your argument thusly would require a ruling that the Supreme Court cannot be restricted in any way, that it can claim jurisdiction over everything. That is a far more dangerous position, making the judicial branch an unchecked branch of the government. While lawyers may have far more confidence in giving the judicial branch such a superior position, it would go to undermining the foundation of the country and the Constitution. It was intended to be a government of, by and for the people, not of, by and for the lawyers to manipulate legalese to mean whatever they can so semantically interpret it to mean.
6.30.2006 7:00pm
Freder Frederson (mail):
"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Last I checked, there is no rebellion or invasion occurring, the existence of the Miami Seven notwithstanding.

The courts are far from unchecked. Judges can be impeached, they have no enforcement mechanism. Like the Padilla decision, I imagine the President's response to this decision will be just to continue to let Hamdan and everyone else just sit in Gitmo forever. In other words, ignore the decision by stalling.

Article III can just as easily be read as just allowing Congress to apportion the jurisdiction of the courts as to which courts have appelatte and original jurisdiction, not completely foreclose its decisions from any kind of review at all. It would be an odd result indeed if the Congress, could pass laws, even clearly unconstitutional ones, that could never be challenged in court.
6.30.2006 7:14pm
Andy Freeman (mail):
> SCOTUS rulings are followed because blatantly not doing so will get you voted out of office

When are the last three times that such a "voted out" happened?
6.30.2006 7:26pm
Splunge (mail):
Dilan Esper, I'm aware that Congress can make rules to regulate captures during warfare. But the Constitution does not say they must, nor imply that, if they do not, then actions taken by the Executive within the scope of its general Article II warmaking powers (but not specifically authorized by statute) are prohibited.

The difference in perspective is apparent in the opening statement Barnett quotes:

What the Court has done is....limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.

The author implies Congress has primary warfighting powers, and can delegate some of them specifically to the President, and that the President cannot constitutionally act without such delegation. I don't agree. I think the Constitution gives the President primary and general warfighting powers, but allows Congress to limit them if it chooses in certain ways set forth in Article I. I don't believe anyone has asserted that what the President did was prohibited by statute -- they have merely argued that it was not authorized.

To me, this is as dumb as the Court saying that unless a police officer's every action when he stops someone suspected of a crime (how quickly the suspect is arrested, what the language used is, where and under what conditions he may be temporarily incarcerated, how he can be questioned, et cetera) is specifically authorized by statute, then it is illegal.

The experiences the founders were reacting to in war-making were their experiences with the King of Great Britain, and also the historical memory of Cromwell being head of state and using the army to overpower his opposition.

Angus, I think you're wrong. The writers of the Constitution were in substantial part reacting to the near-catastrophic failure of the Articles of Confederation, and specifically to the near loss of the Revolutionary War through dithering, mismanagement, second-guessing, and general ineffectual leadership by Congress. I doubt they would even have created a President except for that bitter experience.
6.30.2006 8:04pm
Freder Frederson (mail):
SCOTUS rulings are followed because blatantly not doing so will get you voted out of office

President Bush has blatantly ignored the Padilla ruling without any negative effects at all.
6.30.2006 8:08pm
Freder Frederson (mail):
I don't agree. I think the Constitution gives the President primary and general warfighting powers, but allows Congress to limit them if it chooses in certain ways set forth in Article I

Well the point of the Court is, that with the UCMJ and the ratification of the Geneva Conventions, the Congress specifically did tell the President exactly how to deal with the situation he was presented with with the detainees. If he doesn't like his options, using the existing military justice system, then he needs to go back to the Congress to change the rules.

The current UCMJ grew out of what was perceived as was the abuse of the system of military tribunals that occurred in the trials of Japanese officers after World War II where many officers were tried and executed without anything approaching due process. The rules were changed to prevent that from happening again.

With the Al Qaeda members captured in Afghanistan, the military justice establishment was perfectly willing to use the existing UCMJ procedures to prosecute Al Qaeda members. The civilian leadership of the Pentagon and the President were the ones who wanted to go back to the system that existed at the end of World War II, the one that had been condemned by the military and jurists as inherently unfair and reeking of kangaroo court justice. The military hates what they have been forced to do here.
6.30.2006 8:20pm
Freder Frederson (mail):
I'm aware that Congress can make rules to regulate captures during warfare. But the Constitution does not say they must, nor imply that, if they do not, then actions taken by the Executive within the scope of its general Article II warmaking powers (but not specifically authorized by statute) are prohibited.

They have and they did.
6.30.2006 8:22pm
rightwing (mail):
"First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run."

It was not the intention of the Executive to try the terrorists... remember that it was the court who ordered them to be tried. The executive was going to treat them in some regards, prisoners of war... sort of like the Geneva Convention required (at least John McCain told them to regarding 'torture'... but not trials... John wanted them tried). The Convention would not allow trials of POW's for actions on the battlefield. Now, after the Executive tried a form of tribunal, the Supreme's have said, this isn't enough... you're going to have to include more protections to your tribunals... or, tell us why you can't. Seems like the lawyers (as usual) are making a big deal about this ruling. The Bush Administration is feeling it's way through some tough issues and getting help from the Supreme Court... just like it's supposed to!
6.30.2006 8:45pm
Fishbane (mail):
I've found that I can reduce my personal deficit by cutting spending, something that is apparently inconcievable when the federal govt is concerned.

That's an excellent idea. Expensive, optional wars are a great to start - one big thing gets the axe, and you've got about 3% of your budget back! Not to mention, you don't look like a, well, I hate to say it, because we're being civil, but a member of Congress.
6.30.2006 9:09pm
K Parker (mail):
eddie,

Did I miss the moment when an actual declaration of war occurred? AUMF is many things, but the words "declare war" or some variation of same do not appear anywhere in the text.


How about you point to where the Constitution requires a specific wording in a declaration of war?
7.1.2006 1:57am
therut:
Destroy the BATFE. How much money do they suck out of our pockets every year. How much did that new fancy building cost you know the one where the boss hog wanted a 10,000 or thereabouts desk. The congress could give up their pork for 5 years. Get rid of governmentsl employee unions even FDR thought that would be horrible. Get out of the UN defund them like our government does to things it wants to control in this country. Do I need to go on. Oh yea ther should be no grants for college education. Loans only.
7.1.2006 2:15am
David M. Nieporent (www):
Article III can just as easily be read as just allowing Congress to apportion the jurisdiction of the courts as to which courts have appelatte and original jurisdiction,
It could, if one hadn't read Marbury vs. Madison.

That Congress, with the DTA, denied an entire class of persons Habeas Corpus and then purported to deny the courts the right to hear the claims, is a direct assault on the independent judiciary. I honestly don't see where Congress can claim that right.
Of course, (1) the Constitution explicitly grants Congress the power to suspend habeas, and (2) the claim that Congress is "denying" them habeas implies that they had the right to habeas in the first place; that's an absurd claim. The idea that a foreigner captured on a foreign battlefield and held in a foreign country has the right to habeas -- yes, I know what the Supreme Court said in Rasul -- is ludicrous.
7.1.2006 3:29am
Medis:
KMAJ,

We have discussed your post-modern approach to the Constitution before, so I see no need to rehash those arguments.

I will just note that it was flat out ridiculous for Cass to complain about the Court's use of what he calls "international common law". That part of the Court's opinion did not arise sua sponte, as one might think from reading his article. It arose from the Court's application of Common Article 3 of the Geneva Conventions, which states that judgments shall be "pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

So, if a treaty establishes such an "international common law" standard, then of course the Court MUST apply such a standard when applying the treaty. And complaining about applying a treaty by its actual terms is just ridiculous.

But I guess that is more of the postmodern approach--who cares what the treaty actually says? It is what we FEEL it should say that matters!
7.1.2006 6:29am
KMAJ (mail):
Most seem to have forgotten when they tried to expand Geneva to cover 'freedom fighters', Reagan refused to sign it because he DID NOT want to give Geneva coverage to terrorists. What this Supreme Court has just done is legislated from the bench. It can be validly be claimed SCOTUS overreached and tread where the Constitution did not intend them to. During times of war, they did not over rule Lincoln's suspension of habeus, they did not over rule FDR's Manzanar internment order (where clearly there was a case of innocents being detained), as much as some like to claim otherwise, we are at war. This is clearly a case of 5 left leaning justices (some lean more than others) stepping where no Supreme Court has dared to step before, the actual implementation of war strategies and enemy combatants. You cannot cite on example of case law where this has been done. Korematsu they upheld the president, and that was not even enemy combatants. Ex Parte Quirin is the only other enemy combatant case, and the one most closely related, again, they showed due deference to the president's authority.
7.1.2006 6:31am
KMAJ (mail):
Medis, you contradict yourself and divert with your post modern slur. The 5 justices circumvented DTA by what they 'felt' the act allowed, which is contrary to reality and past precedent. DTA opponent Arlen Specter clearly stated on the floor during debate that DTA would remove jurisdiction from the Supreme Court in the Hamdan case, and the act was still passed. There is no logical reasoning that would allow them to think that was not the Congress' intent with the DTA.

Secondly, the US was not a signatory to the expansion of Geneva in the 1980s. Reagan refused to sign it because he did not want to give Geneva protections to terrorists who were not parties to the convention and do not observe it. So, once again, you argue in contradiction to the actual facts.
7.1.2006 7:07am
Medis:
One more general thought on Fein's point about history:

As other commentators have noted, the "New Paradigm" theories of Cheney, Addington, et al, were in place long before 9/11. So, they aren't just seeking greater personal power as a means to an end (such as "winning" the GWOT, whatever that would mean). Rather, achieving greater personal power is the end itself.

I think for many Americans, accustomed as we are to enjoying a largely stable, restrained, and generally "conservative" (with a small "c") republic, this all sounds like something from a bad movie. In other words, it is hard for us to imagine that government officials could REALLY be like that.

I think here a knowledge of history is indeed quite useful. Time and again, people in power have been EXACTLY like that. And time and again, people who have put too much faith in the good will of people in power have eventually found themselves subject to gross abuses of power. And those who read history know that these stories are NONfiction, not just something in the movies.

And as Fein points out, the Framers of the Constitution did not somehow depend on the unique good will and personal restraint of Americans when designing our government. The Framers were educated people, well aware of the universal tendency of those in power to seek more power and to abuse their power. So they did their best to design a government which could combat such tendencies, although they fully admitted that no government could ever be fully immunized from this all too human disease.

So, I think that really is a crucial point. I've noticed that many will simply dismiss the "King George" issue out of hand, as if the very idea is ridiculous. But those with a knowledge of history are aware of this universal tendency, and aware that our best (and nearly only) protection against this tendency is our Constitution.

KMAJ,

You seem to have forgotten Hamdi (8-1, you might recall), although I can see why that is a case you would just as soon forget.

But again, I see no reason to rehash this. To put it bluntly, your approach to "interpreting" the Constitution actually makes it disappear whenever the President waves his magic wand of war. Fortunately, the Court is not going to be buying that argument anytime soon.
7.1.2006 7:23am
dick thompson (mail):
I have a question for the commenters here. I am not a lawyer. I was a computer programmer/systems analyst for 40 years and thus trained to look on the big picture first and then the details within it.

As I see what the Supremes have done here, the president has 3 options. He can release the prisoners from Gitmo and close it. He can go to Congress and have them recast the rules for the trials of the prisoners. He can just declare them POW's and lock them up for the duration. If he chooses to exercise option 3 and keep them locked up, what will be the affect on all the court cases that the legal ambulance chasers and the ACLU (but I repeat myself) have filed for these prisoners to get them trials. It seems to me that if the president chooses option 3, then these cases are all going to be null and void based on the decision of the Supremes in this case. That should put a huge crimp in the bottom line of both the ACLU and these law firms if I am reading this right.

If that is not the result of exercising the option to declare them POW's, then what would be the option. It seems almost all the comments so far have been based on the president going back to Congress to recast the setup of the courts but the option is there for the president just to declare them POW's from what has been said.

I also wonder what our wonderful allies and Amnesty International and ICRC and Human Rights Watch will have to say. If they complain, the president can just say he was doing what the Supreme Court told him he should and they should just butt out. Interesting times if he picks that option.

Another question is what will be the result of this case when it comes to waging the war now and in the future? Will it result in our acting more like the terrorists and just kill the people rather than imprison them and keep them alive and try to find a way to try them? It would be a lot simpler and that is another option that the Supremes made. I can hear all the media screaming now. They screamed about Haditha and it appears that most of the photos that purportedly came from there were actually photos of fishermen killed by Al Qaeda weeks before Haditha even happened. What would they do if the military exercised the option that the Supremes gave them in this case?
7.1.2006 7:35am
Medis:
KMAJ,

On your second post:

Actually, the Court's reading of the DTA is authorized by its plain terms (you can squint all you want, but Sec. 1005(e)(1) is not on the list), as well as by the Court's precedents. So, you are the one who is trying to override the plain terms of the DTA by citing legislative history.

But none of this matters. We long ago established that your "interpretation" of laws, up to and including the Constitution, is entirely results driven. So, I predict that even though I have pointed out what the DTA actually says, that won't give you a second's worth of pause. Like Cass, what matters to you is only what you think the RESULT of the case should have been. And in turn, even that is clearly a POLITICAL question for you--good and bad results are defined in partisan/conservative-v-liberal terms.

So, I see no point in having this discussion on the merits. We simply cannot agree on the appropriate standard--I would want to look at things like the text of the law, and you would want to look at things like whether the Justices in question are too "liberal" for your tastes. And because we cannot even agree on the standard to which legal opinions should be held, it is simply impossible for people like you and me to have a meaningful discussion about a legal question.
7.1.2006 7:38am
Freder Frederson (mail):
As I see what the Supremes have done here, the president has 3 options. He can release the prisoners from Gitmo and close it. He can go to Congress and have them recast the rules for the trials of the prisoners. He can just declare them POW's and lock them up for the duration.

As I have pointed out repeatedly above (which all you who see this decision as some kind of horrible assault on the President's ability to fight the war on terror have chosen to ignore) the President has another perfectly valid option. In fact it is the option that the legal community of the professional military (the group that one would expect would be the most knowledgeable about how to handle these detainees) suggested from the beginning. That option is to try them under the existing military justice system.

No one, not even the administration, has said why this is unworkable.
7.1.2006 10:54am
dick thompson (mail):
It is unworkable because that would mean they should be classified as actual soldiers. They are not soldiers. They do not wear uniforms. They do not serve a specific country. They do not swear allegiance to a national entity.

What you are asking for would mean that in essence the US government should treat Al Qaeda and its terrorists as a governing entity. That would be why I think they should not be tried under the existing military justice system.
7.1.2006 11:20am
Freder Frederson (mail):
It is unworkable because that would mean they should be classified as actual soldiers. They are not soldiers. They do not wear uniforms. They do not serve a specific country. They do not swear allegiance to a national entity.

You are simply wrong. They would not have to be treated as soldiers. The military is capable of trying civilians in areas under its control or declared illegal combatants.

The military wanted to do it this way. The current military justice system has been in place since the late 1940's and is flexible enough to handle the situation we are presented with here.
7.1.2006 11:29am
jukeboxgrad (mail):
"Why is borrowing the money, which shifts the tax increase into the future and has various negative effects, a better idea than paying now?"

Traditionally, a certain segment of the rich have gotten richer by grabbing money from everyone else. The treacherous innovation of the gang in power at the moment is to grab money from everyone else's _children_.

This has certain obvious advantages. It's sufficiently abstract and indirect that most people simply don't comprehend that it's happening. (And that incomprehension is encouraged every time the tax deferrals are packaged, misleadingly, as tax "cuts.")

Also, children don't vote, especially the ones not yet born.
7.1.2006 12:23pm
dick thompson (mail):
I would make you a bet that if they did try to do this the ambulance chasers and the ACLU would be in court before the charges were even placed claiming that they were civilians and thus not subject to UCMJ and that the military would have to set up special tribunals to try them. That is what the administration and the Congress tried to do here and the court says they need to go at it again. That is also not the same as trying them under the UCMJ.

To me, as a supporter of the war effort and the troops, the best solution is just lock them up and keep them there until the war is over. Of course the ambulance chasers will be out in force for that one but then the administration can just point to this court decision as support for doing just that. We have already tried releasing some of them and the result was they were back on the battle field and captured for a second time so that solution is a bit of a loser in some cases.
7.1.2006 2:15pm
Freder Frederson (mail):
That is what the administration and the Congress tried to do here and the court says they need to go at it again. That is also not the same as trying them under the UCMJ.

The Congress hasn't tried to do anything. They have sat by on the sidelines. The military warned the civilian leadership in the Pentagon and the Administration that using an ad hoc tribunal system was going to cause problems and the existing rules under the UCMJ were perfectly adequate. The Administration, as usual, thought they knew better.

Nobody is asking for the full range of rights available to U.S. residents for these detainees, just a reasonable set of due process procedures that any fair minded person would recognize as being the most basic rights available to anyone accused of a crime (like being able to hear the charges against you, see and challenge the evidence, be able to confront witnesses, and be able to appeal to an independent authority--all of which are denied under the current system).
7.1.2006 3:44pm
Medis:
dick,

Out of curiousity, could you define for me what it would mean for the war to be over?
7.1.2006 4:22pm
Medis:
By the way, in a recent ABC/Washington Post poll, they asked:

"Some people say these prisoners should be given prisoner-of-war rights or charged with a crime so they can defend themselves at a trial. Others say P.O.W. status or criminal law don't apply to suspected terrorists because of the risk if they were released. What's your opinion? Do you think the prisoners at Guantanamo should be given P.O.W. status or charged with a crime, or should be held without charges indefinitely?"

It was 71-25 in favor of giving them POW status or charging them with a crime.

It seems that Americans are just as uncomfortable with a law-free zone as the Supreme Court.
7.1.2006 4:29pm
Grand CRU (mail):
You know, this is the first time I have seen Medis get unhinged. I often disagree with him, but he usually keeps the personal invective under wraps and tries to present a cognizable and cogent argument for his position, even if it is cobbled together from dissents in recent cases and the opinions of one branch (e.g., CRS reports). I don't usually find his arguments persuasive, but I am persuaded that he argued the point well. But -- and I know this isn't a substantive point, because I haven't read the opinion yet (I decided to skim the comments here before reading Hamdan) -- Medis really seems to be quite nasty and not arguing very well. Perhaps that says something about the quality of the majority's and plurality's arguments. It might not be Medis -- who, as I said, usually can argue well -- but rather the shoddy reasoning of Hamdan itself that is proving hard to defend.
7.1.2006 7:59pm
Medis:
Grand Cru,

First, I apologize for lowering the tone of this discussion. However, KMAJ and I have had several discussions in the past, and in my view we have simply confirmed in those discussions that we approach these issues in a completely different manner. But you are right that in my exchanges with KMAJ, I was being at best a distraction from this ongoing discussion.

But in that sense, I wouldn't read anything about the merits of Hamdan into my comments to KMAJ, since we weren't actually having a discussion on the merits of Hamdan. And of course, that would be a bad idea anyway--my failings are my own fault.
7.1.2006 8:22pm
bluecollarguy:
Steve,

I don't particularly enjoy finger-pointing, but I have no patience for those who give Bush credit for the lack of attacks on American soil since 9/11 but fail to assign him the responsibility for 9/11 itself or, for that matter, would refuse to assign him any responsibility if another attack happened tomorrow


But you pointed your finger anyway and in the wrong direction.

Jihadists assaulting and murdering Americans had been going on since the Carter Administration. Weak responses to jihadism by all Presidents to jihadism is and was a contributing factor to what culminated on 9/11.

Moreover, Congress is charged with the duty to declare war against our enemies. They failed in that duty, miserably.

Some of us had been warning for years that it was only a matter of time before the jihadists struck in continental America. And most simply ignored the threat.

I don't mind pointing fingers but I try to be honest about it. Every administration since President Carter's weak kneed handling of the hostage crisis and every Congress since bears equal blame for not recognising the threat and dealing with it harshly. Every attack emboldened them more and every weak response was a roadmap to the WTC.

And the irony is that some still don't understand that jihadism can not be dealt with through criminal courts and diplomacy.

Bang, bang, bang goes the head against the wall.

And the wall never moves.
7.1.2006 10:01pm
KMAJ (mail):
Medis,

Blame it on me ? I was on point, criticizing the majority's interpretation of DTA, I was not inferring any past discussions we may have had, that was strictly your own doing. I was also on point citing their usage of GC as flawed, because Reagan refused to let the US be a signatory of its expansion.

The precedent that most closely follows this ruling, regarding the DTA jurisdiction issue and military tribunals, was Ex Parte Quirin, and there is also precedence in Korematsu for deference to executive branch war powers. The extension of civil rights and GC protections to terrorists is a very dangerous precedent.

Maybe you would care to cite a past ruling that resembles this case during a time of war to support your point. And Youngstown does not resemble this case in even the slightest manner.
7.1.2006 10:22pm
Medis:
KMAJ,

No, I don't blame you. I take full responsibility for the tone and content (or lack thereof) in my replies to you.

And as I said above, I don't think that you and I can have a profitable discussion about the merits of legal issues, since we have such a fundamentally different sense of how to approach them.
7.1.2006 10:59pm
Medis:
Oh, and because I can't resist:

Little v. Barreme and, as I already mentioned, Hamdi v. Rumsfeld.
7.1.2006 11:38pm
KMAJ (mail):
Medis,

I do appreciate your taking responsibility. Personally, I harbor no ill will and do recognize our differences. Different approaches do not deligitimze either, but only highlight that things can be seen differently. Similar observances can be made about others, who has the right or wrong approach, Lederman or Eastman ? Both have legitimate credentials, one is going to gravitate toward the one who shares their point of view or approach.

The legal arena is not alone in having different approaches, the same can be found in economics, politics (obviously), journalism, academia and science. All can be guilty of bias depending on the make up of the profession, some deliberate and some inherent. No individual, not me nor you nor anyone else, is free of bias, how we see things are shaped by our own beliefs. No matter how hard anyone tries, it is impossible to not let those beliefs bleed through, it is simply human nature.
7.1.2006 11:48pm
Grand CRU (mail):
I think, Medis, that KMAJ is ignoring Little v. Bareme and Hamdi v. Rumsfeld. Little is just off-the-mark, and Hamdi is being stretched a bit (not to mention it is recent and KMAJ might be in good company thinking it was wrongly decided). I think the dissent in Yamashumita (sp), which Stevens helped draft when he was a clerk, is the "precedent" that you are looking for, but that was a dissent. KMAJ, I think, is rightly concerned that much of Stevens' opinon relies on tendentious textual analysis, that is, textual interpretation without any verification in precedents, history, etc. Pure semantics in legal interpretation is troublesome, regardless of the branch doing it.
7.1.2006 11:52pm
Medis:
Sorry, one additional thought:

By way of background, Justice Clark relied on Little v. Barreme in his concurrence for Youngstown Steel. As Justice Clark noted, as of Youngstown, nearly 150 years after Little, there had never been a Supreme Court decision questioning its holding. That remains true today.

I think it is interesting to ask why, as of 1952, there had been no cases to the contrary of Little. I think part of the answer is that for that entire 150 years, no President had dared to reopen the issue, for fear of only reinforcing the precedent.

And yet this President did reopen the issue, and the result so far is two cases and counting in which the basic principle of Little has been reaffirmed (as summarized by Justice Clark, the basic holding of Little is that "where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis").

So, interestingly, this President probably has done more to reinforce the basic holding of Little than any other President in the approximately 200 years since Little. I have a feeling that future President may not be grateful.
7.2.2006 12:00am
Medis:
Grand Cru,

Why do you think Little is "off the mark"?

By the way, I note again that Hamdi was 8-1. So, "good company" or not, it is also a SMALL company.
7.2.2006 12:04am
KMAJ (mail):
Medis,

I am not sure I see the relevance of Little v. Barreme (1804), a ship, not of US ownership, that had been seized being returned to its rightful owner. It came about from US enforcement of a blockade against shipments to France by US owned ships. Was there a congressional act that removed jurisdiction ? Was it about prisoners of war or terrorists ? Not being confrontational, just curious what ties you see between Hamdan and Barreme.

As far as Hamdi, that came before DTA, and carefully avoided a constitutional confrontation. Hamdi was a US citizen, Hamdan was not. Certainly there are some relevant points, but one must also consider it is basically the same court as Hamdan, so it is setting precedent for itself, and as such, would not carry the same weight as more established precedent, i.e. Ex Parte Quirin.
7.2.2006 12:07am
Medis:
Oh, and on the textual issue:

It isn't just "semantics"--it is very ordinary rule of statutory interpretation. If a statute says: "X, Y, and Z. Y and Z are retroactive", then it is perfectly normal to conclude that X was not intended to be retroactive.

The only reason this is an issue at all is that there is also a rule of construction which says that jurisdictional statutes are assumed to be retroactive. But as the Hamdan Court rightly notes, in Lindh v. Murphy, the Court concluded that the normal statutory rule trumps the general jurisdictional rule.

Of course, Scalia and Thomas dissented in Lindh, and they essentially try to relitigate it in Hamdan. But, they did lose in Lindh (which makes it twice, now).

So, once the jurisdictional rule is trumped, you are left with a statute that plainly excludes the relevant provision from retroactivity. And to take a page from Scalia's own book, legislative history should not be allowed to trump the plain meaning of a statute.
7.2.2006 12:16am
Medis:
KMAJ,

So that you don't waste any more of your time: as I noted, I don't think that you and I are capable of having a discussion on the merits of a legal issue.
7.2.2006 12:22am
Anderson (mail) (www):
If a statute says: "X, Y, and Z. Y and Z are retroactive", then it is perfectly normal to conclude that X was not intended to be retroactive.

One would think that even sub-average intellects could grasp this point. It's been bizarre to watch these threads in that respect.

And as someone who's certainly been, ah, *peremptory* in my remarks, I think Medis is being entirely too gracious in conceding any breach of decorum. Anyone who looks at KMAJ and Medis's comments &thinks Medis is being anything less than judicious, is simply betraying their own bias.
7.2.2006 12:48am
Medis:
Anderson,

But I think Grand Cru had a point--whether or not I was being fair to KMAJ individually, I was not really contributing to the discussion of Hamdan in the remarks that I was directing to KMAJ. So, on reflection I could see how my remarks to KMAJ were a distraction from the substantive comments that I was trying to make, and thus on purely self-serving grounds if no other, I am glad that Grand Cru called this to my attention.
7.2.2006 12:55am
Medis:
[By the way, I apologize if the following has already been discussed without me noticing]:

So, after looking at Hamdan again, I find it interesting that only Justice Scalia (and not Justice Alito) joined Part I of Justice Thomas's dissent. If you are keeping track, Part I is where Justice Thomas reprises the arguments he made in Hamdi.

Of course, Justice Alito merely states that he finds it unnecessary to decide the issues raised in Thomas's Part I. Still, in their hearings, both Alito and Roberts claimed adherence to the Youngstown framework when it comes to these issues. And in Hamdan, Justice Alito appears to have declined from an opportunity to signal his departure from that claim.

So, it seems to me that for all we know, it is still at least 7-2 against the broader Cheney, Addington, Yoo, et al vision (with Scalia continuing to be a bit of a wild card).
7.2.2006 1:05am
KMAJ (mail):
Anderson,

I like the dismissive rhetoric without legal support, but I challenge you to provide the precedence that supports your point of view. One only has to read Scalia's dissent to be able to cite a long list of cases that say you are wrong. The majority hangs its hat, basically, on one case, Lindh, that can validly be claimed is a distorted reading of that case, and selective quotes from the senate floor statements.
7.2.2006 1:18am
Dilan Esper (mail) (www):
KMAJ:

Scalia is stretching some of those cases. In fact, the issue of whether a statute that uses the device of strippping jurisdiction to deny ANY remedy for certain claims (and that was certainly the case with the DTA, as if it were given a retroactive reading, it would cut off conditions of confinement habeas petitions without providing for post-conviction review of such claims) has not been consistently given retroactive effect in the manner Scalia claims. And that makes sense; otherwise, you'd have two different default rules (presuming against and in favor of retroactivity) depending on whether Congress stripped the right directly or indirectly through a jurisdiction-stripping measure.
7.2.2006 1:45am
Medis:
By the way, if people haven't already, they should read C.J. Rehnquist's dissent in Lindh, which Scalia and Thomas joined. It makes essentially the same argument, based on Bruner et al, that Scalia offers in Hamdan. And again, that view lost.
7.2.2006 1:47am
Medis:
Incidentally, it amuses me more than a little to imagine what certain people would be saying if a "left wing" judge had argued against the plain and ordinary interpretation of a statute using solely legislative history and a judge-made rule of construction.
7.2.2006 1:56am
Skeptic:
KMAJ,

Without getting it the particulars, I find your argument about precedent peculiar. The case the majority chose to "hang its hat [on]" was the most recent. By that standard, there can never be a basis to overturn Roe v. Wade. There is a long line of precedent establishing the background for Roe v. Wade, including Grisom, and then there is Casey, Cathart, and now their progeny, Lawrence. With that precedent, abortions should be legal from now to kingdom come. I doubt that outcome would be consistent with your viewpoint.

Under your same line of reasoning most seminal cases were wrongly decided, e.g., Brown v. Board of Education; Loving.

One more thing, should a judicial presumption trump statutory language? Clearly there is a dispute between the majority and the dissent as to how to interpret the "clear" language of the statute. The majority believes that the language is not meant to be retroactive, the legislative history supports this contention, and past precedent does not mandate retroactivity. You seem to be arguing, in your last post, that a judicial presumption of retroactivity is more important than statutory language. That's a very weird argument for someone who holds Scalia in high regard.
7.2.2006 2:11am
Positive Dennis:
I am coming to this thread a little late, but if members of Al Qadaare to be granted the status of POWs, doesn't that mean that they can be held until the end of hostilities? Why bother to have any trials? Just hold them until the peace treaty is signed, in other words until they all die of old age.

Positive Dennis
7.2.2006 2:22am
KMAJ (mail):
I think case precedence still ways heavily against, and unless they seek to make arguments to point out that those cases were wrongly decided, which the majority did not do, then the analogy to Roe falls short. But what trumps their interpretation is the senate floor debate, Arlen Specter clearly stated if DTA passed, the Supreme Court would not have jurisdiction over Hamdan, he was an opponent of DTA. Even with his warning, DTA still passed. DTA also gave 'exclusive' jurisdiction to the DC Circuit. When combined with the other clear and unambiguous language of DTA, SCOTUS overstepped. Lindh being more recent does not lend it the weight attributed to it, it was basically the same court, that is not the same as citing another courts ruling.

Is this a case of the result being more important than the law ? That seems to be the argument defending it.
7.2.2006 6:27am
Medis:
For those interested in the merits of the DTA argument, I will note a couple things.

First, although Justice Scalia claims the provision in question "unambiguously provides that, as of [the effective] date, 'no court, justice, or judge' shall have jurisdiction to consider the habeas application of a Guan-tanamo Bay detainee," he is clearly wrong about that. The actual provision states:

"[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus FILED by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." (emphasis added). Justice Scalia omits the "filed" part of the provision in his gloss, but of course that is precisely the issue at hand--if a petitioner has already filed for a writ before the effective date, does the DTA retroactively strip jurisdiction? Despite Justice Scalia's sleight of hand (making "filed" disappear from the provision), there is no obvious answer to this question when one looks at the provision in isolation. And again, since this provision is omitted from the list of provisions that apply to pending cases, the plain reading of the statute is that this provision does NOT apply retroactively to cases filed before the effective date.

Incidentally, the legislative history is at best ambiguous. Sure, Senator Specter claimed it would be retroactive, but other senators claimed it would not, and as pointed out by the majority, the omission of this provision from the retroactivity list was apparently done precisely to avoid making this provision retroactive.

Accordingly, even Justice Scalia doesn't argue for Senator Specter's statement trumping the plain meaning of the statute, since that would not be warranted by the whole of the legislative history. He simply argues that legislative history should not trump the plain meaning.

And I agree with him about that. It is just that the plain meaning is not what Justice Scalia claims (and he can really only get there by ignoring the "filed" portion of the provision, and by attempting to relitigate Lindh).

Incidentally, I'm not sure I understand why if people think the court's precedents matter, it makes Lindh less relevant that it was recent. First, it wasn't all that recent--1997. Second, there just isn't a contrary case on this subject--Lindh is the only case to deal directly with this sort of negative implication in light of the Bruner line of cases, and it held that the negative implication should trump the Bruner rule. So, Justice Scalia really is just trying to fight a battle he already lost, but if you think that precedents matter, then the fact that Justice Scalia already lost this battle in 1997 should matter.

So, it really is interesting to me that people seem to be arguing that the plain language of the statute, plus the most on-point case in the Supreme Court, should be trumped by one statement in the legislative history which is itself contradicted by other parts of the legislative history. Again, I can only wonder what some of these people would be saying if a "left wing" Justice used such an argument to defend a "left wing" result.
7.2.2006 8:37am
Medis:
Another aside:

This is hardly a unique observation, but I think we can see here the great weakness in Scalia's supposedly strict, rule-bound jurisprudence, a weakness which in fact allows him to be very results-oriented.

In this case, one would think that a Justice Scalia would go with the plain meaning of the statute. But because he allows precedent to sometimes trump even plain meaning, he can effectively advocate using this judge-made rule about jurisdictional statutes to override the plain meaning of the DTA. But because he feels free to sometimes disregard precedents (and no one has really been able to figure out when Justice Scalia thinks he should follow precedents and when he thinks he shouldn't, other than on the basis of whether he feels like it), he disregards Lindh.

And this "pick-and-choose" approach to precedents generally lets Scalia pick-and-choose his result as well (for perhaps the most telling example, see Raich). Which in fact makes him one of the least predictable, least rule-bound, and most results-oriented Justices, despite his claims to the contrary.
7.2.2006 9:13am
Skeptic:
KMAJ

As to Senator Spectors floor statement...From Steven's majority opinion footnote 10:


All statements made during the debate itself support Senator Levin’s understanding that the finaltext of the DTA would not render subsection (e)(1) applicable to pend-ing cases. See, e.g., id., at S14245, S14252–S14253, S14274–S14275 (Dec. 21, 2005). The statements that JUSTICE SCALIA cites as evidence to the contrary construe subsection (e)(3) to strip this Court of jurisdic-tion, see post, at 12, n. 4 (dissenting opinion) (quoting 151 Cong. Rec.S12796 (Nov. 15, 2005) (statement of Sen. Specter))—a construction that the Government has expressly disavowed in this litigation, see n.11, infra. The inapposite November 14, 2005, statement of SenatorGraham, which JUSTICE SCALIA cites as evidence of that Senator’s “assumption that pending cases are covered,” post, at 12, and n. 3 (citing 151 Cong. Rec. S12756 (Nov. 14, 2005)), follows directly after the uncontradicted statement of his co-sponsor, Senator Levin, assuring members of the Senate that “the amendment will not strip the courts of jurisdiction over [pending] cases.” Id., at S12755.


When it comes to legislative history, who's more likely to get it right: the Justice who loathes it and rarely uses it or the Justice who believes it shines light on the meaning of legislation.
7.2.2006 11:30am
KMAJ (mail):
Skeptic,

An rhetorical question is hardly a sound basis for divining intent. Your quotation from Stevens opinion actually reveals the flaw, why would more weight be given to Levin's statement than to Grahams ? Also, his assertion that 'ALL' statements support Levin is false or the debate would not have been enjoined. When you have such contradictions, one must rely on the actual wording of the Act. To deny that floor statements are not attempts to politically manipulate jurisprudence would be deceptive, at best.

As to Lindh, there was no DTA issued prior to Lindh, so while some cross reasoning may have existed, there are no broad brush similarities. Ex Parte Quirin, does have similarities and is cited by both sides, but the decision reached by the majority is contrary to that reached in Quirin. Probably the most distinctly similar case goes back to 1868 and Ex Parte McCardle. It dealt with military detainee, McCardle, the case was actually being deliiberated by SCOTUS when Congress removed jurisdiction. That court refused to do what this court has done, use negative inference:

The exception to appellate jurisdiction in the case before us, however, is not an inference from the affirmation of other [74 U.S. 506, 514] appellate jurisdiction. It is made in terms. The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.


In other words, absent explicit language citing specific exceptions in the act (DTA), which there is none, the court must adopt positive inference, to do otherwise is to legislate from the bench by adding words to an act that do not exist.

To quote Justice Marshall in Durousseau v. The United States (1810):

The constitution here becomes all important. The constitution and the laws are to be construed together. It is to be recollected that the appellate powers of the supreme court are defined in the constitution, subject to such exceptions as congress may make. Congress has not expressly made any exceptions; but they are implied from the intent manifested by the affirmative description of its powers. It would be repugnant to every principle of sound construction, to imply an exception against the intent.

This question does not rest on the same principles as if there had been an express exception to the jurisdiction of this court, and its power, in this case, was to be implied from the intent of the legislature.


As I stated above, Congress made no 'express' exception in the DTA.
7.2.2006 4:09pm
Dilan Esper (mail) (www):
KMAJ:

The arguments have been hashed out, so lets talk about motives. Would I be right to infer that you LIKE taking jurisdiction away from federal courts, that you think they are too liberal and not accountable enough to the popular branches and that they interfere with Congress and the President on a range of issues?

If you believe those things-- and I am sure that Scalia and Thomas does-- you are likely to favor a rule (which as Medis says was rejected in Lindh and was thus NOT the operative rule for Hamdan) in which jurisdictional exceptions are construed broadly.

I think what this comes down to is that there are a lot of conservatives who, tempermentally, want to start taking things away from federal courts to prevent decisions they don't like and are willing to throw out established precedents like Lindh and longstanding canons of statutory construction such as espressio unis est exclusio alterius to do it.

Am I wrong?
7.2.2006 4:20pm
Cornellian (mail):
If one follows the floor arguments in COngress which passed it, there is no doubt it was declining the Supreme Court the jurisdiction.

Congress enacts statutes, not speeches, and the President signed the statute, not the floor arguments. As Stevens points out, Congress rejected a version of the bill that would have stripped jurisdiction in cases such as this one (instead of just the other two types of cases covered by the DTA). It's hardly much of a stretch to infer that the statute doesn't preclude jurisdiction in this case.
7.2.2006 4:36pm
KMAJ (mail):
Skeptic,

One could advance the counter argument that those supporters want to give the federal courts powers to achieve decisions they like. It is two sides of the same coin. Your pejorative insertion of 'tempermentally' shows your own bent on the issue. Shall one enjoin the debate of what is giving or taking away ? Which is maintaining or expanding or contracting judicial authority ? Certainly, you will admit those perceptions are shaped by one's personal philosophy. Does that make one philosophy more correct than another ?

The one point that is always avoided is the bent or leaning of SCOTUS since FDR loaded the court. It has shaped how most legal scholars have been educated and, thus, view the law and the Constitution. Would you deny that the legal professions views are to the left of the populace at large ? One has to remember, the Constitution was written for the people, not one segment of the population, whether it be lawyers, journalists, academia or pipefitters. That one segment of the population, that is not representative of the populace as a whole, can shape policy and law in a way that does not express the will of the people is dangerous. When such views can be perceived to endanger the security of the people, it is legitimate to challenge and/or disagree.
7.2.2006 4:45pm
Medis:
Dilan,

And to be clear, it was not so much that the rule was rejected in Lindh--in my view, it would be more precise to say that the relevant rule was defined in Lindh to be more narrow than Justice Scalia contends. Justice Scalia in Hamdan tries to make this sound like an absolute rule of construction, but the rule is actually just that there is a rebuttable presumption in favor of retroactivity when the provision is jurisdictional. But this presumption can in fact be rebutted.

So, to be precise, Lindh just held that this rebuttal presumption is in fact rebutted by this sort of negative inference (where the statute says: "X and Y, and Y is retroactive"). And in that sense, Lindh is not actually a departure from the previous cases in this line--it is simply clarifies how to apply the rule in cases like this.
7.2.2006 5:17pm
Medis:
Cornellian,

And it seems that this now widespread claim about the floor debates contradicting the Court's construction of (e)(1) is simply wrong (apparently, Specter's comment in the floor debates was based on subsection (e)(3), not subsection (e)(1), which means it simply isn't relevant). So, as is too often the case, apparently some people are simply accepting the arguments that they want to believe at face value.

Again, though, to me this doesn't even matter: the statute itself is plain, and so even if the floor debates did present some sort of controversy on this issue, the statute itself should still govern.
7.2.2006 5:26pm
Skeptic:
KMAJ,

As to your post on legislative history...it would really behoove you to actually look at the statements before reaching conclusions. This is how judges make decisions, they look at the evidence (legal or factual) and then decide what the result should be.

Levin's statement:

Senator Levin urged adoption of an alternative amendment that “would apply only to new habeas cases filed after the date of enactment.”




Graham's statements:

3“Because I have described how outrageous these claims are—aboutthe exercise regime, the reading materials—most Americans would behighly offended to know that terrorists are suing us in our own courts about what they read.” 151 Cong. Rec. S12756 (Nov. 14, 2005). “In-stead of having unlimited habeas corpus opportunities under the Constitution, we give every enemy combatant, all 500, a chance to go to Federal court, the Circuit Court of Appeals for the District of Colum-bia. . . . It will be a one-time deal.” Id., at S12754. “This Levin-Graham-Kyl amendment allows every detainee under our control tohave their day in court. They are allowed to appeal their convictions.” Id., at S12801 (Nov. 15, 2005); see also id., at S12799 (rejecting the notion that “an enemy combatant terrorist al-Qaida member should beable to have access to our Federal courts under habeas like an Ameri-can citizen”).


Care to explain to me how exactly Graham's statement's contradict Levins? In case you were wondering "inapposite" is not a fancy way of saying "opposite" or "contrary." It means not relevant or not germane. Stevens' footnote reads as follows: "The [irrelvant or not germane] November 14, 2005, statement of Senator Graham, which JUSTICE SCALIA cites as evidence of that Senator’s “assumption that pending cases are covered." Note Stevens'is quoting Scalia and not Graham there.

As to your other post...

It sounds like you are advocating for people with no legal education or background to interpret the laws. That argument seems silly to me. I like people who make important decisions to be properly educated. The populace, by and large, cares about policy not law, not stautory construction, and not technical distinctions. These are all essential to understanding the law. It is the job of judges, lawyers, legal scholars to intrepret the law not to decide what the populace thinks is good policy or what the populace might like. In the instant matter, all that has to happen, as a result of Hamdan, is for Congress to pass a bill and express the will of the populace. Why is that so bad?

Is that really your argument that the Justices should be making policy decisions instead of legal decisions. If not then your post is confusing. If the job of the Justices is to intrepret and apply the law, then they should not give one iota what the express will of the people are. SCOTUS is not one of the elected branches. It shoulds like you need to sit down with the Federalist Papers to understand what an independent judiciary is. The Founders gave the Justices life tenure and co-equal status for a reason. SCOTUS was made independent to avoid deciding cases to please the masses. If you have a problem with that than advocate for an Amendment to change the Constitution. Until such an amendment passes, the ideas expressed above will always be unconstitutional (and therefore incorrect).

As to endangering security, I seriously doubt that you could make any substantial argument as to how security was threatened by Hamdan. All the Court requires is that the President go to Congress to get authorization for the military tribunals he seeks. How is one person acting in secret, taking actions with poorly defined rationales, and with little to no oversight expressing the will of the populace. A President who willfully ignores the law, fails to engage Congress, and regularly refuses to submit to oversight is the true danger to national security. The last bastion of democracy is Congress not the Executive.

BTW, I never used the word "tempermentally." You were addressing a post I didn't write.
7.2.2006 6:22pm
KMAJ (mail):
Sorry Skeptic, the above reply was to Dilan Esper, my apologies.

Suffice to say, the argument seems to be an "I am right, you are wrong" point counterpoint, which is a flawed argument from either side. The decision being basically a 5-4 decision, is hardly a firm endorsement of either position, in fact, it probably leaves the door wide open to being legitimately questioned and debated. You have 5 who agreed on a limited portion of the decision, you have 3 who solidly support Scalia's dissent, and it could be argued Robert's would have supported it too. The rest is an amalgam various sized opinions.

Andrew Hyman made some interesting points on Prof. Kerr's blog. First, on the differences in DTA provisions, the one not attributed to pending cases, 1005(e)(1), is jurisdiction stripping provision, while 1005(e)(2) and 1005(e)(3) are limited restorations of jurisdiction. To whit, Hyman states:

...(105(e)(1)) amends the US Code to strip all jurisdiction, but says that the exceptions are to be found in the DTA, and sure enough those exceptions are spelled out in B and C. I fail to see how there is anything “superfluous” about this interpretation.


Also, he quotes SCOTUSBlog:

“While Senator Levin succeeded in getting express application language removed [from “A”], he did not get express nonapplication language inserted.”


Why would not having 'express' nonapplication language inserted not carry as much weight as the reverse ? That argument has a sound foundation in logic. If Levin and Congress was so determined to have it apply to pending cases, why was the express language not inserted ? Certainly it can be legitimately argued that if that was the strong intent, they would have inserted that language. To not have done so, leaves the majorities interpretation not as solid as some would like to present it.

All in all, a 5-4 decision does not lend anyone the high ground on dispositive claims of correctness, at best it allows one to jump up and down and say we won a close game in what may promise to be a series of games with many yet to be played.
7.2.2006 6:25pm
KMAJ (mail):
Skeptic,

You make the wrong extension from my point. Surely you do not argue that 'experts' whose leanings may be different from society at large should dictate what is best for them ? Within that segment of 'experts', there are differing points of view, and the minority point of view in such a segment could be the one that aligns with the majority of the populace, as a whole. It is irrational to think the body of law is not shaped to some degree by the wishes and opinions of the people it governs unless one adheres to authoritarian governance. One would have to adhere to a theory that a segment of 'experts' are not subject to political biases and sociological points of view.

Also, an independent judiciary does not translate to an unbiased judiciary. To whit, do you deny that if Bush has the opportunity to appoint one more conservative justice, that the decisions of SCOTUS would not take on a decidedly different direction ? Would that then become illegitimate or bad because you would not agree with that direction ? My point is not based on conservative or progressive interpretation, the same argument would hold should SCOTUS move further right and the electorate were to move left. Would you still be making the same argument if the situation were reversed ?

That does not necessarily taint the decisions made by a court, bad decisions can and will be made by courts that lean in any direction, just as both will also make good decisions. I think, regardless of leanings, the majority of decisions made will be good. It is the narrow decisions, like Hamdan, that are open to scrutiny and criticism, and should be. That debate and criticism are essential to the furtherance of a free society.
7.2.2006 7:31pm
Grand CRU (mail):
MEDIS: By the way, I note again that Hamdi was 8-1. So, "good company" or not

Such deceptive practices only serve to tarnish your reputation and reflect poorly on the substance of your argument, Medis. I would urge you to stop.

The vote-count of Hamdi was 8-1, but the 1 was Thomas and the 8 included Scalia, who notably joined Thomas' opinion in Hamdan. Scalia did not refuse to join Part I of Thomas' opinion, as did Alito. Instead of begging the question, or fallaciously leaping to the conclusion that Scalia is results-oriented, one might read Scalia's and Thomas's dissents and infer that both -- regardless of their votes in Hamdi -- believe that Hamdi's precedential value is being inflated by the majority and plurality in Hamdan. That is, Hamdi is good law, but the plurality does not actually rely on Hamdi, though it purports to do so. If it was not clear before, it is clear now what I meant by "Hamdi is being stretched a bit (not to mention it is recent and KMAJ might be in good company thinking it was wrongly decided)".

As for the claim that KMAJ might be "in good company" in thinking Hamdi was wrongly decided, you are assuming, for no apparent reason, that I am referring to what the Justices thought at the time they announced the decision; by contrast, I am referring to what people (citizens, lawyers, legislators, judges, etc.) think now.

Scalia might have reconsidered/might be reconsidering his vote in Hamdi, given the majority's and plurality's results-oriented expansion of Hamdi's holding, both of which he refused to join, instead siding with Thomas's opinion and writing his own. (I would here note that,among other things, Thomas's opinion is a model of clarity and makes clear 1. Stevens and his cohorts were factually incorrect as to whether the laws of war permit Hamdan's charge, see p. 17; 2. Stevens and his cohorts ignored directly applicable precedents, e.g., Yamashita; and 3. Stevens and his cohorts ignored that under the laws of war declarations of war are, and always have been, unilateral. While Scalia's opinion is not as clearly written, it does make clear that much of the majority opinion is illogical or inconsistent and that many of its citations are selective or contrary to what the cases cited actually say.)

So, not only is the vote-count now 2, if one only considers those Justices sitting to decide Hamdi, but if one includes Alito, the count is now 3. And if one takes into account Robert's opinion below, the count is obviously 4. And, if one takes into account the Executive branch and the Congress, much of which does not agree, you're now into the hundreds. And if you take into account the millions of Americans who disagree with Rasul, and Hamdi, and Hamdan, you're now looking at millions of people versus the inconsistent and incoherent reasoning of 4 old men and 1 old woman relying on false facts. Unless you think the Supreme Court is a council of wise elders or divinely-annointed philosopher-kings, I do not understand why you would make an antidemocratic argument that relies on vote-counts.

I would understand if you analyzed Kennedy's views and stuck to justifying those (as they will likely determine the outcome of any future cases where Roberts plays a role), but absolutely defending Hamdan's plurality seems a bit unreasonable. As I implied before, you may have bitten off more than you can chew, and the poor reasoning of Stevens and his cohorts is bizarre given how much Stevens and Souter claim they care about reliance on settled expectations and such reliance's causal connection to sustaining the public legitimacy of the Court. Perhaps the public they care about is not the American public, but the international public, which explains Kennedy's vote. Need I point out that foreign-residents who are noncitizens are not equal to citizens as far as our democracy is concerned? And if your response is to claim that they are equal -- contingent on the circumstances -- then perhaps they should pay taxes here. And if they don't pay taxes, then perhaps we should fine and imprison them. And if their governments ignore the levied fines and the criminal charges, perhaps we should invade, because according to Justice Stevens and Medis, we are the Roman Empire and the known world is but our territory.
7.2.2006 8:11pm
Medis:
Grand Cru,

I'm not sure what you think was deceptive about what I wrote. The vote vount in Hamdi was in fact 8-1. But I already noted myself that Scalia joined Part I of Thomas's Hamdan opinion, and I described him as a wildcard.

But you simply can't count Alito and Roberts with respect to Hamdi. At most, they are unknowns. But if you take their hearing testimony seriously, then the best bet is that they would also apply Youngstown to these issues. And it does seem telling that Alito did not join Part I of Thomas's Hamdan decision.

Finally, I don't see the relevance of asking whether or not noncitizens are "equal" to citizens in some generic sense. The relevant question is rather what protections these noncitizens have been granted under U.S. law and U.S. treaties. And the Constitution explicitly gives Congress the power "to define and punish . . . offenses against the law of nations," and the Constitution also provides that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."

So, equality for noncitizens in some abstract sense isn't the issue. The issue is what do the laws say--and also, it seems like the issue for some people is whether we should continue to be a nation of laws at all.
7.2.2006 9:25pm
Medis:
Sorry, there should be a "... and" before "all treaties" in that quote from Article VI (I wouldn't want to be accused of suggesting that treaties were somehow supreme over the Constitution itself).
7.2.2006 9:30pm
Grand CRU (mail):
Medis,
The issue is not "what Congress says," but why 4 Justices defer in cases that fit their ideology and do not defer in cases that conflict with their ideology:

"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 wildlyimplausible conclusion that a storm drain is a tributary of the waters of the United States. See Rapanos v. United States, 547 U. S. ___(2006). It goes without saying thatthere is much more at stake here than storm drains. The plurality’s willingness to second-guess the determinationof the political branches that these conspirators must bebrought to justice is both unprecedented and dangerous."

Instead of disparaging Thomas's vote in Hamdi, you might try reading his dissent in Hamdan.

You can actually count on Roberts and Alito in Hamdan. If they would dissent in Hamdan, they certainly would not agree that Hamdi should be stretched as the plurality stretched it in Hamdan. It thus follows that they would not have voted for the interpretation of Hamdi that the plurality now gives Hamdi at the time Hamdi was decided. You clearly neither read Supreme Court opinions nor the comments in this thread very carefully.

I would also note that hiding behind Congress doesn't work. Hiding behind Congress would work if this were a democracy-enhancing decision. It is not. Given that Congress and the President sought to strip jurisdiction from the Supreme Court, it is rather clear that the political branches were opposed to a decision on the merits even being reached. Usurping the policy-making of the unified political branches does not promote democracy; it promotes authoritarianism. Law without the input of the political branches is not rule of law -- it is tyranny.
7.2.2006 9:43pm
Dilan Esper (mail) (www):
KMAJ:

You didn't answer my question. Do you or do you not think that stripping the courts of jurisdiction on a number of issues is a good idea? Saying "it can also apply to you" doesn't answer the question.

I think Scalia and his supporters are engaged in naked results-oriented jurisprudence on this point; they simply WANT to empower jurisdiction-stripping in all sorts of areas, including abortion, the pledge of allegiance, etc. And they are willing to overturn established precedents and canons of statutory construction to do it. Again, am I wrong?

The rest of you:

I wouldn't take Roberts' vote for granted even on Hamdan. Yes, he was part of the Court of Appeals' majority, but they were interpreting prior precedents. At the Supreme Court, he has the power to go his own way.

Note that Roberts joined Kennedy's opinion in the Padilla case, telling the government that if they tried to take Padilla out of the civilian court system, Padilla would be entitled to a swiftly-granted writ of habeas corpus. This is quite contrary to the view of the Administration and its spinners, who claim that the Court would have no jurisdiction to intervene in the determination that someone was an enemy combatant.
7.2.2006 10:01pm
Grand CRU (mail):
Dilian: Do you or do you not think that stripping the courts of jurisdiction on a number of issues is a good idea?

I generally think proposals for jurisdiction-stripping are for political show. So long as they don't preclude all review (e.g., state courts can review the issue), and are consistent with the Madisonian Compromise, they do not trouble me constitutionally, because they don't conflict with the Due Process Clause. Are they a good idea? I guess that depends on whether I'm a part of the political coalition that would benefit from the jurisdiction-stripping. Since I oppose jihad on the United States, I would say the DTA was a good idea. I cannot speak for terrorists or jihadists, who I suspect would disagree.

Dilian: I wouldn't take Roberts' vote for granted even on Hamdan. Yes, he was part of the Court of Appeals' majority, but they were interpreting prior precedents. At the Supreme Court, he has the power to go his own way.

Of course you wouldn't, because you are a self-serving blogger who manages to twist every discussion into a Last Stand On Gay Rights. On substance, if Roberts had a 50/50 chance of going either way on Hamdan, then he wouldn't have recused himself, as there wouldn't have been any impartiality to warrant the recusal. In any event, the point of mentioning Roberts decision in Hamdan -- which clearly would put him in the dissent -- was that the decision is anti-democratic, and Medis' vote-count of the "good company" that thinks Hamdi was wrongly decided was, for reasons stated above, an underestimate. Ignoring that Roberts siding with Kennedy in Padilla may be a sign of him courting Kennedy for future votes, let's posit we should remove him from the "good company" that KMAJ may be in keeping with. Even removing Roberts from the millions upon millions of Americans who regard the Supreme Court as lawless and activist because of Rasul and Hamdi and Hamdan (which does not necessarily include people who are anti-abortion; plenty of pro-military people are also pro-abortion) does little more than scoop a handful of water out of the ocean of opposition. So, other than to bring up the specter of abortion rights in an unrelated thread, what was your point?
7.2.2006 10:41pm
Medis:
Grand Cru,

As an aside, I don't like the Court's Commerce Clause jurisprudence either. In general, I don't always agree with the "liberal" Justices, nor do I always disagree with the "conservative" Justices. In fact, I think that entire way of thinking about the Court is more than a bit silly.

Anyway, I don't understand your claim about Alito and Roberts with respect to Hamdi. Frankly, Hamdi really isn't particularly relevant to Hamdan, unless one agrees with Thomas (and, maybe, Scalia, although I think it is not yet clear where he actually stands). And again, Alito notably did not join that part of Thomas's opinion. So, I think it would be a very significant mistake to conclude that Alito's vote in Hamdan equals an adoption of Thomas's views in Hamdi. The same, of course, is true of Roberts (even assuming that he would have voted the same way as he did on the DC Circuit, which is not necessarily the case).

Finally, it is not a "given" that Congress tried to strip jurisdiction from the Supreme Court in pending habeas cases. Moreover, what Congress "tried" to do is not the issue. The issue is what they ACTUALLY did, and that is a matter of what bill actually passed both Houses and was signed by the President.

Again, we are a nation of laws, and our laws must be made pursuant to the Constitution. And judges should not be substituting their sense of what Congress was "trying" to do for the laws that were actually passed.

And yes, "liberal" Justices sometimes do that too. But since I don't claim to agree with everything "liberal" Justices might do, I don't see that as a relevant point.
7.2.2006 10:46pm
Grand CRU (mail):

MEDIS: So, I think it would be a very significant mistake to conclude that Alito's vote in Hamdan equals an adoption of Thomas's views in Hamdi.


Let us examine two claims:

1. Alito would agree with Thomas in Hamdi.
2. Alito would disagree with Souter, Ginsburg, Stevens, and Breyer in Hamdi and would lean to the right of O'Connor in Hamdi.

2 is not 1.
7.2.2006 10:54pm
Grand CRU (mail):

MEDIS: The issue is what they ACTUALLY did, and that is a matter of what bill actually passed both Houses and was signed by the President.



Actually, that is not the issue at all. My point was that you support authoritarianism, i.e., law without democracy. Your response is, well, I have positive law on my side. My point was that your position is antidemocratic, even if it is right on the law.

As for your discourse on "liberal" Justices, I did not say you supported "liberalism" -- I said you supported tyranny. I alluded to the Roman Empire for a reason.
7.2.2006 10:58pm
Grand CRU (mail):
Just to be clear, I do think you are wrong on the law, as I stated above.
7.2.2006 11:23pm
Medis:
Grand Cru,

I don't think our discussion is substantive, so I will end my participation in it.
7.2.2006 11:49pm