Balkin on Hamdan:
Jack Balkin has a very nice post Hamdan as a Democracy-Forcing Decision, the essence of which is:
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.)
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):
- Rooting for Your Team:
- Balkin on Hamdan:
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.
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!
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
I think the President (any President) should make Congress share the responsibility in making these decisions. Maybe this DTA is a start.
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?
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.
Absolutely, it should be a very rare thing indeed.
New York Guard
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.
"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).
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.
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.
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.
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.
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 ....
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.
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.
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.
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.
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.
Hamdan v. Rumsfeld: Common Sense at War
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.
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.
"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.
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.
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?
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
Now that's a libertarian.
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?
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.
"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."
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!
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.
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.
Which is a small fraction of the federal budget.
Why are tax increases always the answer/first resort?
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.
How is that "jurisdiction-stripping" in any relevant sense? The statute was enacted in response to gross abuses of injunctions by factory-friendly judges.
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.
$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.
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.
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.
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.
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....
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.
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.
> 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.
Apart from the text of the Constitution, that is.
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.
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."
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.
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).
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.
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.
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:
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).
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.
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.
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.
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.
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:
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.
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?