Clockwise from left, Justices Kennedy, Ginsburg, Breyer and Souter, with Justice Stevens in the center. [the originals by Francis Bacon, ca 60's, private collections in London]
The lame decision of the Supreme Court yesterday makes no sense to me whatsoever. I note that the Supreme Court rules 5-3 that the Geneva Convention applies. Did we sign a treaty with al-Qaeda that I am not aware of? I doubt it.
The Geneva Convention applies to signatories only, namely the countries that have bound themselves to its inherent reciprocity, and this shameful decision flies in the face of President's clear stand not to allow the same protections to illegal, non-uniformed combatants. So now the Geneva Convention applies to the cowardly terrorists who target innocent civilians, use women and children as human shields, and dress in civilian clothes.
Charles Johnson is absolutely right when he says "the Supreme Court has violated not only the spirit, but the letter of the Conventions. The clauses about non-protection of illegal combatants are specifically designed to protect civilians, from terrorists and brigands who would otherwise hide among civilian populations to escape justice. The harshest penalties are allowed for those who abuse this convention, up to and including summary execution on the field of battle."
The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention. In addition, the Court concluded that the commissions were not authorized when Congress enacted the post-9/1l resolution authorizing a response to the terrorist attacks, and were not authorized by last year's Detainee Treatment Act. The vote against the commissions and on the Court's jurisdiction was 5-3, with the Chief Justice not taking part.
The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."
Four Justices concluded that Salim Ahmed Hamdan could not be charged with conspiracy before a military commission, but that did not have majority support, so its binding effect is uncertain.
The majority decision was written by Justice John Paul Stevens, the Court's most liberal member, supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Justice Anthony Kennedy (a big surprise to all) wrote a separate opinion mostly concurring, and partly joined by Justices Breyer, Ginsburg and Souter. I say partly because in what seems to be a very complicated opinion, each of the above Justices agreed with parts and disagreed with other parts reciting their own additions to the Stevens opinion.
To make matters worse, the four Justices concluded that Salim Ahmed Hamdan could not be charged with conspiracy before a military commission, but that opinion thankfully did not have majority support, so its binding effect is uncertain.
The dissenting opinions were written separately by Justices Antonin Scalia, Samuel A. Alito, Jr., and Clarence Thomas, with our favorite Cary Grant look alike Chief Justice Roberts being precluded, as he sat on the D.C. Circuit Court when it issued the decision that the Supreme Court overturned yesterday.
Justice Breyer, joined by Ginsburg, Kennedy and Souter, wrote separately to answer the dissenters' complaint that the ruling would hamper the President's ability to deal with a new and deadly enemy. The Court's conclusion, Breyer said, "ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check.'...Indeed, Congress has denied the President the legislative auhority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary." The Breyer opinion amounted to a mini-lecture on the virtue of presidential consultation with Congress, at least "where, as here, no emergency prevents" such consultation. "The Constitution places its faith in those democratic means. Our Court today simply does the same."
This albeit in places complicated but still shameful decision by the Supreme Court "ruled, in effect, that there’s no difference between a terrorist dressed in civilian clothes and a uniformed soldier, and that civilians deserve no protection from war criminals." It makes a mockery of the primary reason the Geneva Convention was signed by the countries that were reciprocally prepared to obide by its laws, namely to protect innocent civilians.
The Convention forbids criminal trials for those captured in war, except in cases of discipline breaches at the holding facility or POW camp. Prisoners must be held until the end of the conflict, and then repatriated to their nation of origin. All that the Convention allows is a military tribunal to determine their status under the rules of war, ie, whether they qualify as POWs. SCOTUS seems to argue that we must violate the Geneva Conventions in order to uphold them.
Glenn Greenwald is of course all over this, and is delighted to find the synergies with his favorite subject dealing with Presidential powers and NSA, repeating several times the phrase du jour "That principle is based upon "the powers granted jointly to the President and Congress in time of war." Thus, even if the President possesses the power "absent congressional authorization" to, for instance, eavesdrop (or torture people), "he may not disregard limitations that Congress" imposes on such powers." Ahhh, music to his ears, how soothing the melody must be....
His hailed heroes of the moment, the two drama queens from the WaPo, Baker and Abramowitz with lines straight out of Shakespeare, are trembling with delight:
For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.
Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush's military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate. . . . .
You can access the opinions here, but I would advise strong medication prior to attempting to enter this treacherous terrain. See Ronald Cass for some sane reasoning:
Liberty may have been the traditional casualty of war, but common sense is its new colleague. The Supreme Court, trying hard on the anniversary of last term's Kelo decision to find a suitable sequel, performed a rare triple loop in Hamdan v. Rumsfeld. It found jurisdiction in the face of a statute directly taking jurisdiction away from the Court.
It second-guessed the President on the need for particular security features in trials of suspected al Qaeda terrorists. And it gave hope to One-World-ers by leaning on international common law to interpret U.S. federal law. If that weren't enough, the (left, lefter, and far left) turns were executed in the course of giving a court victory to Osama bin Laden's driver. What a perfect way to end the term!
As the Supreme Court in its infinite liberal wisdom, has decided that we are no longer allowed to detain terrorists, I presume killing them will prove to be the more efficient option in this never ending war on terror. As the U.S. is depicted by the rest of the world as a consistent human-rights violator, this should fit in snuggly with our already tarred image, largely acquired because we protect our interests militarily, without applying the more favored European 'stop or I'll say stop again' policy of dysfunctional cowardice.
In the words of General Norman Schwarzkopf who when asked if he thought there was room for forgiveness toward the people who have harbored and abetted the terrorists who perpetrated the 9/11 attacks on America, said: “I believe that forgiving them is God's function. OUR job is to arrange the meeting."
Crusader,
>
The clause "America is lost..." is highly subjective, and frankly untestable.
>
All it usually means is, "The Democratic Party has lost control of America." Which is testable, but hardly apocalyptic (unless of course you think that a person who declines to agree with the Left, thereby displays hopeless moral depravity).
Posted by: Kenny Pierce | Tuesday, July 04, 2006 at 12:48 PM
Ghost,
I'm not rehashing the international law / Geneva-Conventions-as-transcendent-and-inviolable-unilateral-standard-of-right-and-wrong argument with you again. You think the historical political negotiating processes that resulted in what currently exists as "international law," is a reliable guide to what is morally right or wrong, and therefore that moral people and nations will follow international law. I think international law is deeply flawed and that any nation that consistently does what justice and true respect for genuine human rights demands, will frequently find itself in violation of the bastardized pseudoethical code that goes by the name of "international law." On that point we simply disagree about what constitutes morally admirable behavior on the part of a free, virtuous and compassionate people; nor are we ever likely to agree.
>
When Americans are not concerned about the means to the ends, America is lost
>
Um, Ghost, it isn't that those Americans who disagree with your desire to apply the Geneva Conventions in a way that undercuts the whole reason the Geneva Conventions were created in the first place, are "not concerned about the means to the ends." It's that their evaluation of the situation leads them to consider appropriate, means that you yourself do not find palatable. It is not that they are morally inferior to you, nor that they take morality less seriously than you do. It is that they disagree with you -- or, in my rather more technical phrasing from a previous comment (which you appear to have ignored entirely), that their prudential judgments about where the optimum tradeoffs lie differ from your own. That's all.
>
The SCOTUS decision was correct and in accordance with the American Constitution. If we want to portray ouselves as the "Good Guys" around the world, we have to walk-the-walk, and not just talk-the-talk.
>
The juxtaposition seems to imply that those two sentences have a logical connection to each other? The latter sentence, at any rate, is meaningless until you put some concrete meaning to the terms "world" and "Good Guys," especially since it is quite impossible to act in a manner in which everybody in the world agrees is "good." Do you mean "if we want to portray ourselves around the world as the kind of folks that the United Nations would approve of"? In that case, I can answer curtly, "I hope to God we haven't sunk to the level of moral depravity that would make the moral cesspool that is the United Nations, approve of our behavior." Do you mean, "if we want the Arab world to think we're nice guys"? Then hey, either we turn on Israel and help the Arabs out with their program of genocide, or else they're going to think we're bad guys, no matter what form of trial we give the Guantanamo folks.
Now, most people who talk about "the world" really mean "people like me." ("I am not so reputed: it is the base, though bitter, disposition of Beatrice that puts the world into her person and so gives me out.") Thus, on that principle, you seem to be saying -- this is probably unfair, by the way, and you should certainly correct any misapprehension on my part -- is, "If we want to portray ourselves in the rest of the world as good guys by the standard of morality that is attractive to the sort of people who think international law is peachy -- that is to say, people like me and the we-shouldn't-have-invaded-Iraq-without-France's-permission school of foreign policy -- why, then we have to follow the sort of policy that would meet with the approval of the European governing classes and the DNC." If that's what you're saying, then I can set you straight quite quickly: a majority of the American people do not want to appear to the rest of the world as "Good Guys" in that sense, especially since we've figured out that when we look like "Good Guys" to the Europeans, we look like "Weak Cowards Who Will Fold In The Face Of A Good Stiff Terror Campaign" to most of the players in the Middle East. If the American people had wanted to portray ourselves to the rest of the world as "Good Guys" in that sense, then we would have elected John Kerry, not George W. Bush. News flash for ya, Ghost: what you think American ought to look like to the rest of the world, is not what the majority of Americans want their country to look like to the rest of the world. That's why we elected Dubya President.
But of course, the five Hamden Justices do personally think that we ought to cater to European-leftist ideas of right and wrong behavior, and they do think the American people screwed up by electing the wrong guy, and they have no particular qualms about rectifying the American People's "mistakes" -- that has been, after all, the fundamental goal of liberal Supreme Court jurisprudence for going on a half-century now. You like the Supreme Court's decision and dislike the American People's. Well, what's new about that in Liberal Land, where the whole reason to have a Supreme Court in the first place is to impose by judicial fiat such leftist policies as you have found yourself unable to enact through the democratic process?
Posted by: Kenny Pierce | Tuesday, July 04, 2006 at 12:45 PM
GhostDansing
I disagree with your premises. The clause "America is lost..." is highly subjective, and frankly untestable.
I would submit however that American history suggests it is wrong, as for example with the dropping of the atom bombs on Japan. Those bombs were entirely in character with the way warfare was being conducted throughout the world at the time. The main reason they had such an impact was that they were each just one bomb, as opposed to 1000 plane-loads of incendiaries. (They were experimental, though, and one can argue retroactively about their justification. However I doubt Japan could've survived another year of saturation incendiary bombing anyway...)
My point is that I don't accept that the US must hamstring itself in its ability to defeat a savage and ugly enemy, just so it can be a "good guy". That won't help you if you lose, and I'd submit if you took the gloves off, the terrorists would suddenly have a great desire to treat you and your prisoners humanely...See how the captors of the young Israeli soldier are suddenly loathe to kill him.
Posted by: Crusader.NoRegrets. | Tuesday, July 04, 2006 at 12:29 PM
So Congress has to vote on the detention of Osama's bodyguard before the fall elections?
That is a big victory for the left?
http://en.wikipedia.org/wiki/Pyrrhic_victory
Posted by: rich | Sunday, July 02, 2006 at 01:41 PM
International Law and the Geneva Convention apply because we are Americans, and if not the "Good Guys", are better than the bad guys...not to mention the fact that often we were the leadership involved with putting such doctrine into place.
When Americans are not concerned about the means to the ends, America is lost...we might as well commence whooping and hollering around the bonfire in anticipation of our next combative altercation.
Terrorism is psychological warfare. The most primitive tactic of strategic psychological warfare is to force the opponent to change behavior, often to force the opponent to become more draconian and repressive in his own actions so as to demonstrate and justify the enemy's accusations...for example that America is against Islam...America only wants Arab oil...and America's committment to aside from the fact that Sharia has no room for Liberal Democracy and the societal corruption it brings, America itself plays only lip-service to the values it preaches to the world.
The SCOTUS decision was correct and in accordance with the American Constitution. If we want to portray ouselves as the "Good Guys" around the world, we have to walk-the-walk, and not just talk-the-talk.
Posted by: Ghost Dansing | Sunday, July 02, 2006 at 08:55 AM
Xanthippas,
>
As with many conservative supporters of Gitmo, you indulge in the comforting fantasy that every single one of the men being detained in Gitmo is a hard-core terrorist...Each of you seems willing to make the presumption of guilt when it comes to these men, but it is hardly deniable that some of these men were picked up at random, not by U.S. forces, but by our supposed allies, under circumstances that are best questionable. It is fair to wonder then how many of the men in Gitmo are not terrorists....If we knew for certain that every single man being held in Gitmo was a terrorist, most Americans would not have a problem with detaining them indefinitely until we figure out what to do with them. The problem is that we don't, and so we must provide them all some judicial process, or we risk imprisoning men who are innocent for no reason other than that they were in the wrong place at the wrong time...
>
I have a lot of sympathy for your concerns. But (a) I don't think you are at all accurate in where you think those of us who disagree with you are coming from, and (b) I think you are not coming at this with a lot of background in how the rules of war have evolved. I could be wrong, and if I'm about to tell you a bunch of things you already know I apologize.
I don't know a single person who is confident that every person in Gitmo is a terrorist. The difference is that many of us believe that the regrettable fact that innocent men are languishing in Gitmo, must be balanced against a great many other equally or even more regrettable facts, and that this is one of those cases where even the best practical solution, really sucks.
The fundamental problem with war, for honorable and compassionate people who still have enough intelligence to understand that war is frequently a necessary evil, is that you have to kill and hurt a lot of people in a short amount of time and you can't help but harm people who don't deserve it. So, if you're a civilized and compassionate country, or even if you're just a country that cares about your own people enough to want to keep your own civilians from dying en masse in war, you naturally desire to make it as easy as possible to identify the people who are innocent bystanders and keep them out of harm's way when possible. This is the major focus of the Geneva Conventions and other international rules of war.
One immediate concern is: what do you with prisoners captured on the battlefield? If you let them go, they may go pick up a gun and start killing your guys. If you shoot them in the head, you may be killing somebody who doesn't deserve it, and besides you don't want your own guys to be summarily executed when they surrender. But if you stop fighting in order to deal with POW's, then the other side may take advantage of the opportunity to overrun your position. So the practical solution that has been worked out over the years -- for the sake of the POW's themselves -- is to say that you can't kill or mistreat POW's whose own countries treat POW's properly, but you are allowed to just find a safe place to deposit them and keep them there until the fighting's over. You must understand that if you do not allow people who are at war to incarcerate people indefinitely without the ordinary protections of peacetime, then you're giving the soldiers of each side a choice between risking the lives of their own brothers in arms, or else killing 'em all and lettin' God sort 'em out. The provision for indefinite detention is meant as protection for the POW's themselves -- because you have to minimize the incentive for soldiers to prefer corpses to prisoners.
But the second, and much more fundamental thing, that you must understand is that the Geneva Conventions are meant to provide incentives to nations at war: their whole point is to say, "Look, those of us who have signed on to the Geneva Conventions have agreed that if you treat our guys properly, we'll treat your guys properly. So, it's worth it to you to treat our guys properly." And the Geneva Conventions very carefully try to maximize the ease of distinguishing between combatants and non-combatants -- for example, the POW provisions apply only to soldiers who are fighting in uniform -- precisely because they are meant to provide as much incentive as possible for each side to make that difference clear. The fundamental bargain of the Geneva Conventions -- and the Geneva Conventions are a negotiated bargain of mutual self-interest, not a philosophical statement of inalienable human rights -- is this: "You make it easy for us to tell which people are trying to kill our guys and which ones aren't, and we won't kill the ones who aren't if we can help it." But if you remove the incentive for one side or the other to make it easy to tell which folks are the active soldiers and which ones aren't, then you have destroyed the whole purpose of the Geneva Conventions.
The whole point of terrorism is that it does everything in its power to make it impossible to tell which people are the killers and which ones are the innocents. What the Noisy Left doesn't appear to me to understand is that this doesn't just mean that we aren't required to follow the Geneva Conventions with respect to the terrorists -- it means that if we do grant the terrorists Geneva Convention protection, we are emasculating the whole point of the things to begin with, which is to give people who go to war an incentive to respect and honor the distinction between combatants and non-combatants. The people who are threatening the Geneva Conventions right now -- they aren't the Bushites. They are the people who are trying to insist that the Geneva Conventions tie our hands in dealing with terrorists. For the more thoroughly the Left manages to convince the American public at large that this is what the Geneva Conventions do, the more likely the Left makes it that the American people will respond by withdrawing from those Conventions; and the more successful the Left is in extending the benefits of the Conventions to the people who take rejection of the basic premises of the Conventions to the greatest imaginable extreme, the more thoroughly they destroy the Conventions' ability to fulfill their fundamental purpose of providing an incentive to warring parties to leave the noncombatants out of the war.
It is against this background that the War on Terror and Gauntanamo must be understood. Xanthippas, I completely agree with you that it's a human tragedy that we undoubtedly have people in Guantanamo who don't deserve to be there. But that is not, fundamentally, Dubya's fault; it is a direct consequence of the terrorist decision to try to make it impossible to figure out which people are terrorists and which people aren't. If we were fighting against people who wore uniforms, then you would be able to have that confidence you desire that every last person in Guantanamo was really involved in fighting us. But we are fighting against people who do the opposite of wearing uniforms, and therefore we are faced with literally hundreds of decisions where the person in front of us could be a cold-blooded killer who will go right back to murdering people as soon as we let him go, or equally could be a totally innocent person wrong-placed and wrong-timed. We often cannot tell -- and that's the terrorists' fault. It's precisely why terrorism is so despicable; it's precisely why the class of people who suffer most broadly from terrorism are not the targets of the terrorism, but the population into which the terrorists attempt to blend. If we could find a way to cause that insight to dawn in the Muslim world as a whole, the War on Terror would end practically overnight as the Muslim population turned on its true enemies; but if ever there was a daunting task...
Look at it this way. If the guy I'm looking at is innocent, and I keep him in Gitmo, I may ruin his life even though he doesn't deserve it. Let's say in the process I ruin the lives of his wife, his two children and his aged mother. Okay, that's five lives ruined. But if the guy I'm looking at is a terrorist, and I let him go, then he's liable to go out and build a bomb that blows up an elementary school and kills or maims fifteen children. Now, you tell me: if it's important to me to see as few innocent lives ruined as possible, do I let the guy go if I'm less than totally sure he's innocent? If I keep him, there's a downside, but it's limited: I could be ruining his life and a few of his family members. If I let him go, there's also a downside -- but that downside is theoretically unlimited; there's literally no way to tell how many lives he might ruin. Do I keep him and contain the downside? Or do I turn him loose and take the risk? For it is a terrible and foolish mistake to think that the only innocent lives at risk in the Gitmo hold-or-release decisions, are the potentially innocent lives of the detainees.
At any rate, to wrap this up in general terms: as long as the terrorists are blending in, we will have no choice but to adopt a set of policies which, in order to get a reasonable balance of consequences, accepts the reality that we're going to hold indefinitely some people who don't deserve it. However, because Americans -- whether Republican or Democrat -- hate the idea of undeserved suffering, I think we can all agree that anything that we can do to help us figure out more accurately which people are not really threats, so that we can let more of those people go without getting more of our own soldiers killed, is something we want to do. There is plenty of room to debate which approach yields the best balance of consequences; I myself don't have the technical expertise to contribute very much to that debate and I sincerely doubt that most people commenting on it -- including Justice Stevens -- have that sort of technical expertise either. (That expertise accumulates, by the design of the Constitution, in the executive branch, which is why the Constitution grants most of the discretion in that regard to the executive branch, and which is why I cast a pretty damned skeptical eye on any attempt of the Supremes to step in and start dictating how those tradeoffs should be made. And insofar as Hamden is based on the Geneva Conventions, then the more you value and respect the purposes of the Geneva Conventions, the more you have to detest the folly of people who would even suggest that the protections of the Conventions are to be extended to the Islamist side of the conflict. So the less the Supreme Court involves itself in these decisions the happier I'll generally be.)
But that doesn't change the fact that your concerns are concerns that I think most Americans -- including Republicans -- share, though our prudential judgments about where the optimum tradeoffs lie often differ; and if we can find a better process than the one we've got I think we would all rejoice in it.
Posted by: Kenny Pierce | Saturday, July 01, 2006 at 11:59 AM
The trouble with speculating about what Congress or the President can do after Hamden is that it won't be based on the logic of Hamden or any other position. It will be based on the whims of the five Justices who created Hamden, and will have precisely as much logic as Hamden does, which is to say, as much or as little as is necessary to achieve the results dictated by the whims of Stevens et alia. To try to predict future decisions based on Hamden seems to me like a waste of time because it assumes that (a) Roberts, Scalia, Thomas and Alito will respect this incoherent and fractured opinion as precedent, and even more that (b) Stevens, Ginsburg, Breyer, Souter and Kennedy feel constrained by the whole intellectual consistency thing. The Hamden five will do as they have done all their careers and rationalize the decision that best suits their political preferences. The other four will not respect this opinion because the opinion itself makes little sense and sets out no very clear principles on which precedent could be securely based.
I mean, I'm no expert, but I do know that if you're going to apply precedent, you have to understand the underlying principles of interpretation that a precedent establishes. And if you can't figure out what the Justices were saying about the very case itself -- and if you traipse around the web looking for analysis of this decision you'll find that people who are trying to explain what the Court could have been thinking are all over the map -- then how can you possible hope to figure out how you would apply it to any other case?
One very important point that America's intelligentsia either do not understand or else hope the hoi polloi don't figure out: if a person can't write clearly, he can't think clearly. When your Supreme Court issues an opinion and the result is massive amounts of head-scratchings and discussion about what it is exactly that the Court was trying to say, you know that either the Justices who wrote the opinion can't think clearly -- in which case you made a very bad decision in selecting such stupid people for the Court -- or else they can think clearly but are trying to obfuscate their reasoning because they know that most Americans would reject that reasoning if the Justices were honest and up-front about what it is -- in which case you made a very bad decision in selecting such dishonest people for the Court.
If I may select Justice Thomas as my lightening rod here: Justice Thomas is detested more than any other Justice for three reasons. (1) He is a traitor to the black liberal cause. (2) The fundamental philosophical principles from which he approaches the Constitution represent a rejection of pretty much every single deeply held emotional/philosophical presumption of the Left. (3) His opinions leave you in no doubt as to exactly what he was thinking and why, so that the Left gets the full force of his opinion with no pulled punches. I have no patience with the first reason; on the other hand I can completely understand how if you are absolutely convinced of the validity of the core moral and political principles of the Left you would see Judge Thomas as an evil and destructive influence on the Court. But what you can't do, and retain any real credibility, is say that he's stupid. He writes too clearly for that: you can tell exactly what he thinks, and why, whenever he writes an opinion; and that means that he's intelligent enough that he himself knows exactly what he thinks and why. By comparison, in an opinion like Roe, you can tell what result the Justices wanted to reach, but as far as the understanding what thinking process the Justices went through to reach the desired result...well, the incoherence of the opinion leads you to suspect strongly that "thought" is not a particularly applicable term at all.
And Hamden is one of those opinions that leaves you saying, "Well, if it's this hard for the rest of us to tell what the Justices were thinking, how confident can we be that the Justices themselves knew what they were thinking?" Which means that trying to predict what the Justices will be thinking in 2008 when the next more or less related case comes up, seems a rather pointless exercise to me.
But, I repeat that when it comes to the Supreme Court, I'm an amateur who reads court opinions from the perspective of somebody who is very well trained indeed in logic (in which Supreme Court decisions of the last thirty or forty years have been frequently deficient) but not at all formally trained in law in general or Constitutional law in particular. So my opinion's worth about what you pay for it.
Posted by: Kenny Pierce | Saturday, July 01, 2006 at 11:09 AM
Stefan,
"would I be right in assuming that any legislation passed would only affect future detainees?"
The court does drop a few hints, such as this phrase "the Government’s power to detain him for the duration of active hostilities in order to prevent such harm" that appears to be a reference to the President's authority under the AUMF to lock people up "for the duration" - "in order to prevent any future acts of international terrorism against the United States".
The administration seems to have goofed by deciding they wanted to try the detainees in the District of Columbia by military commission. Hence the appeal to SCOTUS. If the President instead decided to simply detain them "for the duration", it seems pretty clear that the US federal courts would have no jurisdiction over people that were detained "on the field of battle" by the military.
I'm guessing the SCOTUS decision can be reversed altogether by Congress, perhaps by a new statute or an amendment to the 2001 AUMF restating the President's authority to detain and try by military tribunal those "persons he [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001" I don't see why they couldn't specify that it apply retroactively.
"what are we to do with those detainees (a majority?) whose home countries refuse to take them back?"
The short answer to all of this is to take no prisoners to begin with as General Schwarzkopf seems to imply. To answer your question, I suppose we would have to find a third country willing to take them...
Posted by: The FLY | Saturday, July 01, 2006 at 08:09 AM
Interesting that the Justices note that we are in a defacto state of war post 9/11.
I told my mate while watching the fire from the first plane and then seeing the second plane heading for the towers "This means war".
Posted by: M. Simon | Saturday, July 01, 2006 at 08:01 AM
I think I will have to agree with the Fly on this matter. So SCOTUS has pointed out that we need a clear statute on how deal with terrorist enemy combatants…..well we should have one that will spell it out and take this whole issue off the damn table. I am not super confidant in the nervous Congressional Republicans right now as they seem to be slinking to the middle on many things because they are scared about the ’06 elections but after they are over...if they hold their majorities it should be taken up post-haste. Clear legislation is the only way to clear the path ahead. One question though, to anyone who might know the answer, would I be right in assuming that any legislation passed would only affect future detainees? It seems as though that would be the only problem. One more question....what are we to do with those detainees (a majority?) whose home countries refuse to take them back?
Posted by: Stefan | Friday, June 30, 2006 at 09:32 PM
Note: Apologies for the following item being a bit off-topic. And yet it's also profoundly "on-topic": The New York Sulzberger Times (of which I've said enough here recently, so let the following--which amazed even me-- speak for itself, just in from David Horowitz.) [Ah, Pinchy, Pinchy, how lucky he is that some of us have no influence in this compassionate, globalistic White House, even if Pinchy does seem interested in martyrdom these days for the sake of resuscitated circulation]
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
The NY Times points cranks, radicals, al-Qaeda operatives and would be assassins to the summer homes of Cheney and Rumsfeld - Friday, June 30, 2006 12:36 PM
In an apparent retaliation for criticism of its disclosure of classified intelligence to America's enemies, the New York Times June 30th edition has printed huge color photos of the vacation residences of Vice President Dick Cheney and Donald Rumsfeld, identifying the small Maryland town where they live, showing the front driveway and in Rumsfeld's case actually pointing out the hidden security camera in case any hostile intruders should get careless:
http://travel2.nytimes.com/2006/06/30/travel/escapes/30michaels.html
Make no mistake about it, there is a war going on in this country. The aggressors in this war are Democrats, liberals and leftists who began a scorched earth campaign against President Bush before the initiation of hostilities in Iraq. The initiators of this war were Al Gore and Jimmy Carter who attacked the president's attempt to rally the world against Saddam's defiance of international law in September 2002 just after his appeal to the UN General Assembly. Coming from national leaders of the opposition party these were attacks unprecedented in the history of post-Civil War American politics. Carter's perfidious decision to accept a Nobel Peace Prize designed to attack his own president followed shortly after.
http://www.frontpagemag.com/blog/BlogEntry.asp?ID=676
Posted by: gringoman | Friday, June 30, 2006 at 09:20 PM
Xanthippas, I'm fairly certain your Grauniad story is a fraud. Unfortunately, until it receives some review from a credible source (not the NYT, either), I'll simply consider it nonsense. Which does not negate your point; yes, we should provide some legal mechanism for detainees to question the presumption of their guilt. The debate is not whether, but how to provide this review. The court has not, that I can see, ruled the process to be inadequate, but rather the underlying Congressional authority. Your claim that "we must provide more process than this" is therefore as unsupported as it is undefined - what "more process" do you deem adequate? Are you advocating US criminal law and procedures be applied to these detainees? What is it taht you find unjust or unfair about Pres. Bush's proposed military tribunals?
Posted by: Joe | Friday, June 30, 2006 at 08:14 PM
As with many conservative supporters of Gitmo, you indulge in the comforting fantasy that every single one of the men being detained in Gitmo is a hard-core terrorist, the "worst of the worst" as Rumsfeld summed it up. But this simply is not true, as this report details:
http://law.shu.edu/news/guantanamo_report_final_2_08_06.pdf
Additionally, why has the Bush administration authorized the release of so many of the detainees if every single one of them is a hard-core terrorist?
Each of you seems willing to make the presumption of guilt when it comes to these men, but it is hardly deniable that some of these men were picked up at random, not by U.S. forces, but by our supposed allies, under circumstances that are best questionable. It is fair to wonder then how many of the men in Gitmo are not terrorists. 1 percent? 5 percent? 10? 20?
If we knew for certain that every single man being held in Gitmo was a terrorist, most Americans would not have a problem with detaining them indefinitely until we figure out what to do with them. The problem is that we don't, and so we must provide them all some judicial process, or we risk imprisoning men who are innocent for no reason other than that they were in the wrong place at the wrong time. The tribunals that were being carried out are inadequate to do this. See: http://www.guardian.co.uk/guantanamo/story/0,,1809981,00.html?gusrc=rss
Therefore we must provide them with more process than this, to sort out the very guilty from the not so guilty and the innocent, and treat them accordingly. This is not about giving "rights" to terrorists. It's about being just and fair, and it's something that we all should expect from our country.
Posted by: Xanthippas | Friday, June 30, 2006 at 07:52 PM
In fact, given a choice it is obvious no Islamic "warrior" will ever agree to be bound by the Geneva Conventions anyway, so I have no moral problem with using "divulgence-pharmaceuticals" on them, followed by 9mm.
Posted by: Crusader.NoRegrets. | Friday, June 30, 2006 at 04:49 PM
I suspect you're going to see a lot less taking of prisoners in future, by US special forces, unless they are known beforehand to be a major intel asset. This is a serious blow to intelligence-gathering, since under the Geneva Conventions, the US forces can indeed try Al-Qaeda operatives on the spot, and execute them.
In fact under the Geneva Conventions, Al Qaeda has no automatic right of surrender, as illegal combatants.
I think the Geneva Conventions are a joke, as they do nothing to alleviate the suffering of civilians in wartime, and only the US, Commonwealth and Israel actually follow them. What's the point?
Posted by: Crusader.NoRegrets. | Friday, June 30, 2006 at 04:47 PM
You can access the opinions here, but I would advise strong medication prior to attempting to enter this treacherous terrain.
Heh. I'll have to try that, since my rose-colored glasses were ineffective in preventing nausea on my first trip.
Though I can understand the SC wanting tribunal authority more clearly authorized by Congress, what mystifies me is the extention of any sort of Geneva protections to these lawless thugs.
Posted by: Joe | Friday, June 30, 2006 at 04:16 PM
"To make matters worse, the four Justices concluded that Salim Ahmed Hamdan could not be charged with conspiracy before a military commission"
Well, not exactly:
[Syllabus]
"The Government has not charged Hamdan with an "offense . . . that by the law of war may be tried by military commission," 10U. S. C. §821. Of the three sorts of military commissions used historically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions, incorporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001.More importantly, the offense alleged is not triable by law-of-war military commission."
[Justice Stevens]
"There is no suggestion that Congress has, in exercise of its constitutional authority to "define and punish . . . Offences against the Law of Nations," U. S. Const., Art. I, §8, cl. 10, positively identified "conspiracy" as a war crime.33 As we explained in Quirin, that is not necessarily fatal to the Government’s claim of authority to try the alleged offense by military commission; Congress, through Article 21 of the UCMJ, has "incorporated by reference" the common law of war, which may render triable by military commission certain offenses not defined by statute. 317 U. S., at 30. When, however, neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution."
Basically, isn't the court just telling us that they need a more clearly defined statute relating to the alleged offense to rule in favor of military tribunals? What would stop the President from working with Congress to update the UCMJ to specifically include a terror conspiracy defined as "a war crime punishable by military tribunal", and if Congress did make such a change, what would be wrong with military tribunals as opposed to public trials in the federal courts for foreign terrorists detained in a "theater of war"?
There is hope, after all, because the court does not deny the President's [Article II] authority to lock these guys up "for the duration of active hostilities", which I'm guessing roughly equates with when hell freezes over.
[Opinion page 72]
"It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."
Posted by: The FLY | Friday, June 30, 2006 at 12:41 PM
Agreed, that the SCOTUS Hamdan vs Rumsfeld decision does nothing to prevention detention at Gitmo. Agreed, the gist of it, despite liberal euphoria, essentially directs the President to go back to Congress for authorities which others say (1) he already has Constitutionally and/or (2) Congress has already enacted.
Still, the general MSM impression, and source of glee for the Bush antipodals, is that the Doge-like Supremes have smacked down the Cowboy Caesar.
So much legal talent devoted to the analyses! (Most of them presumably untainted by experience of a battlefield, mortal danger or the savage detainees at Gitmo.) The firepower resolves itself into cerebral combustion over statutes, precedents, Kelo, Geneva, UCMJ, Greenwalding, not to mention the educated concerns over water-boarding and are the Koranic needs of virtual animals being properly attended to, so that we don't lower ourselves from our assumed level of civilization etc.ad legalismus.
And just when it seemed like Bush Derangement Syndrome was beginning to mature, (to a degree), and score a great victory, hacking its way through the
wingnut thickets in its declared mission of "saving us from those who are not as smart and enlightened and non-authoritarian as we are," what happens?
It begins to look like the "progressives," once again, are doing Karl Rove's work for him. It's as if they're saying:
"Folks, we're looking after you. We're stopping Bush from over-stepping his authority with the beheaders. We're doing it for you, folks! Osama bin Laden's driver/bodyguard will not have his rights trampled on! Folks, don't forget to register to vote!"
Posted by: gringoman | Friday, June 30, 2006 at 12:35 PM
I look at at Vlad's verdict on the terrorists and I look at SCOTUS's. I wish we had a Vlad.
Posted by: igout | Friday, June 30, 2006 at 11:28 AM
"The Breyer opinion amounted to a mini-lecture on the virtue of presidential consultation with Congress, at least "where, as here, no emergency prevents" such consultation. "The Constitution places its faith in those democratic means. Our Court today simply does the same."....
I thought the court was constututed by the constitution to rule on constitutional matters. The liberals think the president has overstepped his constitutional authority. "where, as here, no emergency prevents", there is an overriding need to let the president know he is overreaching! No emergency, just a shadowy group with no official government, unknown combatants that hide within local populations, using similar dressing patterns and hiding behind women and children, trying to implement the breakdown of western civilization by eventually finding a way to kill tens of thousands at a time. No emergency! Gimme a break!
I don't pretend to be a constitutional scholar, but to us fly-over types that the intelleckshuals of both parties like to smirk at, this is not hard to see: there is a group of players here that is clearly trying to wrest the power of the presidency away from Bush and into the hands of the Supreme court, and as a bone, congress gets some too. And this group of players, with some republicans complicit, is willing to overlook the nature and strategy, as well as the horrifying tactics, of this enemy, in order to amass enough power to themselves to get the power back that they feel was stolen in '94 and '00. They got away with it this time, but the fly-over folks are paying attention. We may be fly-over but we're not stupid. We know what a supreme court majority means! And we will have it.
Posted by: nofate | Friday, June 30, 2006 at 11:26 AM
From the WSJ
As I suggested, we should just keep them as detainees without trials, military or civilian.
Posted by: Huan | Friday, June 30, 2006 at 10:00 AM
SCOTUS only ruled that the military tribunals do not have jurisdiction as is. it did not rule on the legality of detention, and thus leaving open indefinite detention. it also did not rule the detainees have access to civilian courts.
or so as i read it.
Posted by: Huan | Friday, June 30, 2006 at 09:58 AM