Editore"s Note
Tilting at Windmills

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June 29, 2006
By: Kevin Drum

THE END OF GITMO?....President Bush told reporters a few days ago that he'd like to close the prison at Guantanamo. No one really took him seriously, but now it looks like he might get his wish after all:

The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions are unconstitutional.

....The case of Salim Ahmed Hamdan, a 36-year-old Yemeni with links to al-Qaeda, was considered a key test of the judiciary's power during wartime and carried the potential to make a lasting impact on American law. It challenged the very legality of the military commissions established by President Bush to try terrorism suspects.

The Supreme Court has now denied Bush's authority to detain prisoners indefinitely and denied his authority to try them solely before military commissions. Marty Lederman comments further:

More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever" including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

Considering how deferential the court normally is to executive power in wartime, this is an extraordinary decision. The court pretty clearly feels that Bush has way overstepped his constitutional boundaries.

Kevin Drum 11:53 AM Permalink | Trackbacks | Comments (221)

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Comments

I'm genuinely surprised. We have to see the opinion to know the extent of the ruling, but I was sure the Court would somehow create a way to "split the difference" with the President.

Posted by: Alexander Wolfe on June 29, 2006 at 11:55 AM | PERMALINK

This administration has no problem ignoring International and Domestic laws, why should this be any different?

Posted by: nutty little nut nut on June 29, 2006 at 11:56 AM | PERMALINK

I beat out the trolls??

Posted by: Alexander Wolfe on June 29, 2006 at 11:57 AM | PERMALINK

Kevin: um, you misread the opinion (or the news reports).

The SC expressly confirmed that the pres can detain "enemy combatants" until the end of hostilities (i.e. in a conflict of this nature...indefinitely -- at least so long as they're not U.S. citizens).

What the pres can't do is try them in a matter not consistent with either of the UCMJ/Geneva Art. III or U.S. domestic law.

In other words, if they don't want to release someone, they can either try them with certain protections or simply hold them.

Posted by: Nathan on June 29, 2006 at 11:59 AM | PERMALINK

why does SCOTUS hate America?

Posted by: nut on June 29, 2006 at 12:00 PM | PERMALINK

The interesting part of the decision has nothing to do with the tribunals (they can go forward, they just have to comply with certain parameters) or even Guantanamo per se. Its the application of Gen. Art. III (that was always the stickiest legal call and could have gone either way imo)....which affects how we treat detainees, including those in CIA custody.

Posted by: Nathan on June 29, 2006 at 12:02 PM | PERMALINK

That's how I read it too, Nathan.

Posted by: Doug on June 29, 2006 at 12:03 PM | PERMALINK

The Supreme Court has now denied Bush's authority to detain prisoners indefinitely and denied his authority to try them solely before military commissions.

Unfortunately this is another victory for the liberal judicial activists who control the Supreme Court. As George W Bush has pointed out, the Geneva Conventions DO NOT apply to the terrorists because the enemies are terrorists and not a state. Also, as Justice Thomas points out in his dissent, the parts of the parts of the Geneva Convention which apply even to non-states don't apply because as the Geneva Convention expressly states those parts apply only to "armed conflicts not of an international character." Since the War on Terrorism is a war of international character, textualists like myself agree that none of the Geneva Conventions apply.

Also the Supreme Court should never have heard this because Congress stripped it of jurisdiction by suspending the writ of habeus corpus. But the liberal judicial activists have ignored the intent and words of Congress just so they could justify their liberal results.

Posted by: Al on June 29, 2006 at 12:03 PM | PERMALINK

BFD. If it weren't for the SOCTUS, Bush wouldn't be president, and we wouldn't have been waiting for two years for this decision. While they "get this one right," they rewarded Tom Delay yesterday. As Delay is emblematic of everything wrong with politics and government in the U.S., awarding this guy "back pay" while he was illegally detained (in an illegal U.S. base) and paying all his expenses home, apologizing to his family and country still wouldn't change the fact that we're fucked for the foreseeable future.

Have a nice day.

Posted by: JeffII on June 29, 2006 at 12:03 PM | PERMALINK

Ya- Like Buch & Co didnt intentionally NOT go to Congress counting on this exact eventuality. Like this doesnt give them another bite at the apple after crafting legislation. Like the Democrats our going to stand up for some mythical standard of due process for foreign Jihadists.

Feeling vindicated by the Supremes Huh? Ya- I felt the same way in 2000.

Posted by: Zarqawi Done Dead on June 29, 2006 at 12:05 PM | PERMALINK

Good news. Hopefully, the pendulum is swinging back from its insane arc, and this country's government is beginning to return to something resembling American values.

Now, I just wish they'd overturn Bush V. Gore...

Posted by: theorajones on June 29, 2006 at 12:05 PM | PERMALINK

Remember, the supreme court only feels this way 5-4 (this case was 5-3, missing Roberts, who voted against Hamdan in apellate court). We're only one more Bush appointee away from having this go the other way. Scary.

Posted by: Eric on June 29, 2006 at 12:06 PM | PERMALINK

If we have to lock up and have a thousand innocent people commit suicide, just to keep one Scary Brown Person from terrorizing Al, Hawk, and myself, it is worth it!!

Good thing King George doesn't have to follow the Supreme's rulings...

Posted by: Freedom Phukher on June 29, 2006 at 12:08 PM | PERMALINK

the application of Gen. Art. III seems to stem from the AUMF (and associated legislation)...since Congress authorized military operations the Court read Congress as also mandating the concomitant use of the UCMJ/Geneva (or a transfer to civilian jurisdiction).

Congress could, by a simple act of legislation, exempt al-quaeda associated detainess from Gen.Art.III.

Posted by: Nathan on June 29, 2006 at 12:09 PM | PERMALINK

Agreed. It's just too close for comfort. Thomas' dissent apparently was how the President won't be able to get the bad guys anymore.

The danger with Alito from the start was the supreme power of the President idea. I still have hopes for Roberts in the long run, as he appears to be able to read the law and even listen to opposing opinions. But Alito is just a close-minded idealogue who doesn't have to pay attention to Supreme Court rulings anymore -- now he can "fix" things.....

Posted by: zmulls on June 29, 2006 at 12:09 PM | PERMALINK

Eric,

um, we don't know how Roberts would have voted. Roberts' decision at the lower level was predicated upon his reading of existing higher precedent. different situation when you're on the SC

Posted by: Nathan on June 29, 2006 at 12:10 PM | PERMALINK

What's most gratifying is that Bush would have lost even if his crony had not recused himself.

Posted by: nut on June 29, 2006 at 12:11 PM | PERMALINK

Al, if you want to live in a police state that badly, why don't you go fucking move to one?

Posted by: Red on June 29, 2006 at 12:12 PM | PERMALINK

NYTimes has an article that says that the camp commander at Guantanamo believes that this decision will have minimal impact on prison and the prisoners. As I understand it, SCOTUS has now ruled that the inmates cannot be held indefinitely without trial and lawyers, nor can they be tried by military tribunals. The commander states that he does not plan to empty out the prison. In light of the rulings, I would think this means that something must change at Guantanamo, unless the adminstration plans on completely ignoring the Supreme Court (and thus the law). Am I missing something here? I guess they might try to say that they are not holding the inmates 'indefinitely' per say, but that seems to be stretching it.

Posted by: Mfm on June 29, 2006 at 12:13 PM | PERMALINK

Mfm:

you're missing a lot: the SC has indicated that detainees can be held until the end of hostilities (i.e. until both al-quaeda commits its last act and the Taliban lays down its arms completely)...which means, for all practical purposes, indefinitely.

Posted by: Nathan on June 29, 2006 at 12:16 PM | PERMALINK

Shorter Al: Since I don't believe the decision was properly made, el Presidente Bush is free to ignore it.

Posted by: Speed on June 29, 2006 at 12:17 PM | PERMALINK

Henceforth all Foreign Detainees will be held in the basement of the NYT headquarters. Responsibility as to their proper treatment will be provided by Eric Alterman, Maureen Dowd, Pinch & Co.


Effective immediately
The Supremes

Posted by: Zarqawi Done Dead on June 29, 2006 at 12:18 PM | PERMALINK

Shorter Al: Since I don't believe the decision was properly made, el Presidente Bush is free to ignore it.

Maybe a sort of judicial "signing" statement is coming.

Posted by: Nemo on June 29, 2006 at 12:20 PM | PERMALINK

I have read that Ron Suskind has recently reported the President took a personal interest in the interrogations of important Al Quada prisoners.

I think the most important part of this decision has to do with the definition of torture. It is not a far stretch to conclude that GWB's directions concerning waterboarding and hypothermia and related "outrages upon personal dignity, in particular humiliating and degrading treatment" of prisoners means that members of the administration, up to and including the President, might be charged with war crimes. Folks, that is big, big, big.

Posted by: Ron Byers on June 29, 2006 at 12:21 PM | PERMALINK

But since King George is above the law anyway, what fucking difference does it make what the Supreme Court says? Unless, of course, they agree with him.

Posted by: craigie on June 29, 2006 at 12:21 PM | PERMALINK

...members of the administration, up to and including the President, might be charged with war crimes.

Not to mention bad sportsmanship in basketball and rugby games. It may have been 30 years, but justice is due!

Posted by: craigie on June 29, 2006 at 12:23 PM | PERMALINK

The proper countermove is to put the terrorists under the technical custody of a country without an activist judiciary. We should sell Gitmo to China, then pay them that amount in rent money. SCOTUS has no jurisdiction over Chinese soil.

Posted by: American Hawk on June 29, 2006 at 12:23 PM | PERMALINK

Ya - War Crimes....
Right after the indict Kissinger

Posted by: Zarqawi Done Dead on June 29, 2006 at 12:25 PM | PERMALINK

Kevin: The court pretty clearly feels that Bush has way overstepped his constitutional boundaries.

And how many divisions does the court have?

Posted by: Supreme Leader George W. Bush on June 29, 2006 at 12:26 PM | PERMALINK

"We should sell Gitmo to China, then pay them that amount in rent money."

Yeah, just put it on our tab. We're good for it, I swear.

Posted by: fat smelly birkel on June 29, 2006 at 12:27 PM | PERMALINK

Now Al, the decision held that Congress did NOT suspend habeus corpus OR strip the Court of jurisdiction. If one is to be taken seriously in a genuine discussion, one must be careful not to state what is patently contravened by the facts.

Also, it really is falling-down funny to talk about Thomas being a "textualist." His dissent is almost pure political polemic -- as blatant an attempt at "legislating from the bench" as I've ever seen. He really is an embarrassing lightweight.

All this is a breath of fresh air, but of course we must now prepare ourselves for the usual onslaught of hatred from the Right, this time no doubt frothing and spitting about how "a few librul judges" have "trampled on the Constitutional authority of the Commander in Chief to conduct the War on Terror" or some similarly over-capitalized generalization.

Fascists are all the same: stomp and yell and break heads, regardless of fact, reason, law, or precedent.

Posted by: bleh on June 29, 2006 at 12:27 PM | PERMALINK

I have no doubt that this will change everything for Bushco. They will immediately change all their policies to comply with this ruling and will jettison their theory of the unitary executive. And then monkeys will fly out of my ass.

Posted by: The Fool on June 29, 2006 at 12:28 PM | PERMALINK

American Hawk wrote: We should sell Gitmo to China ...

If you want to turn over Gitmo to a Communist country, just give it back to Cuba.

Posted by: SecularAnimist on June 29, 2006 at 12:28 PM | PERMALINK

Pursuant to the theory of the unitary executive, I believe the President will be able to issue a signing statement when he receives his copy of the SCOTUS decision. In this statement, he will articulate his views of the decision, including his agreement with the dissent and his intention to exercise his excecutive powers consistent with Constitution. Since the SCOTUS decision, in his view, is inconsistent with the Constitution, he will be free to ignore it.

Posted by: Ghost of Lincoln on June 29, 2006 at 12:29 PM | PERMALINK

"I think the most important part of this decision has to do with the definition of torture. It is not a far stretch to conclude that GWB's directions concerning waterboarding and hypothermia and related "outrages upon personal dignity, in particular humiliating and degrading treatment" of prisoners means that members of the administration, up to and including the President, might be charged with war crimes. Folks, that is big, big, big."

that's a stretch.
first, you would have to find someone with standing. simply hold Khalid Mohammed indefinitely and he never sees court.
second, you still run into a good faith defense of Art.III not applying (that defense wouldn't work after today).
third, some sort of necessity defense.

standing is, however, the immediate and insurmountable obstacle.

Posted by: Nathan on June 29, 2006 at 12:30 PM | PERMALINK

"...the inmates cannot be held indefinitely without trial and lawyers..."

Yea, but we can hold them for say 500 years right?

Posted by: jefff on June 29, 2006 at 12:31 PM | PERMALINK

not to mention that (if it was effective -- and the same reports that claimed they did it also said it worked)...I'm glad they waterboarded Khalid Mohammed and good luck finding a NY jury willing to convict someone for it.

Posted by: Nathan on June 29, 2006 at 12:32 PM | PERMALINK

Nathan:

Did you catch footnote 26?

"The limitations on these occupied territory or military government
commissions are tailored to the tribunals purpose and the exigencies
that necessitate their use. They may be employed pending the establishment
of civil government, Madsen, 343 U. S., at 354355, which
may in some cases extend beyond the cessation of hostilities, id., at
348.

Posted by: Doug on June 29, 2006 at 12:32 PM | PERMALINK

Do you guys have any clue what "unitary executive" means?

Posted by: Nathan on June 29, 2006 at 12:33 PM | PERMALINK

there you go again, activist judges undermining our freedom, and fight againts terrorism.

Posted by: left behind advocate on June 29, 2006 at 12:34 PM | PERMALINK

Doug,

no I didn't. interesting. looks like the simplest answer for the gov might simply be to hold these guys forever.

Posted by: Nathan on June 29, 2006 at 12:35 PM | PERMALINK

Al: "the Supreme Court should never have heard this because Congress stripped it of jurisdiction by suspending the writ of habeus corpus. But the liberal judicial activists have ignored the intent and words of Congress ..."

U.S. Constitution, Article I, Sec. 9, cl.2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Put aside for a moment the lack of evidence that public safety "requires" it, and assume that it does. Nevertheless, Al, "textualists like [your]self" would recognize that we are not currently under "Invasion" and thus the Constitution forbids suspension of habeas - unless you want to resort to an argument about broader unwritten intent of the provision [something no textualist would endorse, right?].

In short, your comment is not merely tendentious and wrong, it is internally self-defeating. Congratulations, pick up your prize at the door on the way out.

Posted by: Another Kevin on June 29, 2006 at 12:36 PM | PERMALINK

bleh:

Actually, on December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, no court, justice, or judge shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statutes most natural reading, every court, justice, or judge before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised.

Posted by: Doug on June 29, 2006 at 12:38 PM | PERMALINK

Expecting that the SC would come out against indefinite detention is, IMO, unrealistic: if Bush were to declare the Gitmo captives prisoners of war, detention until the end of that war is part and parcel of that definition, no?

Maybe there should be an amendment to the War Powers Act that says that no banners can be hung from aircraft carriers until the war is declared over...

Posted by: pbg on June 29, 2006 at 12:40 PM | PERMALINK

to paraphrase Andrew Jackson:

John Paul Stevens has made his decision, now let him enforce it.

i'm not holding my breath.

Posted by: rigel on June 29, 2006 at 12:41 PM | PERMALINK

"How many divisions does the court have?"....Post of the day!

Posted by: R.L. on June 29, 2006 at 12:47 PM | PERMALINK

Kevin does seriously misunderstand the ruling on the holding of prisoners (which it allows until hostilities end), but at least with Kevin, his mistakes are honest ones about militare and legal areas on which he really does not have any expertise or much understanding. He is not a shill who makes things up, just honest mistakes.

We have to trust our system, but it is a bit scary to think that an old man like Stevens, or espcially an old woman like Ginsburg falling asleep at the bench, have the authority to rule such issues. Neither likely has any realistic grasp of the GWOT. Could anyone really have any trust in Ruth Ginsburg making significant decisions related to the defense of this counrty or the GWOT? Oh well, President Clinton was duly elected and, in his defense, he had no idea she someday would be making such decisions.

If the court actually said Bush can go to Congress for authority on the dispute issues, then the administration should immediately do so and put the issues up for votes.

Posted by: brian on June 29, 2006 at 12:52 PM | PERMALINK

Doug:

"the Court today concludes that, on what it calls the statutes most natural reading, every court, justice, or judge before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised."

The DTA was ambiguous with regard to retroactivity, which was part of what the Court grappled with here. Clearly, it would preclude a court from hearing Hamdan2's habeas petition filed after December 30. Stevens, however, holds that it does not have retroactive effect. Whether you think he's right or not, it's hardly "patently absurd"--by the way, that's not an argument you're making, just assertion.

Also, I'm not sure why you want to invoke principles of equitable discretion on behalf of your conclusion: given the gravity of suspension of the writ, such discretion would likely encourage the narrowest possible reading of the suspension (i.e., no retroactivity unless clearly mandated).

Finally, as Bleh noted about, this all assumesof that current circumstances fall within the Suspension Clause's ambit, which is arguable to say the least.

Posted by: Marc J on June 29, 2006 at 1:00 PM | PERMALINK

Doh.

You said "patently erroneous."

Still not an argument.

Posted by: Marc J on June 29, 2006 at 1:02 PM | PERMALINK

theorajones >"...Now, I just wish they'd overturn Bush V. Gore..."

It was a fradulent election (in Florida at least) so the misAdministration of Bush Handlers, Inc. is null and void anyway.

Not claiming, of course, that is enforceable until "We the people..." actually get an opposition party so I`m not holding my breath

"The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary." - H. L. Mencken

Posted by: daCascadian on June 29, 2006 at 1:03 PM | PERMALINK

Marc J:

I still reading the decision (I'm up to Alito's dissent and a very good point that the Quirin commission was no more independent from the Executive than the commissions at issue here), but if you're really interested, the rest of that "argument" above indeed can be found in Scalia's dissent. He makes a good point that EVERY prior stripping of jurisdiction (before today's decision of course) has ALWAYS been held to apply retroactively. So, who exactly is "legislating from the bench" again?

Posted by: Doug on June 29, 2006 at 1:13 PM | PERMALINK

Sorry to come in late to this thread. What does everyone think is going to be the first test of this decision? Does this mean they are going to have to "put up or shut up" with Padilla?

Posted by: enozinho on June 29, 2006 at 1:16 PM | PERMALINK

rigel: to paraphrase Andrew Jackson

Damn, you beat me to it.

Posted by: alex on June 29, 2006 at 1:16 PM | PERMALINK

"Unfortunately this is another victory for the liberal judicial activists who control the Supreme Court."

You snickering motherfuckers are pretty damn happy with activism when it goes your way. Too bad the Cheney crowd doesn't have more power, eh? They just can't get anything done with that pesky Constitution still in place. Well, your time is almost up, and the rest of us, who actually care about each other, can spend the next two decades cleaning up the mess while you hide in your spider holes. You hate Saddam Hussein (or whoever) so much because he is exactly what you want to be.

Here's the main fact: you guys are ass-sniffing disgraces to everything democratic -- to what is essentially American. Perhaps if "activist" interrogators were waterboarding your children you'd have a minor wakeup call, but at this point, I doubt it. Traitors!

Posted by: Kenji on June 29, 2006 at 1:16 PM | PERMALINK

What is the most ominous about this decision is something that most commenters have ignored: This was something of a test of the new court makeup, and would have been a 5-4 decision absent Roberts' recusal. He had already found for the government's position at the appellate level, and would almost surely have joined the other dissenters had he voted. This means (as we suspected) that the court is one vote away from the authoritarianism we fear.

Posted by: Bob G on June 29, 2006 at 1:20 PM | PERMALINK

"How many divisions does the court have?"

Depends on how seriously the generals and their subordinates take their oaths.

Posted by: Boronx on June 29, 2006 at 1:21 PM | PERMALINK

For the record, I am not "pretty damn happy with [judicial] activism" regardless of which way it goes.

Posted by: Doug on June 29, 2006 at 1:27 PM | PERMALINK

Whew! 185 pages later, and I mainly can't wait for just ONE more replacement on the SCOTUS. Go Bush -- it's too bad the Cheney crowd doesn't have more power!

Posted by: Doug on June 29, 2006 at 1:31 PM | PERMALINK

Doug: at least part of the Court's reasoning regarding habeus corpus is the immense importance of that principle -- one that goes back OVER SEVEN HUNDRED YEARS in English law -- the rarity of its suspension in US history, and its specific enumeration in the Constitution itself.

Do you really understand what it means to suspend the Writ? It means that you (or your family or your loved ones or your political leaders or ANYONE) can be thrown in jail on the whim of a governmental official and left there to rot forever, without access to counsel or a court, and without even any notification to others as to what's happened to you.

Would you really want that power invested in a US executive? ANY executive? How about Hillary Clinton?

The thing that amazes me most about Fascists is how amazed THEY are when the principles they espouse are used in any way against them.

Posted by: bleh on June 29, 2006 at 1:33 PM | PERMALINK

Doug,

As usual, Scalia is making stuff up. As recently as 1997, the Court reaffirmed the "presumption against retroactivity" and the "traditional rule requiring retroactive application to be supported by a clear statement." Lindh v. Murphy, 521 U.S. 320, 325. The Court then held that AEDPA--which severely curtailed habeas jurisdiction, without actually suspending it--did not apply retroactively.

Granted, Scalia dissented in Lindh, but I just wanted to point out that, as usual, he's distorting history and cherry-picking precedent. It's hardly the case, then, that, as you (accurately) paraphrase him,

"EVERY prior stripping of jurisdiction (before today's decision of course) has ALWAYS been held to apply retroactively."

So in answer to your question, Scalia is, as usual, "legislating from the bench."

Finally, I'd like to note how funny it is that you simply cut-and-pasted the opening paragraph of Scalia's dissent and then posted it above your name without quotes or attribution. The unsuspecting reader might take this to mean that you, an objective observer, had reached the conclusion after extensive research, when in fact you were merely parroting Judicial Activist Number One.

Posted by: Marc J on June 29, 2006 at 1:36 PM | PERMALINK

How about Hillary Clinton?

Ain't gonna happen. Not Hillary, not any Dem.

It is axiomatic that a party that has systematically changed the country's organic law in such a way that it must work to its disadvantage, if not its destruction, upon its return to opposition simply intends never to return to opposition again.

The Republic is dead. And 12/12/2000, not 9/11/2001, is the date on the tombstone.

Posted by: Davis X. Machina on June 29, 2006 at 1:36 PM | PERMALINK

Do anyone here (trolls excluded) actually believe that President Bush will consider himself bound by this ruling?

According to the position expressed by AG Gonzales, President Bush cannot be bound by anything that restricts his authority as Commander-in-Chief during wartime. Which this ruling does.

Now, maybe we get some real action on this "unitary president" theory the Bush supporters have been having so much fun with. Congress may not have the stones for this work, but apparently the Court does.

Posted by: zak822 on June 29, 2006 at 1:37 PM | PERMALINK

...means that members of the administration, up to and including the President, might be charged with war crimes. Folks, that is big, big, big.

Listen to you, salivating at the possibility. You freaks will root for anything, ANYTHING, if it hurts the President and the Republican Party. Forget the implications to our country.

Disgusting and pathetic.

Posted by: sportsfan79 on June 29, 2006 at 1:38 PM | PERMALINK

Do anyone here (trolls excluded) actually believe that President Bush will consider himself bound by this ruling?

Isn't the fact that the Admin needs to spell out what they want to do in the form of a bill the definition of being bound by the law? Isn't that what every American, right and left should want?

Posted by: enozinho on June 29, 2006 at 1:46 PM | PERMALINK

Weren't Roberts and Alito supposed to guarantee that this case would be decided in Bush's favor? What went wrong?

Also, does this mean that the Bush administration can send all those prisoners to prisons in their home countries without worrying about prisoners', ah, "comfort"?

Posted by: republicrat on June 29, 2006 at 1:47 PM | PERMALINK

So sorry, Marc J, that I didn't write footnote 26 either and didn't use your precious "quote marks" when you decided to butt into the middle of my "conversation" with Nathan -- I doubt he was as confused as you.

Posted by: Doug on June 29, 2006 at 1:48 PM | PERMALINK

Davis X. Machina
"simply intends never to return to opposition again"

Thats right.

Posted by: Zarqawi Done Dead on June 29, 2006 at 1:50 PM | PERMALINK

sportsfan79: "Implications to our country" ?!?!?

How about, the implications of, oh, getting us into a war that has cost over 2500 American lives, tens of thousands of Iraqi lives, hundreds of billions of dollars, and our international leadership and reputation, and now according to a survey of 100 experts in terrorism from across the entire political spectrum has made us LESS safe against terrorists?

How about the implications of turning a federal SURPLUS into a GIGANTIC federal DEFICIT, and in the process EXPANDING our international trade AND current-account deficits AND the domestic imbalance of wealth?

How about the implications of stretching the armed forces -- the Army in particular -- so far past their limits that they've had to cut recruiting goals by tens of percentages, raise the age limit repeatedly (twice so far this year alone), and issue "stop loss" orders to Reservists on their THIRD TOURS?

Talk about "disgusting and pathetic"!

The judgment of history is already halfway in. The leadership of this "President and Republican Party" is the worst since Harding, possibly as bad as Grant, and in the opinion of many historians -- again spanning the political spectrum -- the worst in American history.

The only truly "pathetic" parts about the situation are the genuine human misery and suffering caused by the Fascists' policies and actions, and the continued delusion by their supporters that their leadership is somehow a good thing.

Posted by: bleh on June 29, 2006 at 1:50 PM | PERMALINK

Holding that Common Article 3 applies to the conflict with the Taliban in Afghanistan is an enormous deal, because it means that violations of the standards set forth there are war crimes under US law.

Posted by: cmdicely on June 29, 2006 at 1:51 PM | PERMALINK

Listen to you, salivating at the possibility. You freaks will root for anything, ANYTHING, if it hurts the President and the Republican Party. Forget the implications to our country.
Disgusting and pathetic.
Posted by: sportsfan79

sorry, dude ... clearly the fact that people will treat bush like a war criminal bothers you more than bush actually BEING a war criminal.

... it's OK ... I'm getting used to all the good little germans piping in.

Posted by: Nads on June 29, 2006 at 1:51 PM | PERMALINK

P.S. -- I did read the decision fast, so maybe I missed Lindh v. Murphy -- when I get a chance, I will take a second-look. For the record, however, I am against ANY Supreme Court justice "legislating from the bench."

Posted by: Doug on June 29, 2006 at 1:53 PM | PERMALINK

This might be my favorite example ever, from a heavy field of contenders, of brian's hilariously unearned condescension:

We have to trust our system, but it is a bit scary to think that an old man like Stevens, or espcially an old woman like Ginsburg falling asleep at the bench, have the authority to rule such issues. Neither likely has any realistic grasp of the GWOT. Could anyone really have any trust in Ruth Ginsburg making significant decisions related to the defense of this counrty or the GWOT? Oh well, President Clinton was duly elected and, in his defense, he had no idea she someday would be making such decisions.

sportsfan: Listen to you, salivating at the possibility. You freaks will root for anything, ANYTHING, if it hurts the President and the Republican Party. Forget the implications to our country.

What was it Elliot Richardson said to Nixon? "You and I have different concepts of what's good for the country," wasn't it?

Doug: For the record, I am not "pretty damn happy with [judicial] activism" regardless of which way it goes.

Ah, come on, John, you know you love it.

Posted by: shortstop on June 29, 2006 at 1:57 PM | PERMALINK

How about, the implications of, oh, getting us into a war that has cost over 2500 American lives, tens of thousands of Iraqi lives, hundreds of billions of dollars, and our international leadership and reputation, and now according to a survey of 100 experts in terrorism from across the entire political spectrum has made us LESS safe against terrorists?

Your parents and grandparents gave up much more in terms of personal cost and loss of life to protect our freedoms, and to make this country great. What they did was real sacrifice.

What you are doing is undermining that sacrifice. You should be proud of yourself.

Posted by: sportsfan79 on June 29, 2006 at 1:57 PM | PERMALINK

I found the answer to my first question: Roberts did not vote. Scalia, Thomas and Alito dissented.

Posted by: republicrat on June 29, 2006 at 1:57 PM | PERMALINK

Do you guys have any clue what "unitary executive" means?

Why, yes Nathan, I do. It means the end of American democracy as it has existed for 200 years.

And before you launch off into John Yoo's childish theory, don't bother.

Posted by: Ron Byers on June 29, 2006 at 1:59 PM | PERMALINK

I found the answer to my first question: Roberts did not vote. Scalia, Thomas and Alito dissented.
Posted by: republicrat

maybe you can get ann coulter to publically suggest murdering one of the other 5 ... again.

Posted by: Nads on June 29, 2006 at 2:00 PM | PERMALINK

cmdicely, you forgot the word "potentially"...but see my post above.

enzinho:
"Sorry to come in late to this thread. What does everyone think is going to be the first test of this decision? Does this mean they are going to have to "put up or shut up" with Padilla."

This decision has nothing whatsoever to do with Padilla. (Indeed, Padilla is lucky he is an American citizen -- otherwise its pretty clear that he could be detained pretty much indefinitely.)

Posted by: Nathan on June 29, 2006 at 2:01 PM | PERMALINK

"Put aside for a moment the lack of evidence that public safety "requires" it, and assume that it does. Nevertheless, Al, "textualists like [your]self" would recognize that we are not currently under "Invasion" and thus the Constitution forbids suspension of habeas - unless you want to resort to an argument about broader unwritten intent of the provision [something no textualist would endorse, right?]."

Its my understanding that habeas corpus does not apply to foreign combatants. It may apply to Padia but not to the bulk of Gitmo prisoners.

You cnt suspend something that never applied.

Posted by: Zarqawi Done Dead on June 29, 2006 at 2:01 PM | PERMALINK

Robert Byers:

want to define the concept of "unitary executive" for me? cause I don't think you know what it means...(not that Yoo's definition controls...but I doubt you have even his correct)

Posted by: Nathan on June 29, 2006 at 2:02 PM | PERMALINK

So what? The president is above the law anyway. He can ignore this decision. Besides, his guy Roberts recused himself. Without Bush's guy voting, the ruling was a nullity.

Move on. Nothing to see here.

Posted by: Libby Sosume on June 29, 2006 at 2:03 PM | PERMALINK

'Ron Byers' posted:

"means that members of the administration, up to and including the President, might be charged with war crimes."

Give that man a cupie doll.

They may not be charged, but it certainly means they committed War Crimes.
.

Posted by: VJ on June 29, 2006 at 2:03 PM | PERMALINK
the application of Gen. Art. III seems to stem from the AUMF (and associated legislation)...since Congress authorized military operations the Court read Congress as also mandating the concomitant use of the UCMJ/Geneva (or a transfer to civilian jurisdiction).

The application of the Geneva Conventions, including Common Article 3, has a number of basis, but mostly the fact that the entire basis of authority for "military commissions" is the established legality of the practice of using them, consistent with the "law of war", to try offenses against the "law of war", and recognition that the Geneva Conventions are, whatever power they may or may not have over other proceedings, a key part of the "law of war".

Under this decision, the only possible way the administration could avoid the availability of Common Article 3 to defendants challenging its procedures would be resort to trial procedurescivilian trial or court-martialwhose validity isn't intimately related to the "law of war".

Of course, since the Court has found the Conventions applicable to this conflict, any violations of it protections (whether or not they create individual rights enforceable in, say, habeas proceedings) are federal crimes under the US war crimes statute.

Posted by: cmdicely on June 29, 2006 at 2:04 PM | PERMALINK
cmdicely, you forgot the word "potentially"...

No, I didn't.

but see my post above.

I don't see any relevant one, but maybe I'm overlooking something.

Posted by: cmdicely on June 29, 2006 at 2:07 PM | PERMALINK
Its my understanding that habeas corpus does not apply to foreign combatants.

Your understanding is incorrect.

Posted by: cmdicely on June 29, 2006 at 2:08 PM | PERMALINK

Considering how deferential the court normally is to executive power in wartime, this is an extraordinary decision. The court pretty clearly feels that Bush has way overstepped his constitutional boundaries. Kevin Drum

We aren't in "wartime."

Since the dawn of the 20th Century, America has been on a true, wartime footing once, for WWII. Vietnam came a close second.

During WWII there were restrictions on the economy, travel, and communications, and nearly every family had close and/or distant relatives involved in the war effort in some manner. The invasion and occupation of Iraq has had next to no affect on "daily life" in America. Turn off the TV and radio, and ignore printed media, and you'd never know we were in the ME.

Posted by: JeffII on June 29, 2006 at 2:10 PM | PERMALINK

Won't change anything. Tony Snow says the decision is just a guideline. Phew!

Posted by: K on June 29, 2006 at 2:13 PM | PERMALINK

News flash: Ann Coulter, high on crystal meth, flipped out and killed the five liberal members of the Supreme Court today. Because of this tragedy, Bush is free to appoint their replacements.

Posted by: Speedy on June 29, 2006 at 2:13 PM | PERMALINK

Also the Supreme Court should never have heard this because Congress stripped it of jurisdiction by suspending the writ of habeus corpus.

And Congress has no authority to strip the Supreme Court of ANY jurisdiction. The Supreme Court is THE arbiter of what is and is not Constitutional. Not Congress, not the President. The SCOTUS makes the final determination as to what is acceptable under the Constitution and what isn't. Also, at least one SCOTUS justice has explicitly stated that he was very "skeptical" (to say the least) of the Congress' ability to prevent the SCOTUS from ruling on any laws.

In any case, a Congress capable of removing even the SCOTUS from reviewing the Constitutionality of laws is, de facto, a dictatorship. Not just a police state, a dictatorship, because all they would need to do with ANY and ALL laws is tack on an "oh, by the way, no court, including the SCOTUS can say anything about this law." Total bullshit.

See, it is simple. The Congress cannot pass ANY law that is in violation of the Constitution and Bill of Rights, just as the President cannot violate either of the same (or any laws passed by Congress). Who determines whether a law violates the Constitution or Bill of Rights? Why, only the SCOTUS. No one else.

Posted by: Praedor Atrebates on June 29, 2006 at 2:17 PM | PERMALINK

dicely thinks he's a attorney

Posted by: Zarqawi Done Dead on June 29, 2006 at 2:18 PM | PERMALINK

Thanks, Nathan, cmdicely, for clearing a lot of this stuff up. Political Animal really does have the smartest commentors on the web.

For the thick among us, can anyone layout how this is likely to play out, assuming the Admin at least gives lip service to the law? For example, what is likely to happen with Hamdan?

Posted by: enozinho on June 29, 2006 at 2:20 PM | PERMALINK

Praedor writes: "And Congress has no authority to strip the Supreme Court of ANY jurisdiction. The Supreme Court is THE arbiter of what is and is not Constitutional. Not Congress, not the President. The SCOTUS makes the final determination as to what is acceptable under the Constitution and what isn't."

er, no. you might want to try reading the Constitution. the Constitution specifically states that Congress determines the jurisdiction of the Supreme Court (whether Congress can remove jurisdiction from the Court for cases that have already been filed is a separate question)

Posted by: Nathan on June 29, 2006 at 2:22 PM | PERMALINK

Nathan

I am a little busy right now, so instead of giving you my own view I will quote what Jennifer Van Bergen said about the unitary executive in a FindLaw article dated January 9, 2006. You can go there to read the rest.

"The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts."
One problem is that the Yoo theory

"The coordinate construction theory counters the long-standing notion of "judicial supremacy," articulated by Supreme Court Chief Justice John Marshall in 1803, in the famous case of Marbury v. Madison, which held that the Court is the final arbiter of what is and is not the law. Marshall famously wrote there: "It is emphatically the province and duty of the judicial department to say what the law is.

"Of course, the President has a duty not to undermine his own office, as University of Miami law professor A. Michael Froomkin notes. And, as Kelley points out, the President is bound by his oath of office and the "Take Care clause" to preserve, protect, and defend the Constitution and to "take care" that the laws are faithfully executed. And those duties require, in turn, that the President interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies."

"However, Bush's recent actions make it clear that he interprets the coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution -- even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention."

Emphasis added.

In short the unitary executive considers himself above the law. He is a king without checks or balances or any need to pay attention to congress or the courts. Like I said the end of Democracy as it has been practiced in the United States for over 200 years.

Posted by: Ron Byers on June 29, 2006 at 2:25 PM | PERMALINK

"simply intends never to return to opposition again"

NO party ever "intends" to return to opposition.

Posted by: republicrat on June 29, 2006 at 2:25 PM | PERMALINK

enozinho:

one of three things will happen for Hamdan. either, a. he will be released (i.e. rendition to somewhere he doesn't want to be); or, b. he will receive either a court martial or a criminal trial in a U.S. court; or, c. he will be detained until the end of hostilities (i.e. forever).

if I was a betting man, I'd say either a. or c. (most likely a since we presumably have gotten whatever intelligence he had from him already)

Posted by: Nathan on June 29, 2006 at 2:26 PM | PERMALINK

Its sad that this passes as good news these days, that there would even be a need for determining if endless detention and torture are legal. Whatever their legality, theyre inhuman and a throw back to the dark ages...but of course inhumanity and dark ages social norms are key attributes of the cult of republicanism's worldview.
.

Posted by: pluege on June 29, 2006 at 2:26 PM | PERMALINK

Wow, JeffII -- not even WWI qualifies as a "real" war in your opinion -- I thought you guys were the reality-based ones?!

Posted by: Doug on June 29, 2006 at 2:26 PM | PERMALINK

I'm glad they waterboarded Khalid Mohammed and good luck finding a NY jury willing to convict someone for it. Posted by: Nathan

If you believe this to be the case, you don't know NYC.

Bush lost NY both election, and he'd be able to steal even fewer votes there today. NYC hates the Bush administration because of the way it has used the WTC attacks for political gain, and because the federal government has yet to come up with the money supposedly promised to it post 9/11.

Posted by: JeffII on June 29, 2006 at 2:27 PM | PERMALINK

Ron, Ron:

um, your quote had nothing to do with the "unitary executive" concept. try again.

Posted by: Nathan on June 29, 2006 at 2:28 PM | PERMALINK

Nathan

The unitary executive (king) will take a supreme court decision he doesn't like and tell his mouth piece to tell everybody the decision is just a guideline.

How free do you feel this afternoon.

Posted by: Ron Byers on June 29, 2006 at 2:29 PM | PERMALINK

Nathan:

There's little use confusing them with facts.

Posted by: Doug on June 29, 2006 at 2:30 PM | PERMALINK

JeffII:

uh, I live in NoLIta...about 20 blocks from the WTC. I can assure you that a NY jury will not convict someone for waterboarding the mastermind of 9/11...nothing to do with our dislike for Bush....

(also unlike you, I actually know people on their first and second tours in the ME...so I guess the war's more real to some of us than others...)

Posted by: Nathan on June 29, 2006 at 2:31 PM | PERMALINK

its amazing that anyone would project something as sophisticated as a view or an outlook onto the bushliar-criminal. bush's view at any moment in time extends no further than whatever the "F" he feels like doing: no view, no outlook, no ideology, no forethought, no analysis of consequences, nothing except me, me, me. A couple of loyal stooges tell him what they think he wants to hear and presto he decides - he's the decider. if torture good, constitution bad at the time, sobeit.
.

Posted by: justfred on June 29, 2006 at 2:33 PM | PERMALINK

Nathan, I gave you a quote that examined the unitary executive from the point of view of Judicial Supremacy as announced in Marbury v. Madison. A tension that might become mighty relevant in the next few months. My quote was at least 4 steps beyond the normal unitary executive analysis.

You are such a legal scholar you might want to give the rest of us the benefit of your point of view.

Posted by: Ron Byers on June 29, 2006 at 2:34 PM | PERMALINK

"The SCOTUS makes the final determination as to what is acceptable under the Constitution and what isn't."

And thats not absolute unchecked power?

No Mabury vs Madison is itself a Judicial decision.

The answer to the question of who is the final arbiter? the answer is uswe the people.
We decide what flies.

Like I originally stated this will get kicked back to Congress who will debate and discuss, present a bill, vote on itect.

Another case will make its way to the Supremes, that court will interpret under the new bill and so on.

Its like the 2000 decisionthe important part was not the S.C. decision the important part was Gores concession speech.

Get it?

Amateurs.

Posted by: Zarqawi Done Dead on June 29, 2006 at 2:34 PM | PERMALINK

Ron Byers:

try not to get your legal analysis from dailykos.
the "unitary executive" concept is a textualist interpretation of the Constitution which asserts that Congress is very limited in its ability to exercise control over agents and agencies belonging to the executive branch (other than through the power of the purse).

it has nothing whatsoever to do with ignoring SC decisions... you're so wrong on this you're not even wrong...

Posted by: Nathan on June 29, 2006 at 2:35 PM | PERMALINK

How can the war on terrorism be specifically (and exclusively) of an "international character," as Al says, if non-foreign opponents have quite possibly committed terrorist actions against the US? Remember the anthrax attacks? Those were quite possibly of domestic origin. With that kind of shadow of a doubt, there are grounds for saying that either part of Geneva applies here.

Posted by: Mike on June 29, 2006 at 2:39 PM | PERMALINK

Ron,

funny, I just ran a little google search to see how in the world you came up with that findlaw article (which had nothing to do with the unitary executive concept)...funny, its the very first "hit" if you google "unitary executive"...why don't you read the second hit on the very same search you read...wikipedia actually gives a pretty decent definition and discussion.

Posted by: Nathan on June 29, 2006 at 2:39 PM | PERMALINK

Nathan, you have just demonstrated you have no real legal training or point of view. Educate yourself and try again. In the meantime don't waste my time.

Posted by: Ron Byers on June 29, 2006 at 2:39 PM | PERMALINK

uh, I live in NoLIta...about 20 blocks from the WTC. I can assure you that a NY jury will not convict someone for waterboarding the mastermind of 9/11...nothing to do with our dislike for Bush....

(also unlike you, I actually know people on their first and second tours in the ME...so I guess the war's more real to some of us than others...) Posted by: Nathan

All this shows is that you live in narrow, right wing world of Bush supporting war mongers (readily apparent from your posts), which is in no way reflective of the politics of the majority of NYC citizens in the least.

Posted by: JeffII on June 29, 2006 at 2:41 PM | PERMALINK

The first hit on google you say. I read FindLaw. I guess Van Bergen's thoughts are well known.

Posted by: Ron Byers on June 29, 2006 at 2:41 PM | PERMALINK

Why waste time with big scary talk on "unitary executives"

What should be the U.S. policy on foreign prisoners in the WOT?

What should be the U.S. policy on American Citizens in the WOT?

What should be the U.S. policy on what constitutes torture?

What policies are ethical & practical?

Its the Lefts aversion and inability to answer any of the above questions that has it screaming war crimes, unitary executive, impeach ectect.

Whats your policy? You going to put it in the platform?

Amateurs.

Posted by: Zarqawi Done Dead on June 29, 2006 at 2:47 PM | PERMALINK

Here is a prediction that it is not the "end of Gitmo":

http://counterterrorismblog.org/2006/06/prediction_bush_congress_will.php

Posted by: republicrat on June 29, 2006 at 2:48 PM | PERMALINK

So what I don't get is why you guys on the Right don't want to see these guys tried in public? And don't give me any "sources and methods" crap. How KSM was captured cannot be a secret any longer.

So, what on Earth could be better than Nancy Grace telling America about how evil the enemy is? Isn't that what you guys have been pushing for all along... for the Press and the people to get on the "Islam = fascism" bandwagon?

I truly don't get it. Unless of course all the legal justifications have been a smokescreen and the real legal opinion the Right is "we do what the fuck we want."

Anyone?

Posted by: enozinho on June 29, 2006 at 2:51 PM | PERMALINK

Something recent from Ann Althouse

UPDATE: Here's the opinion. Here's a good summary in the Washington Post. I found this especially interesting:

For the first time in his 15-year tenure on the court, Thomas took the unusual step of reading part of his dissenting opinion from the bench. The court's willingness "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous," he said.
And let me just say something about the interpretation of the jurisdiction statute. I know a lot of readers are finding Justice Scalia's interpretation persuasive:

In a dissenting opinion, Scalia pointed to congressional enactment on Dec. 30, 2005, of the Detainee Treatment Act, which provides that as of that date, "no court, justice or judge" shall have jurisdiction to consider an application by a Guantanamo detainee for habeas corpus, challenging his detention.
But the majority's straining to read the DTA to preserve jurisdiction does not at all surprise me (a federal jurisdiction scholar). It is standard practice for the Court to read statutes that purport to cut back jurisdiction in a way that is defensive of the role of the judiciary. Justice Stevens's opinion discusses some of those cases. He doesn't even reach the question of whether the Constitution permits the cut back. This is an issue that he avoids -- in the style of many other cases.

In a concurring opinion, Breyer strongly disputed the dissenters' assertion that today's ruling would, as Thomas wrote, "sorely hamper the president's ability to defeat a new and deadly enemy."

"The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check,' Breyer wrote. "Indeed, Congress has denied the president the legislative authority 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."
And he'd better get crashingly clear statutory language.

Posted by: Zarqawi Done Dead on June 29, 2006 at 2:55 PM | PERMALINK

Kevin says:

The court pretty clearly feels that Bush has way overstepped his constitutional boundaries.

No, what the court says is that GWB broke the law. That should be the headline on every front page tomorrow in the SCLM.

Posted by: Disputo on June 29, 2006 at 2:55 PM | PERMALINK

I don't agree with ZGD that the left has no answers to those ethical questions, but he/she is absolutely correct that they are exactly the questions dems, the press, and the citizenry, should be asking, and loudly.

But do try to remember, these guys have managed to politicizedemonize, reallythe asking of questions in the first place. So it shouldn't surprise that there is so little discourse outside of the web.

Posted by: Kenji on June 29, 2006 at 2:57 PM | PERMALINK

In pointing out that the Geneva Conventions apply in the case of Gitmo, is the Supreme Court stepping aside from directly deciding whether or not Bush & Co can be extradited to an international war crimes trial?

Posted by: cld on June 29, 2006 at 2:57 PM | PERMALINK

brian is a male chauvinist pig.

Posted by: Cal Gal on June 29, 2006 at 2:58 PM | PERMALINK

Doug,

I'm not sure how you missed Lindh, as it receives extensive attention from both Stevens and Scalia (naturally, they disagree as to its import).

Also, I'm fairly sure that you and Nathan misconstrue the import of FN 26, which discusses a class of tribunal--specifically, tribunals "established to try civilians 'as part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function'"--not at issue here.

Posted by: Marc J on June 29, 2006 at 2:59 PM | PERMALINK

So what I don't get is why you guys on the Right don't want to see these guys tried in public?

Because Bush doesn't want it, and the Right worships Bush.

Don't bother using logic with these folks.

Posted by: Disputo on June 29, 2006 at 2:59 PM | PERMALINK

"So what I don't get is why you guys on the Right don't want to see these guys tried in public?"

Uh- the O.J. trial?

Posted by: Zarqawi Done Dead on June 29, 2006 at 3:00 PM | PERMALINK

OMG

No one dusted the WTC site for fingerprints!

Posted by: Zarqawi Done Dead on June 29, 2006 at 3:01 PM | PERMALINK

nathan explains:
wikipedia actually gives a pretty decent definition and discussion [of the concept of the Unitary Executive].

Then why do you keep asking us to explain it to you?

Posted by: Disputo on June 29, 2006 at 3:02 PM | PERMALINK

Wow, JeffII -- not even WWI qualifies as a "real" war in your opinion -- I thought you guys were the reality-based ones?! Posted by: Doug

For the U.S.? Hardly. There was no mass mobilization of industry, relatively few Americans were actually involved in combat, and the involvement was a less than two years.

We've already been in Iraq twice as long as we were in Europe, with no end in sight, and it has cost us several times as much.

At one time in S. Vietnam, there were about 500K U.S. service personnel, an area about the size of Arizona.

Posted by: JeffII on June 29, 2006 at 3:03 PM | PERMALINK

"Listen to you, salivating at the possibility. You freaks will root for anything, ANYTHING, if it hurts the President and the Republican Party. Forget the implications to our country."

Ya know, sportsfan, you've got a glimmer of a point. What you don't get is that it is WE, not YOU, who care about the implications for our country. WE are the ones who are unwilling to sacrifice liberty for security. And I don't think we're "salivating" -- you all are the mouthbreating troglodytes. We're more like crossing our fingers.

Posted by: Cal Gal on June 29, 2006 at 3:03 PM | PERMALINK

Marc J: I don't think FN 26 matters.

eninziho: um, yeah, I do think sources and methods are a legit obstacle. absolutely. the guy who turned in Mohammed is in hiding with a new identity and 25MM somewhere in the U.S...good luck getting him to testify.

beyond that...might be hard to get admissible evidence. you might not be able to prove someone guilty beyond reasonable doubt by U.S. criminal standards (due to evidentiary exclusions) while at the same time knowing full well that they're too dangerous (and guilty) to be let go.

Ron Byers: you're clearly not a lawyer..so stuff it. I may not practice in con law but I booked 3 con law classes. nuff said. and, no, you really don't know what "unitary executive" means.

for the record, I certainly don't buy into a broad reading of the unitary executive though certainly a narrow definition has a lot of textual support.
I also couldn't be considered a Bush supporter. I think he's been a bit of a disaster from about 2003 on.
But because I'm not a foaming at the mouth partisan...well, I guess when it comes to lefty blog readers -- if you're not with us, you must be against us.

Posted by: Nathan on June 29, 2006 at 3:07 PM | PERMALINK

ZDD asks the right questions. Too damn bad there has never been a real debate. The decider has not really encouraged a public discussion. We might all have the vapors or we might decide the decider is wrong.

My knee jerk reaction favors the Rule of Law. That is basic American (and even Western) democracy. I know others may differ. Give it your best shot.

Posted by: Ron Byers on June 29, 2006 at 3:08 PM | PERMALINK

So what I don't get is why you guys on the Right don't want to see these guys tried in public?
I take it thats what the left wants to see.
In fact that was our policy when you guys were in charge.
WTC #1, Kobar tower, African Embassies, U.S.S. Cole. Treat it as a law enforcement problem.
We changed tactics after Sept 11.
You wanna go back? Huh?

Posted by: Zarqawi Done Dead on June 29, 2006 at 3:09 PM | PERMALINK

JeffII: oh, and my comments to Ron apply to you too...funny, I've got a good friend who was on Kerry's steering committee...no Bush supporter...but when it comes to waterboarding Khalid Mohammed, hanging Bin Laden by his genitalia, etc...no, she wouldn't vote to convict anyone who did that. she's made it quite clear. the same goes for most of Manhattan.

oh, and there were over a million U.S. personnel in Europe for WWI...so you're full of shit on that one too.

Posted by: Nathan on June 29, 2006 at 3:10 PM | PERMALINK

Sorry, Nathan, but I'll take FindLaw, written by legal professionals, over Wikipedia, written by anybody who wants to, anytime.

It always amazes me when people cite Wikipedia as an authority. It's an authority on nothing. It's the "popular" view, as in high school elections.

Posted by: Cal Gal on June 29, 2006 at 3:11 PM | PERMALINK

As shortstop rightly perceived, "Doug" == "John" == Charlie/Cheney. A records in changing his handle, as far as I can tell.

Posted by: Gregory on June 29, 2006 at 3:12 PM | PERMALINK

Nathan, Most law schools only teach two semesters of Constitutional Law (two classes.) They are too busy teaching torts, contracts, procedure, trial practice, research and all the rest. Can we safely assume you flunked one of your classes and had to take it over?

I am sorry you don't think I am a lawyer, but people pay me a lot of money for legal advice. As I said, I didn't have time to draft my own thoughts. I picked up a quote from FindLaw that was and is germaine. Too bad you don't undertand it.

Posted by: Ron Byers on June 29, 2006 at 3:14 PM | PERMALINK

Cal Gal: um, I don't like Wikipedia either..I merely mentioned it as giving a good def.

btw, the Findlaw article that Ron cited did not give a definition of the unitary executive. oh, and not everyone who writes for Findlaw is a lawyer....

JeffII: there were 363,000 U.S. casualties in WWI, including 126,000 deaths. um, can you get anything right?

Posted by: Nathan on June 29, 2006 at 3:15 PM | PERMALINK

Ron, every law school has elective courses relating to Con law....
and most only require one course.

let's just say that it's clear you don't work in the field...so, you want to define Unitary Executive for me? and not with a quote? let's hear your definition. fuck it, give me Yoo's def (in his own words)...if that will make you happy. but one very partisan and undefined article hardly shows anything....

Posted by: Nathan on June 29, 2006 at 3:17 PM | PERMALINK

Nathan - I had the FBI at my house twice because I just happen to be a Muslim and studied Arabic in Europe. Luckily, I was able to convince them, at least for now, that I'm not a threat to my own country. But say I hadn't. In your view it is better that people like myself are locked up for years than for the government to be required to prove that I am indeed a threat. I'm sorry, but that's bullshit.

Posted by: enozinho on June 29, 2006 at 3:20 PM | PERMALINK

Nathan, stop being a child and look up the definition for yourself. Sheesh.

Posted by: Disputo on June 29, 2006 at 3:22 PM | PERMALINK

WTC #1, Kobar tower, African Embassies, U.S.S. Cole. Treat it as a law enforcement problem. ...We changed tactics after Sept 11.

Yeah, who could forget how Jose Padilla was captured by Navy SEALs, and those yo-yos in Florida surrendered after a helicopter assault by the 101st Airborne. Oh, wait...

Posted by: Gregory on June 29, 2006 at 3:23 PM | PERMALINK

I'm glad they waterboarded Khalid Mohammed and good luck finding a NY jury willing to convict someone for it.....uh, I live in NoLIta...about 20 blocks from the WTC. I can assure you that a NY jury will not convict someone for waterboarding the mastermind of 9/11...nothing to do with our dislike for Bush....

Are you fucking kidding me? I'm downtown too, and I can assure anyone here that a New York jury would easily convict any of these torturers. Bush and his perverted love of torture is despised, despised here.

Posted by: Stefan on June 29, 2006 at 3:23 PM | PERMALINK

Nathan I want you to define it. If you read the entire article you will have a deeper understanding of the concept than nearly all of George Bush. What you have to understand is that Bush is pushing an expansive view of the Unitary Executive, a view that would shred the clause that requires him to faithfully execute the laws. His vision is downright dangerous to American democracy.

Anyway, the only lawyer I know who claims to be a "constitutional lawyer" is Ann Coulter. I can assure you that I am not Ann Coulter.

Posted by: Ron Byers on June 29, 2006 at 3:27 PM | PERMALINK

"nearly all of George Bush" should read "nearly all of George Bush's supporters." On second thought maybe I was right the first time.

Posted by: Ron Byers on June 29, 2006 at 3:29 PM | PERMALINK

P.S. Charlie/Alice/Chuckles/Cheney/Tbroz/FF/AH, etc..

Please don't report me to Homeland Security. I'm already on the TSA watchlist.

Posted by: enozinho on June 29, 2006 at 3:29 PM | PERMALINK

Stefan: considering that 25% of Manhattan voted for Bush..even under your mindset you're not going to find 12 people without a dissenter.

but you don't even need that...there's no fucking way a jury would convict anyone (it wouldn't just be Bush who was a defendant..it'd be the career CIA employees who did it too) for waterboarding Mohammed. just think about it...

Disputo: um, let's just say that if you looked up the def in any legal compendium it wouldn't jibe at all with whatever Ron Byers is shrieking about....

enozinho: you're a U.S. resident. hardly an issue. second, we all know who Khalid Mohammed is...but that doesn't mean that it's possible to convict him in a criminal court...does that mean that we should let him go?
our law is not a mutual suicide pact.

Posted by: Nathan on June 29, 2006 at 3:31 PM | PERMALINK

or you're a citizen, either way, different issue.

Posted by: Nathan on June 29, 2006 at 3:32 PM | PERMALINK

let's just say that it's clear you don't work in the field... Posted by: Nathan

And neither do you.

Posted by: JeffII on June 29, 2006 at 3:33 PM | PERMALINK

Ron says:
"Bush is pushing an expansive view of the Unitary Executive, a view that would shred the clause that requires him to faithfully execute the laws."

ah...so you admit that you spoke too soon? that perhaps the simple "unitary executive" concept didn't really say what you thought it did? (I do agree that Bush has pushed the boundaries too far...I've never disputed that...but the actual concept is defensible enough.)

"Anyway, the only lawyer I know who claims to be a "constitutional lawyer" is Ann Coulter. I can assure you that I am not Ann Coulter."

I know a couple who work for the ACLU...but this isn't their are of expertise either...some people in admin law probably know this stuff better than anyone else...

Posted by: Nathan on June 29, 2006 at 3:36 PM | PERMALINK

WTC #1, Kobar tower, African Embassies, U.S.S. Cole. Treat it as a law enforcement problem. ...We changed tactics after Sept 11.

Yes, and look how quickly we captured Osama bin Laden because of it!

Besides, given that the rate major terrorism attacks worldwide has increased dramatically since the change in tactics, this may not be an argument you want to make:

Bush Administration Eliminating 19-year-old International Terrorism Report
By Jonathan S. Landay
Knight Ridder Newspapers

Friday 15 April 2005

Washington - The State Department decided to stop publishing an annual report on international terrorism after the government's top terrorism center concluded that there were more terrorist attacks in 2004 than in any year since 1985, the first year the publication covered.

Last year, the number of incidents in 2003 was undercounted, forcing a revision of the report, "Patterns of Global Terrorism."

But other current and former officials charged that Secretary of State Condoleezza Rice's office ordered "Patterns of Global Terrorism" eliminated several weeks ago because the 2004 statistics raised disturbing questions about the Bush's administration's frequent claims of progress in the war against terrorism.

"Instead of dealing with the facts and dealing with them in an intelligent fashion, they try to hide their facts from the American public," charged Larry C. Johnson, a former CIA analyst and State Department terrorism expert who first disclosed the decision to eliminate the report in The Counterterrorism Blog, an online journal....

According to Johnson and US intelligence officials familiar with the issue, statistics that the National Counterterrorism Center provided to the State Department reported 625 "significant" terrorist attacks in 2004.

That compared with 175 such incidents in 2003, the highest number in two decades.

The statistics didn't include attacks on American troops in Iraq, which President Bush as recently as Tuesday called "a central front in the war on terror."

Posted by: Stefan on June 29, 2006 at 3:37 PM | PERMALINK

Nathan. I'm a U.S. citizen. I was born here, in fucking New York City. I'm a white American male ok? This is my country too understand? You guys are so narrowminded, if anyone is going to lose the WOT it's you guys scanning the shopping malls for brown, bearded guys with baggy clothes.

Give me liberty or give me death. Sound familiar?

Posted by: enozinho on June 29, 2006 at 3:38 PM | PERMALINK

Oh, a treaty. How quaint.

Posted by: Chief Engineer Montgomery Scott on June 29, 2006 at 3:39 PM | PERMALINK

Stefan: considering that 25% of Manhattan voted for Bush..even under your mindset you're not going to find 12 people without a dissenter.
but you don't even need that...there's no fucking way a jury would convict anyone (it wouldn't just be Bush who was a defendant..it'd be the career CIA employees who did it too) for waterboarding Mohammed. just think about it...

Yeah, I'm thinking about it, and I'm thinking they'd convict. This is the New York of Abner Louima and Amadou Diallo. There's not too much goodwill here for government agents who torture and murder. Get some good old boy CIA thug who gets off on torturing brown skinned foreigners up in front of a mixed New York jury and see how well he does....

Posted by: Stefan on June 29, 2006 at 3:45 PM | PERMALINK

enozinho:

I already said as much above...that the indefinite detaining without trial of a U.S. citizen or resident is unlawful. we're not talking about you. we're talking about Khalid Mohammed.

Posted by: Nathan on June 29, 2006 at 3:45 PM | PERMALINK

Stefan:

um, the cops who shot Diallo were acquitted by a racially mixed NY jury.

this is also the NY that acquitted Goetz.

Posted by: Nathan on June 29, 2006 at 3:47 PM | PERMALINK

Stefan:

you mean get some CIA guy, probably of Middle Eastern descent, who ran the interrogation and waterboarding of the mastermind of 9/11 in front of a NY jury and they're going to convict him? bullshit. they'll give him a medal. see Goetz.

Posted by: Nathan on June 29, 2006 at 3:52 PM | PERMALINK

um, the cops who shot Diallo were acquitted by a racially mixed NY jury.

D'oh! You're right.

this is also the NY that acquitted Goetz.

D'oh! You're wrong. That was a NY jury during the crime wave of the 1980s, not the New York of this unnamed decade, with a far higher proportion of Middle Eastern and South and Central Asian immigrants. Different times, different city.

Posted by: Stefan on June 29, 2006 at 3:58 PM | PERMALINK

"That was a NY jury during the crime wave of the 1980s, not the New York of this unnamed decade, with a far higher proportion of Middle Eastern and South and Central Asian immigrants. Different times, different city."

I knew you were going to say that. This would be a NY jury that went through 9/11. That's the similarity with Goetz.

Posted by: Nathan on June 29, 2006 at 4:03 PM | PERMALINK
Ya - War Crimes.... Right after the indict Kissinger

I think you'll find that the various "war crimes" that one might attribute to Kissinger were all committed before the war crimes statute was enacted, which makes Kissinger relatively safe from being indicted by any US court for "war crimes" per se.

Any war criminals in this administration don't have the same good fortune.

Posted by: cmdicely on June 29, 2006 at 4:04 PM | PERMALINK
Unless of course all the legal justifications have been a smokescreen and the real legal opinion the Right is "we do what the fuck we want."

Heck, that's often enough the fairly overt "legal opinion" of the Right, though a better articulationso long as one of their number is in chargemight be Quod rex vult, lex fit.

Certainly, despite the whining about "judicial activism" and the arguments about "originalism" or "textualism" that get bandied about in opposition to judicial decisions the Right dislikes, its fairly clear that the Right consistently believes that anything ideologically desirable policy for them is, ipso facto, Constitutionally permitted if not Constitutionally demanded, and anything they ideologically oppose is, likewise, prohibited by the Constitution.

Posted by: cmdicely on June 29, 2006 at 4:09 PM | PERMALINK

we're talking about Khalid Mohammed.

You're not making an argument based on the law when it comes to foreign suspects. You're saying "I don't want (A) to happen, so we shouldn't do (B)."

So why site the law at all?

Posted by: enozinho on June 29, 2006 at 4:11 PM | PERMALINK

I would advise you all to check out the latest commentary over at scotusblog.com

2 quick hits:

1. as I posted much earlier above..war crimes prosecutions won't happen due to the good faith reliance on the advice of legal counsel. Congress could also easily remove al Quaeda members from Common Art. III coverage.

2. a member of Hamdan's legal team notes that the Court expressly did not rule on whether the President could have used these tribunals if Congress hadn't already applied the laws of war with the AUMF, etc. (and even implied that the President probably could).

Posted by: Nathan on June 29, 2006 at 4:13 PM | PERMALINK
In pointing out that the Geneva Conventions apply in the case of Gitmo, is the Supreme Court stepping aside from directly deciding whether or not Bush & Co can be extradited to an international war crimes trial?

No. That simply was not an issue raised in the case before them, even remotely, and wouldn't be unless such an extradition were attempted.

OTOH, by ruling that the Geneva Conventions apply to the conflict with the Taliban, they've certainly preempted a major defense argument that this administration had already signaled should any present or future prosecutor decide to enforce the War Crimes Act with respect to acts carried out during the conflict with the Taliban.

Posted by: cmdicely on June 29, 2006 at 4:14 PM | PERMALINK

enozinho:

could you explain? I honestly don't understand what your point is.

Posted by: Nathan on June 29, 2006 at 4:15 PM | PERMALINK

Luckily, cmdicely, Article II, Section 2, Clause 3 is still in effect. As for "judicial activism" from the Right, that is even WORSE because of the hypocrisy -- for instance, I would not want the Supreme Court to twist the word "naturalized" in the 14th Amendment to include "unborn" children either -- despite my pro-life ideology.

Now that we've got that out of the way, can I ask your opinion on whether World War I was a "real" war?

Posted by: Doug on June 29, 2006 at 4:16 PM | PERMALINK

cmdicely: I would agree on future War Crimes Act violations from this day forth...

Posted by: Nathan on June 29, 2006 at 4:16 PM | PERMALINK

"Now that we've got that out of the way, can I ask your opinion on whether World War I was a "real" war?"

Doug, only JeffII was that dumb. you'll notice he disappeared when I started citing casualty figures....

Posted by: Nathan on June 29, 2006 at 4:18 PM | PERMALINK

I saw that. Just wanted to get a quasi-legal opinion on that from our resident legal expert.

Posted by: Doug on June 29, 2006 at 4:26 PM | PERMALINK

could you explain?

but that doesn't mean that it's possible to convict him in a criminal court...does that mean that we should let him go? our law is not a mutual suicide pact.

That isn't a legal argument. That is a results-oriented argument. In the end, isn't that the real reason you don't want these guys tried publicly? That it might not turn out the way you think it should? As far as I'm concerned, that's a fair argument. One that should be debated for what it is.

I would argue that trying terrorism suspects will not make future attacks more or less likely. That they will only serve to reinforce for ourselves and for the rest of the world that we are fighting to protect our system of government. I personally believe that to be a far more ethical argument. And that all the talk about the law hides the fact that the decisions in front of us are moral first and legal second.


Posted by: enozinho on June 29, 2006 at 4:30 PM | PERMALINK

"Now that we've got that out of the way, can I ask your opinion on whether World War I was a "real" war?"

Never said WWI wasn't a "real war," asshole. I said WWI was not a "wartime" situation for us in terms of total mobilization, just as our current involvement in Iraq does not come close to fitting that criterion.

"Doug, only JeffII was that dumb. you'll notice he disappeared when I started citing casualty figures.... Posted by: Nathan

Been here the whole time. Casualty figures have nothing to do with the issue, which was total mobilization that would qualify WWI or Kevins' erroneous characterization of our current situation as being "wartime."

And while you're moving the goal posts around, you never responded to my challenge, Nathan, as to whether you're even a lawyer or just troll as one on liberal blogs.

Posted by: JeffII on June 29, 2006 at 4:37 PM | PERMALINK

enozinho:
"That isn't a legal argument. That is a results-oriented argument. In the end, isn't that the real reason you don't want these guys tried publicly? That it might not turn out the way you think it should? As far as I'm concerned, that's a fair argument. One that should be debated for what it is."

Agreed. That's exactly what it is. However, when we're talking about a U.S. citizen or someone captured on U.S. soil, then the law must apply (habeas corpus)...however, in cases like that of Khalid Mohammed...where we legally can choose between introducing him to our legal system...or detaining him outside of it (which the SC today approved of as a legal matter...except for GC Art.III safeguards -- which can be disposed of by Congress...or possibly the President in the absence of Congressional action), then we have a results-based decision to make. in my view.

Posted by: Nathan on June 29, 2006 at 4:39 PM | PERMALINK

JeffII:

we mobilized a heck of a lot more for WWI then we did for Vietnam...try checking a history book...it was almost a WWII level of involvement (albeit for a shorter duration)...

I'm admitted in NY and practice in complex commercial litigation...I won't be more specific on my practice area...as it could be identifying to the enterprising googler.

Posted by: Nathan on June 29, 2006 at 4:42 PM | PERMALINK

...then we have a results-based decision to make. in my view.

See how easy that was? And nobody was labeled a traitor or a terrorist-sympathizer in the process. Let the national healing begin.

Posted by: enozinho on June 29, 2006 at 4:42 PM | PERMALINK

"And nobody was labeled a traitor or a terrorist-sympathizer in the process."

I've never done that.

Posted by: Nathan on June 29, 2006 at 4:43 PM | PERMALINK

LOL -- what you "said" was that World War I was "hardly" a real war for the U.S. -- I'm just seeing if any of your comrades agree with that assessment.

Posted by: Doug on June 29, 2006 at 4:44 PM | PERMALINK
as I posted much earlier above..war crimes prosecutions won't happen due to the good faith reliance on the advice of legal counsel.

Good faith reliance on the advice of legal counsel is not generally a defense to criminal prosecution; good faith reliance on advice from the authorities responsible for enforcing a law may be a defense in some cases.

Congress could also easily remove al Quaeda members from Common Art. III coverage.

Congress could do a lot of things, but usually members of Congress like to at least pretend to take the moral high ground, and would prefer to maintain the illusion that the US is adhering to its international commitments, especially to the most basic principles of humanitarian law, rather than casting them aside and acting as a rogue state. Even the pretense of that would be shot with any express limitations on the applicability of the Geneva Conventions.

a member of Hamdan's legal team notes that the Court expressly did not rule on whether the President could have used these tribunals if Congress hadn't already applied the laws of war with the AUMF, etc.

Either they are wrong or you are mistating their position; the Court did not expressly, or even implicitly, fail to rule on that issue.

The court has ruled expressly (See Section V) that:
1) There exist, in law, three classes of "military commissions": first, those that substitute for civilian courts in places where martial law has been declared; second, those instituted as part of temporary military government of occupied territory; third, those that exist "to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war".
2) that, by the terms of the military order, etc., (without any need to reference the AUMF or any Congressional action), the only remote claim to authority the commissions at issue here have is as the third type, law-of-war commissions.
3) That, however, the measures instituted for these commissions themselves violate—among other things—the "laws of war" themselves, and therefore are invalid for law-of-war commissions.

So, no, your suggestion that the Court ruled expressly (or even implicitly) that it is the AUMF that makes the commissions invalid, but that if it hadn't been for the AUMF the President may have been free to use these types of commissions is not correct.


Posted by: cmdicely on June 29, 2006 at 4:45 PM | PERMALINK

cmdicely:

1. "Good faith reliance on the advice of legal counsel is not generally a defense to criminal prosecution;"

ah...you remember last semester. now ask Marty Lederman why that might not apply in this instance if you can't figure it out.

2. go read FN 23 and come back.

Posted by: Nathan on June 29, 2006 at 4:49 PM | PERMALINK

ah...you remember last semester. now ask Marty Lederman why that might not apply in this instance if you can't figure it out.

Doesn't cmdicely cover that in the very next portion of his first sentence, to wit:

good faith reliance on advice from the authorities responsible for enforcing a law may be a defense in some cases.

Posted by: Ugh on June 29, 2006 at 4:54 PM | PERMALINK

I've never done that.

Nathan - I didn't mean to imply that you had. I'm just in a good mood because of this decision. Because I think it will force some real debate on a subject that is long overdue.

Posted by: enozinho on June 29, 2006 at 4:57 PM | PERMALINK

For the record, JeffII took exception to Kevin's characterization of Iraq given that the U.S. is NOT in "wartime":

Since the dawn of the 20th Century, America has been on a true, wartime footing once, for WWII. Vietnam came a close second.

Posted by: JeffII on June 29, 2006 at 2:10 PM

I thought I had actually mis-read that, so I asked: "Wow, JeffII -- not even WWI qualifies as a 'real' war in your opinion -- I thought you guys were the reality-based ones?!" The answer, in full, was:

For the U.S.? Hardly. There was no mass mobilization of industry, relatively few Americans were actually involved in combat, and the involvement was a less than two years.

We've already been in Iraq twice as long as we were in Europe, with no end in sight, and it has cost us several times as much.

At one time in S. Vietnam, there were about 500K U.S. service personnel, an area about the size of Arizona.

Posted by: JeffII on June 29, 2006 at 3:03 PM

Now, I understand the need to downplay WWI as a "real" war since the goal is to do the same with Iraq. Before we can even move on to Iraq as a "real" war, I want to know who else agrees with JeffII's assessment of World War I? Even GIRLS who only have watched Legends of the Fall know WWI was more than "hardly" real -- Alfred was wounded, Samuel died (via chemical weapons, no less), and Tristan was left emotionally scarred for the rest of his life. In fact, the unit depicted in the film is the Tenth Battalion, Canadian Expeditionary Force, as evidenced by the "C-over-10" badges worn by Henry Thomas. Kilted soldiers in the film represent a company of the Sixteenth Battalion, Canadian Expeditionary Force (today perpetuated by The Canadian Scottish Regiment), as evidenced by the Cameron of Erracht tartan kilts (one company of the 16th was recruited from the 79th Cameron Highlanders from Winnipeg.) The Tenth Battalion is perpetuated by The Calgary Highlanders, who provided several servicemen for the training cadre, and whose kit shop provided the C-over-10 badges used on many of the uniforms.

Posted by: Doug on June 29, 2006 at 5:00 PM | PERMALINK

er, no. you might want to try reading the Constitution. the Constitution specifically states that Congress determines the jurisdiction of the Supreme Court

That applies to lessor courts, not the Supreme Court. And in any case, how can you defend such a practice at all? Explain how such a practice is not the worst dictatorship? Every single law passed by Congress could have a little extra wording saying, "sorry, no court, including the SCOTUS, can rule on any aspect of this law" and viola, the Constitution and all the Bill of Rights are no more. Pass a law banning free speech and simply say the courts can't rule on it. Pass a law specifically blending church and state, enacting the 10 Commandments as the only law of the land...and strip the courts from saying squat. That is what you seem to think the Constitution states. It does not and apparently at least one if not more of the justices on the SCOTUS think it is "suspect" as well.

I welcome Congress trying to tell the only arbiter of what is or is not Constitutional that they can't rule on unConstitutional laws. That would create a Constitutional crisis (and new Revolution, with myself on the front lines) unlike anything before. How is it better for Congress to be able to pass, literally, ANY law they want and simply strip court review, thus making it immutable and not to simply let the Prez determine what is law and what isn't? No difference.

Posted by: Praedor Atrebates on June 29, 2006 at 5:09 PM | PERMALINK

A "revolution" -- wow, it's amazing to see how far the nation has come in 200 years -- I believe you really would resort to violence to protect "judicial activism". That's scary.

Posted by: Doug on June 29, 2006 at 5:16 PM | PERMALINK

Praedor:

um, read the Constitution. seriously. dude.

to quote Article III (the last phrase is the key one): "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

obviously this is news to you, but that's what the Constitution says.

Posted by: Nathan on June 29, 2006 at 5:22 PM | PERMALINK
That applies to lessor courts, not the Supreme Court.

It applies to the appellate jurisdiction of the Supreme Court. In fact, that's the only thing it expressly applies to in Article III.

And in any case, how can you defend such a practice at all?

Its an extraordinarily bad practice that, IMO, results from an enormous misreading (not, it should be said, all at once) by the Court itself of Article III: the Court reads the original jurisdiction of the Court as being fixed, but Congress being free to limit the appellate jurisdiction and free not to give to any court the jurisdiction to hear some cases that are within the scope that Article III provides for the judicial power.

I would read Article III as mandating that the whole of the judicial power be located within the Article III courts, with original jurisdiction resting in the Supreme Court for those cases where Article III specifically mandates it, and with the Supreme Court having appellate jurisdiction in other cases at the discretion of Congress.


Posted by: cmdicely on June 29, 2006 at 5:25 PM | PERMALINK

"That applies to lessor courts, not the Supreme Court."
um, read Article III.

"And in any case, how can you defend such a practice at all? Explain how such a practice is not the worst dictatorship?"

thankfully, Congress doesn't actually do it. I don't think it would be a good idea. but its intended to be a check on judicial power...after all, Congress is elected, the judiciary is not.

Posted by: Nathan on June 29, 2006 at 5:25 PM | PERMALINK

we mobilized a heck of a lot more for WWI then we did for Vietnam...try checking a history book...it was almost a WWII level of involvement (albeit for a shorter duration)...

Not even close. The U.S. mobilized (though sent about 1/2 that number) 4.5 million troops for WWI (navy and air amounted to little at this time). We had 116K casualties. Combined theaters and services for the U.S. came to approximately 17 million during WWII with about 530K in casualties. Combined combatant total for the U.S. and allies in S. Vietnam was approx. 1.18 million. At the height of our involvement in the war, we had over 400K troops in S. Vietnam, again, in an area about the size of Arizona.

I'm admitted in NY and practice in complex commercial litigation...I won't be more specific on my practice area...as it could be identifying to the enterprising googler.Posted by: Nathan

Nice dodge.

Posted by: JeffII on June 29, 2006 at 5:25 PM | PERMALINK
I don't think it would be a good idea. but its intended to be a check on judicial power

I don't think its intended at all.

Posted by: cmdicely on June 29, 2006 at 5:26 PM | PERMALINK

cmdicely;

um, so exactly how do you explain this phrase then? "with such exceptions, and under such regulations as the Congress shall make."

Posted by: Nathan on June 29, 2006 at 5:26 PM | PERMALINK

cmdicely, sorry:
I didn't see that you said this: "at the discretion of Congress"
we're saying the same thing, pretty much. not sure where Praedor is coming from (I can remember a couple of my classmates in law school being shocked to discover that Congress determined the extent of SC jurisdiction)...

JeffII...the point isn't that WWI was equivalent to WWII (it wasn't)...but we mobilized far more than Vietnam...and you expressly put WWI below Vietnam. you're better off just admitting that you f'ed up.

btw, dodge? huh? what, you want my cv?

Posted by: Nathan on June 29, 2006 at 5:32 PM | PERMALINK

Nathan, the scope of Congress' power under Article III to limit the Supreme Court's appellate jurisdiction has been a matter of great debate ever since Roscoe Pound was around. But it's interesting to contrast your apparently broad interpretation of Congress' power to regulate and limit the judicial branch in its exercise of its essential powers with your apparently very crabbed interpretation of Congress' power to put limitations on the Executive. Very interesting indeed.

Posted by: nolo on June 29, 2006 at 5:33 PM | PERMALINK

nolo, I explicitly stated that I did not agree with the administration's pushing the boundaries of the "unitary executive" concept.

I do admit to finding the basic unitary executive concept (that due to the separation of powers Congress is limited in its power over executive branch agents) to be textually compelling...which does not lead to a denial of judicial oversight.
in other words, I really do believe in checks and balances.

Posted by: Nathan on June 29, 2006 at 5:36 PM | PERMALINK
um, so exactly how do you explain this phrase then? "with such exceptions, and under such regulations as the Congress shall make."

Like I said, that applies to the appellate jurisdiction of the Supreme Court, which is patently obvious considering that the sentence that phrase is found in is:

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

It does not, however, apply to the power which has to be distributed somewhere among the Article III courts, which (per Art. III, Sec. 1) is "the judicial power of the United States" (without any provision for Congressional limitations), which is then defined in Art. III, Sec. 2, Clause 1, as extending to " all cases, in law and equity, arising under this Constitution," etc.

Art. III, Sec. 2, Clause 2, talks about the jurisdiction of the Supreme Court, the "...with such exceptions..." phrase there applies to the appellate jurisdiction of that court.

Art. III, Sec. 2, Clause 3 deals with criminal procedure, and isn't much at issue here; and Article III, Section 3 is about treason, and not at issue.

The problem I see is that Congress clear and unquestioned ability to limit the apppellate jurisdiction of the Supreme Court has somehow morphed into the power to, in effect, limit the judicial power of the United States.

Posted by: cmdicely on June 29, 2006 at 5:37 PM | PERMALINK
I do admit to finding the basic unitary executive concept (that due to the separation of powers Congress is limited in its power over executive branch agents) to be textually compelling...

In very broad outline I agree, though I disagree with most of the specific applications that have gotten public attention, but mostly because they involve crabbed interpretation of other provisions along with the fairly simple idea of a "unitary executive."

Posted by: cmdicely on June 29, 2006 at 5:46 PM | PERMALINK

cmdicely:

it didn't somehow morph. since the SC is only granted original jurisdiction in one area ("In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party"), by definition the rest of its jurisdiction is appellate...in fact it is so explicitly stated: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction" -- thus, the SC has appellate jurisdiction of the "judicial power of the United States" subject to the exceptions and regulations of Congress (in other words, Congress is also vested with judicial power)...

which is why, in our jurisprudence, Congress has the authority to remove subject matter from judicial review.

(I'll remind readers that this is essentially the only constraint on the power of the judiciary...which has lifetime appointment)

Posted by: Nathan on June 29, 2006 at 5:51 PM | PERMALINK

cmdicely: "In very broad outline I agree, though I disagree with most of the specific applications that have gotten public attention"

fair enough. I disagree with some of them as well.

I was just tired of hearing certain individuals throw around the term "unitary executive" as a synonym for dictatorship...without knowing the actual legal connotation of the term, or its background.

Posted by: Nathan on June 29, 2006 at 5:53 PM | PERMALINK
2. go read FN 23 and come back.

I read it; it doesn't support the characterization I questioned nor does it contradict anything I said, nor does it concern the AUMF and the application of the "laws of war", but rather it concerns the ability of the UCMJ (or, in Quirin the Articles of War) to modify whatever inherent power the President might have to convene military commissions.

Further, it does not support the mistaken idea that the Court here found that the AUMF (bizarrely) restricted any power the President would have otherwise had, though the Court clearly did fail to find, despite the government's wishes to the contrary, that the AUMF or the DTA expanded the President's inherent power.

Posted by: cmdicely on June 29, 2006 at 5:57 PM | PERMALINK

JeffII:

you said "4.5 million troops for WWI (navy and air amounted to little at this time). We had 116K casualties. Combined theaters and services for the U.S. came to approximately 17 million during WWII"

you mean we had 130,000 dead in WWI. another couple hundred thousand casualties.

but anyway -- want to mention the population growth between WWI and WWII?

now compare that to Vietnam...

Posted by: Nathan on June 29, 2006 at 5:57 PM | PERMALINK

I do admit to finding the basic unitary executive concept (that due to the separation of powers Congress is limited in its power over executive branch agents) to be textually compelling...which does not lead to a denial of judicial oversight.
in other words, I really do believe in checks and balances.

Judicial oversight of the executive is one thing, and congressional power to set limits on the executive is another. I thought we were talking about the latter rather than the former. That being said, I don't see anything very controversial in Hamdan, as far as I'm able to read it. While Article II makes the President Commander in Chief of the military, Article I, Sec. 8 vests Congress with a fair amount of rulemaking power as far as how wars are conducted and how military matters are to be managed. If Congress has set rules in this regard (and I didn't notice that the administration challenged Congress' authority to do so) and the Executive branch has disregarded them, it seems to be no great shock that the Court would find a problem.

Posted by: nolo on June 29, 2006 at 5:58 PM | PERMALINK

"Further, it does not support the mistaken idea that the Court here found that the AUMF (bizarrely) restricted any power the President would have otherwise had"

it allows for the possibility...

Posted by: Nathan on June 29, 2006 at 5:59 PM | PERMALINK

(I'll remind readers that this is essentially the only constraint on the power of the judiciary...which has lifetime appointment)

You forgot impeachment.

Posted by: nolo on June 29, 2006 at 6:00 PM | PERMALINK

nolo:
"Judicial oversight of the executive is one thing, and congressional power to set limits on the executive is another. I thought we were talking about the latter rather than the former. "

we are...but some people up the thread (Ron Byers, CalGal and co.) were very confused...

Posted by: Nathan on June 29, 2006 at 6:01 PM | PERMALINK

nolo:

well that, and the power of the purse...

but from a textualist perspective I see Congressional power over judicial jurisdiction (not that I want to see it exercised) as a democratic check on the Court.

Posted by: Nathan on June 29, 2006 at 6:04 PM | PERMALINK

.but we mobilized far more than Vietnam...and you expressly put WWI below Vietnam. you're better off just admitting that you f'ed up.

Dumbshit, total mobilization for Vietnam was actually greater than WWII in some categories, and dwarfed WWI. Mobilization doesn't just mean how many troops you call up. It encompasses the mass of combined assets used.

A greater percentage of industrial capacity, even with greater efficiency, went toward the Vietnam war than WWI. We lost nearly 5,000 helicopters in Vietnam, and some 3,000 aircraft. One F-111 cost, even in adjusted dollars, practically what we spent on a battleship, such as they were, at that time.

Up until WWI, we didn't even have a fulltime arms industry. After WWII it became one of the largest components of the U.S. economy, reaching it's zenith during Vietnam in terms of per capita spending.

To be sure, we have a larger military budget today than we did during Vietnam, but not in adjusted dollars. The very fact that troops, particularly reservists and guard, still have problems getting the proper equipment shows that we still aren't on a "wartime footing" in the economy.

That, idiot, is how you define "wartime" and mobilization. We're not at war just because people like you and Bush says we are.

btw, dodge? huh? what, you want my cv? Posted by: Nathan

I dare you, punk.

Posted by: JeffII on June 29, 2006 at 6:09 PM | PERMALINK

Nathan, realistically speaking, the legislative branch has a great deal of democratic power over what judges decide the law is. If the judges have got a particular law wrong, the legislative branch can (and certainly does) rewrite the law to make its intention clear. Where there is conflict between the legislative branch and the judicial over matters of Constitutional significance, the Constitution provides for an amendment process -- which again is a democratic process. Placing limits on the power of the judicial branch to exercise its essential function is not what I'd call a "democratic" approach to dealing with conflict between the two branches. It's what I'd call an invitation to a Constitutional crisis, which is why I think it's never been done.

Posted by: nolo on June 29, 2006 at 6:10 PM | PERMALINK

nolo: I noted that I didn't think it was a good idea for Congress to do so...but the Constitution does give Congress the authority.


JeffII: sigh. I've never said that we've "mobilized" or been on a "war-time footing" for Iraq...we patently haven't.
But we sure as heck did for WWI.

oh, and btw, most military spending during Vietnam didn't go to Vietnam...we were both fighting a war in SE Asia and keeping the Soviet Union at bay everywhere else.

Posted by: Nathan on June 29, 2006 at 6:15 PM | PERMALINK

But I see that Republicans are gearing up to give Bush back his Kangaroo Court.

And we all know those 3 justices that rule in Bush's favor would have decided against Gitmo if it had be Clinton's idea, not that Clinton would have dreamed of building a gitmo type of gulag.

I guess the 8 court justices obviously consider Robert to be no more a qualifying a leader then the late-partisan Rehnquist. Roberts is the baby in the court and treated like one too, might as well just step down. Certianly it could have been a partisan 4-5 and made very little difference anyway - same old partisan Rehnquist court, nothing about law really applies. Funny, isn't it, how even on the big cases the court only sees though partisan color glasses every single time.

These voting splits don't say anything good about the court, it says that court is mostly making partisan opinion decisions, and even under a new Chief Justice Roberts is all to happy with legacy of Rehnquist. Another ugly 30 years of putting politics first.

I read this in Seattlepi.com:

What it says is that the court has a viable interest in remaining the ultimate authority on the law," said Charles Rose, a constitutional law professor at Stetson University College of Law in Gulfport, Fla.

Other administration anti-terror programs, including a warrantless eavesdropping program that worries even some Republicans, "are based on the same interpretation of presidential authority in a time of war" rejected in the Guantanamo case, Rose said.

Republican lead congress isn't doing its job of oversite. That's what the court pointed out today.

Posted by: Cheryl on June 29, 2006 at 6:27 PM | PERMALINK

Anyone else who agrees with JeffII's assessment of World War I? Like I said above, even some GIRLS I know would have enough sense to disagree with him.

Posted by: Doug on June 29, 2006 at 6:29 PM | PERMALINK

'Zarqawi' posted:

"WTC #1, Kobar tower, African Embassies, U.S.S. Cole. Treat it as a law enforcement problem. We changed tactics after Sept 11. You wanna go back? Huh?"

YES !

Back then:

* The mastermind of the first World Trade Center attack, Ramzi Yousef, who was plucked out of Pakistan by a team sent by President Clinton, is serving a 240-year prison term, plus another life sentence just in case, all to be spent in solitary confinement. The 5 conspirators involved in the bombing were also captured, and all are also serving life prison terms.

* Of the 14 men involved in the Khobar Towers bombing, some have been executed, and in an agreement made with the Clinton administration, the rest are being held in prison by the Saudis since shortly after the attack.

* The 4 al-Qaeda terrorists involved in the embassy bombings were caught, returned to America, tried, and convicted. All four are serving life prison terms.

* As for the Cole bombing, and in an agreement made with the Clinton administration, the 6 men involved WERE all in a Yemen prison, until the Bushies illegally invaded Iraq, and then they "escaped" during this administration.

Not to mention the NUMEROUS terrorist attacks that were stopped in progressed by the Clinton administration.

~

Since 9/11, and the Bushies abandonment of the intelligence and law enforcement methodology:

* The Boy Emperor Clown Criminal had Osam bin Laden, Mullah Omar, and the thousands of al-Qaeda Special Forces who attacked us on his watch surrounded at Tora Bora, but his incompetence allowed them to escape.

* Not a single person involved with 9/11 has been brought to justice.

* Not a single terrorist attack has been stopped in progress since 9/11.

YOU BET YOUR BIPPY I WANT TO GO BACK !!!!!
.

Posted by: VJ on June 29, 2006 at 7:11 PM | PERMALINK
it allows for the possibility...

Not really. It fairly directly says that the AUMF and the DTA taken together have essentially no effect on the President's authority in this regard whatsoever, though perhaps they might be read as recognizing—without altering in any way—that the President may have some authority with regard to military commissions, constrained by the Constitution and laws.

And it certainly doesn't hold out the possibility that the commissions at issue might have been legal but for the AUMF. There is no remotely tenable reading of the decision that supports that conclusion.

Posted by: cmdicely on June 29, 2006 at 7:18 PM | PERMALINK

I know nobody is reading anymore, but...

The decision is satisfyingly strong. The executive determination that a Senate ratified treaty is no longer binding has been atrocious from the moment it was made public. The Yoo Doctrine of executive power unfortunately lets the executive ignore the decision that denies the existence of the doctrine. "Circular reasoning," see "reasoning, circular."

What I await, without holding my breath, is Congress finally upholding the principles of government as laid down in our Constitution. Now that the Supreme Court has stated, clearly, that a spine is allowed, maybe the jellyfish will evolve.

Of course, up until now, the presidents supporters have stated that we are at war with Oceania, and have always been at war with Oceania. Suddenly, as we supporting a new idea? Are we at war with Eurasia? have we always been at war with Eurasia?

Posted by: commandq on June 29, 2006 at 7:34 PM | PERMALINK

it didn't somehow morph.

Yes, it did.

since the SC is only granted original jurisdiction in one area ("In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party"),

I'd say that's two areas; "cases affecting ambassador, other public ministers, and consuls" and "Cases...in which a state shall be party".

But, anyhow.

by definition the rest of its jurisdiction is appellate...

This is true, but you miss the point.

in fact it is so explicitly stated: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction"

Yes, yes, I already pointed that out.

-- thus, the SC has appellate jurisdiction of the "judicial power of the United States" subject to the exceptions and regulations of Congress (in other words, Congress is also vested with judicial power)...

No, wrong. " The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

The judicial power does not reside in the Congress. Congress retains a legislative power to divide the judicial power between the Supreme Court and other courts, and to set the conditions for the Supreme Court exercising appellate jurisdiction over the other courts.

But the judicial power—the exact extent of which is defined by Art. III, Section 2, Clause 1—is to be reside in the Article III courts; Congress power to distribute that power is (IMO, if Article III is read properly, as it has for some time emphatically not been) limited by the requirement stemming from Article III Section 1 that the whole of the judicial power must be vested in the Article III courts, whether the Supreme Court or inferior courts established by Congress. That power to distribute the judicial power is further limited by the express definition in Art. III, Sec. 2, Cl. 2 of the original jurisdiction of the Court.

which is why, in our jurisprudence, Congress has the authority to remove subject matter from judicial review.

Again, that argument fails. That certainly is a good argument for why the text supports the ability of Congress to remove matters from the appellate jurisdiction of the Supreme Court, a point on which we are not in disagreement.

It is not an argument, however, for the ability of the Congress to fail to vest the full judicial power defined in Art. III, Sec. 2, Cl. 1 in some combination of the bodies that Art. III, Sec. 1 specifies that that power shall be vested in.


(I'll remind readers that this is essentially the only constraint on the power of the judiciary...which has lifetime appointment)

No, its not even remotely the "only constraint on the power of the judiciary":
1) The judiciary doesn't have "lifetime" appointments; they have appointments "during good behaviour", and Congress has a plenary and unreviewable power to remove justices from office via impeachment.
2) Congress has the power to disestablish existing courts, to vary their size, and to establish new ones at will, and to transfer jurisdiction between existing courts.

Posted by: cmdicely on June 29, 2006 at 7:38 PM | PERMALINK

"textualist perspective"

My understanding is that Clarence Thomas has used that term to justify just about any position he wants it to justify.

Nathan, how are you using the term? What does it mean? Exactly, cite cases and not Wikipedia articles.

Posted by: Ron Byers on June 29, 2006 at 7:44 PM | PERMALINK

Sorry I meant Scalia. Textualism, Originalism, angles dancing the head of a pin. It has been a long day.

Posted by: Ron Byers on June 29, 2006 at 7:52 PM | PERMALINK

commandq

Good stuff. The best comes out after no one is reading.

Posted by: Ron Byers on June 29, 2006 at 8:00 PM | PERMALINK

And we all know those 3 justices that rule in Bush's favor would have decided against Gitmo if it had be Clinton's idea, not that Clinton would have dreamed of building a gitmo type of gulag.

Posted by: Cheryl on June 29, 2006 at 6:27 PM | PERMALINK

I'm sorry, but it's statements like this that really disappoint me.

Cheryl, do you really believe that a decision a justice comes to in any given case or his understanding about the Constitution, seperation of powers, statutory interpretation and all the other incredibly interesting issues that come before the Court can be set aside based on purely political grounds?

I don't. I believe that all the justices would hold the same views regardless of who is President. After all, it's their name and their intelligence that's on display in their opinions. Did the liberal justices that were appointed by FDR uphold the forced internment of Japanese Americans simply because he was in office or because they honestly believed that the Constitution gave the President the power during war to do so?

That's the beauty of lifetime tenure. Presidents from different parties come and go over a justice's time on the Court. With terms that last decades, the justices are looking to history and their place in it to care about partisian politics.

Or at least, I would like to think so.

Posted by: Chicounsel on June 29, 2006 at 8:23 PM | PERMALINK

Sorry I'm late. This is how I see it:

1) Combatants captured on the field of battle can be held until the end of hostilities. That has been the law for centuries and the Court specifically said today that it wasn't disturbing that law. The end of hostilities with the jihadists could be 50 or 100 years from now. No trial is required since the detention of combatants is not punishment. Those members of the so-called "reality-based community" who insist that we are not at war or that the Gitmo internees were not captured in battle, well, don't forget to take your meds.

2) Gitmo prisoners are entitled to some hearing with a minimal level of due process to determine whether they are in fact combatants or innocent Arab tourists captured by mistake in the hills of Afghanistan. These can be military tribunals. Those who can prove they were not combatants are entitled to their freedom.

2) The real issue raised by the Hamdan case is whether the US must treat the Gitmo internees as "prisoners of war" under the Geneva Convention, in which case they cannot be interrogated at all except to ask for name, rank and serial number. I think that's a ridiculous interpretation of the Geneva Convention, but even if that's what the Court determines, it has no bearing at all on the Government's right (and duty) to hold the internees for the duration of hostilities.

Posted by: DBL on June 29, 2006 at 8:33 PM | PERMALINK

commandq: we are at war with Oceania, and have always been at war with Oceania. Suddenly, as we supporting a new idea? Are we at war with Eurasia? have we always been at war with Eurasia?

You're confused. We are Oceania (Brits and Yanks alike). We are at war with Eurasia, and have always been at war with Eurasia. If we switch to being at war with Eastasia, it will lessen the importance of Airstrip One.

Posted by: George Orwell on June 29, 2006 at 8:39 PM | PERMALINK

I believe that all the justices would hold the same views regardless of who is President.

you are truly naive.

Posted by: haha on June 29, 2006 at 8:41 PM | PERMALINK

Cheney, Gonzales, Abbington, Rove, Rummie, you'r doing one heck of a job to have history condemn me as the most pathetic, reckless, fool of a President ever.
'
'And a war criminal to boot.

Posted by: jim on June 29, 2006 at 10:02 PM | PERMALINK
Or at least, I would like to think so.

I'd like to believe in a jolly fatman that circles the world delivering toys late in the night on the 24th of December each year, too. That doesn't mean there is any substantive reason to believe it, though.

Posted by: cmdicely on June 29, 2006 at 11:07 PM | PERMALINK

The geneva convention allows for tribunals with the following proviso:

"Officers, non-commissioned officers and men who are prisoners of war undergoing a disciplinary or judicial punishment, shall not be subjected to more severe treatment than that applied in respect of the same punishment to members of the armed forces of the Detaining Power of equivalent rank."

The convention specifies acts prior to their imprisonment can be tried in these competent tribunals.

The war crime act simply states that US armed forces should be prosecuted in civilian American tribunals for violations of the convention.

So, military tribunals are in, torture is out.


Posted by: Matt on June 30, 2006 at 1:03 AM | PERMALINK

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Posted by: aacxmmc on June 30, 2006 at 2:39 AM | PERMALINK

jeez, what a load of pointless mental masturbation. i dipped into this hoping to get a better understanding of what this SC ruling meant, and all I found was a load of losers trying to prove how big their dicks are. Nathan, you can't be getting much work. and if you go into court with all those patronising little "um" and "er" affectations, i can understand why.

Posted by: staggered on June 30, 2006 at 7:21 AM | PERMALINK

In the line "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party"
If public ministers refers to US government officials, doesn't that involve the President and all actions he takes pursuant to his job?

Since they have held the Geneva Conventions do apply here, was not George's intentional flaunting of the treaty implicitly described as a crime in this ruling, 'good faith' legal advisory notwithtanding?

Posted by: cld on June 30, 2006 at 5:03 PM | PERMALINK

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