Editore"s Note
Tilting at Windmills

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June 30, 2006
By: Alan Wolfe

Making Us Stronger....By striking a blow against President Bushs claims of unchecked presidential authority, the U. S. Supreme Court has enhanced the safety of all Americans.

This is not, of course, what you will hear from the administration. In its view of the world, Americans face unprecedented threats from terrorists that can only be met by granting to the president the authority to respond in any way he determines to be in the national interest. Consultation, negotiation, power-sharing all of which are part and parcel of ordinary democratic politics become luxuries we can no longer afford. Only resolute action can stop an attack before it occurs.

In the real world, however, the Bush administrations approach to terrorism is one more example of its failed approach to government. Its theory works only if those in charge make all the right decisions. But if they happen to make a wrong one, their approach multiplies many times over its negative ramifications. This is essentially what happened in Iraq. Able to ignore or quash dissenting points of view, the Bush administration deliberately removed constraints that might have saved it from fueling an insurgency that has tragically taken so many lives.

Separation of powers, judicial review, and bipartisanship do not deny the need for power. On the contrary, the great political theorists who shaped our constitutional system understood that power checked is power better exercised. The important thing is not just to make decisions but to make good ones. And the more deliberative such decisions are, the more likely they are to be good.

Hamdan v. Rumsfeld throws the question of how decisions in the war on terror are to be made back in the hands of Congress. The House will no doubt support anything the president wants. But if a few key Senators honor the traditions and philosophical ideas that have made America great, the United States will preserve its liberal democratic structure and be stronger at the same time.

Alan Wolfe 12:12 PM Permalink | Trackbacks | Comments (35)

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Hamden v. Rumsfeld throws the question of how decisions in the war on terror are to be made back in the hands of Congress.

So much for the President's exclusive war powers as Commander in Chief then.

Posted by: Doug on June 30, 2006 at 12:15 PM | PERMALINK

So much for the President's exclusive war powers as Commander in Chief then.

Good point Doug. Liberal judicial activists ignore the expressed original intent of the Constitution to make the President the sole head of the Unitary Executive.

Posted by: Al on June 30, 2006 at 12:20 PM | PERMALINK

What the court has done is sign a treaty with Al-Queda. Something that, needless to say, is beyond it's constitutional authority. But hey, as long as we can "strike a blow against President Bush" it's A-OK! Rejoice!

Posted by: Homer on June 30, 2006 at 12:21 PM | PERMALINK

Does the decision really change anything in practical terms?

My guess would be that it would make them more circumspect and secretive while continuing with their torture related program activities rather than forcing them to become more desirous of complying with the law.

Posted by: nut on June 30, 2006 at 12:21 PM | PERMALINK

My guess would be that it would make them more circumspect and secretive while continuing with their torture related program activities rather than forcing them to become more desirous of complying with the law.

We can only hope.

Posted by: Homer on June 30, 2006 at 12:26 PM | PERMALINK

MAKING US STRONGER?

"Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Who's gonna do it? You, Alan Wolfe? I have a greater responsibility than you can possibly fathom. You weep for terrorists and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that those suicides, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall, you need me on that wall . . . I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner in which I provide it! I would rather you just said 'thank you' and went on your way. Otherwise, I suggest you pick up a weapon and stand a post.

. . . You fuckin' people. You have no idea how to defend a nation. All you did was weaken a country today, Wolfe. That's all you did. You put people's lives in danger. Sweet dreams, son."

Posted by: Doug on June 30, 2006 at 12:27 PM | PERMALINK

Even worse, the liberals on the Supreme Court just don't understand the realities of war. This is what happens when you're a product of liberal academia who hate the troops.

Posted by: Al on June 30, 2006 at 12:34 PM | PERMALINK

AL NAILS IT!! What a Bush!!!

Posted by: Mann Coulter on June 30, 2006 at 12:37 PM | PERMALINK

In its view of the world, Americans face unprecedented threats from terrorists...

And an ignorant view it is.

A point that I don't see brought up: When the Founders struck their balance between Liberty and Security, they were not living in some idyllic worry-free paradise. Their world was arguably more perilous than ours. Hostile empires on either side of them, no standing army or navy, attacks on the frontiers from indigenous peoples (not unjustified, but that's another discussion.) Two homegrown rebellions in the earliest years of its existence. Threats of succession that began almost immediately. And if you like, we can bring routine outbreaks of pestilence into the picture.

This is the backdrop against which the Founders demanded and enacted the Bill of Rights. These were not dewy-eyed idealists. These were men who had committed treason for the sake of Liberty. Security and liberty were not abstracts for them. As part of the dominant power of their age, they had security. They decided liberty was more important.

And they would be flabbergasted that the "threat" which panicked us into surrendering their legacy was a bunch of scruffy guys with beards hiding out in some caves in Afghanistan.

Never mind your soul, America, never mind your heritage -- where the hell is your fucking pride???

Posted by: Roddy McCorley on June 30, 2006 at 12:39 PM | PERMALINK

... anyone who quotes from A Few Good Men is revealing 1) latent homosexual fantasies about tom cruise, and 2) that we are right to ignore their adolescently ignorant opinion regarding war.

Posted by: Nads on June 30, 2006 at 12:40 PM | PERMALINK

So Al is a Constitutional expert as well as an authority on war; maybe he should be the "decider."

Posted by: nutty little nut nut on June 30, 2006 at 12:40 PM | PERMALINK

Al:

Alan Wolfe is a political "scientist" and is currently on the faculty of Boston College and serves as director of the Boisi Center for Religion and American Public Life. He received a B.S. from Temple University in 1963 and a Ph.D. in Political Science from the University of Pennsylvania in 1967. He has honorary degrees from Loyola College in Maryland and St. Joseph's University in Philadelphia. And, as you state, he hates the troops.

Posted by: Doug on June 30, 2006 at 12:41 PM | PERMALINK

Nads:

I hope you are consistent in that judgment across the board -- there are plenty here who quote A Few Good Men http://www.google.com/search?hl=en&q=site%3Awww.washingtonmonthly.com+%22you+can%27t+handle+the+truth%22

Posted by: Doug on June 30, 2006 at 12:44 PM | PERMALINK

Roddy McCorley:

Their world was arguably more perilous than ours.

Not if Al Gore is right about global warming.

Posted by: Doug on June 30, 2006 at 12:48 PM | PERMALINK

What seems laughable to me is that all the right-wings-o-sphere is saying the court "overstep" or that "it's activist judges again" rather then the fact that it was an activist president, making up the law as he goes along.

Bushie visceral hate band is an ever shrinking group, and the Bush bounce is showing that it is just a flash in pan. Nobody is dancing to the Bush beat anymore - except for brain dead old beatniks, rednecks with low IQ's.

Thank goodness.

Posted by: Cheryl on June 30, 2006 at 12:48 PM | PERMALINK

Nads:
I hope you are consistent in that judgment across the board -- there are plenty here who quote A Few Good Men
Posted by: Doug

"you can't handle the truth" isn't a quote from A Few Good Men ... it may have started out as one, but it is now a piece of pop-culture. Quoting it, especially in the contexts you googled, is invariably ironic, and therefore reveals nothing about the posters adolescence or repressed homosexuality.

YOUR loving recreation of jack nicholson's spittle-flecked war criminal rant, however, is pathetically juvenile. Nothing ironic about that except that you apparently didn't realize that jack's character loses.

Posted by: Nads on June 30, 2006 at 12:50 PM | PERMALINK

Jack's character losing is 1) fictional, and 2) a liberal's wet dream (or was that mushroom-induced too?).

Posted by: Doug on June 30, 2006 at 12:53 PM | PERMALINK

Jack's character losing is 1) fictional, and 2) a liberal's wet dream (or was that mushroom-induced too?).
Posted by: Doug

I know it's fiction, jackass ... that's why I'm laughing at you for masturbating to it as some sort of authority on military realism.

You and yours are laughably pathetic cowards. ... chickenhawks in every sense of the word. I'm guessing you've never even been in a fight, so please, for fuck's sake, spare me whatever insights you've gleaned from movies and the last season of 24.

... jackass ...

Posted by: Nads on June 30, 2006 at 12:56 PM | PERMALINK

Much has been said, and much more will be said, by the conservo-bots with respect to what "liberals" (ie, anyone who does not agree with them, regardless of real political views) want in the war on terror.

Here's what we want: for the fucking Consitution to matter again.

I mean, we're not going to win any votes in the House for a while. The point is, if there are votes over this stuff, then there are debates; if there are debates, then the American people can be well-informed of what is going on and the small-d democratic process benefits.

These days, a person can be accused in secret court, have evidence collected aginst him from wiretaps that he didn't even know were legal, be sent to prisons he didn't know existed, and have things done to him there that he didn't know we were allowed to do.

Maybe some, or all, of those things were called for in order to win the war on terror. Maybe not. But unless the president is put in his place more often as happened today, we'll never get to have that debate.

Posted by: mmy on June 30, 2006 at 12:57 PM | PERMALINK

It seems obvious to me that a response to terrorism that resides in a legal framework would have been far more robust and permanent than the vigilanteism we see today. If Bush's course is not going to be the end of our Democracy, than it must by necessity be a historical flash in the pan. A carefully constructed legal structure aimed at terrorists would have permanently reduced the effectiveness of terrorism long after Bush is pushing up the daisies.

Posted by: Boronx on June 30, 2006 at 1:08 PM | PERMALINK

You seem to intend to mockery of the administration's illegal behavior with your sentence : "Only resolute action can stop an attack before it occurs."

Doesn't work. What's WRONG with resolute action, dude?

And those who try to ridicule the admin. with statements such as , "They have a faith-based strategy to win the war." aren't doing us progressives any favors, either.


Posted by: gar on June 30, 2006 at 1:09 PM | PERMALINK

"In its view of the world, Americans face unprecedented threats from terrorists...

And an ignorant view it is.

A point that I don't see brought up: When the Founders struck their balance between Liberty and Security, they were not living in some idyllic worry-free paradise. Their world was arguably more perilous than ours. Hostile empires on either side of them, no standing army or navy, attacks on the frontiers from indigenous peoples (not unjustified, but that's another discussion.) Two homegrown rebellions in the earliest years of its existence. Threats of succession that began almost immediately. And if you like, we can bring routine outbreaks of pestilence into the picture.

This is the backdrop against which the Founders demanded and enacted the Bill of Rights. These were not dewy-eyed idealists. These were men who had committed treason for the sake of Liberty. Security and liberty were not abstracts for them. As part of the dominant power of their age, they had security. They decided liberty was more important.

And they would be flabbergasted that the "threat" which panicked us into surrendering their legacy was a bunch of scruffy guys with beards hiding out in some caves in Afghanistan.

Never mind your soul, America, never mind your heritage -- where the hell is your fucking pride???"

Posted by: Roddy McCorley on June 30, 2006 at 12:39 PM

Worth repeating.

Posted by: Scotian on June 30, 2006 at 1:11 PM | PERMALINK

What's WRONG with resolute action, dude?

the "resolute" in "resolute action" says nothing about the appropriateness, worth, or feasibility of the action. what we really need is intelligent action, not unflinching ation in the wrong direction.

Posted by: cleek on June 30, 2006 at 1:23 PM | PERMALINK

As people have had a chance to review the decision, the consensus is beginning to emerge that the majority opinion written by Stevens is really weak, poorly reasoned and unpersuasive. In contrast to the dissents written by Scalia and Thomas, which rips his reasoning to shreds.

On one key point that we have argued here a couple times before, whether the Geneva Convention applies to those being held at Gitmo, Mark Levin on his blog at NRO writes:

"Let's look at the relevant Geneva Convention. First point - since when does a party that has NOT signed a treaty, and does not comply with a treaty, become a part of such a treaty? The Geneva Convention relating to the treatment of prisoners of war provides, at Article 4, that

"A. Prisoners of war ... are persons belonging to one of the following categories, who have fallen into the power of the enemy:

"1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

"2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this terrirory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

"(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war."

The purpose of this language is to make clear that NOT every combatant is covered by this treaty, i.e., that in order to receive the Convention's protections, combatants must accept and comply with basic rules of war. Any literate person should understand this.

Well, the activist Supreme Court majority in Hamdan decided to ignore this language. Instead, it looked to "Common Article 3," which has nothing to do with the current war. It requires, as an initial matter, that the conflict be not be of an international character. But the war on terrorism clearly is of an international character. Are the justices blind to the numerous known terrorist cells and conflicts throughout the world?"

In addition, Stevens ruled that the Detainee Treatment Act that Congress passed in 2005 that stripped the federal courts from having jurisdiction over any claim by any person being detained by the Defense Department in connection with the War on Terror did not apply retroactively. And finally, Stevens simply ignores the Supreme Court case from WWII involving German spies that held the foreign fighters do not have any right to go to federal court to challange their detention or the military tribunnals that the President set up to handle them or the tribunnal's decision to execute them.

Far from being a stinging rebuke of Bush, this decision will be quickly forgotten when Congress passes whatever law is needed to address the Court's "concerns."


Posted by: Chicounsel on June 30, 2006 at 1:33 PM | PERMALINK

"But if a few key Senators honor the traditions and philosophical ideas that have made America great..."

6 years of rubber-stamp republican congressional rule says 10:1 you can't find the republicans necessary to fight the bushliar-criminal regime and restore constitutional rule.
.

Posted by: pluege on June 30, 2006 at 1:33 PM | PERMALINK

the consensus is beginning to emerge that the majority opinion written by Stevens is really weak, poorly reasoned and unpersuasive

i think you meant to write: "the consensus among wingnut apologists is beginning to emerge that the majority opinion written by Stevens is really weak, poorly reasoned and unpersuasive..."

non-sycophants disagree

Posted by: cleek on June 30, 2006 at 1:50 PM | PERMALINK

This is the backdrop against which the Founders demanded and enacted the Bill of Rights. These were not dewy-eyed idealists. These were men who had committed treason for the sake of Liberty. Security and liberty were not abstracts for them. As part of the dominant power of their age, they had security. They decided liberty was more important.

An excellent comment, Mr. McCorley, and resoundingly true.

But we live in a time when no man's opinion is worth more than any other's.

The people who make up the Bush Administration and its supporters do not care for expertise. They absolutely denigrate it. Their own opinions are of equal or greater weight than those of any "expert".

They do not respect the opinions of scientists who have spent their lives learning about and studying global warming.

They do not respect the opinions of constitutional law scholars, such as Supreme Court justices, when it comes to what the Constitution might mean.

They do not respect the opinions of political scientists or diplomats or foreign affairs experts when it comes to matters of foreign policy.

And they certainly do not respect the opinions of the Founding Fathers when it comes to what the Founding Fathers actually envisioned.

Their opinion is as good as yours. On any subject. Your 'facts' are none such - they are only your opinion. They can concoct 'facts' of their own.

One of the most prominent of conservative slurs against liberals is that they are the "liberal intelligentsia". That they are "know-it-alls". That just because they are smart and educated and knowledgable, their opinions are somehow better than the uninformed opinions which conservatives would have people hold.

But they're not. Because expertise doesn't matter.

That is the state of political discourse in this country. It was once the case that expertise mattered. No longer.

So the wisdom of the generations prior to ours, the beliefs in liberty and the restraint of unchecked executive power which the nation has held for two hundred years... it's wrong. Because the conservative speakerbox says so, and the conservative true believers believe it, and their opinion is as valuable as anyone else's.

Founding Fathers? So what. We know better than them.

Posted by: S Ra on June 30, 2006 at 2:00 PM | PERMALINK

I see that Charlie has returned as Doug.

In other news - this was a 5-4 decision. What's the betting that if a Democratic president had been the guy this decision was aimed at, the result would have been unanimous?

The GOP - all partisan, all the time.

Posted by: craigie on June 30, 2006 at 2:02 PM | PERMALINK

The Banana Republicans have been rebuked!

Banana Republicans say, "you must give all the power to the President. Only he can protect you, and he does it not by being right, but by being totally unaccountable. When anyone challenges the President, they are enabling the terrorists. Do not worry about the terrorists, as long as you support the President by never questioning anything he does, he will keep you safe. But if you question him, or allow him to be questioned, you put yourself and everyone else in danger! You'll DIE!"

The Supreme Court said, "Um, no. America is not a Banana Republic. The President is not God, Superman or your Daddy. The way it works in America is if you're President, you jusify the effectiveness of your actions, you get real results, you follow the rule of law, you govern transparently, you're held accountable to the people, and you get the job done right."

I am so very sick and tired of these Banana Republicans who want to turn this nation into a Banana Republic.

Posted by: theorajones on June 30, 2006 at 2:17 PM | PERMALINK
As people have had a chance to review the decision, the consensus is beginning to emerge that the majority opinion written by Stevens is really weak, poorly reasoned and unpersuasive. In contrast to the dissents written by Scalia and Thomas, which rips his reasoning to shreds.

The consensus among...whom? FoxNews hosts?

On one key point that we have argued here a couple times before, whether the Geneva Convention applies to those being held at Gitmo, Mark Levin on his blog at NRO writes

...stuff that is completely irrelevant to the holding in the case, which is not that prisoner of war status under the Third Geneva Convention applies (an issue with the Stevens decision pointedly did not reach) to Hamdan or anyone else.

If this failure to even correctly identify the issues which are relevant to the decision is typical of those in the "consensus" you are talking about, I think that illustrates why the "consensus" is unpersuasive.

Instead, it looked to "Common Article 3," which has nothing to do with the current war. It requires, as an initial matter, that the conflict be not be of an international character. But the war on terrorism clearly is of an international character.

If you read the decision, it goes into considerable detail in explaining why that interpretation is wrong: in short, a conflict of an "international character", as that phrase is used in the Geneva Conventions, is one in which the warring parties include, on opposite sides, two different nation-states. That is, where the conflict is characterized by being between nations.

In addition, Stevens ruled that the Detainee Treatment Act that Congress passed in 2005 that stripped the federal courts from having jurisdiction over any claim by any person being detained by the Defense Department in connection with the War on Terror did not apply retroactively.

Actually, he held that one provision of DTA didn't apply retrospectively because it didn't include the express language included in other provisions which applied it retrospectively.

Courts giving effect to Congress' decisions to make different provisions of the same enactment different isn't activism.

And finally, Stevens simply ignores the Supreme Court case from WWII involving German spies that held the foreign fighters do not have any right to go to federal court to challange their detention or the military tribunnals that the President set up to handle them or the tribunnal's decision to execute them.

Well, no; you seem to be referring to Quirin, which Stevens discusses at length, and which did not hold either of the things you claim.

Posted by: cmdicely on June 30, 2006 at 2:36 PM | PERMALINK

Before we all get too excited about this saving the Republic, let's remember a quote from that great hero of WW2:
"How many divisions does The Supreme Court have?"

or, closer to home,
"John Paul Stevens has made his decision; now let him enforce it.", followed by Jackson refusing to follow the decision of the court, and it all ending (literally) in tears for the Cherokees.

Posted by: Maynard Handley on June 30, 2006 at 3:55 PM | PERMALINK

Is Maynard aware that his "great hero of WW2" was Stalin, the murderer of 20 million Russians and that he asked that of the Pope when questioned about persecution of the Catholics?

Posted by: Mary Alice on June 30, 2006 at 5:10 PM | PERMALINK

Gee, Alice, do they not have sarcasm on your planet.
Stalin ... heror of WW2...hero of the war on terror...

Posted by: Maynard Handley on June 30, 2006 at 5:21 PM | PERMALINK

"As people have had a chance to review the decision, the consensus is beginning to emerge that the majority opinion written by Stevens is really weak, poorly reasoned and unpersuasive. In contrast to the dissents written by Scalia and Thomas, which rips his reasoning to shreds."

Yes, let's review the past of that pillar of the judicial community, Justice Thomas:

One of the oddest episodes I remember was an occasion in which Thomas was drinking a Coke in his office. He got up from the table at which we were working, went over to his desk to get the Coke, looked at the can and asked, Who has pubic hair on my Coke? On other occasions, he referred to the size of his own penis as being larger than normal, and he also spoke on some occasions of the pleasures he had given to women with oral sex."

Posted by: CDWard on July 1, 2006 at 3:17 AM | PERMALINK

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