posted
The situation in Iraq, and people's attitudes about it in the upcoming election has me musing about a couple of general truths (small t):
1) Throughout history, those who obey a set of laws almost always seem to be at a disadvantage when fighting those with little or no regard for the rules. Hence we have waves of barbarians able to sack Rome -- the mightiest army of its day -- because they didn't fight by the rules. We have America able to defeat the British because we finally figured out not to stand in ranks and be blown away. We have the Vietnamese able to outlast the French and then the US because they used "guerrila tactics." Plus, of course, we have the daily victimization of the law abiding by those who do not obey the law. This observation has become a cliche it's been made so often and in so many circumstances. So I'll just point out that the terrorists and Iraqi insurgents are playing by a set of rules that we can't play by. If we go around blowing things up at random, kidnapping anyone, beheading people as a symbolic gesture, it makes us look like bullies and criminals. So, we're at a disadvantage against an enemy who does not eschew such tactics.
2) Whenever these things happen, there are always those who argue for the brutal and inhuman treatment of the enemy in retaliation. We've had people seriously suggest, for example, that America behead ANYONE that the insurgents demand the release of. Fortunately, these people are just talk-radio hosts and callers and not at all representative of popular sentiment in the US.
3) When the world starts to recover from periodic orgies of violence (i.e., war), the national leaders ultimately end up working diplomatically -- often with the very people they were fighting to oust or keep from power.
Given that 1-3 are true, and even though it migh rankle some to do so, I have to ask whether or not it might be more prudent to simply work diplomatically from the start? What exactly did the war change? Does showing our "enemy" that we are willing to die for our cause make them more likely to talk with us? I mean, if a Communist regime in Vietnam can be our friends now, how precisely did we accomplish that with bullets and bombs? Is it possible that they would've talked with us before now?
I know there are some out there who are concerned that we might allow another Hitler to rise up if all we do is talk. And no doubt there are others who believe that talking equates to appeasement.
But I don't think either of those things are likely. We ought to be smart enough to see the difference between a Hitler and a national leader we dislike. As for appeasement, I don't think getting tough over a negotiating table with a potential adversary is appeasement. Surely our leaders can explain the consequences of war with America.
Another aspect of this whole thing that bothers me is our own ability and willingness to break the law. We have a set of laws we live by in America. And we have a set of laws we agreed to abide by in International affairs, such as during warfare. And then we have the set of rules we live by when we can get away with it by labeling people something other than an enemy combatant. I know the people incarcerated at Guantanamo Bay in Cuba are probably not nice people. Or at least not harboring friendly feelings toward us. But they have been treated in a way that makes me concerned for our national heart and soul. I don't expect POWs to be coddled, but cages outside with no access to defense attorneys and no trial for years is not the standard I wish to uphold or portray for my country.
The treatment of illegal aliens unders suspicion here in the US has been terrible as well. Some we ended up releasing without a trial, but after years of holding them. And that somehow made us safer? Holding someone we didn't have enough evidence on and who turned out to be innocent? but again, no trial and no access to a defense lawyer.
Our reaction to law breaking by others, or rule breaking, even if it is as horrendous as the 9/11 attacks, can't be to automatically throw our laws out as well. At least it shouldn't be.
posted
Bob, the thing to remember is that our military is accepting the orders from SCOTUS to provide hearings. They're releasing Hamdi.
Although I wish that we hadn't acted quite the way we did with regard to the detainees, it's key that the people with the guns are listening to 9 unarmed people. In other words, the rule of law IS working. It required the full extent of the appeals and safeguards to get it to work, and there will be bumps along the way. But SCOTUS acted as the safeguard of last resort for these people's rights, just as they're supposed to.
posted
Yes, I suppose it's better than if we didn't have that one last bulwark against the unlawful acts of our own Executive branch. But it shouldn't have needed to go that far either. I mean, if the President is sworn to uphold the laws, wouldn't that mean he also abides by them, not just when forced to by the Supreme Court?
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posted
But the law was VERY unclear in this case. There were very convincing arguments to be made that what he was doing was constitutional.
The President has the duty and right to interpret the Constitution in carrying out his duties. He has to subordinate his interpretation to a SCOTUS decision in a case properly brought before it. But that doesn't make his interpretation illegitimate, any more than a District Court's interpretation is illegitimate because it gets overturned. It just means the new intepretation has to be substituted for the old.
posted
I think is is a sad day when the President both interprets the Constitution in a way that lets him restrict rights as much as one could dare in the US nowadays, and then proceeds to do so.
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posted
"Hence we have waves of barbarians able to sack Rome -- the mightiest army of its day -- because they didn't fight by the rules."
In all fairness, barbarians sacked Rome because Rome grew weak and overextended, not because Rome insisted on fair play. Posts: 37449 | Registered: May 1999
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posted
It might be sad, but the whole scenario is proof that we have NOT abandoned the rule of law.
In situations where everyone agrees, the rule of law doesn't really come into it. It's when people don't agree, and one side accepts a contrary decision from a legal authority, that the rule of law shows its worth.
posted
At the time Rome was sacked, they still had armies that were feared the world over.
I think the "weak and overextended" thing is a bit simplified as an explanation. And it is the case that they weren't prepared to deal with an army that would cut and run and come back on them, or that could travel the countryside faster and better than they could.
There were lots of reasons for the various sacks of Rome, though, and overextended military was certainly one of them.
Dag, is it possible, prior to acting on it, for the President to seek out the advice and council of the SCOTUS on his interpretation of the constitution?
I realise he doesn't HAVE TO, but can he?
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posted
Nope. The president cannot receive advice from SCOTUS outside a case or controversy, and then only after it's worked its way through the courts of original jurisdiction.
posted
So, then, I guess he has advisors who interpret the constitution for him. In which case, I can see where they might be wrong every once in awhile since they are essentially having to guage the opinions of the seated justices in advance and they don't even know what the test case is.
Would it be too much to ask that our President err on the side of certainty with respect to human rights?
Even for enemies?
I mean, if we know those guys are guilty and can prove it, how would giving them access to a defense lawyer and guaranteeing them a fair and speedy trial make them a greater danger?
It almost seems like it's the president who doesn't trust the American justice system.
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posted
There's a lot of reasons, one being an issue of judicial economy. There are several Supreme Court opinions that seemed to strongly support the President's policy on this matter, and on theme running through them is the need to not encumber the military during war time.
There's obvious distinguishing characteristics of this situation, of course, and I'm not happy with the original decision. But, I can't fault it as a breakdown of the rule of law.
Hell, even if the Supreme Court ruled it Constitutional, I wouldn't think it was the best policy.
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