posted
With the general tone that seems to be predominant on this board lately, I'm waiting with baited breath to see how this is spun as a liberal attack on our great leader...
Posts: 1480 | Registered: Dec 2004
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Obviously the liberal activist members of the Supreme Court are a threat to the national security of our country...as such they have hereby been labeled enemy combatants, and will be picked up as soon as we get our non-existant corp of NSA abduction specialists out of Europe and back here.
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quote:Originally posted by TheHumanTarget: With the general tone that seems to be predominant on this board lately, I'm waiting with baited breath to see how this is spun as a liberal attack on our great leader...
You must be watching a different board.
Posts: 26071 | Registered: Oct 2003
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Wow. This could prove to be the biggest throw-down between the Executive and Judicial branches since Andrew Jackson.
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quote:Wow. This could prove to be the biggest throw-down between the Executive and Judicial branches since Andrew Jackson.
I doubt it, Rakeesh. The administration will likely try them in some other manner. From one of the concurrences:
quote: Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Ginsburg join, concurring.
The dissenters say that today's decision would "sorely hamper the President's ability to confront and defeat a new and deadly enemy." Post, at 29 (opinion of Thomas, J.). They suggest that it undermines our Nation's ability to "preven[t] future attacks" of the grievous sort that we have already suffered. Post, at 48. That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check." Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). 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.
Sounds like at least three members of the majority would rule the other way if Congress authorizes such tribunals and they comply with the GC.
Also, the same three in Kennedy's concurrence seem to suggest that the military could, right now, convene courts-martial to handle this.
I bet the administration either seeks congressional approval for the tribunals or uses courts-martial.
Posts: 26071 | Registered: Oct 2003
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quote:Originally posted by TheHumanTarget: With the general tone that seems to be predominant on this board lately, I'm waiting with baited breath to see how this is spun as a liberal attack on our great leader...
You must be watching a different board.
I think we all watch "different" boards. That shouldn't surprise anyone. I'm increasingly convinced many of us live in completely "different" universes.
[note: this isn't aimed at anyone in particular. Just a general observation.
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It's probably just the simultaneous reoccurrence of Jay and BeanCounter...too much spin makes me dizzy.
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How dare those hippie liberal commie "Justices" attack our Great and Beloved Leader. This is just another demonstration that our Left-Wing Establishment, which has inflitrated the government at the highest levels, attempt to preven! GBL Bush from raging his just and holy crusade against our Islamo-Fascist enemies. What can you expect when fully TWO out of NINE "Justices" were apointed by Godless liberals.
Sorry, I think I was chanelling Ann Coulture.
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quote:Originally posted by Vast Left-Wing Conspiracy:
quote:What can you expect when fully TWO out of NINE "Justices" were apointed by Godless liberals.
You say "Godless liberals" as if it were a bad thing...
Some conservative pundits do actually speak like that. I'm reasonably sure that Pelegius was including that in the sarcasm.
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How could the administration argue their case that the tribunals would be fair with a straight face, anyway?
My favorite part was the trial in absentia lunacy.
Prisoner opens form letter: Greetings, prisoner xray-234: You were tried in absentia on ______2006 and found guilty of <classified> charges, after a spirited defense by your attorney, <classified>.
You are hereby sentenced to: indefinite detention, followed by death by firing squad.Posts: 6316 | Registered: Jun 2003
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quote:Originally posted by Dagonee: I bet the administration either seeks congressional approval for the tribunals or uses courts-martial. [/QB]
I don't know about "since Jackson," but it is quite a rebuff and setback the SC handed the administration, Dagonee.
Though I agree with your quote, new tribunals or courts-martial will be fundementally different from the previously attempted tribunals. Or the SC will presumably disallow them as well.
Although perhaps if a different case is accepted for appeal by the SC, Roberts would be on board and things could change.
Posts: 6316 | Registered: Jun 2003
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I'm not speaking of the size of the rebuff (edit: and I agree, this is a major rebuff), but rather the potential for a constitutional crisis alluded to by Rakeesh. It's the administration's response that will determine if Rakeesh's prediction is accurate, not the SCOTUS decision.
Check out what the actual deciding issue was - whether or not Congress had authorized tribunals - an issue important both for separation of powers reasons and under the Geneva convention. The portion of the opinion that spoke of the fairness wasn't joined by a majority, at least as I skimmed it earlier.
Posts: 26071 | Registered: Oct 2003
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Fairess wasn't at issue? Sure it was. Stevens wrote in the majority opinion:
quote: ``Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections,'' Stevens wrote.
UCMJ Rights
Stevens faulted the tribunals for not giving inmates the full rights required by the Uniform Code of Military Justice. He pointed to tribunal rules permitting exclusion of the accused from the proceeding and allowing witness statements in place of sworn testimony.
quote:Originally posted by Morbo: Fairess wasn't at issue? Sure it was. Stevens wrote in the majority opinion:
quote: ``Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections,'' Stevens wrote.
UCMJ Rights
Stevens faulted the tribunals for not giving inmates the full rights required by the Uniform Code of Military Justice. He pointed to tribunal rules permitting exclusion of the accused from the proceeding and allowing witness statements in place of sworn testimony.
I've already quoted this language once, from Breyer's concurrence joined by three other justices:
quote:Indeed, Congress has denied the President the legisla- tive 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
In other words, it wasn't unfairness that made these tribunals unacceptable, but that they hadn't been authorized by Congress.
The issue it was decided on was a separation of powers issue, not a due process issue.
Posts: 26071 | Registered: Oct 2003
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I wanted to point out that there is an interesting realignment on the court. First, as expected, Kennedy is becoming a frequent swing vote. However, it's near meaningless to say he's more or less conservative than O'Connor. In many ways, O'Connor was much more "conservative" than Kennedy. For example, she was part of the four person plurality that held two years ago that partisan gerrymandering is an non-justiciable political question, joining Scalia, Thomas, and Rehnquist. So on many issues the court will swing to a more "liberal" position, but on others will be more conservative.
What's interesting is that Kennedy seems to be relishing his role as a swing vote. In a trend that became noticeable about 3 year ago, but seems (to my reading) to have picked up significantly in the last 6 months, Kennedy is writing concurrences in 5-4 decisions where he, even though he is a lone justice, is staking out what the actual position of the court is.
In other words, it seems he has fully taken up O'Connor's mantle as the determiner of court doctrine, even as he has changed the contours of the divide.
But, more interesting than that, has been some strange realignments regarding Breyer and Scalia. Breyer seems to be more frequently writing opinions joining the side w/ Ginsburg, Stevens, and Souter but limiting the opinion in some way toward a more moderate position.
Scalia, on the other hand, has been accelerating a trend toward a strange alignment with Stevens and, to a lesser extent, Ginsburg and Souter, on several issues, mostly relating to the right to a jury trial but also related to the right of the criminal defendant to confront witnesses against him. At the same time, he's also staking out some positions on the far side of the other conservatives.
I'm not sure what the upshot is right now except that 1) "liberal" and "conservative" are becoming more meaningless as reliable descriptors of SCOTUS justices and 2) there will be lots of surprising justice alignments in the future.
Posts: 26071 | Registered: Oct 2003
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posted
Yes! Yes, yes, yes, yes yes! I was wondering if anyone in the other two branches of our government was going to make the tiniest peep to contest the powers grabbed by Supreme Dictator Bush.
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posted
Well, isn't it obvious? Some damned communists built a time machine and send themselves, hammer and sickle, back to 1776 and wrote all over our beloved constitution with their evil, red ink.
Posts: 4753 | Registered: May 2002
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Dagonee, I'm very curious about one thing. The ruling made mention of the tribunals being in violation of the Geneva convention. Noting as you did the end of the majority opinion where the justices wrote that cordial invitation for the Administration to get Congress to pass a law making tribunals legal -- the question:
What action by Congress would make the tribunals be in line with the Geneva convention. That is -- what can Congress do to remove that particular stumbling block?
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For those interested, my friend Timothy Sandefur posted a couple summaries of the opinions at Positive Liberty.Posts: 1894 | Registered: Aug 2000
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quote:What action by Congress would make the tribunals be in line with the Geneva convention. That is -- what can Congress do to remove that particular stumbling block?
The Geneva Convention calls for "regularly constituted" tribunals. The court interpreted this to mean that even if the President had the authority to create special tribunals absent congressional approval, the Court held the tribunals to not be "regularly constituted. From the syllabus:
quote:While Common Article 3 does not define its "regularly constituted court" phrase, other sources define the words to mean an "ordinary military cour[t]" that is "established and organized in accordance with the laws and procedures already in force in a country." The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be "regularly constituted" only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69-70.
So Congress would probably have to explicitly authorize the tribunals and either include the justification for use of the tribunals instead of regular courts-martial in the legislation or have passed the legislation prior to the conflict.
Posts: 26071 | Registered: Oct 2003
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Funny section of post: The Supreme Court: Putting the Lawl in Lawless Zone since 2004.
Meat: The ruling came up because the administration tried to make an ideological point by utilizing the legal limbo of 'noncombatants' to say that they could be held however we wanted to hold them, as long as we wanted to hold them, and try them however we wanted to try them. We were setting up an entirely new and radical legal procedure for dealing with noncombatants.
This lawless paradigm is now dying. It was the worst PR mistake of a century, and (as a bonus) has failed -- we've only managed to charge ten (up from nine from last thread) of out of all the prisoners we have.
2. They will be tried by court martial, as should have been the case from the beginning. Either that, or Frist will succeed with his gambit to have the Senate "grant" the administration to continue dicking around with the imprisoned folk
Anyway I'm going to shift the subject because there's huge news involving this ruling:
quote:Hamdan Summary -- And HUGE News
Posted by Marty Lederman at 10:37 AM
As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons). I have not yet read the complete opinions, but from what I've seen of not only the Stevens majority, but also the Kennedy and Breyer concurrences (see Orin Kerr with the relevant AMK and SGB excerpts here), it is hard to overstate the principal, powerfully stated themes emanating from the Court, which are (i) that the President's conduct is subject to the limitations of statute and treaty; and (ii) that Congress's enactments are best construed to require compliance with the international laws of armed conflict.
Even more importantly for present purposes, the Court held that Common Article 3 of Geneva applies 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.
The CIA's interrogation regime has been declared unlawful. This includes the techniques such as waterboarding and hypothermia, which now on account of this ruling violate the War Crimes Act. (violation of Common Article 3).
posted
Also: The thread about the Israeli POW disappeared. It's annoying to have a record of statements vanish. What happened? Reason for closing?
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quote:The CIA's interrogation regime has been declared unlawful. This includes the techniques such as waterboarding and hypothermia, which now on account of this ruling violate the War Crimes Act. (violation of Common Article 3).
I disagree with your italicized part. These things were always in violation of the Geneva Convention. We just did them anyway. Sadly, it required the Supreme Court to point it out to the Administration. Personal honor, respect for laws and treaties, and a basic sense of human decency weren't enough to keep us from using these means of torture.
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quote:These things were always in violation of the Geneva Convention.
I've been bombarded by tons and tons of legal whinging indicating that the detainees held as 'unlawful combatants' managed to technically dodge any protection from the Geneva Convention. I'm willing (and would be happy) to believe this was not the case --
Got any particulars? I'll try to round up the counterpoint.
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Later, President Bush attempted to add a signing statement to the courts decision, but that didn't work out so well.
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quote:I've been bombarded by tons and tons of legal whinging indicating that the detainees held as 'unlawful combatants' managed to technically dodge any protection from the Geneva Convention.
The "regularly constituted" language is in a section that applies to almost everyone captured during military operations, not just prisoners of war.
Posts: 26071 | Registered: Oct 2003
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quote:But more crucial, Kennedy has appropriated O'Connor's trick of writing an opinion or a concurrence that goes on to become the law of the land. O'Connor was famous (and not always in a good way) for signing onto an opinion, but on narrower grounds than the four other justices in the majority. The trick is that the justice who decides the case most narrowly speaks for the whole court. And that's how O'Connor imprinted her views on an awful lot of jurisprudence.
But unlike O'Connor, who invariably pooh-poohed her pivotal role on the court by saying she simply had one vote like every other justice, Kennedy is said to relish it. In his controversial book "Closed Chambers," Edward Lazarus, a former clerk for the late Justice Harry A. Blackmun, claimed that Kennedy deliberately stakes out positions that would make him a "necessary but distinctive fifth vote for a majority."
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