Gitmo Trials
Not to get too nitpicky here, but I wish the Associated Press hadn't called the Supreme Court's ruling in the Hamdi [NOTE: should be Hamdan] case a "strong rebuke" to the administration's "aggressive anti-terror policies." The Court didn't say the administration needs to be more passive in its counterterrorism policy. It said the administration's anti-terrorism policies, whether aggressive or otherwise, need to be bound by law.
To simply recycle a quote from Justice Breyer's opinion that's in the article, "Congress has not issued the executive a 'blank check.' 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."
I mean, obviously something is preventing him. But that something is the administration's palpable desire to guard all kinds of aspects of counterterrorism from public or congressional scrutiny.
The Court didn't say the administration needs to be more passive in its counterterrorism policy. It said the administration's anti-terrorism policies, whether aggressive or otherwise, need to be bound by law.
I do agree with your take Matt. But The Court did say that Bush has to follow the law and that the judicial branch of goverment had a role to play and couldn't be barred from oversight of the legality of the anti-terrorism policies. Bush and the republican led congress tried to limit the court system's involvement in the process. It definitely is a win and I never expected the SCOTUS to dictate policy for the executive branch...just as the executive can not usurp the judiciary's role.
(from the NYT story)
Cmdr. Charles Swift, the Navy lawyer assigned by the military to represent Mr. Hamdan, said at a televised news conference held outside the Supreme Court that the logical next step would be for Mr. Hamdan to be tried either by a traditional military court martial, as provided for under the Geneva Convention, or by a federal court.
He called today's ruling "a return to our fundamental values."
"That return marks a high-water point," Commander Swift said. "It shows that we can't be scared out of who were are, and that's a victory, folks."
June 29, 2006 10:00 AM | Reply | Permalink
The Supreme Court ruled that the administration violated the Geneva Conventions - in ordinary language, the administration committed war crimes. Since the head of the administration is Dick Cheney George Bush that means we have a war criminal as president. Is that okay with everyone?
Well, it certainly isn't okay with me. The Congress needs to demand, at the very least, that Gonzales, who ruled that this was legal, resign, that Rumsfeld, who asked for and got this power, resign, and that George Bush apologize to the world. Of course, the proper course of action for a legitimate Congress, one that makes an attempt to do its job, is to impeach Bush and Cheney. And, the proper, course of action for Bush and Cheney, were they at all patriotic, is immediate resignation. Since they clearly have no idea what limits there are on the power of the President's office, nor any idea what the Geneva Conventions say, they are not qualified to continue in office.
Hoppy in Sacramento
June 29, 2006 12:30 PM | Reply | Permalink
The Congress needs to demand, at the very least, that Gonzales, who ruled that this was legal, resign, that Rumsfeld, who asked for and got this power, resign, and that George Bush apologize to the world.
The problem is that, when Congress passed the Detainee Treatment Act, they were explicitly trying to stop the courts from ruling on this issue at all. I guess you could say that this makes them co-conspirators....
June 29, 2006 1:09 PM | Reply | Permalink
"Aggressive" is an interesting choice of words.
I would have gone for "ineffective," myself.
June 29, 2006 4:57 PM | Reply | Permalink
Would you settle on "aggressively ineffective"?
June 29, 2006 5:07 PM | Reply | Permalink
Or ineffectively aggressive?
Any way you word it, Hoppy (above) has it right. It is illegal, and those who approved it should resign, and those who implemented it should have to answer to it as well.
Oh, well.....not gonna happen. Heck of a job, alberto. your medal is in the mail
Jan Knaus
June 29, 2006 5:11 PM | Reply | Permalink
Robert's concurrence in Hamdan v Rumsfeld was a primary reason for me to oppose his appointment to the Supreme Court.
The decision trivialized the US Constitution, Article Six:
With his concurrence to this decision, Roberts created judge made law, which is what the conservatives claim they are opposed to.
This decision also states that the Federal Courts cannot sit and adjudicate violations to the US Constitution Article VI., and the rationale is not because they are legally restrained, but because of "traditional understandings". This is dereliction of duty.
Of note is the uncited portion of the US Constitution, Article Six, clause two, which in its entirety states:
Under this Constitutuional clause, Roberts is derelict in his duties as a federal jurist.
Four days after this case was published, Roberts received his nomination to be a Supreme Court Associate Justice, which was later amended to his nomination as Chief Justice.
This decision was a threat to all liberty, for if a president by only his words, without any public declaration of the nature of the crimes and the indictment against a person can steal natural rights from any human, then there is not one liberty that remains secure with the people.
NOT ONE
June 29, 2006 5:31 PM | Reply | Permalink
So aren't Bush evading the FISA court and his ludicrous signing statements obviously illegal.
Tom
June 29, 2006 7:50 PM | Reply | Permalink
In reading SCOTUSblog which (link courtesy of Josh at the Mothership) it seems the Court took great interest in the US's adherence to the Geneva Convention. In terms of interrogation techniques used at the behest of the Bush Administration the Court said "No way!!!". So it seems the Geneva Convention isn't a "quaint document" after all Mr. Attorney General...
I would imagine if the Bush Administration continues to torture and use inhumane and/or degrading interrogation methods the responsible people could potentially be charged with "war crimes".
June 29, 2006 8:15 PM | Reply | Permalink
From the little I know it doesn't appear that Hamdan or the Hamdan Case is all that interesting. Apparently, he and nine(?) others have been charged with some sort of war/combatant crime. Due process for foreign combatants is a pretty low bar, and Congress shouldn't have much trouble cobbling some procedural rules together which will satisfy SCOTUS.
But what happens to the other 490 Gitmo "status detainees" who have not been charged with crimes? Do they have Habeus Corpus rights? access to the courts? Without that access, they can languish for ever. Does Hamdan say anything about them?
June 30, 2006 6:47 AM | Reply | Permalink
Hold on before you piddle yourself. This ruling does not say that the Bush administration did anything illegal. It merely said that what they proposed is not legal. No action has taken place. Gitmo itself was not addressed. I don't see mass resignations ocurring anytime soon. Sorry to disappoint you.
June 30, 2006 6:55 AM | Reply | Permalink
J. McCutchen "JmacSF"
San Francisco. CA
June 30, 2006 11:23 AM | Reply | Permalink
The Court ...said the administration's anti-terrorism policies, whether aggressive or otherwise, need to be bound by law.
Basically, the Supreme Court upheld the Magna Carta. That was close...
While I agree that the Hamdan decision isn't as sweeping as headlines are making it sound, I suspect it will have a resounding effect in the Arab world. Bush is always talking about democracy and the rule of law, well here it is.
June 30, 2006 2:01 PM | Reply | Permalink
The Supreme Court is like the tail of a kite; it stabilizes the country during changes, smoothing out acute angularities, which imperil the kite's continued flight. It resists against the greatest of democracy's internal threats, the will of the mob, and the guillotine. Still, the court will follow the people's impetus. It cannot do otherwise.
It is up to the American people to decide what is right in this heinious treament of detainees. I claim it is antithetical to our Dreamtime, and will to resist it, irrespective of its final cost to society, because it is our collective soul that is at stake. Has the faith in Due Process of Law sunk to such an abyss that only a small number still believe in its power and righteousness?
If this is to be the case, then America is lost. If the government can steal the rights of humans from our enemies, they can and will steal it from the citizenry also, because persons who hold power will seek the acquisition of power to its limits.
June 30, 2006 2:40 PM | Reply | Permalink
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
And this clause is why I can't understand how the Court has decided, apparently for most of its existence, that the Bill of Rights does NOT apply to the states - except where the Court has cherry-picked those rights, affirming the First Amendment, but not the Second, for example.
To me, this clause explicitly states that everything in the Constitution, including the Bill of Rights, is mandatory for all judges in every court, state or Federal, and overrules any state law to the contrary.
The fact that this has been ignored for most of the existence of the United States brings home the fact that the Constitution is a useless piece of paper without enforcement by the citizenry.
July 1, 2006 4:13 PM | Reply | Permalink
"Aggressive negotiations"?
"Negotiations with a light saber."
July 1, 2006 4:14 PM | Reply | Permalink
I think that's what the 14th Amendment was supposed to be about, although Courts immediately began watering it down - going so far as to use it as the basis for the ludicrous 2000 Bush v. Gore decision.
Tom
July 2, 2006 5:24 AM | Reply | Permalink
But what happens to the other 490 Gitmo "status detainees" who have not been charged with crimes?
This decision reaches them, by rejecting court-stripping Detainee Treatment Act, passed by Congress to say that Gitmo detainees cannot bring habeas cases in federal court. After the ruling in Rasul v. Bush, there was a concerted effort to find attorneys to represent status detainees in order to file writs of habeas corpus; these were put on hold by the DTA, but now they can be expected to go forward for as many as 400 detainees. In terms of its practical effect, I think this is the most important part of the decision: you can expect the Bush Administration to twist arms in Congress for approval of these military tribunals, and to deny that they have violated the Geneva Conventions, but the flotilla of habeas suits descending on the judiciary is beyond the control of the President.
July 2, 2006 2:04 PM | Reply | Permalink
July 2, 2006 2:06 PM | Reply | Permalink