US Supreme Court ruling on military tribunals

Finn d'Abuzz wrote:

dlowan wrote:
Er....adherence to rule of law, adherence to principles advocated to by US when it comes to others, adherence to reasonable principles re human rights, justice, denial of untoward claims to power by president....those would be a few beginning reasons why it is a good decision...

Er...spare us your stylistic crap.

You've listed the common rhetoric, now explain the underlying value.

How interesting that you are unable to see that that IS the underlying value. I do wonder what underlying values you have?

What are the underlying values in having an administration prepared to go to the lengths the Bush one has to deny legality and decency?

What are YOUR underlying values in supporting this?

I note that the values you are unable to admit in me would appear to be those of your legal system.

A matter of encouragement to those of us who believe the USA has a lot to offer in the world.

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okie wrote:

It seems a bit insulting to think terrorists now have all the rights of an American citizen. Give me a break.

If anyone thought we had too many lawyers now, I would say Katie bar the door, we will probably be overrun with them. There may not be enough to defend all the terrorists, or courtrooms to try them in for that matter. Talk about a drag on our court system. We may not have seen anything yet if this is headin where it looks like it is.

I belive you will find that the accused (but people who were not allowed to know of WHAT they were accused) and illegally imprisoned without access to ang judicial process people have not been found to have the rights of American citizens, but of human beings and enemy combatants, as delineated under legally binding agreements to which America is a signatory.

I also understand that Bush will be able to set up military tribunals for the majority of them identical to the ones suggested by the US military's own lawyers when this illegal travesty was being hatched, whose advice and protests were ignored.

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dlowan wrote:

Finn d'Abuzz wrote:
dlowan wrote:
Er....adherence to rule of law, adherence to principles advocated to by US when it comes to others, adherence to reasonable principles re human rights, justice, denial of untoward claims to power by president....those would be a few beginning reasons why it is a good decision...

Er...spare us your stylistic crap.

You've listed the common rhetoric, now explain the underlying value.

How interesting that you are unable to see that that IS the underlying value. I do wonder what underlying values you have?

What are the underlying values in having an administration prepared to go to the lengths the Bush one has to deny legality and decency?

What are YOUR underlying values in supporting this?

Americans don't have to leap from skyscrapers to avoid burning to death, and Australians on vacation don't have to worry about being burned to death by Islamic scum-bags.

I note that the values you are unable to admit in me would appear to be those of your legal system.

Look above.

A matter of encouragement to those of us who believe the USA has a lot to offer in the world.

Do you really mean to suggest that this set includes you, when you have nothing but vitriol for the USA?

Come clean hare-brain, and don't make feeble attempts to portray yourself as Pro-American.

(BTW - Thanks so much for addressing me as a person rather than an object! )

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Finn d'Abuzz wrote:

dlowan wrote:
Finn d'Abuzz wrote:
dlowan wrote:
Er....adherence to rule of law, adherence to principles advocated to by US when it comes to others, adherence to reasonable principles re human rights, justice, denial of untoward claims to power by president....those would be a few beginning reasons why it is a good decision...

Er...spare us your stylistic crap.

You've listed the common rhetoric, now explain the underlying value.

How interesting that you are unable to see that that IS the underlying value. I do wonder what underlying values you have?

What are the underlying values in having an administration prepared to go to the lengths the Bush one has to deny legality and decency?

What are YOUR underlying values in supporting this?

Americans don't have to leap from skyscrapers to avoid burning to death, and Australians on vacation don't have to worry about being burned to death by Islamic scum-bags.

I note that the values you are unable to admit in me would appear to be those of your legal system.

Look above.

A matter of encouragement to those of us who believe the USA has a lot to offer in the world.

Do you really mean to suggest that this set includes you, when you have nothing but vitriol for the USA?

Come clean hare-brain, and don't make feeble attempts to portray yourself as Pro-American.

(BTW - Thanks so much for addressing me as a person rather than an object! )

I see.

So some blind faith that imprisoning and torturing others illegally is protective for your country (and, at least on this occasion, when you appear to have thought of it, mine) makes you decide that law has no place?

Pretty much what I expected.

Thing is you mistake anything but fanatical support for everything your country does as "nothing but vitriol". You hurl what you see as an epithet against your own countrypeople, when they do not agree with you and the actsions of your country. (Or is that only when it is run by conservatives..? Whatever...)

It must be partly what makes you such an unpleasant and bitter poster, since you see enmity everywhere, and this seems to drive you into fenzies. Your frenzies then elicit exactly what you believe is there, sometimes, when people are stung to respond to your extraordinarily one sided views and insults with similarly worded diatribes. So it goes, on both sides.

You are wrong, as it happens, about many of those you rant about, but I don't expect this ever to be something that dawns on you.

Shrugs.

It is good to see what is admirable about your country triumphing over such thinking.

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okie wrote:

It seems a bit insulting to think terrorists now have all the rights of an American citizen. Give me a break.

If anyone thought we had too many lawyers now, I would say Katie bar the door, we will probably be overrun with them. There may not be enough to defend all the terrorists, or courtrooms to try them in for that matter. Talk about a drag on our court system. We may not have seen anything yet if this is headin where it looks like it is.

This decision does not say that terrorists now have all the rights of an American citizen. So there's your break.

Try reading the documents or at least some of more considered commentary.

Joe(Hint: The USA is not governed by executive fiat)Nation

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Thank you Joe, for reminding folks that it really does help to read a Supreme Court decision before becoming hysterical. This decision is not one that the administration, the GOP, or many conservatives would have liked it to be. I thought that under the circumstances, that the handling of detainees in Guantanamo were appropriate. In a 5-3 split the Court disagreed, but leaves the door open to remedy what they found fault with. Thats what they are on the Bench to do. The administration will amend policies to conform to the decision, and Congress may adopt legislation to deal with the situation. Thats all as it should be.

This is another instance where it is clear that the Supreme Court remains independent of the Executive and Legislative branches. Those who would persuade us that the administration has staged a quiet coupe are badly mistaken. I hope, but don't believe, that this decision will help to cool the outrageous remarks made from the political extremes.

Deciding what IS legal, appropriate and proper to do with radical Islamic terrorists who are captured is almost without precedent. They do not meet accepted definitions of being soldiers, yet they declare themselves "at war" with the infidels of Western Civilization. They fight outside their native countries and without any legal attachment to a regularly formed military organization. Their operations are purposely directed as often against truly innocent women and children, as they are against regular military formations. They do not recognize any of the civilized rules or codes governing war, except when they are captured. They have proven themselves a danger to the United States and commit crimes against it, yet can not be easily fit into the criminal justice system of our country. Their condition as prisoners is very ambiguous; sometimes they are "soldiers" and sometimes "criminals". They are, it seems to me, closer to old time pirates than either soldiers or common criminals.

In the old days pirates were captured, taken in chains before an Admiralty Court and in most instances hung shortly thereafter. This group is far larger than any traditional pirate organization, and it would offend too many people if we were to hang them en mass. So what does one do with them?

Milk them for intelligence information. Return them to their countries of origin, unless that government is probably complicit in their crimes. If their governments want to imprison them, torture them, or execute them is not our business, nor are we responsible for them. Some might be prosecuted and imprisoned under our laws, these would I think mostly be those claiming some sort of U.S. citizenship. Protecting U.S. security interests while providing an open trial in front of a jury would be very difficult, and the prosecution would be operating with both hands tied behind its back. Some might be confined indefinitely, until they are determined to present no danger ... perhaps after they are too old to take the field again. Any one released should be carefully monitored and watched until they die. If they are found again involved in any terrorist act, execute them on sight. Of course, none of thats likely to happen.

Still, the international community should address the problem of defining the status of international terrorists. The world needs new international agreements on how to properly deal with captured murderers belonging to supra-national organizations claiming to be at "war" with regularly constituted nations and governments. Such a code should deal harshly with terrorist organizations and their agents. The operable word is "should". None of this is likely to happen, because the issues are difficult and there is no effective international organization capable of addressing the issue. In many ways, I believe the UN is more a part of the problem than any viable solution.

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Asherman wrote:

In many ways, I believe the UN is more a part of the problem than any viable solution.

What has the UN to do with it? (Neither the Geneva Treaties nor the US-law are part of the UN or one of its organisations.)

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Walter,

Developing a international agreement specifically addressing the problems of appropriately dealing with international terrorist organizations and their "soldiers" it seems to me is EXACTLY what the U.N. was expected to do back when it was founded. Unfortunately, the U.N. has shown itself to be inept at dealing with this sort of thing. If an international understanding on the legal standing of international terrorist organizations is to occur, wouldn't you think of the U.N. ... at least at first?

Those nations that support radical Islamic terrorism, and anyone they can convince to support them, will do everything in their power to prolong the ambiguities. The large radicalized populations of middle-eastern countries thrive on the absence of clear international agreements as to how terrorism aught to be treated. If they were deprived of using terrorism against Israel, what would they do? On the other hand, how does one really discourage international terrorism without stepping on the sovereignty of individual nations? Would Israel have to give up retaliatory strikes against Hamas? These are difficult questions, and it seems to me that really very few folks are thinking about them.

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okie wrote:

So what happens now, do we need a search warrant to arrest a terrorist on the battlefield? Does he skate if we don't read him his rights and allow him access to a lawyer right away?

No.

There are two courses of action, really.

Option #1 is to simply detain these people until the war is over, then give them courts martial using fair trial standards (it won't matter so much after the war that a fair trial will compromise wartime intelligence).

Option #2 is to have Congress relax the human rights standards of military tribunals, and then proceed immediately with drumhead tribunals.

I vote for the option #1. The Republicans (both in Congress and in the White House) are going to choose option #2.

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There's a very good reason why Option #1 won't work.

The War on Terror will never end.

It is on the same timetable as the War on Drugs.

The War on Poverty, however, is apparently won, given that this present administration has yet to mention the poor in any significant way for the past six and half years.

Joe(hmmm. what was the statue in regard to pirates?)Nation

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Great news. Good to see proper American values of human rights, judiciary independence and rule of law be reconfirmed, over the blind trust in executive power that's been advocated as security policy by the Bush admin('s supporters).

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Finn d'Abuzz wrote:

why is this a good decision?

Because it reaffirms that Congress is the one who writes the laws. The executive branch just executes the laws.

The Supreme Court did not say that there can't be military tribunals to hear war crimes cases.

They said the tribunals could begin immediately if they use the rules for courts martial which already exist.

The Supreme Court also didn't say that there can't be new rules for military tribunals that allow for laxer standards.

They only said that if there are to be new rules, it has to come from Congress. The President doesn't have the power to write his own laws.

All the ruling really did was reaffirm the separation of powers in the Constitution.

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dlowan wrote:

I belive you will find that the accused (but people who were not allowed to know of WHAT they were accused) and illegally imprisoned without access to ang judicial process people have not been found to have the rights of American citizens, but of human beings and enemy combatants, as delineated under legally binding agreements to which America is a signatory.

How is their imprisonment illegal?

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Joe Nation wrote:

There's a very good reason why Option #1 won't work.

The War on Terror will never end.

I disagree. I think we'll successfully annihilate our enemies.

And even if it did never end, I don't see how that means option #1 won't work.

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dlowan wrote:

Er....adherence to rule of law, adherence to principles advocated to by US when it comes to others, adherence to reasonable principles re human rights, justice, denial of untoward claims to power by president....those would be a few beginning reasons why it is a good decision...

Actually, my impression from reading Stevens' and Breyer's opinion is that this is mostly a seperation of powers decision, not so much a human rights decision. It addresses questions like: Do the federal courts have jurisdiction in the case? (Yes, but they will lose it if the president moves the camps from Guantanamo Bay to Romania, Egypt, or Afghanistan, which he has the power to do.) Can the president install those tribunals without explicit legislation from Congress? (No, but nothing keeps the president from going to Congress and ask for such legislation. I expect he won't find it hard to get, certainly not until November this year.)

The only human rights point I see in the decision is their finding that the Geneva Convention applies to the Guantanamo prisoners through the Uniform Code of Military Justice. (But what if Congress changes the Uniform Code of Military Justice?)

Joe Nation wrote:

The War on Terror will never end.

It seems to me that the judicially relevant war in the Hamdan case is the one in Afghanistan, which will eventually end. Did you see anything in the opinion (or even in the dissents) where the judges say that the end of the metaphorical "war on terror" is relevant to the date when the prisoners can be released? I didn't, but that may well be an oversight on my part.

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Both Oralloy and Thomas are correct, this decision is about the separation of powers under the US Constitution and is important because George W. Bush forgets, ( I think he actually forgets.) that he is the Chief Executive of the United States, not the Czar. Unsaid as yet here, unless I missed it, is it's implications regarding the FISA court and this administration's operations of domestic spying. Can we expect another 5-3 or 5-4 decision on the challenges brought thus far? I don't know. I do know our Constitution rests today on a knife's edge balance between those who would look at the Constitution as it is and those, like Clarence Thomas and Scalia who think there are special circumstances under every tree. Really, how could an "originalist" not vote with the majority on this decision?

As to the war on terror and Option #1:

Quote:

Option #1 is to simply detain these people until the war is over, then give them courts martial using fair trial standards (it won't matter so much after the war that a fair trial will compromise wartime intelligence).

Was I being cynical? A little. But who is going to declare the War on Terror at an end? Is there a battleship deck or a table in Paris where the combatants will meet to sign an armistice?

As to the prisoner in question, even if we limit the definition of "the war" to the conflict in Afghanistan, when is that ever going to be over? The so-called Tribal Areas between Pakistan and Afghanistan have never been controlled by outside governmental forces, not for the past 10,000 years, not by the Pakistanis, not the British, not by the Soviets when they made their ill-advised visit to Afghanistan. They are not under any control from Kabul today and it's not very likely to change for the next 10,000 years although Oralloy is correct in assuming that wartime intelligence will not be compromised by then.

How do you end a war which by definition has no definition? Do we, as we should have in Viet Nam, declare victory and parade home?

Joe(This administration will study the situation ad infinitum)Nation

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Joe Nation wrote:

Really, how could an "originalist" not vote with the majority on this decision?

By finding that the original constitution did not directly decide about the tradeoff at issue here. It is interesting to look up the constitution's relevant articles in The Founders' constitution, a concordance that points to contemporary sources illuminating each article. From this collection, it is clear that they wanted Congress to constrain the president's war making power, because they felt the powers of the English king had been too great. On the one hand, the president retains the right to make war once Congress has declared it. As usual with checks and balances, the constitution has a built-in conflict of interest between two branches of government here, and it left it up to the courts to sort them out.

And as it happens, the controlling precedents at the moment were decided in World War II, and they are very deferential to the executive.

Joe Nation wrote:

As to the prisoner in question, even if we limit the definition of "the war" to the conflict in Afghanistan, when is that ever going to be over?

As soon as the US withdraws from Afghanistan, possibly handing over to the UN, or to European Nato partners. I don't know when this will happen, but I'd say it's a matter of years, not decades.

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Well, looky-see the analysis by the fella' that Tico posted i.e., Ronald Cass of realclearpolitics.com, tells quite a bit about the way Right Wing kooks look at America.

It seems that while they do admit that:

Quote:

"The five-justice majority of the Supreme Court that decided the Hamdan case yesterday showed great interest in demonstrating their commitment to upholding constitutional protections and protecting international human rights, both admirable instincts in many settings.

[/b]

They also believe:

Quote:

"They [the Court] showed less appreciation for the fact that Americans are threatened, and thousands of innocent Americans were killed by brutal thugs - the sort who behead civilians, film it as sport, and post the video on the Internet. And the justices showed no appreciation for the fact that Congress and the President might well know more than they do about the security needs of the United States."

Setting aside that such arguments are besides the point of the pertinent laws involved, they actually ignore our history and spit on the grave of the fella' who said "Give me Liberty or Give me Death." Apparently, such self-professed strong-willed, Freedom-Loving Americans are neither, and so scared $hitless of America's enemies that they would be willing to give up their own (and everyone else's to boot) hard fought constitutional protections to the government in effort to gain some temporary and illusory protection.

But the kicker, following Mr. Cass's argument, deals with precisely the long term problem inherent in the Rightwing worldview, with:

Quote:

"the justices wrote a careful, precedent-laden, critically analyzed decision, well within the bounds of ordinary judicial craftsmanship - just as they did in Kelo. The proper criticism of their decision is not that it is politically inspired, not that it boldly ignores the law, and not that it is a decision that is utterly without support (though all these critiques may well come from the right).[/i] Instead, the proper criticism is that the decision is simply wrong, just as Kelo was, and will have consequences that no sensible American should applaud.

Who ever said a republic supposed to be easy? Apparently Republicans do, but only to salve their fear and when the actions of their Fearless Leader are rejected on constitutional grounds.

It matters not at all to them that an argument can be a "careful, precedent-laden, critically analyzed decision, well within the bounds of ordinary judicial craftsmanship" and "not..... politically inspired," nor one that "boldly ignores the law, and is not one that "is a decision that is utterly without support."

Because it is still wrong.

One would ask that if the aforementioned decision is a "careful, precedent-laden, critically analyzed decision, well within the bounds of ordinary judicial craftsmanship" and is "not..... politically inspired," nor "boldly ignores the law," and is not "a decision that is utterly without support," by what internally consistent mental process demands that the decision is "simply wrong?"

Any such argument, no matter how it is dressed up in banal and ignorant flag-waving pseudo-patriotism as "protecting our Way of Life" is imbued with that hoary philosophy that has stalked and ravaged mankind for ages and at base is the belief that the ends justify the means.

And it stands upon its head the civilizing affect of Law and what is supposed to do.

Make no mistake, those who attack this decision, including those on the Court are the radicals and real enemies of the great and time-tested freedoms the United States of America affords it citizens, and were their political opponents to apply the same standards to them of such an expedient philosophy they would be put in concentration camps.

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What an interesting link, Thomas. Thank you.

What makes you think that the US conservatives will allow the hated UN to assume the role of the US forces? How many fingers does it take to number the names of the European NATO partners willing to take over?

Joe(Afghanistan is the tar-baby)Nation

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kuvasz wrote:

Make no mistake, those who attack this decision, including those on the Court are the radicals and real enemies of the great and time-tested freedoms the United States of America affords it citizens, and were their political opponents to apply the same standards to them of such an expedient philosophy they would be put in concentration camps.

I'll ignore how close you are coming to triggering Godwin's Law, and simply ask if you are aware that the inmates of Guantanamo Bay are foreigners detained in a war, not US citizens.

Joe Nation wrote:

What makes you think that the US conservatives will allow the hated UN to assume the role of the US forces? How many fingers does it take to number the names of the European NATO partners willing to take over?

The observation that they've already come pretty close in 2003, when they decided to concentrate on the war in Iraq instead. I can't seem to find troop deployments by nation in Afghanistan, but I think I remember that most of the forces are now non-American. The coalition in Afghanistan is not a PR stunt like "the coalition of the willing" in Iraq.

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US Supreme Court ruling on military tribunals

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