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US Supreme Court ruling on military tribunals

 
 
Joe Nation
 
  1  
Reply Sun 2 Jul, 2006 04:56 am
Quote:
Joe Nation wrote:
Quote:
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?

Thomas replied:
Quote:
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.


I don't mean to belabor this, but for Option #1 to take effect the war has to be over, not just the US out of it, but nevermind, I do think you are correct regarding the present state of troops in Afghanistan and their non-PR status.

Joe(Where is Osama?)Nation
0 Replies
 
blatham
 
  1  
Reply Sun 2 Jul, 2006 11:38 am
Quote:
''The immutable rights of the individual, including those secured by the due process clause of the Fifth Amendment, belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology. They belong to every person in the world, victor or vanquished, whatever may be his race, color or beliefs. They rise above any status of belligerency or outlawry.''

http://www.nytimes.com/2006/06/30/magazine/30wwln.html
0 Replies
 
kuvasz
 
  1  
Reply Sun 2 Jul, 2006 11:49 am
Thomas wrote:
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.

and I will ignore your ignorance of the legal rights afforded by the US Constitution under the 14 Amendment to any person within its jurisdiction

viz.,
Quote:
"Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
0 Replies
 
Joe Nation
 
  1  
Reply Sun 2 Jul, 2006 11:55 am
You've got three, actually four, guys on the USSC who think the Fourteenth Amendment somehow restricts the President's power to wage war.

Joe(how original)Nation
0 Replies
 
Thomas
 
  1  
Reply Sun 2 Jul, 2006 11:56 am
Kuvasz -- if you re-read what you just posted, you will notice that the Fourteenth Amendment applies to states. It does not apply to the federal government. And the Fifth Amendment, which does apply to the federal government, makes specific exceptions for times of war.
0 Replies
 
dyslexia
 
  1  
Reply Sun 2 Jul, 2006 11:59 am
Just curious but then I wonder just what Bush/Rumsfeld will do with the 450 men now being held? Kinda a puzzlement to me. Since he says he is the decision maker will he avoid this by saying "It's congress's repsonsiblity to decide what is to be done"?
0 Replies
 
Thomas
 
  1  
Reply Sun 2 Jul, 2006 12:03 pm
dyslexia wrote:
Just curious but then I wonder just what Bush/Rumsfeld will do with the 450 men now being held? Kinda a puzzlement to me. Since he says he is the decision maker will he avoid this by saying "It's congress's repsonsiblity to decide what is to be done"?

My guess is that he will either ask Congress to change the applicable law to make his current actions legal. Alternatively, I think he will move the inmates to some lonely prison complex in the Afghani desert, where the federal courts have no jurisdictions over them, and the Afghani courts look the other way.
0 Replies
 
kuvasz
 
  1  
Reply Sun 2 Jul, 2006 01:34 pm
Thomas wrote:
Kuvasz -- if you re-read what you just posted, you will notice that the Fourteenth Amendment applies to states. It does not apply to the federal government. And the Fifth Amendment, which does apply to the federal government, makes specific exceptions for times of war.


The 14th amendment is not by its terms applicable to the federal government. Actions by the federal government, however, that classify individuals in a discriminatory manner will, under similar circumstances, violate the due process of the Fifth Amendment.

One must show a declaration of war by the US Congress for the passage of the Fifth Amendment to be applicable. Regardless of the insistence of the mouth breathing yahoos inhabiting the Right, there is no declared state of war. Saying so does not make it so.
0 Replies
 
Thomas
 
  1  
Reply Sun 2 Jul, 2006 02:03 pm
kuvasz wrote:
Thomas wrote:
Kuvasz -- if you re-read what you just posted, you will notice that the Fourteenth Amendment applies to states. It does not apply to the federal government. And the Fifth Amendment, which does apply to the federal government, makes specific exceptions for times of war.


The 14th amendment is not by its terms applicable to the federal government. Actions by the federal government, however, that classify individuals in a discriminatory manner will, under similar circumstances, violate the due process of the Fifth Amendment.

1) I note that your original claim about the 14th amendment was false, and that you changed your claim without admitting your mistake.

2) It is not disputed among congressmen or among Supreme Court judges that America is at war in Afghanistan. Contrary to your confident assertion, it is also no longer in dispute that a state of war can exist without a formal declaration of war. See Findlaw's Annotated Constitution for the relevant Supreme Court precedents.

3) Please show me where the Supreme Court has ruled that the classification "foreign detainee vs. US soldier" violates the equal protection component of the Fifth Amendment's due process clause.
0 Replies
 
Finn dAbuzz
 
  1  
Reply Sun 2 Jul, 2006 06:04 pm
dlowan wrote:
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.


Shrug - Sigh - Roll Eyes - Purse Lips- et al = Puke

And while I'm at it, constant non sequiturs = Shrug - Sigh - Roll Eyes - Purse Lips and Puke.

What non sequiturs? Why this one: "So some blind faith that imprisoning and torturing others illegally is protective for your country ..."

You now dlowan logical discussion usually follow something close to A - B- C -D.... From time to time it is certainly possible that a reasoned response involves jumping from F to H or L to P, but you have this unfortunate tendency to jump from B to Y.

BTW - I think of your country often. It appears that I think more of your country's security than do you, but then Bali was just because that bastard Howard is a lapdog of Bush. If you Aussies could just cut your ties with America then you need not worry about rabid Islamists. Sort of like the thinking that if you only throw your kids to the wolf pack chasing down your sleigh you won't have to worry about their canine teeth.
0 Replies
 
Finn dAbuzz
 
  1  
Reply Sun 2 Jul, 2006 06:37 pm
oralloy wrote:
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.


Thank you.

For too many, the (honest) response would be "Because it hurts Bush!"

I tend to agree with you - in part.

The Executive Branch has over-extended itself, particularly since it has had a Republican congress throughout it's tenure, but to be fair, each and every President has, to one extent or another, acted to, if not, advance Executive power then to preserve it.

Clearly the Founders contemplated a triad sharing power in equal measure, but even they must have realized that a pure balance of power was not likely. To the extent this equal sharing of power has any chance of happening, let's be honest, each branch must assert its own claim on power. The Founders were never so naive to believe that left to their own devices, the branchs would happily share equally in power.

Having said this, the Founders were wise enough to know that there might be times when the complicated process of triad power sharing may not be in the best interests of the nation and therefore it would be necessary for one branch to be able to immediately lead. The obvious choice for this role is the Executive Branch, and so provisions were made for extra-ordinary Executive powers.

I've no problem with the SC, almost 5 years after 9/11, reining in the Executive branch, but neither do I have a problem with the Executive branch pushing for all the power it can claim.

It's not for any one branch to reign itself in, it is for the other two.

Just as it is not for the defense lawyer to reveal what he or she may know about the guilt of his or her client. Funny how Liberals are able to accept this dynamic of tension in our legal system but not in our government system --- except, of course, when the president is a Democrat.

There is little that is troubling with the Court's decision that Congress must approve military tribunals. This should happen without too much trouble, not-with-standing the idiocy of Nancy Pelosi who suggests that monsters like Mohammed al-Atta are deserving of the same rights as American citizens.

Democrats will either reasonably come to a bi-partisan agreement with Republicans and the White House on the means to try the Gitmo prisoners or they will set a stake in the ground for an ultra-liberal position that the polity will reject in elections to come.

More troubling, but not excessively so, is the ridiculous notion advanced by the liberal justices and Stephens in particular that the Geneva Convention contemplates criminals like Al-Queda. Article 3 of the conventions, upon which Stephens seems to rely, was clearly directed toward combatants in a civil war. It is an enormous and absurd stretch to suggest that Al-Queda was engaged in a civil war in Afghanistan - or for that matter in Iraq.

No matter. The Executive Branch has been properly reigned in without requiring it to concede, and thus impair the ability of future presidents from exerting Executive Privilege.

The congress will either come to a reasonable agreement with the White House on how to deal with the miscreants who wish nothing more than to kill Americans, or Democrats will, once again, reveal themselves as the party of Weakness.

Either way it is all good for Republicans and, I would argue, conservatives.
0 Replies
 
Joe Nation
 
  1  
Reply Sun 2 Jul, 2006 07:54 pm
Quote:
It's not for any one branch to reign itself in, it is for the other two.

Just as it is not for the defense lawyer to reveal what he or she may know about the guilt of his or her client. Funny how Liberals are able to accept this dynamic of tension in our legal system but not in our government system --- except, of course, when the president is a Democrat.


You'd have to go back to Franklin D. Roosevelt to find an overreaching Democrat. FDR might be able to plead special circumstances that even Scalia would nod to.

Lyndon Baines Johnson despite being in a war and having both House of Congress under Democratic control still sought out and listened to members of the GOP. They weren't thought of as enemies during his administration. WHY NOW? It's a good and fair question for a people trying to live in a democratic republic.

Beginning with the paranoid Nixon, conservatives have continued to treat their political opponents as somehow disloyal to this nation. That is a shame and, until recently, a highly unAmerican thing to do. It still is a highly unAmerican thing to do.

This President seems unaware of his relationship with Congress and he has no relationship with the Democrats at all.

Joe(Is that any way to run a free country?)Nation
0 Replies
 
Finn dAbuzz
 
  1  
Reply Sun 2 Jul, 2006 09:29 pm
Joe Nation wrote:
Quote:
It's not for any one branch to reign itself in, it is for the other two.

Just as it is not for the defense lawyer to reveal what he or she may know about the guilt of his or her client. Funny how Liberals are able to accept this dynamic of tension in our legal system but not in our government system --- except, of course, when the president is a Democrat.


You'd have to go back to Franklin D. Roosevelt to find an overreaching Democrat. FDR might be able to plead special circumstances that even Scalia would nod to.

Lyndon Baines Johnson despite being in a war and having both House of Congress under Democratic control still sought out and listened to members of the GOP. They weren't thought of as enemies during his administration. WHY NOW? It's a good and fair question for a people trying to live in a democratic republic.

Beginning with the paranoid Nixon, conservatives have continued to treat their political opponents as somehow disloyal to this nation. That is a shame and, until recently, a highly unAmerican thing to do. It still is a highly unAmerican thing to do.

This President seems unaware of his relationship with Congress and he has no relationship with the Democrats at all.

Joe(Is that any way to run a free country?)Nation


Joe (Engaged in meaningless commentary) Nation

So what?

GOP is evil and Democrats are goodness?
0 Replies
 
Joe Nation
 
  1  
Reply Mon 3 Jul, 2006 02:49 am
Not meaningless, Finn, and pointing to what's at the heart of a serious deficiency in our nation created solely by the radical right for their own purposes.

J
0 Replies
 
blatham
 
  1  
Reply Mon 3 Jul, 2006 09:53 am
Background for this thread... http://www.newyorker.com/fact/content/articles/060703fa_fact1
0 Replies
 
Cycloptichorn
 
  1  
Reply Mon 3 Jul, 2006 12:57 pm
http://glenngreenwald.blogspot.com/2006/07/exemplary-americans-press-asserts.html

Quote:
(3) Katherine at Obsidian Wings has an excellent analysis on the intended maneuvers of Congress to circumvent the Hamdan ruling through legislation aimed at legalizing the President's military commissions. There is a certain smugness in most of the Congressional comments about this decision. They are treating it as though the decision turned on nothing other than some minor legislative oversight -- that all Congress has to do is enact a quick law making clear that they "bless" the military commissions and then all will be well.

But the crux of the Court's decision was that -- regardless of federal law -- the Geneva Conventions themselves prohibit the type of military commissions which the administration created. Although it is likely that the Court is without jurisdiction to enforce the mandates of the Conventions themselves (Hamdan was grounded in enforcement of federal law mandating compliance with the Conventions, not the mandates of the Conventions themselves), it is still the case that the Court held that the military commissions are violations of the Conventions (and, therefore, executing a prisoner based on the findings of such a commission would be a war crime, the Court strongly suggested).

Thus, the only way for Congress to empower the President to proceed with these military commissions would be to abrogate the Geneva Conventions. That is something which the President and Congress are unquestionably empowered to do -- treaties are like any other law and can be reversed or negated at any time through the democratic process (i.e., through an act of Congress) -- but is that really something that we are prepared to do?

The "war" we are fighting is a war, claims the President, about changing "hearts and minds" among Middle Eastern Muslims towards the United States, about blocking the ability of Al Qaeda to recruit and receive support by making clear that the U.S. is a force for good in the world. That is the rhetoric that is used to justify our military occupation of Iraq (once the original principal justification became problematic) and it is supposedly the central precept of our foreign policy overall. What could be more inconsistent with that putative goal than repudiating the mandates of the Geneva Conventions?

As the Supreme Court made clear -- and this proposition is not in real dispute -- the U.S. could hold these prisoners without any military commissions until "the end of hostilities." That is how all countries treat all prisoners of war. Prisoners of war aren't entitled to trials and they are not released until the war ends.

There are only two possible reasons why the Bush administration would want to try Guantanamo detainees in a military trial: (i) to justify their execution; or (ii) to address international protest that these prisoners should not be held forever without establishing their guilt. Is executing these prisoners (or trying them in a military commission as opposed to a regular court-martial proceeding) really worth the heavy cost that we will incur if we abrogate the Geneva Conventions? And if international protest is the reason to give them military trials, isn't it obviously better to hold them without such trials than to be seen by the world abrogating the Conventions?

Rightly or wrongly, our nation's highest court has held that the Geneva Conventions which we signed -- and which are part of American law -- bars the use of military commissions. Thus, the only way to proceed with them is to violate or abrogate the Conventions themselves. What possible benefit could justify the heavy cost of doing that?


Cycloptichorn
0 Replies
 
blatham
 
  1  
Reply Mon 24 Jul, 2006 08:09 am
Excellent piece in the Aug 10 issue of NY Review of Books by David Cole. Unfortunately not available online without membership. Worth finding a bookstore copy.
0 Replies
 
Walter Hinteler
 
  1  
Reply Mon 24 Jul, 2006 08:57 am
blatham wrote:
Excellent piece in the Aug 10 issue of NY Review of Books by David Cole. Unfortunately not available online without membership. Worth finding a bookstore copy.


Posted here :
Quote:
[This piece, which appears in the Aug. 10, 2006, issue of the New York Review of Books, is posted here with the kind permission of the editors of that magazine.]
0 Replies
 
blatham
 
  1  
Reply Tue 25 Jul, 2006 07:54 am
Love ya walter. I just found another site with Cole's piece and popped in to link it. Ya beat me again.
0 Replies
 
 

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