US Supreme Court ruling on military tribunals

Joe Nation wrote:

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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:

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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.

''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.''

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.,

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"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

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"?

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.

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.

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.

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.

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.

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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

(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?

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.

[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.]