Balkinization  

Friday, June 13, 2008

This is what a failed revolution looks like

JB

In the Military Commissions Act of 2006, the President and the Republican-controlled Congress said to the Court: Stop meddling in the handling of Gitmo detainees. We do not think that habeas extends to Gitmo, and even if it does, we've produced a constitutionally adequate substitute.

In Boumediene, the Court responded: to the contrary, constitutional habeas does extend to Gitmo, and the remedy you've offered is not adequate.

It is still available to the President and Congress to try to suspend the writ, and the Court could then decide whether the suspension was successful. However, there is almost no chance that the current Congress would agree to suspend the writ. It is also likely that the Congress that passed the MCA would not have voted to suspend the writ if the choice were clearly posed on those terms and a clear statement of intent to suspend was written into the legislation. In any case, it is likely that if the MCA were presented to Congress today, much of it would not have passed.

And that is precisely the point. Boumediene is further proof, if any were necessary, that the constitutional revolution proposed by the Bush Administration after September 11, 2001 has failed.

Following the 9/11 attacks, George W. Bush and his supporters proposed a significant chance in constitutional norms, centered around increased presidential power to fight the war on terror. This vision included (1) a doctrine of preemptive war, (2) new surveillance techniques, including domestic surveillance, (3) a new system of preventive detention, including detention of american citizens without access to courts, (4) the creation of legal black holes like Guantanamo Bay and CIA black sites, (5) use of torture and torture-lite to obtain information, (6) enhanced secrecy and classification policies, and (7) a version of unitary executive theory that claimed that Congress could not constitutionally limit the President when he claimed to act under his powers as Commander-in-Chief. The last idea was also articulated in (8) the expansion of the use of constitutional signing statements, in which the President would state that he would disregard certain features of laws passed by Congress without telling the public any details about the scope or extent of his non-enforcement.

The Bush Administration sought to cement this new constitutional vision to the already regnant version of movement conservatism. It sought to reorient the conservative movement away from primarily domestic concerns after the fall of Communism and toward a focus on a muscular foreign policy and unilateral Presidentialism. This was not hard to do for two reasons: first, American conservatism needed to replace its focus on anti-Communism with a new set of foreign policy goals, pursued with equal fervor. Second, some of the theoretical moves undergirding Bush's vision of the Presidency on steroids had already been articulated in the Reagan Administration.

By 2008, we can say that this attempt at a constitutional revolution has failed. The Supreme Court resisted the Administration's attempts to get it to legitimate the new regime. Indeed, as the case of Jose Padilla suggests, the Administration tried to avoid going to the Supreme Court when it discovered that the Court would likely rule against it.

We must understand the quartet of cases: Hamdi, Rasul, Hamdan, and now Boumediene, in this light. No matter whether the Supreme Court is conservative or liberal ideologically, it tends to be conservative institutionally. That is, it does not get behind a proposed constitutional revolution unless it is quite clear that the country is also behind it and demonstrates this support over a sustained period of time. Until that proof is made, the Court tends to resist implementation, or temporize, or a bit of both.

This is largely what happened between 2004 and 2008. The Supreme Court resisted the most extreme features of the Administration's proposals but did not completely reject what the Administration was attempting to do. Although Hamdi is often seen as a defeat for the Bush Administration, it actually legitimated preventive detention according to the laws of war, and offered only limited due process rights to detainees. Rasul and Hamdan were decided as statutory cases with decidedly constitutional overtones. Yet if the Republicans had continue to win victories in Congress and maintained strong public support for the war on terror and the war in Iraq, the Court would probably have eventually given way. However, that's not what happened.

Bush's proposed revolution lost steam for three reasons. First, to his credit, there was no successful terrorist attack on U.S. soil after 9/11. Initial public fear gave way to public distrust about the Administration's heavy handed tactics and a native American libertarianism reemerged. (Ironically, the very distrust of government that movement conservatism responded to worked against Bush's revolution.). Second, the public grew increasingly concerned about reports of torture and mistreatment at Abu Ghraib, at Gitmo, and at CIA black sites. All of these reports greatly damaged America's image as a symbol of liberty around the world and distrubed Americans image of themselves as the good guys who were (or should be) morally superior to their enemies. Third, Bush's adventure in Iraq, which he repeatedly claimed was intrinsically connected to the global war on terror, did not succeed, and while the surge has stabilized the situation temporarily, it has not led to the political solution that was its purpose. It's also worth noting that the Supreme Court did not begin hearing these cases until 2004, when the initial ardor following 9/11 had cooled considerably, and when the President's political standing had begun to slide. By the time Boumediene was decided, support for Bush and his unilateral vision of the Presidency was very weak indeed.

If things had turned out differently: if there had been more successful terror attacks on U.S. soil, or if the Iraq war had been a resounding success, the Republicans might have increased their numbers in Congress greatly, and they might well have been set for a sustained period as the majority party in the country, leading a successful constitutional revolution that fulfilled the hopes of the conservative movement. (The goals of that movement, however, would have been transformed by the focus on the war on terror, in the way described above.).

As it happened, this did not come to pass. Bush is now one of the most unpopular presidents in modern American history. The Republicans have lost control of both houses of Congress. Their party may lose even more seats in the next election, and the Democrats may return to the White House.

Even failed constitutional revolutions, however, may have lasting effects. The next president will be stuck with the problems created by the Iraq war for some time. He will have to find a solution to Gitmo, a problem for which there are few good solutions. He will have to figure out how and when to engage in preventive detention for terrorists, what sort of legal process to use, and how to reform surveillance practices. The next president, in short, will assume most of Bush's problems, as well as the new problems Bush created in his failed attempt to solve them.

For the moment, however, the Bush Administration's attempt at a constitutional revolution has failed. Yet aspects of it may revive in different forms. If John McCain is elected, he may appoint additional movement conservatives to the Supreme Court, who may be more than happy to carry out a constitutional transformation if Congress cooperates. The country may face a new terror attack, which may revive people's tolerance for tougher and more authoritarian measures. The only thing we can say for certain about the future is that it is likely to surprise us.

Comments:

This comment has been removed by the author.
 

it's rather breathtaking isn't it .. that these huge expansions of governmental power have been brought to us by the mavens of small government ..

but be of good cheer .. the loathsome spotted reptiles made famous here by m. mourad will soon change their spots ..

in the mere blink of an eye .. as soon as a democratic body politic and a democratic president take power .. all these super-powers of the executive will be seen as an odious threat to our liberties
 

Perhaps the central feature of modern American conservatism both in politics and judicial philosophies is what Kant called, "Unmündigkeit", a variety of dependence and immaturity, manifesting in reliance on authority rather than reason.

This propensity toward authority-based rather than reason-based remedies to problems, spawned the MCA and a whole host of other problems.

The revolution though, is not failed, anymore than the liberal revolution of the Warren era failed. Although publicly repudiated, passages like these leave indelible footprints in the sands of our thinking, our laws, and our jurisprudence...

Like the ACLU, we will just have to stand on the battlements of the Enlightenment and ward off the periodic charges of the authoritarian barbarians.
 

Professor Balkin:

I would suggest instead that Boumediene confirms the success of the Court's revolution started in Rasul to create habeas corpus review of foreign POWs for the first time in Anglo American history and to use this novel habeas review to take from the elected branches their express Article I and II powers to set rules for captures.

We have not seen a constitutional coup de tat of this breathtaking magnitude since the passing of the New Deal, Warren and Burger Courts.

Is there a general constitutional principle in your theory of "originalism" which allows the courts to assume the Article I and II powers of the elected branches to set rules for captures?
 

On paper, the revolution may have failed, but in practice, the Bush administration, as you read this comment, is torturing people and getting away with it. An article at Salon.com reports that more than half of the 270 detainees currently at Guantánamo -- including many who are slated for release or transfer (i.e., are innocent) are being kept in solitary confinement, in windowless cells, for 22 hours a day. As a result, they are attepting suicide, having visions and hearing voices, and showing signs of depression and anxiety disorder. This is torture and sadism, and our legal system apparently provides no means to stop it. Its victims probably do not think that the revolution failed. Here's the Salon article: http://www.salon.com/news/feature/2008/06/10/guantanamo_mental/.
 

your point about institutional reluctance to radical change is well taken, by the SC is a very small institution and if Bush had had the chance to appoint even one more justice, all of these cases could have been decided the other way.

at that point, i submit, you have a SC that looks a lot like the one that rejected FDRs New Deal and had to be cowed into towing the line. an entrenched majority hostile to presidential action.

nor are we out of the woods yet. while the SC has been making the "right" decisions in re to detention and torture, it has yet to rule on the myriad of other issues concerning privilege and surveillance, let alone the outright corruption of practically the entire Executive branch.

institutional entrenchment sounds too solid to describe the bullets we've dodged.

Note too that all of these expansions can be tied directly to our real president Cheney.
 

Michael [supra.] says it as well as anyone. Brute power (i.e., authority) versus sound reason. Was not the chief concern of the founders to curtail tyranny in all its forms?
 

Bart, the Constitution doesn't say that the Suspension clause is limited to domestic habeas. Rather, there are prudential and persusaive-- not controlling-- precedents that would suggest that foreign prisoners may not have habeas rights.

And if foreign prisoners are within the Suspension clause, then this is no longer an issue of Article I or Article II power. Even the vaunted Scalia agrees that with respect to domestic prisoners of war, the military powers of Congress and the President do not override the Suspension Clause.

The entire game on your side is to pretend that very difficult questions are in fact easy.
 

Don't blink.
People like Bart still run our Government.
 

the theory of law i was taught is that the constitution doesn't grant the government anything .. it limits the government to as little or as much as the governed consent ..

the ruling of the USSC etablishes the legal fact that the executive has overstepped it powers ..

no complaint arising from a retraction of that over-reaching is valid as the power being exerised was in contravention of the constitution as interpreted by the court in it's decision ..

that's the way our governance works .. those who don't like our system are free to emigrate to a clime which suits them better ..

resistance is futile ..
 

Bart,

Though I think I understand your mindset as well as anyone can make such a claim based on the disembodied nature of our commerce, I have to say that the ground may be shifting under your feet and you are late becoming aware of it.

In a string of cases, justices, however politically sympathetic to the current administration, are beginning to swing away from the aggressive and vaunting over-reaching this administration has indulged in at the expense of the other two branches. This includes the acts of a compliant Congress.

This reminds me a bit of an earlier corrective the Courts applied to the New Deal ante 1937.

Nothing new under the sun here really. The Court is recognizing a new and revolutionarily dangerous trend in Executive maximization and are applying the brakes...
 

dilan said...

Bart, the Constitution doesn't say that the Suspension clause is limited to domestic habeas. Rather, there are prudential and persusaive-- not controlling-- precedents that would suggest that foreign prisoners may not have habeas rights.

Thank you for joining the Court and admitting that the King's Bench actually said what it said and not engaging in the petitioners game of pretend that the King's Bench actually provided a habeas review of a foreign combatant's POW status.

However, assuming that the Suspension Clause incorporated the writ as it existed at the time of the ratification, it is not the government's burden to prove the negative by offering affirmative precedent that habeas review did not extend to foreign POWs. Such precedent is only icing.

Rather, it is the burden of petitioners to prove their affirmative claim that the writ extended to foreign POWs. There is no such precedent before ratification.

The Court gave itself some wriggle room by leaving open the possibility that the Constitution has been incorporating changes in the common law writ from ratification to today. However, there is no such precedent prior to this opinion.

The Court admitted that it extended the writ in this opinion on its own. Consequently, unless the Court is claiming that the Constitution retroactively incorporated this new extension, Kennedy cannot honestly claim he was interpreting the Constitution in creating at this extension.

And if foreign prisoners are within the Suspension clause, then this is no longer an issue of Article I or Article II power.

This is yet another argument that habeas corpus was never meant to extend to POWs. The drafters would not have meant the Suspension clause to render nugatory other provisions of the Constitution.
 

michael:

While we may disagree on the policy, I believe we have reached agreement that the Boumediene Five are rewriting the Constitution very much like the New Deal Court to enable policies more to the justices' liking.

The Court's proposed revolution is too baldly obvious to honestly claim that they are following rather than legislating the law.

However, I many ways the work of the Boumediene Five is far worse than the New Deal Court. In the New Deal commerce cases, the Court was removing constitutional boundaries to enhance the power of the elected branches of government, which can at least be argued as advancing democracy. However, the Boumediene Five are taking power away from our elected branches and giving it to themselves as unelected CiCs. This is simply dangerous and has no redeeming qualities.
 

There are still 13,000 prisoners in Afghanistan. Prisoners "released" from Guantanamo, who are Afghani, go to Pol-e-Chakri prison there, on a special wing built by the U.S. military, where they proceed to trial in the Afghani courts, with no real proceedings and documents introduced consisting of statements without factual evidence, written by the U.S., as the only consideration during the trial.

When judges there tried to sentence these prisoners to time served, the U.S. pressured the Karzai government about it, and the government sacked the judges and accused them of treason.

Under the circumstances, I think it's premature to declare victory when there are 10 times as many prisoners as at Guantanamo there, under U.S. control (but technically, well, you know,...held by the Afghan government) who are being held beyond the reach of the ICRC. But, you know, Guantanamo is the frame, and people believe frames not facts.

Does anyone truly believe that any of the prisoners in Afghanistan will get habeas or common article 3 rights to have their status reviewed without further trips to the Supreme Court? Me personally, I am not beyond believing that when the new administration comes in, they will get forgotten about entirely. Some justice. I guess they can sit there in their Afghani cells and reminisce about the time they got to enter habeas corpus pleas.
 

Never the less, Mukasey intends to go ahead with military tribunal trials of the detainees.

U.S. Attorney General Michael Mukasey says the Supreme Court’s decision on Guantanamo detainees won’t affect military trials against enemy combatants.

Mukasey, speaking Friday at a Group of Eight meeting of justice and home affairs ministers, said he was disappointed with the decision.

But he told reporters it won’t affect military trials to be held at the U.S. naval facility at Guantanamo Bay, Cuba.


Is there a serious crisis brewing? What is the likely response to Mukasey's refusal? Short of impeachment what can congress or the courts do?
 

It seems to me that the last 8 years constitute a real warning shot across the bow for our system of government, one I'm sure Prof. Levinson would acknowledge more than most. The truth is, we narrowly dodged a bullet (not just metaphorically) because the George Bush is staggeringly incompetent. If he had any real ability, the inconceivable would be... well, we've all seen The Princess Bride.
 

Jkat wrote:-

but be of good cheer .. the loathsome spotted reptiles made famous here by m. mourad will soon change their spots

Thanks very much, but the immortal phrase is from a famous satirical take-off by Peter Cooke of a Judge’s summing up in a politically sensitive trial by Mr Justice Cantley – a delightful old-style Judge. The case involved an alleged conspiracy to pervert the conspiracy to pervert the course of justice by the then leader of the Liberal Party, Jeremy Thorpe by arranging for someone to frighten off his then boyfriend who was blackmailing him [This is pre-gay liberation]. You should know that our judges sum up the evidence to the jury and give directions of law. Telling them, of course that they are the sole judges of fact. But a skilled Judge can sum up for a conviction or for an acquittal, which Sir Joe did.

You can see the masterpiece here:

Entirely a Matter for You

Incidentally, this was at an annual Amnesty International benefit called “The Secret Policeman’s Ball”.
 

The "Boumediene Five"; I like that! Doubtless we can have the "Bush Five" as well; and even figure out the intersection, and give it a name too, if that floats your boat.

The Dave Clark Five will however prevail on vinyl.
 

I'd like to believe that either this decision, or a similar one as Bismullah perked up the chain, would have transpired even if the GOP had held a majority of Congress in 2006.

.

That is, that SCOTUS would not have endorsed a shell-proceeding of CSRT/MCA as being "fair, accurate and impartial," with the imprimatur of judicial approval.

.

We'll never know, of course, if SCOTUS is as "apolitical" as I would wish.
 

So here's what those who condemn Boumediene are largely saying: we do so have a Nation where it's perfectly legal to lock people away and throw away the key, without trial and without charge, without independent review of any sort, to rot for the rest of their lives.

That it turns out would also be an equally strong argument that we do not deserve to have a Nation. If that's the kind of Nation we're going to have.

My celebration of Boumediene isn't that it was rightly decided, although I hope it was. I celebrate that we live in a Nation where NO MATTER WHAT a prisoner cannot be left to rot with no recourse whatsoever. If Boumediene was rightly decided, that does offer the advantage that our Nation is fundamentally civilized by its highest code, not subject to the failings of the Congress and the Executive.
 

jpk said...

So here's what those who condemn Boumediene are largely saying: we do so have a Nation where it's perfectly legal to lock people away and throw away the key, without trial and without charge, without independent review of any sort, to rot for the rest of their lives.

No.

It is perfectly legal under the laws of war to hold enemy POWs for the duration of the conflict with that enemy or until it is determined that the combatants are no longer dangerous and can be paroled.

No one is talking about life sentences for POWs. The vast majority of the Gitmo prisoners have been released in the years before Boumediene because al Qaeda is largely defeated and they are not deemed dangers.

There are only about 270 left at Gitmo.

Dozens of those have been cleared for release and are awaiting a country to accept them because they fear going home.

There are about 70 of the remainder who are likely to be tried as war criminals and will not be released pending their trials, if their self appointed lawyers will ever allow them to go to trial. If the military has evidence beyond a reasonable doubt against these men, then a habeas review is unlikely to release them.

Boumediene really only applies to the roughly hundred or so who have not been approved for release yet or charged with war crimes.
 

We owe a debt of gratitude to the Iraqi resistance for their role in preserving our republic.
And the American men and women who gave their lives did in fact die so we could be free.
 

I have several unanswered questions.

One: do the general considerations on detention announced by Kennedy, apply to detainees at Camp Cropper and Camp Bucca? Does this decision affect them in any manner?

Two: Does this decision push the government back toward the rendition business and/or outsourcing detention? Did the Court make a glaring error in not addressing these possible responses of avoiding the Writ?

I am re-raising issues posted by Robert Chesney in 48 HILJ 62 (2007). Judicial Review, Combatant Status Determinations, and the Possible Consequences of Boumediene
 

Ah yes, these are POWs.

So you agree that Geneva applies, of course. And that our torture and mistreatment of them is a war crime.

The evidence is increasingly that the war criminals in reference would be Bush and Cheney. Since these are duly elected officials, I have to feel some responsibility for their war crimes too, although that's not a legal point, it's a moral one.

As to your confusion on
people versus POWs, maybe I can help: yes, it turns out that POWs are people. ASK ANY AMERICAN WHO WAS ONE. It turns out that's a strong reason we adhere to Geneva.

Now let us assume you're quite right, the laws of our Nation say it's perfectly legal to deprive people of liberty indefinitely without trial or recourse of any sort, by the simple mechanism of calling them "POWs" in an undeclared war without end on a noun. My guess is that's not the case, and the Supremes seem to agree, as well as the original Federalists, but let's say it is the case, this Nation can and will trample on rights that baldly. If so, then there's little reason for that Nation to exist. That's my view, and I think the Founding Fathers would agree.
 

"He will have to find a solution to Gitmo, a problem for which there are few good solutions."

Well I just got done watching Eric Holder state the solution at an ACS meeting on C-Span:

1) Close Guantanamo.

2) Bring the detainees to a military prison here in the US.

3) Expeditiously determine which to be prosecute for crimes, which to hold as combatants, and which to release -- in accordance with the law.
 

One more in your list might be the taking people "suspected" of terrorism into American custody, and along list of unanswered questions, handing them to countries known to torture their prisoners.

I don't think that has happened before, and is pretty revolutionary.
 

But that is not what will happen Charles. Bush through Mukasey will not back down and the show trials will continue. Perhaps the professor is right that the neocon revolution has failed. I rather doubt it. If nothing else the head does not admit the body has died. Bush wants to force a constitutional crisis so what he'll do is continue with the military tribunals and dare anyone to stop him. I don't think they will.
 

jpk said...

Ah yes, these are POWs. So you agree that Geneva applies, of course. And that our torture and mistreatment of them is a war crime.

A generic prisoner or war is simply an enemy combatant held for the duration of the war, The GCs provide a stricter definition of privileged POWs who enjoy enhanced treatment.

The Administration avoids using the term POW at all to keep folks like you from playing word games with the GCs.
 

Jack Balkin said: "This is what a failed revolution looks like"

Yes, and it is interesting to see that the two most tradition-bound and innately conservative (in the sense of resistance to change)arms of the vast Federal establishment were the focii of resistance to the Revolution that Failed.

Those institutions were of course the military and the Supreme Court.

The military JAGS were the first to dig in their heels, followed almost simultaneously by the Supreme Court.

Ordinarily I would take a Remini-like view of the Congress as a similarly conservative institution, jealous of its perogatives, but the 2001-2006 years demonstrated a malign teaming up of the Article I and II branches, to beat down the Article III branch. In the cases Jack cites and numerous district court decisions, the Article III judiciary mounted the only real resistance made in those dark years of 2001 - 2006.

Years ago Jack Bass wrote a wonderful, if reportorial account of the 5th Circuit in the civil rights era, Unlikely Heroes. I wish Prof Balkin would do a similar book on the lonely and heroic role played by the judiciary in first slowing, and then reversing the failed Revolution.
 

The Bush Regime manufactures a class of people: "Enemy Combatant" and it manufactures a context to put them in: "The War on Terror" - which has no clearly defined enemy todefeat so as to exist in perpetuity, specifically for the purpose of subverting the US Constitution, committing war crimes, violating US law and international treaties and committing crimes against humanity. But wait, the best is yet to come, this course of action spawns supporters high and low, the Supreme Court Four and the bart depalma's of America who are chagrined by the Supreme Court Five who see through the ruse and seek to reestablish the rule of law. I don't know which is worse, that the Bush Regime got as far as it did or that there is now a segment of the US population depraved enough to think this is what the US should be about.
 

Bart said: "While we may disagree on the policy, I believe we have reached agreement that the Boumediene Five are rewriting the Constitution very much like the New Deal Court to enable policies more to the justices' liking."

Regretfully, I didn't make myself clear. I think the current Supreme Court, has, in the string of cases above, applied a check to the current Executive (and its compliant Congress), much like the pre "switch in time" Hughes Court did to FDR and his New Dealers. ( I wonder how our current President and his OLC would have reacted to a decision like Humphrey's Executor v U.S.!?)

So I am not talking of the post 1937 Court and disagree with you that Boumediene amounts to anything as apocalyptic as you suggest.
 

Brenda,

I wasn't suggesting Bush would do it -- having spent the last six and half years investigating the administration's detainee policies day in and day out, I have no such illusions. Eric Holder is a former AAG from the Clinton Administration who is currently vetting VP candidates for Barack Obama.

It's actually a little hard to judge what the administration will do now because they're full-fledged lame ducks this time around. McCain is very vulnerable on these issues -- a torture victim who's aided and abetted torture via the DTA and MCA, etc. It seems very doubtful that Congress will cooperate with the elections pending -- why should they?
 

What BS that is Bart -- it's you folks who are playing the word games with expressions like "privileged POWs" and "unlawful enemy combatants.

The reality is that POW is someone who is protected by Geneva III and anyone else is covered by Geneva IV art. 4 as a civilian. Your claims to the contrary are pure fraud.
 

The Administration avoids using the term POW at all to keep folks like you from playing word games with the GCs.

"generic prisoner or war"
"privileged POWs"
"enhanced treatment"
"enhanced interrogation"
"enemy combatant"
"weapons of mass destruction-related activities"

I'm glad that the Administration and its trolls avoid word games.

Impossible to satirize, since all of their statements are self-satirizing.
 

Here's something Bart can understand: "Ditto what Charles said."

Bart, you have, for quite some time, studiously avoided using the term POW as applied to GITMO detainees, taking offense even to the use of the term. (See e.g., your own quoted passages from a previous thread). Now, when it arguably benefits your position, you have seemlessly slipped into calling them POW's, with a poor rationale of "it's just a generic term".

I'm sorry, but that doesn't work. POW's in this context is a term of art, something you were quick to point out when it suited you. Now, shockingly enough, it doesn't have a specific meaning...
 

Couple of corrections:

The Bush people did not invent "enemy combatant" they invented "illegal enemy combatant." The other has been around at least since Yamashita v. Styer, possibly longer, although often phrased "enemy belligerent."

The prisoners aren't waiting to be released because they are afraid of the countries in general, the Bush people are demanding that they be imprisoned and not released when they get there and many countries are balking. For how Afghanistan is handling this, see my earlier note.
 

Bart wrote:-

“We have not seen a constitutional coup de tat [sic] of this breathtaking magnitude since the passing of the New Deal, Warren and Burger Courts.”

The correct orthography is, of course coup d’état” and the expression “a constitutional coup d’état” is an oxymoron, just like “compassionate conservative” , or ”the George W. Bush Library” – or, for that matter, “military intelligence” .

It is, of course, unsurprising that our own dear “loathsome spotted reptile” is up in arms because the majority opinion is not to his liking.

Tough. If one is in the trade, one has to accept that the Supreme Court of one's jurisdiction is the final arbiter until it changes its collective mind.

What the majority on the Supreme Court has done in this case is to examine a common law remedy of great antiquity which the common lawyers who drafted your Constitution saw fit to preserve as a check on the abuse of executive power.

Like all collegial opinions the Kennedy opinion was probably the subject of much negotiation and I cannot say that I entirely agree with all the analysis of the history of the writ. But the holding that the scope of the remedy is flexible and not preserved in amber is, for me and I believe most lawyers of the common law world, a return to proper interpretation.

Of course, what matters is the outcome and, however they got there, I am pleased and, I have to say, just little surprised, that they came to such a principled decision.

'Principled', because, as I tried to explain to Bart on a previous thread, the judicial Oath requires the justices to seek to “do right”. That they have plainly sought to do. The opinion abounds with expressions of concern that a very great injustice may be in the course of being perpetrated by the Executive.

I suspect the Justices cannot of been uninfluenced by much that has come into the public domain despite the best suppression endeavours of the Administration. Judges at this level are nothing if not historians as well as lawyers.

Lord Acton’s aphorism that “all power corrupts and absolute power corrupts absolutely” is not without merit. It accords exactly with the view of English lawyers immediately prior to the secession of the North American colonies that the King should not be above the law – a view your framers sought to enhance by redistributing the monarchical prerogative powers among the different branches of government.

As an outsider to your system, what the whole saga so far does perhaps signal is a pressing need to look again at the organisation of the US Courts and the US Federal Rules of Civil Procedure. The Rules were of course modelled on the 1936 Edition of the English Supreme Court Rules and it might be time to have another look and bring them up to date. It might also be time to think about increasing the number of Supreme Court justices to, say, 15 so as to allow the Court to sit in 3 panels of 5, or en banc where the Chief Justice thinks the case is of fundamental importance. The reason I suggest that is that I think opinions would be better crafted were there to be more time allowed for oral argument and a more restrained approach to amicus briefs.

With more judicial manpower, it might be possible to institute a “leapfrog” procedure for matters of grave public importance – direct from Circuit Judge to Supreme Court. One of the matters which must be of legitimate concern is that in this case people have been detained for six years so far and matters are still far from definitive resolution. In our system we would expect a first instance habeas application involving liberty of the subject to be resolved in days or weeks, the appeal to the court of appeal within 3-6 months and any appeal to the House of Lords within a year.

These cases are of course wholly exceptional – but justice delayed is justice denied. I don’t know what compensation arrangements there will be for those who may eventually be found to have been unlawfully detained, but applying ordinary tort principles with exemplary damages for, say, kidnapping, unlawful arrest and detention, abuse of power, torture and inhuman and degrading treatment, the potential liability doesn’t bear thinking about.

Bart,

What continues to intrigue me is just why you have espoused Neoconservatism and Originalism with such enthusiasm and why you lurk on this site for what appears to be the sport of "liberal-baiting”.

If you were a multimillionaire seeking to preserve your assets, I could understand (while not approving) your embrace of Reagan/Thatcher/Bush Neoconservatism on economic policy grounds: “Greed is Good – Soak the Poor”. That was surely the motivation of the Coors, the Bradleys, the Kochs, the Scaifes, the Olins and the Smith Richardson dynasties who poured a fraction of their billions into the Neoconservative foundation programmes to shift the US judicial system to the right by promoting the originalist heresy.

But you are not one of the “Billionaires for Bush”. You are a sole practitioner with a DUI practice that can hardly put you into that kind of potential tax bracket. So why the fervour?

I recall you posting in vehement terms against gay marriage, and I recollect that your office photo on your web-site shows you as bearded – quite rare for trial lawyers in this country at any rate - it doesn’t go that well with the rest of the judicial drag we are still cursed with – wigs, robes etc.

Quite some time ago I found it was the employment policy of the UK subsidiary of a US multi-national corporation not to hire male sales staff who wore beards. I asked why and they told me their US psychologists had concluded that a very high percentage of bearded males were doubtful about their sexuality and compensated by being virulently anti-gay and pro-military, but were also introverts and anally retentive – and made very poor salesmen.

Conventional wisdom is that, like a salesman, a member of the bar needs to something of an extrovert, a showman if you will, if he is to make a successful trial lawyer. Could it be that you happened upon the wrong speciality within the profession and should have gone for something more suited to an introvert – probate and trusts for example?

I also recall you letting slip that you were presently involved with a Colorado anti-affirmative action initiative, presumably Initiative 46. In true Neoconservative fashion this one goes by the oxymoronic and highly deceptive title of “Colorado Civil Rights Initiative” which probably helps with conning people into giving the necessary signatures.

Do you perhaps feel that affirmative action programs in Colorado have wrongly deprived you of something ? Perhaps you were not hired for a post you coveted. Is that what makes you so bitter and twisted? If so, have you considered the probability that the other candidate was preferred because he/she was simply a better lawyer? From your posts, that would not have been too unlikely.

Or are you, perchance, a member of one of the weird “Christian” sects which seem very active in Colorado Springs? Do you believe that the Toxic Texan has had personal revelation from the Almighty?

If so, you might do well to consider the advice Lord Melbourne gave to Queen Victoria when she expressed interest in such a person: “Ma’am, it is prudent first to ascertain from just what quarter the voices really come.”.

I have a good friend who now suffers from schizophrenia – apparently the consequence of a very nasty motor cycle accident. He hears the Angel Gabriel speaking to him whenever he forgets to take his tablets.

Or are you simply the kind of person who enjoyed pulling the wings off flies and drowning little kittens as a child, would really rather like to become a torturer now, and enjoy “liberal-baiting” to relieve your inner guilt?

Do, please, tell. I’ve always wanted to know what makes US Neocons tick and it could be so much more interesting than your other posts.
 

What continues to intrigue me is just why you have espoused Neoconservatism and Originalism with such enthusiasm and why you lurk on this site for what appears to be the sport of "liberal-baiting”.

Maybe it would be too easy to say that Bart is mentally ill. Although that is certainly my opinion. But more specifically, he is I think astonishingly lonely. No surprise, after all, since his overwhelming social impulse is suspicion and resentment.

I am deeply grateful, though, for forums such as this one, which attract highly intelligent and informed people and encourage open discussion of the law and the public good. Bart is an irritant, but he's also a lesson in tolerance for the rest of us.
 

Mourad's comment on ”the George W. Bush Library” reminded me of a comment I posted somewhere on the Internet that that library would be the only presidential library with more bookends than books. Perhaps one of the books may be a compilation of Lisa's bro's blogulations under the influence at Balkinization.

As to Mourad's inquiry regarding Lisa's bro's neo-whatever in light of his biographical solo(w) legal career, I think back to my 1930s-40s childhood when my older brother used to challenge our immigrant father on capitalism. Our father was a hard-working CIO worker and perhaps somewhat of a socialist and definitely a believer in FDR's New Deal. During one such argument, or discussion, on the virtues of pure capitalism put forth by my brother, our father responded:

"Look at you, a capitalist without any capital!"

(My brother and I were in our early teens at the time.)

I have referred to working (and not working) poor (usually white) as "lottery democrats" when they support tax cuts for the wealthy for fear that if and when they hit the lottery, they will have to pay big taxes! Maybe "reality show democrats" can be applied to peoples who vote against their own interests as they await fullfillment of the American Dream.
 

not at all,actually.simply a textbook example of the expiry of a commissary dictatorship,the commission being in this case the aumf as renewed by the dta and mca
michele surdi
rome
 

A DUI lawyer you say? While somewhat of an apples and oranges comparison, drivers with blood alcohols of 300 who manage to retain their licenses thanks to the representation of attorneys like Bart are a hell of a lot more of a concern to the safety and well-being of American society than Guantanamo detainees.
I don't read this blog religiously, but I've never noticed Bart displaying the overt Zionism that seems to be part of the American neoconservative package-his anti-Arab leanings seem to be motivated more by frank racism (which I guess is part of modern Zionism), which probably also explains his embrace of an anti-affirmative action agenda at home (I haven't read his thoughts on immigration, but my guess is his beliefs closely align with the Minutemen). Bart simply seems to be a true believer in the innate goodness and exceptionalism of the US, as well as the normalcy of our rampant militarism and projections of empire. Of course, there are also the strong components of authoritarianism (I'll bet there's dePalmas not too far back in the bloodline who were cheering on Mussolini) and just ordinary partisanship-Bart embraces the modern Republican agenda of Hate!Fear!Greed! and consequently, like most of his ilk, has their blind faith in the ability of tax cuts to solve all of societies problems- nothing as remotely well thought out as the Reagan-Thatcher neoliberal economic agenda (there's an oxymoron).
Bart's a perfect cheerleader and apologist- actually, a useful idiot- for the Coors, Scaifes, et al. Middle management material.
 

mourad said...

It is, of course, unsurprising that our own dear “loathsome spotted reptile” is up in arms because the majority opinion is not to his liking.

Tough. If one is in the trade, one has to accept that the Supreme Court of one's jurisdiction is the final arbiter until it changes its collective mind.


What a fine serf you make.

Unlike the EU left and those minority of Americans who seek to be like them, Americans are not serfs.

We have this quaint idea that the government serves the People, not the other way around.

We do not suffer silently self important government officials who believe themselves qualified to run the country and our lives as they please against the will of the People.

When an elected official acts the outlaw like the Boumediene Five, Americans usually run them out of town on a rail during the next election.

What America has not yet solved is how to make outlaw courts accountable to the law and to the People. On one hand, a majority of Americans want an independent judiciary who will impartially apply the law in disputes, but we most definitely do not want judges making themselves into a new aristocracy and legislating rather than neutrally applying the law. Impeachment would make a good option, but very few share my opinion. Instead, American engage in political wars over the choice of judicial nominees in an often vain attempt to temper the judicial aristocracy.

What continues to intrigue me is just why you have espoused Neoconservatism and Originalism with such enthusiasm and why you lurk on this site for what appears to be the sport of "liberal-baiting”.

I blog to debate the great issues of the day with intelligent and interesting people. Blogging is one of the greatest advances in the market place of ideas since the printing press.

One cannot truly debate as a member of a Greek chorus on blogs which share your point of view. Rather, I seek out those who disagree with me so I can understand (or at least know) their thinking and to test my ideas and arguments against theirs.

I go to conservative blogs to get news that is not reported in our Dem media, but I rarely post there. I go to liberal blogs to debate.

Fighting the good fight in the proverbial lion's den also sharpens one's trial skills. The evidence being even, you know your polite arguments are winning at trial when the opposing counsel loses his or her composure and transitions from argument to childish objections and even personal attacks. Similarly, you know your arguments are prevailing on a blog when the best the opponent can offer is "tough" or childish personal attacks.
 

shag from brookline said...

As to Mourad's inquiry regarding Lisa's bro's neo-whatever in light of his biographical solo(w) legal career, I think back to my 1930s-40s childhood when my older brother used to challenge our immigrant father on capitalism. Our father was a hard-working CIO worker and perhaps somewhat of a socialist and definitely a believer in FDR's New Deal. During one such argument, or discussion, on the virtues of pure capitalism put forth by my brother, our father responded:

"Look at you, a capitalist without any capital!"

(My brother and I were in our early teens at the time.)

I have referred to working (and not working) poor (usually white) as "lottery democrats" when they support tax cuts for the wealthy for fear that if and when they hit the lottery, they will have to pay big taxes! Maybe "reality show democrats" can be applied to peoples who vote against their own interests as they await fullfillment of the American Dream.


We appear to be products of our parents.

You and I both came from blue collar families. However, while your father apparently taught you to look to the government to improve your lives, my father taught me by example to participate in the free market by setting up his own businesses and investing in the markets.

The great thing about free markets is that you have the freedom to improve your economic condition, rather than being forced to accept it. When you depend on your employer or the government for your living, you surrender control over your future to them. The only way to make serious money and to gain your economic freedom is to either create your own business or invest in others' businesses.

Even those who would rather take a paycheck than start a business can still earn their economic freedom by learning how to invest in others' businesses. My demographic cohort following the boomers can expect to get a negative return on investment from our social security taxes. 401K plans and pensions generally return low to middle single digits. However, if you treat gaining an education in investing the same way you do getting a college degree, you can bring in double digit returns in almost any free market. Three years ago, I seriously pursued an education in investing. Over the past two years, I have doubled my investments.

Thus, you can see why I would take exception to an economic illiterate like Mr. Obama increasing the costs of my doing business and heavily taxing the markets in which I invest for my retirement to spend on his constituencies. What he calls social justice is what I call theft of my hard work and my future retirement.
 

Bart,

I have always tried to avoid personal attacks on you or the use of vitriol, but you may not be aware that those who do are probably acting out of sheer frustration.

I have gotten personal in my addresses to you, because quite frankly, I am reminded by you, of my own past and the attitudes I grew up. Your outlook is quite familiar to me. Some of my posts to you try to get around the barriers I sense to try to find some common ground in patriotism or pride of service, to build up from.

It is a strange thing, really, how impregnable a belief system can be to criticism, logic, even facts.

There is a famous paradox/thought experiment in the academic field of philosophy, variously called the Predictor Paradox or Newcomb's Problem. I won't go into it (everyone is free to google it), but it shows a faultline running down our thinking/decision making. The paradox seems to make people fall into two camps, both entirely consistent and self-evident to the members; both camps view the other's choice as ill-founded if not illogical.

In American politics and sociology, we seem to have crystallized out into two camps as well, both internally consistent, both incredibly resistant to outside critiques, both incomprehending of the "reasonableness" of the other.

You happen to be in one of them. I, mourad, Arne, Charles, Mattski, jpk, etc. in another.

The polarization seems to de-nature discourse. We are all saying the right things, but no one seems to be getting our respective points.

The Law abhores such a de-naturing, the whole point of an adversarial system is to provide a dialectic that strives to reach for the truth.

That is the source of the frustration here. The dialectic seems to be failing as it requires a good faith effort to "see" the logic and factual basis of the points being made.

I am longwindedly proposing here, that this hidden paradox of worldviews is short-circuiting the process, since the worldviews operate as a block and are in a sense, self-repairing. The members of each, cannot "see" the power of the other side's position.
 

On a related note-

On another thread I made an appeal non facias malum ut inde fiat bonum to Bart, which he implicitly rejected.

I thought to myself, "one more house of dialogue foreclosed on"

Than it occurred to me that Bart had at his disposal, the mirror antithesis of my appeal:

Do not do good, if evil later result

And that this dictum is forming the foundation of much of his argumentation, from torture to illegal detention, to Iraq invasion.

I propose that if Bart is to be successfully engaged (i.e. getting him to "think", his interlocutors have to bear in mind this proposition is central to the coherence of many of his arguments.
 

The Congress was "Republican controlled" but note that the Congress is now "Democratically controlled" but Republicans by power of filibuster blocked much legislation supported by a majority.

In 2006, the Dems allowed a trio of Republican "leaders" serve as the "check" on the President. We saw how great that went. And, then 1/3 of the Dem caucus in the Senate went along. Though not Obama.

Likewise, now, a still powerful wing of the Dems (Blue Dogs) wish to "compromise" on the telecommunications immunity bill and other matters. Thus, as to "failure" only in part.

The spector of Justice Kennedy (a former Republican lobbyist!) as the saviour suggests how far we have gone. [A special nod to Justice Souter's two concurrences; btw will we hear about the second case, the one where the Supremes unanimously gave habeas rights to citizens?]

The decision was 5-4. The Chief Justice of the United States dissented, joining as well Scalia's comments. Along the way, as Katharine notes here, he twisted the facts.

And, the Republican candidate for President, likely to get close to 50% of the popular vote, called it "one of the worst decisions in the history of this country." You know, like Dred Scott and the Japanese Internment Cases.

Or, I guess, in the eyes of some, Youngstown v. Sawyer and (stretching the term "country") the jury's agreement with John Adams' defense the redcoats. Sorry, am watching the HBO miniseries.

Anyway, Harry Blackmumn's words are still true. The margin was too close. A cold wind still blows.
 

Neocon Bart, never the one to let facts interfere with his opinions, wrote:-

We do not suffer silently self important government officials who believe themselves qualified to run the country and our lives as they please against the will of the People. When an elected official acts the outlaw like the Boumediene Five, Americans usually run them out of town on a rail during the next election.

Impeachment would make a good option, but very few share my opinion.

I blog to debate the great issues of the day with intelligent and interesting people.

As to point 1, George W. Bush is an elected official. His approval ratings have been well below 40% since mid 2007 and are now around the mid 20’s. Your silence on that subject has been deafening – your chance to remedy that is right now.

BTW The Supreme Court is not elected. They are chosen by nomination by and with the consent of the Senate to protect the people against the tyranny of an unrestrained executive.

As to point 2, it is Bush you wish to impeach, or the majority of the Supreme Court? If the former, you can support Representative Conyers. If the latter, it’s a good thing that very few share your opinion on this and many other issues.

As to point 3, I suppose it is harder to find such people on Neoconservative blogs. The desire for debate is commendable. But first learn the rules of such a process. You confuse “debate” with “demagoguery”

The exchanges with you on various threads remind me of an exchange in forensic debate between a Judge and a celebrated Edwardian English trial lawyer:-

Judge to Counsel: “I am sorry, Mr. Smith, but I am still none the wiser.”

F.E. Smith QC: “Quite so m'Lud, but hopefully much better informed”

The Almighty plainly did not bless you with the wisdom, discretion or the innate sense of justice necessary for a good trial lawyer, but if you debate rather than make assertions you cannot support, you might go away a little better informed.
 

michael:

I agree with much of your take on our cultural divide. I think perhaps part of the seeming impregnability of the divide is that we cluster in our own comfortable ideological group and shout at one another from a distance.

I prefer to walk across the divide and make my arguments personally, even of it does deny the comfort of ideological purity to the residents here.
 

michael said...

On a related note-

On another thread I made an appeal non facias malum ut inde fiat bonum to Bart, which he implicitly rejected. I thought to myself, "one more house of dialogue foreclosed on. Than it occurred to me that Bart had at his disposal, the mirror antithesis of my appeal: Do not do good, if evil later result


I am not much in favor of evil whether used as a means or an end. We simply disagree as to the nature of evil. I would caution that we all need to avoid equating evil with a difference in opinion over policy.
 

First, to his credit, there was no successful terrorist attack on U.S. soil after 9/11.

Apart from the Anthrax killer, who was never identified, much less caught.
 

All it takes for the revolution to succeed is one courageous politician. As I wrote on my blog, McCain could - if he goes further - win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision. He could use the spectre of Osama Bin Laden and his lawyers in Federal courts to beat Obama like a rented mule.

McCain can win, and win big, on this issue. Once the court realizes its rulings can be ignored with impunity, they'll be much more hesitant to claim preeminence over the other branches.
 

i've never voted for anyone running for the office of our chief executive who espouses his resistance to he law as a rationale for his candidacy .. the chief executive is responsible for ensuring the laws are faithfully executed .. why would anyone want a CE whose stated position is to not follow the law .. ?? so .. imo .. mr mc caint running for office based on his pledge to thwart the basis of our republics' prime directive.. is folly .. on it's face ..

m. mourad .. many thanks for the link to the genisis of the loathsome spotted reptillian ..

et al:

i learn much here at this little way station in cyberspace .. those of us reading along who are simple laymen owe much to your collective scholarship presented here..
 

JKat,

The oath of office isn't an oath of obedience to the Supreme Court - it is an oath to preserve the constitution. All three branches - not just one preeminent branch - are charges with that responsibility.
 

Dear Robert:

Thank you very much for remembering the anthrax terrorist(s). I live in central NJ, and am, shall we say, *sensitive* about the way the anthrax attacks have been shoved down the oubliette.

Dear Mr. Balkin:

Your brain has been infected by a persistent, pernicious, and mortally offensive Republican talking point. I expected better from you.
 

actually Sweat .. the oath says : to protect and defend the constitution against all enemies domestic and foreign ..and to faithfully execute the law..

since USSC decisions are "the law of the land" .. it's nonsense to say defying the Courts decisions could in any way show fealty to that oath ..

one cannot reasonably say that a failure to comply with the rulings of the court in any way "protects and defends the constitution" .. or lends itself to "ensuring the laws are faithfully executed .."

that's muddy thinkin' ..it doesn't even rise to the point of requiring refutation .. it's easily deconstructed ..
 

Jkat,

Actually it is Congress that passes laws - not the court. Congress has the power to establish and limit court jurisdiction.

All McCain has to do is say that he'll obey Congress, not the Court on military matters and handling non-citizen detainees. It is a winning issue if I ever saw one. Let the democrats defend Osama's rights - good luck with that.
 

I personally am thrilled to learn that court decisions are not law. I guess I don't have to obey any of them, then.
 

Bart said: "I prefer to walk across the divide and make my arguments personally, even of it does deny the comfort of ideological purity to the residents here."

And I think yours is a welcome role here. Otherwise we would just be yet another echo chamber.

You are in the anomalous position of being like a Mormon in a Pentecostal revival tent meeting. Everyone wants to convert you and failing that, to dam* you! The strong believers go to condemnation, the missionary/theologians to conversion attempts.

I am one of the missionary/theologians as should be obvious.

What you will like in the upcoming Obama presidency (assuming such), is that he is at heart a missionary/theologian type. He thinks everyone is "redeemable" and belongs in the big tent of common purpose. A Clinton presidency would have been more open warfare between our two camps.

Jack Balkin has it correct. The Bush revolution in law (and government) has failed. What is coming is the Restoration and it will be done with the lightest of hands. O. can't heal all the wounds or close the rift, but he will build bridges over it surely and try to unlock the Newcomb's Problem of modern American politics.

I hate these 11th-hour saves. American Law was teetering on dissolution and our Congress was completely deadlocked into inactivity.
 

The Supreme Court's writ runs where congress says. The constitution does not make the courts preeminent. Do you listen to European Courts? We have three branches, and two have agreed on the policy to be followed at Gitmo.

That's why this decision is such a stretch - it places no limits on the courts ability to direct military matters overseas. That's why it is such a tempting target for an election issue.

There is noting about the members of the court that makes them a different order of being, more trustworthy defenders of liberty. It's time the other, elected branches, put them in heir proper place.
 

sweating thru fog (good name that) opines:

"All it takes for the revolution to succeed is one courageous politician. As I wrote on my blog, McCain could - if he goes further - win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision. He could use the spectre of Osama Bin Laden and his lawyers in Federal courts to beat Obama like a rented mule.

McCain can win, and win big, on this issue. Once the court realizes its rulings can be ignored with impunity, they'll be much more hesitant to claim preeminence over the other branches.

All McCain has to do is say that he'll obey Congress, not the Court on military matters and handling non-citizen detainees."


Ah, Marbury v Madison, we hardly knew ye!

It would be political suicide even in the red states for a politician to espouse ignoring the Supreme Court. His opponent would tear him apart as a dangerous revolutionary intent on destroying our system of government.

I recommend to you a book, I will get the title later, as it slips my mind, on the topic of the self-image of Britain and America and self-approval based on public perception of their respective constitutional traditions.

In short, a lot of our pride as Americans is wrapped in approval of our constitutional government and the system of checks and balances (so vividly on display in Boumediene. This latter decision was an epitomization of the vitality of the system, not the reverse!

You would have to go back to the interpositionists and nullifiers of the South in the civil rights years to last see such rhetoric deployed and they could never parlay it into a successful national campaign.

Nor could (or would) McCain.
 

All it takes for the revolution to succeed is one courageous politician. As I wrote on my blog, McCain could - if he goes further - win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision.

What a rousing call to tyranny. Long Live Dictator McCain!
 

Michael,

I think you vastly over estimate the faith of Americans in the SC.

This is exactly the issue McCain needs to mobilize the base - make the election all about the SC. All he needs to do is say, in this one limited area, I'll listen to the Congress, not the court. The left will go absolutely nuts, and Obama will be in the position of arguing for constitutional rights for Kalid Muhammed, the 9/11 planner, and eventually OBL if he is captured. Not a winning position.

But I agree with you, McCain won't do it. He'd rather lose than upset his liberal friends.
 

The Law abhores such a de-naturing, the whole point of an adversarial system is to provide a dialectic that strives to reach for the truth.

I think it was Hegel who first pointed out that the dialectic breaks down when blithering idiots are involved.
 

Zod,

This isn't about making McCain a dictator, but rather putting a check on a court that for some reason supposes it ha been granted the authority to be the commander of the commander-in-chief in overseas military matters.

I'd remind you that this court that you see as some angelic guardian of civil liberties has had, throughout history, a somewhat mixed record in this regard.

Th real reason this issue is a perfect one is that McCain, by making a limited exception to the courts supposed "authority", deeply threatens the left's reliance on the courts to enact dictatorial policies they can't win at the ballot box.
 

>>I think you vastly over estimate the faith of Americans in the SC.

Translation: "Americans are more fascist than you think." Luckily, they aren't.

>>All he needs to do is say, in this one limited area, I'll listen to the Congress, not the court.

Yes, because dictatorship -- the rule of one man who is above the law -- is the foundation of the American system!

>>The left will go absolutely nuts,

I would hope anyone who doesn't want to live in a dictatorship would go "nuts."

>>and Obama will be in the position of arguing for constitutional rights for Kalid Muhammed, the 9/11 planner, and eventually OBL

Obama would be the only candidate supporting the rule of law and the American system of government in such a case. McCain might have a chance if the election were held in China, Cuba, or Iran with the position you are espousing. But unfortunately for you, this is the USA, not the USSR.


>>But I agree with you, McCain won't do it. He'd rather lose than upset his liberal friends.

I suspect that McCain is not as insane as you and your coterie of brownshirts. The wingnut vote only amounts to about 15% of the populace. Please crawl back into your cave or move to some country run by a midget strongman.
 

Zod,

You illustrate perfectly why this would be a winning issue for McCain, and I may add, why some so-called "progressives" are often the most bigoted and fanatic people there are.

Have fun talking with your fellow fanatics.
 

What is coming is the Restoration

Hmm. Not sure Charles II is really the image I have in mind for the next 8 years. I rather like "Reconstruction", but this time we have to finish the job.
 

STFog:

Remember that magisterial amicus the Cato Institute filed in the Hamdi? certiori?

"THE EXECUTIVE CANNOT CHOOSE WHEN AND IF HE WILL COMPLY WITH THE LAW OF HABEAS CORPUS"

Quite so. And I wouldn't be surprised if that language didn't linger in some of the minds of the Boumediene majority.

You propose the proposition.

THE EXECUTE CAN CHOOSE WHEN AND IF HE WILL COMPLY WITH THE LAW AS INTERPRETED BY THE SUPREME COURT

You won't get many backers, even among the Boumediente minority on that proposal!

.
 

Mark,

I know, I know! Mourad must be shaking his head also. No, restorations are usually associated with stuarts and bourbons and such... I grope for a better term...

The 9-11 period has been a high fever for America, and the political body's immune system: its armies, its constabulary, its justice apparatus, all went into overdrive. We are now at the mercy of an over-stimulated immune system which will, if unchecked, kill the political entity it is trying to protect.

Polls show the public is calming down, and the political institutions will follow suit. The GOP habit of waving the bloody shirt reached its climax with the candidacy of Giuliani which failed to generate much steam, so this is a sign the country is returning to its senses.

There should be a good term for this return to sanity, but you are right, "Restoration" carries too much royalist baggage.
 

Let the democrats defend Osama's rights - good luck with that.

Actually, the democrats will be defending the supremacy of the law over the whim of a would-be dictator.

Your approach is simply "I'll abide by the law when I agree with it." You don't understand the very idea of law, much less the character of this nation.

Thank you for sharing your crackpot views with us.
 

The 9-11 period has been a high fever for America

About 2 years ago I posted one of my favorite quotes from Jefferson here. Since my searching skills are minimal, I'll quote it again:

"A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to it's true principles. It is true that in the mean time we are suffering deeply in spirit, and incurring the horrors of a war & long oppressions of enormous public debt. ... If the game runs sometimes against us at home we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are the stake."

He wrote this at the height of the furor over the Quasi-War with France and the Alien and Sedition Acts. Our time is coming soon.
 

Bush's revolution failed JB asserts, and I agree. I contend it was the Article III judiciary that mounted the only real substantive resistance Bush's power block encountered. Even conservative Circuits like the 4th dug their heels in.

The courts are the guardians of the Law. We cannot trust transcient majorities in the popular branches to do the job.

STFog would have us make the courts into advisory bodies, whose opinions we are free to ignore when they don't suit our notion of constitutionality. Then it is we who become the custodians. If this is so desirable, why didn't the Framers stop at Article II?

Really if STFog's logic is carried to its end, we can do away with Article II as well and just make do with Article I less the Senate.

That is maybe the deeper text in Jack Balkin's essay: in this era, the real Jacobins, the legal anarchists, the radical revolutionaries, are precisely the so-called conservatives who would up-end our constitutional system to achieve their objectives.

They came perilously close to success. It was a near run thing.
 

This is yet another argument that habeas corpus was never meant to extend to POWs. The drafters would not have meant the Suspension clause to render nugatory other provisions of the Constitution.

1. Those "other provisions" (especially Article II) have ambiguities just like the suspension clause. In the end, the courts have to make the hard calls-- and you won't admit they are hard.

2. To the extent that Articles I and II contain the powers you claim, even Scalia admits they are rendered nugatory with respect to US citizen prisoners by the Suspension Clause. The only operative question is the extent of the writ, which is a question the text of the Constitution doesn't answer.
 

Much appreciate your quote from Jefferson..

Here is what I project is the way out of the impasse:

"Yet even as we speak, there are those who are preparing to divide us, the spin masters and negative ad peddlers who embrace the politics of anything goes.

Well, I say to them tonight, there's not a liberal America and a conservative America -- there's the United States of America. There's not a black America and white America and Latino America and Asian America; there's the United States of America. The pundits like to slice-and-dice our country into Red States and Blue States; Red States for Republicans, Blue States for Democrats.

But I've got news for them, too. We worship an awesome God in the Blue States, and we don't like federal agents poking around our libraries in the Red States. We coach Little League in the Blue States and have gay friends in the Red States. There are patriots who opposed the war in Iraq and patriots who supported it. We are one people, all of us pledging allegiance to the stars and stripes, all of us defending the United States of America."


B Obama, 2004 Democratic Convention
 

Bart wrote:

"It is perfectly legal under the laws of war to hold enemy POWs for the duration of the conflict with that enemy or until it is determined that the combatants are no longer dangerous and can be paroled."

How utterly ridiculous is the applicability of this argument.

You do believe, Bart, that this stupid "War on Terror" is still ongoing, right??? Yes or no???

Let me help here. Has Bush declared a cessation of hostilities in this "War on Terror"? Of course not. For this War on Terror will go on as long as there is paranoia in the hearts of conservatives, which is to say, for a very long time.

SO....what logical government releases captured "POWs" (your word) when a war is still going on??? WELL??

Assuming that you do not believe such stupidity as "the lovely confinement at Guantanamo magically transformed most of its prisoners from America-haters to America-lovers," then you have two choices:

1) Either the Moron King that conservatives like you are responsible for foolishly freed violent combatants who loathe the U.S.,

or

2) THESE FREED PRISONERS SHOULD NEVER HAVE BEEN PICKED UP AND HELD FOR YEARS(!) IN THE FIRST PLACE!!

Your call, Bart. I await your decision.
 

I see: they are POWs and they are not POWs. And it's all my fault for playing word games, such as that silly word game of either they are or they're not. Sure is good to hear "they are but they're not" is somehow not a word game.

Whatever you call them, they are people that we as a Nation have deprived of their liberty indefinitely, without charge, trial, conviction, recourse, or even decent treatment. Call that what you want.

To argue that it is perfectly legal in our Nation for the State to do that to people, is an equally compelling argument that our Nation no more deserves to exist than any other police state.

But don't worry, you're not alone, defenses of police states used to be very popular. The trains run on time, and so on.
 

sweating through fog said...

All McCain has to do is say that he'll obey Congress, not the Court on military matters and handling non-citizen detainees. It is a winning issue if I ever saw one. Let the democrats defend Osama's rights - good luck with that.

This is actually an interesting idea. A GOP President citing Article I to argue that the Court acted unconstitutionally and that he will follow the rules for Captures enacted by a Dem Congress.

This argument has the benefit of having McCain defend Congress' prerogatives, rather than arguing from a position of self interest to enhance his own institutional powers. Moreover, it places the Dems in Congress who favor granting criminal defendant rights to al Qaeda, but do not dare actually vote for such changes with an election looming, in the position of having to defend their own powers against a Court which has unconstitutionally done their dirty work for them.

Very clever.
 

Let's say Congress passes a law revoking the 2nd amendment due to the danger of Terrorists obtaining weapons. (You have no gun rights if you are dead. 9/11 changed everything. The notion that anyone can own a gun in a post-9/11 world is quaint. etc.) Let's say the CiC supports this ban. Now let's say the Supreme Court declares the revocation of the 2nd amendment unconstitutional -- an obvious arrogation of power in direct conflict with the President's CiC power(!!)

I assume in such a situation the Barts and 'sweating through fogs' of the world would call for the President to ignore the Supreme Court on principle.

Right? Right?? Yeah, right.
 

Bart,

Line-item vetos are unconstitutional. (violate the Presentment Clause)

Presidents neither have the power to ignore Supreme Court rulings, substituting therefor, their own interpretations. We settled that issue a long time ago.

It would be mischievious in the extreme for a politician, for rhetorical and incendiary purpose to advance this proposition and give it popular legitimacy.

Thats why so-styled conservatives of a certain stripe are the real revolutionaries and insurrectionists of this era: they are quite ready to up-end our constitutional government to achieve their purposes.

Odd it is, that now Liberals are the true custodians of the great Constitutional tradition....

I remember at the times I became aware of the OLC memos and their effect on military detainees, how radical and how anti-traditional they seemed. I felt, in opposing them, that somehow I was in the "old guard" now, fussily defending the old ways of doing things.
 

Zod,

All your silly hypothetical shows is that you can't read. Go back and read what I proposed.

This is about the court ordering the President and Congress around on overseas military matters that do not involve US citizens or residents. The court is claiming preeminence for the judicial branch on overseas matters, saying that courts - and only courts - can decide whether we can hold combatants that we seize on the battlefield. It is ridiculous on its face, and, if McCain chooses to fight on this issue, he can win the election. The court has, foolishly, squandered its authority by staking a claim that the people will never accept.
 

Michael:

The President is sworn to uphold and defend the Constitution. If the Supremes violate the Constitution and assume powers belonging to the democratic branches, why exactly should the President or Congress accept the unlawful action of the Supremes?

Let me offer alternative scenarios for you:

Unsatisfied with only assuming Congress's power to set rules for captures, what if the Supremes assume the power to declare war?

Unsatisfied with only assuming the President's CiC power to set rules for Captures, the Supremes next assume the power to direct the movements of the military?

Should the democratic branches meekly accept these Supreme Court assumptions of their powers in the name of judicial review?

Are you thinking that there is no precedent for such judicial power grabs and that the Supremes are not likely to try them?

Never say never.

Over the entire history of our Republic and over the prior hundreds of years of the English history of the Writ, no court on either side of the pond had ever assumed habeas corpus review of foreign POWs nevertheless assumed the power of the Crown and then our Congress and President to set rules for captures.

Unless you can offer another remedy to unconstitutional judicial assumptions of legislative and executive power, perhaps it is time to create a constitutional crisis and put the Court back in its proper role.
 

The court is claiming preeminence for the judicial branch on overseas matters

Oh, I forgot that part in the Constitution. You know, where it says the Supreme Court can't review the constitutionality of laws that affect "overseas matters." And that other part where it says the court can't review the constitutionality of laws relating to military matters.

The Constitution is the supreme law of the land. The Supreme Court has the final word on that law. Did you miss that in your 7th grade civics class?

Your obvious ignorance of the past 200+ years of court rulings on "overseas" and "military" matters is almost as stunning as your calls for a dictator in the White House. I'm sorry, but your litany of phony distinctions only works on the AM radio crowd.
 

Zod,

"I forgot that part in the Constitution. You know, where it says the Supreme Court can't review the constitutionality of laws that affect "overseas matters." And that other part where it says the court can't review the constitutionality of laws relating to military matters."

You ought to read the Constitution, dummy. The Constitution says nothing about the courts ability to declare laws unconstitutional. That was a power claimed by the court in Marbury, and accepted by the other branches in practice. Slowly that ability expanded to declare state laws unconstitutional. It is all about rules and procedures accepted by the other branches. There is nothing to say that the President and Congress can't now limit their acceptance of that principle to domestic matters only.

And stop with the childish dictatorship talk, since you are arguing for a worldwide dictatorship of the US courts. After all, the Supreme Court says what the law is... everywhere.
 

STFog:

I earlier said to you

"[I]recommend to you a book, I will get the title later, as it slips my mind, on the topic of the self-image of Britain and America and self-approval based on public perception of their respective constitutional traditions."

Belatedly here is the title. It is worth a read.

The Great Tradition: Constitutional History and National Identity in Great Britain and the United States 1860-1970 by Brundage and Cosgrove, Stanford U Press (2007)
 

Michal,

Thanks, I'll check it out. Recall I am not arguing against the court's review power on domestic matters, just the courts claim in this case. The courts power is real, but not absolute.
 

Excellent post and comments!

Word for the day: "Ceasaropapism."

Borrowed, here, from George F. Will's, Caesaropapism Rampant.

Offered as a life-line to our dear friend, Mr. DePalma, whose desperate and tortured rhetoric on this thread stuns even those of us inured to his usual apologetics -- an excerpt:

[R]hetorical—and related—excesses are inherent in the modern presidency. This is so for reasons brilliantly explored in the year's most pertinent and sobering public affairs book, "The Cult of the Presidency: America's Dangerous Devotion to Executive Power," by Gene Healy of Washington's libertarian Cato Institute.

Healy's dissection of the delusions of "redemption through presidential politics" comes at a moment when liberals, for reasons of liberalism, and conservatives, because they have forgotten their raison d'être, "agree on the boundless nature of presidential responsibility." Liberals think boundless government is beneficent. Conservatives practice situational constitutionalism, favoring what Healy calls "Caesaropapism" as long as the Caesar-cum-Pope wields his anti constitutional powers in the service of things these faux conservatives favor. [emphasis added]


Am reminded, as well, of certain words and deeds of John "Let-the-Eagle-Soar" Ashcroft -- right-wing righty -- who also found the radical, "extra-legal" and "anti constitutional" excesses of Bush & Co. beyond the pale.

Bart,

Do the red lines drawn by Will, Cato's Healy, or Ashcroft hint at how far afield your defense of the indefensible has become?

To cast the 5 justices who affirmed The Great Writ as rebels and coup plotters: tawdry. To see someone I sorta/kinda know climb so terribly far out on a limb: sad.

___________________


BTW: Was the Boumediene decision fundamentally a "jusidictional/territorial" question?

GITMO not "offshore," but "completely controlled" by US for 100-odd years?
 

Bart and STFog:

remember when Tony Snow said

""The President has the ability to exercise his own authority if he thinks Congress has voted the wrong way."

Now what if Congress had voted to impeach President Clinton and the President said, "I will ignore your vote--you voted the wrong way! Further, let us see you try to remove me..I've got the armies!"

You don't have to go back as far as M v.M to see that the principle of judicial review has been upheld scores of time mostly by conservative courts!!

You both are advocating that McCain propose some kind of rupture in our constitutional system as part of his plank.

You are Jacobins! Anarchists! Wild-eyed Insurrectionists! ;)

The law is not what the President says it is. He is the "executive" of the law...his duty is to see the laws are faithfully carried out. If you collapse the Supreme Court's role of interpreting the constitutionality of the law into the Executive function, than obviously it gives the Article II office power to over-ride the Article I branch, in all cases whatsoever!

Suppose Congress passes a law. The president vetoes it. Congress over-rides the veto and then the President invoking the doctrine you propose says, "I have reviewed this law and it unconstitutionally infringes on my powers as Unitary Executive. I will not execute it."

Now the Supreme Court steps in and says "You DO have the obligation to execute it"

The President replies: "You have acted unconstitutionally, I am ignoring you also."

What happens to our constitutional system then? We would have in effect a Monarchy with some constitutional trappings.

Do you really pine for the return of Kings and Emperors?

But Bart, you bring up the case where the Supreme Court blatantly acts unconstitutionally saying to Congress. "You do not have the constitutional power to declare war! Only we can!" (one would want to examine the building's drinking water to see if they had been drugged!)

What's to be done in cases (however improbable) like that when we have a truely outlaw SC?

Well the Framers provided a mechanism for that: impeachment. Congress could then impeach the erring majority. End of problem.

What you are suggesting is a mechanism that in essence is extra-legal and outside the Constitution, it is the proposition that separation of powers obligations can be waived by wilful neglect whenever the offended Branch feels another Branch has acted unconstitutionally.

No resort to courts necessary!

Let's suppose that our current President said: "Brown v. Board of Education" was a judicial usurpation of Congressional power. I am going to henceforth ignore it."

Maybe he might further say, "I decree that Plessy v Ferguson is the law of the land"

Well who would decide on the legality of his acts, if it were up solely to him to make such determinations.
 

michael said...

Bart, you bring up the case where the Supreme Court blatantly acts unconstitutionally saying to Congress. "You do not have the constitutional power to declare war! Only we can!" (one would want to examine the building's drinking water to see if they had been drugged!)

That is close to my reaction of the Court's unconstitutional assumption of Congress' and the President's power to set rules for captures.

What's to be done in cases (however improbable) like that when we have a truely outlaw SC?

Well the Framers provided a mechanism for that: impeachment. Congress could then impeach the erring majority. End of problem.


While that option takes care of a particular judge acting unlawfully again in the future, it does not remedy the problem of past unlawful rulings and their ongoing effect.

What you are suggesting is a mechanism that in essence is extra-legal and outside the Constitution, it is the proposition that separation of powers obligations can be waived by wilful neglect whenever the offended Branch feels another Branch has acted unconstitutionally.

One cannot act outside the Constitution by ignoring the unconstitutional acts of another branch.

Let's suppose that our current President said: "Brown v. Board of Education" was a judicial usurpation of Congressional power. I am going to henceforth ignore it."

Maybe he might further say, "I decree that Plessy v Ferguson is the law of the land"


I am not making a generic argument for ignoring court legally arguable court opinions which promote policies with which a President or Congress might disagree.

The Boumediene Five went far beyond that point.

I am arguing that Congress and the President have an affirmative duty to disregard facially unconstitutional and thus unlawful Court assumptions of power which are expressly delegated to Congress and the President.

That is the proposition I asked you to address.

I provided you with alternative hypotheticals witch are very similar to the unlawful assumption of power being attempted by the Boumediene Five and your reaction that such decisions would be tantamount to madness.

I agree.

Now I am asking you what Congress or the President should do in reaction to such an unlawful assumption of power. Should the other branches disregard or follow such a count decision?
 

This comment has been removed by the author.
 

Well I have a hypothetical for you Bart:

Let's suppose the President and Congress decided to renovate Abu Ghraib as a new Auschwitz and exterminate 6 million Iraqis the way the Nazis exterminated 6 million Jews --

Would the Constitutional authority to regulate captures and prizes in war permit that?

Or would it permit selling them into slavery?

If not, why not?
 

Again, my thesis that the "liberals" are now effectively the new conservatives when it comes to preserving the legal status quo ante Bush is born out in this conversation.

You ask a serious question and it deserves a serious answer. By the way, I consider Charles's counter-ypothetical, a very serious answer.

Your question:

"Now I am asking you what Congress or the President should do in reaction to such an unlawful assumption of power. Should the other branches disregard or follow such a count decision?"

i.e. what is the constitutional remedy in such an eventuality[and it goes without saying that I don't consider the majority's opinion in Boumediene such an instance]. Well if you don't accept impeachment, then we could look at other courses.

First if we are going to have a mini-constitutional convention here, I would like to put in my recommendation that we increase the number of Justices to match the number of Circuits or +1 if the number of current Circuits be even. This is purely for administration of justice considerations.

Since the Congress already has the decisive check over the Executive in terms of its over-ride veto power, then I would be VERY loathe to give it a similar decisive check on the Judiciary. Besides, its power of the purse represents an enormous latent power. Its certainly a possibility that Title VI did more to enhance the compliance of the southern schools with Brown, than the Brownell or Kennedy DOJ's.

On measures that the Court gets wrong, and horribly, facially wrong at that, I might recommend the Circuits exercise a decisive check. Let Article III police itself. Some kind of supermajority of the Circuits based on en banc voting of active judges. This would minimize the effect of appointments from any single sitting President. If the Circuits agree with the Court then the Executive and the Congress should certainly pay heed and accept the outcome.

Would you sign on to that proposal?

I hope not, because it could prove unworkable! Who, in this scenario, would invoke the Circuit's review? Not the Executive surely, then the Circuits would constantly be pelted with such requests. Maybe a supermajority of the Congress. Or maybe a supermajority of the state legislatures. But frankly (and unfortunately) given how dominated both are by lobbyist influence, I wouldn't trust our Constitutional jurisprudence in their not-so-disinterested hands.

So there is a bit of a chicken and egg problem methinks.

Better to keep things as they are.
 

Hello Bart,

you said

"One cannot act outside the Constitution by ignoring the unconstitutional acts of another branch."

No, I disagree. "Ignoring" when it comes to the Chief Executive is a failure to exercise his duty to faithfully execute the laws. The language in Article I shows what would happen if a President neither vetoed a bill or signed it into law (this inaction on both counts would be the kind of ignoring you propose):

If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

So if the President felt that Congress had acted unconstitutionally and ignored a bill (neither vetoing it and returning it to the Congress nor signing it into law) than the bill would automatically become law. So this form of ignoring would be ineffective.

How else could a President "ignore" what he considered an unconstitutional act of Congress? Well he could attempt to employ signing statements to justify his de-facto non-execution in fact of a law he had signed off on de-jure.

And that is what our current Executive has done.

This is arguably, a covert line-item veto and is unconstitutional as ruled by the SC in 1998 to check then President Clinton's aspirations along that line.

In my opinion if the President were in fact to (in a rash of madness) say that the signing statement had actual legal force and did abstain from faithfully seeing to the execution of legislation, he would be guilty of a high crime and misdemeanor.

This may be what is actually behind your question concerning branchs' ignoring unconstitutional acts by other branchs...an attempt to justify President Bush's tactics in the signing statements.

No go. I believe he has acted unconstitutionally if he has in fact failed to execute ANY act in sum or part, sent to him by Congress.

And yes, Congress has been almost unconstitutionally derelict in not bringing the current Executive to heel.

In fact, we should be asking what are the constitutional obligations of the Supreme Court when the Congress fails in its responsibility to check unlawful behavior on the part of the Executive?
 

Back to my proposal of a supermajority of the Circuit Courts acting as a check on the Supreme Court.

This doesn't fly without an amendment to the Constitution. Article I has this language concerning Congress's powers:

To constitute tribunals inferior to the Supreme Court

Note "inferior". Obviously the Framers set up the system so that the Supreme Court is, in law, "supreme".

The best FDR could think of when faced with a refractory majority in the early years of the New Deal, was to propose enlarging the Court and/or instituting mandatory retirement ages for the sitting justices. It never occurred, I would think, for him to simply ignore their rulings and to carry on as if a Court opinion had no more weight than the barking of a neighborhood dog.
 

apropos of nothing:

it's a damn shame when the hard-won inalienable right of free speech is used only to demonstrate a malignant ignorance and obdurate mendacity ..

i'm reminded of a quote from Dr. Samuel Johnson: "Narrow-minded people are like narrow-necked bottles.. the less there is in them .. the more noise it makes coming out."
 

not really inappropriate jkat!

I think of the narrow vessels of the last score of years and how much noise they have made...

Too bad the media loves such noise.

But back to interbranch stand-offs and signing statements:

"Nothing in the Constitution's text, design, or history shows that a president's only legitimate options are either to veto an entire bill or to sign it and then enforce it in its entirety regardless of his good faith views as to the constitutional infirmities either of some part of the bill or of some distinct set of its possible applications. Anybody predicting that chaos will ensue unless presidents take their oaths to uphold and defend the Constitution to mean automatically obeying whatever an Act of Congress that they have signed into law tells them to do unless and until the Supreme Court relieves them of that obligation would need to explain why the nation hasn't long since been plunged into chaos by the fact that presidents have never taken so wholly juricentric (or parliamentary) a view of the constitutional universe -- a view that certainly isn't implied by the power of judicial review as recognized in Marbury v. Madison."

A piece by Bellinger or Addington?

No, the author is Larry Tribe and the forum was here on Balkinization.

So I stand corrected, as I thought that signing it or vetoing it were the only two lawful responses the Executive could make to a bill presented him by Congress.
 

NEW YORK McClatchy Newspapers today launched the first result of its eight-month study of detainees in the "war in terror." More in the series will be forthcoming this week.

An editors' note with today's installment opens: "Early in 2007, as the Bush administration indicated that it intended to release most of the detainees at the prison at the Guantanamo Bay Naval Base in Cuba, McClatchy set out to track down as many of the freed prisoners as possible to help determine who they were, what had happened to them in the prisons the Bush administration set up in Afghanistan and Cuba and what had become of them.

"For eight months, reporters Tom Lasseter and Matthew Schofield traveled to 11 countries — from England to Pakistan — and interviewed 66 former detainees. They also interviewed political and military officials in those countries to try to establish the detainees' backgrounds and check their stories.

"Lasseter and Schofield also combed through unclassified transcripts of the men's tribunal hearings at Guantanamo, when available, and Lasseter interviewed former White House and Department of Defense officials, former guards and lawyers for prisoners who had them."

A table of contents for the series follows. The site for the series can be found at:

http://www.mcclatchydc.com

*
An eight-month McClatchy investigation of the detention system created after the Sept. 11 terrorist attacks has found that the U.S. imprisoned innocent men, subjected them to abuse, stripped them of their legal rights and allowed Islamic militants to turn the prison camp at Guantanamo Bay, Cuba into a school for jihad. Here's a guide to the contents of our online report.

* Today: We got the wrong guys

* Coming Monday: 'I guess you can call it torture'

* Coming Tuesday: A school for Jihad

* Coming Wednesday: 'Due process is legal mumbo-jumbo'

* Coming Thursday: 'You are the king of this prison'

DETAINEES PROFILE DATABASE: Read 66 profiles and data cards of former U.S. detainees. Many have photos, audio or video.

READ THE EVIDENCE: Browse an archive of documents obtained by McClatchy in the course of this investigation.
 

Why doesn't Bush ignore the Supreme Court decision? The people will not allow it.

Even Bush and Cheney realize this. They wish to remain in power and not be disgraced and become historically remembered for attempting a coup d’état.

For all arguments, there must at some point be a decision. An end. This is something Mr. Bart does not understand. Whether Republican or Democrat, in 2000, we needed a resolution to the election in order move forward with the governing of the republic. President Clinton did not say "I think the Supreme Court decision is really crummy, a lot of legal scholars agree with me and I am giving to keys to the White House to Al Gore."

Why? Because he would have been removed from office. Or there would have been bloodshed. There are numerous examples of Mr. Bart's thinking in nations around the world, where the executive does not wish to face strictions on their authority. The end result is always bloodshed or a dictatorship.

In Mr. Bart's world you keep arguing, forever. You never reach a conclusion that in order to have a stable government, you must move forward and accept your wins and losses. For someone like myself, I am pleased with the rights afforded the detainees and displeased with the expansion of spying powers that have occurred in this administration. While I hope that the future may hold further changes to my liking, I accept that the world has changed in certain ways and the people are supportive of stricter security. I move forward.

But not Bart. He remains forever in the same place. Were his actions the will of the current executive, there would be bloodshed. In fact, many of Bart's arguments reflect this - promising that were such a country or individual to do so and so, the U.S. would act swiftly with force. The resolution is ultimately always force when you do not move forward.

Some branch of the government must eventually have the final say, whether it be executive, judicial or legislative. In our system, the final say is usually the nine justices. That's their job and that's what we asked them to do. But no matter which branch it is, eventually, you need to move forward.
 

"Bart" DeDicta:

[Mourad]: What continues to intrigue me is just why you have espoused Neoconservatism and Originalism with such enthusiasm and why you lurk on this site for what appears to be the sport of "liberal-baiting”.

["Bart']: I blog to debate the great issues of the day with intelligent and interesting people. Blogging is one of the greatest advances in the market place of ideas since the printing press.


Debate, at a minimum, involves each party speaking in turn, and addressing the points of the other side.

["Bart"]: One cannot truly debate as a member of a Greek chorus on blogs which share your point of view. Rather, I seek out those who disagree with me so I can understand (or at least know) their thinking and to test my ideas and arguments against theirs.

That would require that you "test [your] ideas and arguments against theirs." That is not accomplished by repeated gainsaying, the famous Monty Python "Argument" sketch notwithstanding.

Cheers,
 

"Bart" DeDicta:

I go to conservative blogs to get news that is not reported in our Dem media....

Such as LittleFreepGoofballs, WhirledNutzDaily, and Freeperville. Which you then cite as "news" in support of your 'arguments'.

There is a reason they're "not reported".

As for the "Dem media", try this (or just peruse Glenn Greenwald's periodic eviscerations of the Beltway Klatch on Unclaimed Territory.

Cheers,
 

"Bart" DeDicta:

I am not much in favor of evil whether used as a means or an end.

"... OTOH, what's a little bit of torture when there's 'information' to be gained [a sentiment seconded by Nino...]"

Cheers,
 

I would add to that list Scott Hortons Harpers page.

Good to see you back Arne...the place didn't seem the same.

PLG: McClatchy has been one bright spot in an inky darkness of journalistic spinelessness...appreciate the heads up and link. Going there now.
 

"Bart" DeDicta:

Sweating Through Fog]: All McCain has to do is say that he'll obey Congress, not the Court on military matters and handling non-citizen detainees. It is a winning issue if I ever saw one. Let the democrats defend Osama's rights - good luck with that.

This is actually an interesting idea. A GOP President citing Article I to argue that the Court acted unconstitutionally and that he will follow the rules for Captures enacted by a Dem Congress.

[...]

Very clever.


Indeed. Not surprising that "Bart" thinks this is a 'good idea'; kind of fits his RW Authoritarian streak...

"Do what you want and the Constitution be damned" is always a good course ... to dictatorship.

Cheers,
 

Off to a conference so no more blogging until Friday..

Bart, remember what did in the Germans was their attempting a two-front war. The Wehrmacht/Luftwaffe just weren't up to it.

Similarly, it would behoove Bush & Co. to resist the temptation to open up a second front in adding a war with the Supreme Court. They already have a hot war going on with the House, where the DOJ seems to making (relying on a 1982 Olson OLC memo) the astounding claim in the Meirs case pending before Judge Bates, that Congress has NO remedy if the Executive forbids his officers to respond to subpoena. Now granted Judge Bates proved his openness to related assertions in Walker v Cheney, but this latest might be too much to swallow. In any case the Bush administration is under enough pressure to cause them to limit their fights at this point.

McCain can take up the issue if he wants, and the partisan in me hopes he will for he will be thrashed on it if he is so unwise, but the patriot in me hopes he will be more prudent.
 

charles gittings said...

Well I have a hypothetical for you Bart:

Let's suppose the President and Congress decided to renovate Abu Ghraib as a new Auschwitz and exterminate 6 million Iraqis the way the Nazis exterminated 6 million Jews --

Would the Constitutional authority to regulate captures and prizes in war permit that?


There is no provision of the Constitution which would prevent it. This is why we have a democracy and rely on the moral compass of the People.
 

michael:

Thank you for your thoughtful replies. I would only add that the Courts themselves have repeatedly held that the President need not enforce unconstitutional legislation enacted by Congress.

It would be very interesting indeed if Mr. Bush cited this precedent for the proposition that he also need not recognize unconstitutional rulings by the Court.

Goose and gander.
 

Bart,

Your suggestion that if we just remove the cotter pins that the machinery of gov't will work better is an interesting one.

But I'm glad you don't work on my car.
 

This is why we have a democracy and rely on the moral compass of the People.

I think that would be a good idea.

In fact, we don't. If we did, we wouldn't be in Iraq right now. The moral compass of the People has been pointing the Out direction for years.

Likewise, if we did, we would have had our democratically elected choice for President in 2000.

No, what we have is a Republic, in which the State can ignore the moral compass of the People for a time. This is why we have a Constitution, so that there are certain things the State cannot do.
 

a law blog of this caliber might not be the safest place to unveil my layman's thinking on this .. but i've often wondered where the proposition that the gub'mint [i.e. the political branches] is/are entitled to an opinion of it's/their own which is enforcable against and contrary to the will of the people it's sworn to represent.

now .. i recognize that's a gramattical monstrosity .. but i trust you sharks and the occasional barracuda here to be able to fanthom it ..
 

The "You And Whose Army?" School of Political Science:

Thank you for your thoughtful replies. I would only add that the Courts themselves have repeatedly held that the President need not enforce unconstitutional legislation enacted by Congress.

It would be very interesting indeed if Mr. Bush cited this precedent for the proposition that he also need not recognize unconstitutional rulings by the Court.


Enter stage left, 1933 Germany.

What's more interesting is the rumblings amongst the "Timothys", the foaming RW, as to what they're going to do if Obama wins in November. The RWA/protobrownshirt version of "heads I win, tails you lose".

Cheers,
 

Me: "Let's suppose the President and Congress decided to renovate Abu Ghraib as a new Auschwitz and exterminate 6 million Iraqis the way the Nazis exterminated 6 million Jews -- Would the Constitutional authority to regulate captures and prizes in war permit that?"

Bart: "There is no provision of the Constitution which would prevent it. This is why we have a democracy and rely on the moral compass of the People."

OK, well I'm glad we've been able to confirm the inference that this is in fact your view.

Let me pose a similar question from a different angle...

Suppose the President and Congress decided to enact a law stating that henceforth 1 + 1 will equal 3 on odd-numbered days and 0 otherwise, and that it shall be a crime to perform any calculation concerning a financial transaction by any contrary method of arithmatic.

Would the Constitution authorize that also?

Answer that one and then tell you why I think what you said above is wrong.
 

Charles:

If you have a point that applies in some way to the unconstitutional Boumediene holdings, please get to it.

Also, please limit your point to the law. If you claim that the Constitution provides for something, identify the provision which does so.
 

Mr. DePalma,

following up from a previous thread,

Bart DePalma said...

nerpzillicus:

In order to argue that the rules for captures set by Congress and the President are unlawful under the Constitution, you have to either cite to a provision of the Constitution which limits the scope of the rules (which there is none)

OR

the Boumediene Five in their next case have to redefine the term People to include foreign POWs who were never part of the citizenry or in this country, extend the Bill of Rights to them, and then rewrite the Bill of Rights to add things like maximum terms for POWs.

After Boumediene, I cannot say that Kennedy's arrogance does not extend that far.

6:43 PM


Seriously? Really? No provision limits Congress' power to pass rules for captures? You didn't answer my hypo about the punishments for counterfeiting. Can Congress ignore all other provisions when acting pursuant to this power? Can Congress make an ex post facto law affecting already captured persons or property?

if congress passes a law stating captures on the battlefield can be sold into slavery in the US, does the 13th amendment make this law unconstitutional?

And again, when did these guys become POWs?
 

nerpzillicus said...

1) What other provision of the Constitution could conceivably limit Congress' power to set rules for captures?

The general rule of interpretation which applies here is that the more specific takes precedence over the general.

Article I's express delegation of power to Congress to set rules for captures takes precedence over Article II's general delegation of CiC power to set rules for captures.

They both would take precedence over an implied (or more accurately imaginary) power of habeas corpus review over POWs.

2) Given that foreign POWs are neither personally nor geographically part of the People, they have no, nada, zip Constitutional rights, including those against ex post facto laws (that is until our new royalty among the Boumediene Five further rewrite the Constitution decreeing that they do).
 

Bart,

Don't give me that -- this IS a question of law, in essence: would such a statute be constitutional? And if not, why not?

That's a yes or a no, and you don't need me to tell you what you think Constitution says. My answer is NO, and I can tell you exactly why, but we're not talking about what I think here.

As so often before, the question is intended to clarify some of your claims you've made in order to focus the discussion a bit. So I asked you a straight question, and I'd greatly appreciate a straight answer.

Given your previous answer, it seems your answer here must be yes -- Congress clearly has the power to regulate commerce, and accounting practices are fundamental to commerce. But I don't want to put words in your mouth, so is that your view or not? And if not, why not?

Once you've answered that, I'll explain my view of it.
 

Charles:

Frankly, I am unsure whether your bizarre domestic statute would be constitutional and do not have time to waste on the matter.

in any case, the constitutional provisions which such a statute might violate to not extend to foreign POWs. Thus, the hypo is irrelevant.

Make your point.
 

since the USSC is the arbiter of the US Constitution.. and they have ruled .. i don't recoginize barts credentials to declare this decision or any other ruling of the USSC as "unconsttutional" ..

i'm certainly not the only person here who'd make that distinction ..but it's sonethging i keep seeing being bandied about as if it were a reality.

Bart .. what makes you believe you have the authority to declare rulings of the USSC "unconstitutional" ??
 


1) What other provision of the Constitution could conceivably limit Congress' power to set rules for captures?

The general rule of interpretation which applies here is that the more specific takes precedence over the general.

Article I's express delegation of power to Congress to set rules for captures takes precedence over Article II's general delegation of CiC power to set rules for captures.

They both would take precedence over an implied (or more accurately imaginary) power of habeas corpus review over POWs.


That Congress is not allowed to suspend the writ is not more specific? what about the interpretive method to read provisions in harmony, not to construe in such a way that two provisions conflict? Or to not allow a provision to be superfluous? Unless my glasses deceive, the writ of habeas corpus is not "implied," it is an express limitation on the power of Congress. And once more, when did these guys become POWs? do you have any intention of attempting to answer any of my hypos? I assume you disagree with Morrison and Lopez, right? and agree with Raich? or think Lochner was decided wrong, or Marbury? Habeas is not a “power,” it is a limitation on the Congress and the executive from arbitrarily detaining people. That’s why it is in Article I. If it was a power of the Courts, it would be in Article III.

The Court construed the traditional privilege of the writ to encompass these people. Whether you think that is correct is beside the point. If you cannot concede that Congress is prohibited to pass laws in conflict with the express limitations of the Constitution, you simply have no understanding of American law. Argue that the scope of habeas determined by the Court is too large – don’t try and argue Congress can pass laws pursuant to an enumerated power repugnant to another limitation.


2) Given that foreign POWs are neither personally nor geographically part of the People, they have no, nada, zip Constitutional rights, including those against ex post facto laws (that is until our new royalty among the Boumediene Five further rewrite the Constitution decreeing that they do).


the ex post facto clause, (indeed the entire bill of rights) do not create “rights,” but places limits upon the government. the clause reads:

No bill of attainder or ex post facto Law shall be passed.

The habeas clause:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

The First:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Fifth:
No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Not one of these provisions is a grant of rights to the people, but a recognition of those rights, and express limitations upon the powers of Congress, proscribing it not to act in a manner contrary to them. These rights are “self evident,” – Madison didn’t even think a bill of rights was necessary since it was so blindingly obvious that Congress could not infringe these rights.

The argument that the power to pass rules on captures is more specific than the habeas clause is violative of the plain text rule. The habeas clause says the writ "shall not" be suspended, and the First and the ex post fact clause both say no law shall be passed contrary to them. You can only support your interpretation by ignoring the plain text of the Constitution. The question here is not the “rights” of the alleged unlawful enemy combatants, but a question of the extent of Congress’ and the President’s power under the Constitution.

And one more time, when did they become POWs?
 

jkat said...

Bart .. what makes you believe you have the authority to declare rulings of the USSC "unconstitutional."

A citizen of the Republic who knows enough to read the Constitution and is unafraid to tell the People's employees on the Court that they are acting unlawfully.

I have not checked my rights and responsibility as a citizen at the door to this blog. Why have you?
 

nerpzillicus:

Apparently you missed the first hundred or so times I explained this here in the past.

A prisoner of war is simply an enemy combatant or member who is being interned for the duration of the war to prevent him or her from returning to the battlefield or to otherwise provide support to the enemy before it is defeated.

The Geneva Conventions provide for a category of privileged POWs who enjoy more than the bare rights not to be killed, maimed or tortured so long as the enemy follows the laws of war as set forth in the GCs.

Captured members of al Qaeda and the Taliban are generic prisoners of war, but do not qualify as privileged POWs under the GCs because they do not follow the laws of war.

To avoid confusion, the US government only uses the term POWs when referring to GC privileged POWs and calls the al Qaeda and Taliban prisoners "detainees." However, they apparently have failed preventing many liberals like you from still being confused.
 

I may be wrong, but I think a comment on this blog just said that a private citizen in this glorious country
could make a decision as to whether a Supreme Court decision is constitutional, and that decision would be
binding upon the People, the Congress, and the President. Please tell me I am wrong.
 

i don't see a problem Bart .. the Writ can't be suspended unless in case of rebellion .. or invasion .. there is no rebellion [except among right wingers upset about the USSC ruling} and there is no invasion of the United States ongoing ..

since the two specific criteria for suspending the Writ are lacking .. the Writ remains in force .. the Ececutive cannot suspend it ..

your reponsibilities as a citizen shouldn't encompass "fomenting a rebellion" .. especially based on such fascially untrue and obviously false conclusions ..

do you see either a domestic rebellion or a foreign invasion of the United States or it's Territories ?? if so ..state the location so the rest of us can be apprised ..
 

actually, as stated before, its your words that have apparently confused "liberals like me"

Monday, February 19, 2007

A Tale of Two Georges …
Enlightened Layperson said...

I've been wanting to ask that for some time. You have been continually reiterating that our policy before Vietnam was to summarily execute unlawful enemy combatants, I have wanted to ask if you favor returning to that policy. Your answer, as I understand it, is that you do not advocate returning to it, but would consider it morally justified with respect to "al Qaeda."

If I were king, I would interrogate and then execute unlawful enemy combatants. POW privileges should be reserved for combatants who follow the basic laws of war and a modicum of civilization, not for terrorists. Extending POW rights to unlawful enemy combatants simply rewards barbaric behavior. However, modern society does not have the stomach for summary battlefield executions anymore.

Still, that leaves a lot of unanswered questions. If you consider summary execution of unlawful enemy combatants moral (even if you stop short of advocating it), does that apply to al-Qaeda only, or to all Iraqi insurgents? And what about sectarian militias? Or the Taliban?

Any combatant which meets the definition set forth in the Geneva Conventions should be extended POW rights. Everyone else is an unlawful combatant who should be treated as such. I would make an exception for enemy groups which enter into and follow agreements with us to treat our captured soldiers under the rules of the Geneva conventions.

And, for suspected unlawful combatants not captured in actual combat,what quantum of proof would you require before considering summary execution justifiable?

Interesting question. I am not sure what if any standard of proof has been previously applied in military status hearings. Under wartime conditions, I would probably settle for a preponderance of evidence.

For example, if the capture is a foreign Arab who claims he went to Afghanistan or Iraq to study the Quran or for work and was captured with terrorists and/or with bomb making materials on his person or in his apartment like Omar, he can be reasonably be considered an unlawful enemy combatant.
# posted by Blogger Bart DePalma : 5:59 PM


Friday, May 11, 2007

General Petraeus on Torture and "Other Expedient Methods"

Robin/Arne:

Once again, we are at war and not dealing in a civilian criminal justice situation. The comparison of the two are absurd.

In war, combatants have no right to life and may be killed on sight. Under a civilian criminal justice system, a criminal has a right to life until removed by due process.

Given that combatants have no right to life in a war, the privilege to life and other privileges of a enemy wartime capture are earned under the law of war by a reciprocal extension of the same privileges by the enemy to your captures.

This principle of reciprocity is written into the terms of the Geneva Conventions. Try reading them. They are crystal clear on this subject

Justice for a captured al Qaeda unlawful enemy combatant under the law of war is an interrogation, a status hearing and then a swift execution. All other benefits are privileges which we have extended to the enemy captures out of our sense of mercy.

Stop claiming that unlawful enemy combatants have the rights of a civilian criminal suspect. The Supreme Court in Ex Parte Quirin categorically rejected this nonsense. The Quirin Court spends several pages describing the difference between lawful combatants who earned POW status and unlawful enemy combatants who have forfeited those rights under the law of war.

Do not presume to tell me or the families of the thousands whom these animals have murdered that al Qaeda terrorists have somehow earned special rights which no other unlawful enemy combatants have received in our history. Such an argument is obscene when al Qaeda is now probably now beating, dismembering, burning and/or dragging to death our captured soldiers.

Finally, do not presume to argue that declining to extend civilian criminal rights to unlawful enemy combatants as we have done for our entire history somehow reduces us to al Qaeda's level. The United States is not beating, dismembering, burning or dragging to death captured al Qaeda terrorists. There is no comparison between the United States and al Qaeda and to make such a comparison is a gross slander.
# posted by Blogger Bart DePalma : 11:52 PM


you've made a big deal in the past to refer to them as unlawful enemy combatants, so why the change? and are you going to discuss you analysis' apparent blind eye to the plain text of the constitution, or stick with ad hominem attacks?
 

jkat:

This is not an argument about suspending the writ. My argument is twofold:

1) The writ never extended to foreign POWs and therefore an extension of the writ could not have been incorporated into the Constitution via the Suspension Clause at the time of the ratification or at any time since. By admitting that the writ had never before been extended to foreign POWs, the Boumediene Five essentially conceded that they unconstitutionally invented this "right" out of whole cloth.

2) Even if one assumes for the sake of argument that the scope of the writ extended to foreign POWs in an alternate common law which only the Boumediene Five can see, the habeas review would only extend to determining whether the military followed the rules for captures set by Congress and the President because the Constitution only grants the power to set such rules to the Congress and the President. The Bill of Rights does not apply to foreign POWs and thus cannot modify that power.
 

I'll be happy to make my point Bart, but your response was a surprise (you aren't normally given to uncertainty), and it prompts a further question...

You had no trouble at all answering the first question, and while the notion of altering the fundamental rules of arithmetic is surely odd, it's VERY hard for me to think it's any more or less bizarre than the notion that Congress could lawfully authorize the President to construct a factory for the specific purpose of murdering 6 million people, even knowing that it once actually happened in a nation every bit as cultured as ours is.

So what's the difference between the two questions such that you can answer the first, but uncertain about the second?

If you don't have time to think about these problems, that explains a lot, but this has nothing to do with POWs or citizenship per se -- this is about the authority of Congress to enact laws, the authority of the President to execute the laws, the authority of the courts to decide cases at law.
 

Wow, the reprinted ravings are pretty hot stuff. Those "captured al Qaeda unlawful enemy combatants" no less.

Of course it's an unwarranted assumption that everyone in Abu Ghraib and Guantanamo Bay is al Qaeda. Some are. Others, held for years without charge or recourse, have no connection to al Qaeda or any other terrorist group. Ravings about death being too good for al Qaeda scum simply don't apply to them.

Not that the facts ever got in the way of a good rant.

Well, perhaps the rant will become self-fulfulling. After we've kidnapped, imprisoned, and tortured a man who had no interest in al Qaeda, maybe now he will develop one. And if not him, maybe someone in his family or friends.

And maybe that is what a failed revolution looks like: empowering the enemy with every stupid, brutal, mistake you make, every piece of blowback you create, every part of the problem you make worse. That does seem failed, in some sense.
 

i see it much more simply m. depalma .. had we stayed within the framework of the existing protocols every prisioner .. regardless of stripe ..was in fact covered by some from of process which acknowledges fundamental legal procedure... heavily weighted even as it is/was.. but a process nonetheless.

Summary execution is seldom practiced on a field of battle .. and among formal warring factions almost never in the case of prisoners-in-hand .. and in those few cases [WWII..malmedy comes to mind as a glaring example] when summary execution has been applied it's later been prosecuted as a crime of war.

in that ..through various machinations .. prisoners in our custody have been .. by use of a specific category .. deprived of a normally granted and long-standing tradition of at least the appearance of justice. some form of procedure needs be applied .. and such a procedure should mirror our ideals and belief as a society.

i would say that the sense of "fair play" is a strong ideal among most english speaking peoples and certainly so in the case of americans specifically.

you would be hard pressed if i asked you to present to me the specific articles in the Rules for Land Warfare [the Hague Conventions] or in GC3 or GCIV which allow for the disposition of any class of prisoner being deprived of the fundamental rights of accepted legal process ..

swo .. in a sense i see the USSC ruling as having replaced the floor under these detainees as to them being granted some form of fundamental process which would pass the "fair play" test .. the shame in it is .. imo .. that it had to go to this length to replace that floor..

we're americans.. one of the things we espouse as part and parcel of our ideals is justice ..and due process of law ..

imo ..it hardly becomes us to go to great lengths in wrenching around the established orders to specifically ensure we will execute prisoners in our charge without the due process of law .. the fundamental precepts of justice and fairness remain incumbent on us ..regardless of the nature of.. or the identity of.. or the tactics our enemy might employ..

if Al Queda can provoke us to dishonor our history .. it is we who are the poorer for it.. not them.. i'm sure the court considered our ideals and long history in these areas before deciding the case as they did and reaffirming our basic national committment to justice and fair procedure.

if it is the intent of the bush administration to execute these men without benefit of process then they need to do so .. rather than assembling sham procedures to acheive the same end within a framework which only gives the appearance of a legal proceeding ..
 

This is why we have a democracy and rely on the moral compass of the People.

So that explains why only the other day you were railing against jury trials, calling them "unacceptable" IIRC.

(Can anyone tell me how or whether the comments can be searched??)
 

jpk,

"Well, perhaps the rant will become self-fulfulling."

Clearly -- the rant is a pure tautology.


mattskii,

Select FIND on your browser's EDIT menu.
 

mattski:

Typing 'site:balkin.blogspot.com searchterm' into a google search box (without the quotes, of course) will search the entire site for 'searchterm'.
 

"Bart" DeDicta:

The Geneva Conventions provide for a category of privileged POWs....

Which is why they refer to them explicitly as "privileged POWs" no less than thirteen times in the convention, not the least of which is in the title. They say, "we're singling out and creating a subset of 'prisoners of war', hereinafter referred to as 'privileged POWs' to distinguish then from what others might think are just ordinary 'prisoners of war' and that's what we're talking about in this convention...." Oh... Waidaminnit....

Cheers,
 

I'd note, FWIW, that we don't have any of "Bart"'s "privileged POWs" from the Afghanistan campaign, AFAIK. The maladministration has determined (thanks to intellectual luminares like John You who are so brilliant that they've blinded poor ol' "Bart" as well) that both Taliban and al Qaeda are terrorist organisations that do not follow the laws of war (or the strictures of GC3, Article 4). This means that all people that are accused of being part of the Taliban or al Qaeda also do not follow the laws of war (or qualify for GC3's POW protections). As such, they are unlawful enemy combatants, and thus have no rights to anything other than interrogation (harshly if possible) followed swiftly by execution. This is why we have no Taliban "POWs". They have no rights to dispute either the classification of the Taliban as a whole as such an unlawful bunch of brigands, or their association with such, or their individual trespasses on the laws of war. Because they are designated as "unlawful enemy combatants". This is a wonderful setup for the maladministration and saves much legal expense and bother. The employ of just a single AAG is all it takes; that and a blanket preznitential proclamation. If the detainees didn't want to get subjected to such classification and treatment, they should simply not have let themselves be classified as such; the fault is surely theirs.

It's an uncommon privilege for the maladministration to be able to unilaterally declare entire groups of people to be "unlawful" and then simply maintain that any person they'd like to so designate (and incarcerate and torture) is part of that group just on their own say-so.

Particularly since their accuracy in all things they say and do has been shown to be flawless.

Of course, given the above, you'd think that they'd have no problem simply going into court when a habeas petition is filed, and explaining the above. It really wouldn't involve more effort that photocopying Yoo's memorandum on such and the preznitential proclamation. These speak for themselves. All courts will undoubtedly see things "Bart"'s way, and grant their motion to dismiss.

Cheers,
 

George Will's column in today's (6/17/08) Washington Post takes John McCain to task for his comments on this case. I'd be interested in both Jack and Marty's views on Will's column.

Also, both Mary Dudziak and Larry Solum provide links to David Sloss' article titled "Judical Foreign Policy: Lessons from the 1790s" that may provide historical, if not originalist, wisdom on the subject. I hope to read this today or tomorrow. (Solum makes an interesting comment regarding his variation of originalism as it pertains to the article.)
 

Here is a simile of one of Mr. DePalma's arguments:
An Arab beheaded someone, so when he is captured,
he should be treated very harshly. Not only this
particular Arab deserves harsh treatment, but every
Arab we capture who looks like a beheader deserves
the same harsh treatment, because we have them
classified.
Not so many years ago I saw this argument applied to a certain class of people in this very country.
 

To follow up on Farris W's comment, take a look at Stephen F. Rohde's "Then They Came for Me" at:

http://www.janrainwater.com/htdocs/Rohde.htm
 

Bart writes:
We have not seen a constitutional coup de tat of this breathtaking magnitude since the passing of the New Deal, Warren and Burger Courts.

You have not seen such a "coup de tat" would have been the honest thing to have written. Prepubescent grandstanding fronted as legal and historical commentary aside, a possible contributor to such an outcome can be found in the same spinning methodology as so well modeled by Mr. DePalma.

By blurring definitions of so many issues central to the situation, a need to reach consistent if not rational definitions seems to neccessitated such a consideration.

In short, if this decision is such a harmful turn of affairs, then the neocons have nobody to blame but themselves and their incessant spin of everything they can look up in a dictionary. Made up of more spin than substance, the administration's revolutionary ambitions lacked the integral structure to last very long.
 

charles gittings said...

So what's the difference between the two questions such that you can answer the first, but uncertain about the second?

If you don't have time to think about these problems, that explains a lot, but this has nothing to do with POWs or citizenship per se -- this is about the authority of Congress to enact laws, the authority of the President to execute the laws, the authority of the courts to decide cases at law.


I think you are missing the point.

This question has everything to do with whether foreign POWs have constitutional rights.

Because they do not, the Court cannot lawfully and legitimately apply the Due Process provisions of the Bill of Rights to truncate the Article I and II powers to set rules for captures. Rather, the Article I and II powers to set rules for captures stand alone and without constitutional limit.
 

This comment has been removed by the author.
 

Mr. DePalma,

I think you are missing the point.

This question has everything to do with whether foreign POWs have constitutional rights.

Because they do not, the Court cannot lawfully and legitimately apply the Due Process provisions of the Bill of Rights to truncate the Article I and II powers to set rules for captures. Rather, the Article I and II powers to set rules for captures stand alone and without constitutional limit.

Where does the habeas clause say it is a right, or that it is limited to citizens? Where does it require the Fifth Amendment? Why does the writ need to invoke the due process clause - was habeas unavailable to anyone from ratification of the Constitution in 1788 until the ratification of the Fifth Amendment in 1791? The question has nothing to do with the allegedly unlawful enemy combatants having or not having rights, it is only whether Congress exceeded its power by suspending the writ, without invasion or rebellion, in violation of Article I, Section 10, Clause 2.

I'll lay out my hypos for you again:

Is it Constitutional for Congress to pass a law punishing counterfeiters by sending them to Gitmo without any legal recourse, including habeas?

Is it Constitutional for Congress to pass a law placing captured POWs or unlawful enemy combatants into slavery in the US?

Is it Constitutional for the Congress to pass a law, with ex post facto implications, so long as it passed the law pursuant to the captures power?

If you answer yes to any of these, please explain how you get past the explicit text of the habeas clause, the ex post facto clause, and/or the 13th amendment. Please note, each of those provisions provide for an absolute ban on the laws/conditions described (except for cases of invasion and rebellion, and following conviction of a crime), and do not (in the text) limit their scope or application to citizens or non-citizens.
 

nerpzillicus said...

Where does the habeas clause say it is a right, or that it is limited to citizens?

The Suspension Clause implies that there must be a habeas corpus right to suspend.

Habeas corpus was a common law right at that time.

The common law never extended habeas corpus review to foreign POWs. Indeed, the British courts affirmatively held that no rights of Englishmen extended to foreign POWs, including habeas review.

Where does it require the Fifth Amendment?

Habeas corpus is simply a review of whether a prisoner is being held properly under the law.

The law in the case of foreign POWs are the rules set for Captures under Articles I and II.

Article III does not provide the judiciary with a concurrent or superior power to set rules for captures.

Thus, the only possible way the judiciary can lawfully change the rules for captures enacted by the express powers of Articles I and II is to claim that the due process provisions of the Bill of Rights somehow apply to foreign POWs and reverse Qurin and Eisentrager which held to the contrary.

The question has nothing to do with the allegedly unlawful enemy combatants having or not having rights, it is only whether Congress exceeded its power by suspending the writ, without invasion or rebellion, in violation of Article I, Section 10, Clause 2.

My argument is not that Congress properly suspended the writ, but rather a predicate points that the writ does not extend to foreign POWs and most certainly does not allow the judiciary to change the rules for captures enacted under express provisions of Articles I and II.
 

"Bart" DeDicta:

My argument is not that Congress properly suspended the writ,...

Well then. In that case, why don't we just say that the MCA provision to that effect was a nullity, persiflage, and of no legal effect. And go back to the situation ex ante? Oh, yeah, nevermind; that's basically what they did....

Cheers,
 

This comment has been removed by the author.
 

"Straw Man" Warning!!! [<*Whoop! Whoop!*>]:

Article III does not provide the judiciary with a concurrent or superior power to set rules for captures.

Cheers,
 

Bart DePalma said…
nerpzillicus said...

Where does the habeas clause say it is a right, or that it is limited to citizens?

The Suspension Clause implies that there must be a habeas corpus right to suspend.

Habeas corpus was a common law right at that time.

The common law never extended habeas corpus review to foreign POWs. Indeed, the British courts affirmatively held that no rights of Englishmen extended to foreign POWs, including habeas review.


First, cites for the last assertions?

Who determines what the common law is? Where does it come from, and who modifies/interprets it? Further your statement that “the common law never extended habeas corpus to foreign POWs [in actuality, alleged unlawful enemy combatants]” is patently false – the whole breakdown in the case is no one can find a case one way or another that exactly applies to the situation here. Even Scalia admits that, as he is too obsessed with his foreign land argument. Yamashita, Quirin, Three Spanish Sailor’s, and Lockinton’s case (even Eisentrager) were all alien enemy prisoner cases. While it didn’t work out too well for those petitioners, the distinction always raised had to do with the territorial reach, not the potential dispute as to a petitioner’s status as a POW or alleged unlawful enemy combatant.

Where does it require the Fifth Amendment?

Habeas corpus is simply a review of whether a prisoner is being held properly under the law.

The law in the case of foreign POWs are the rules set for Captures under Articles I and II.

Article III does not provide the judiciary with a concurrent or superior power to set rules for captures.

Thus, the only possible way the judiciary can lawfully change the rules for captures enacted by the express powers of Articles I and II is to claim that the due process provisions of the Bill of Rights somehow apply to foreign POWs and reverse Qurin and Eisentrager which held to the contrary.


This is the argument I have said before is not right… its not even wrong. Your “captures power” argument is absolute garbage. First, factually, you put the cart before the horse in assuming they are POWs or unlawful enemy combatants. Many were caught off the battlefield (Bosnia, Canada, airports) and most we are discussing deny even being troops (reporters, etc.) Some were low level members of the Taliban, and some are genuinely bad guys. Moreover, of course the courts have a check on Congress’ power to make rules for captures:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. Marbury v. Madison, 5 U.S. 137, 177-178 (1803).

If the rules for the imprisonment of the allegedly unlawful enemy combatants do not pass constitutional muster, the Court has a duty to strike them down. If habeas is available to these people, and Congress has stripped jurisdiction from the Courts to hear such claims (it has in the MCA), and Congress has not provided a reasonable alternative, then Congress has effectively suspended the writ unconstitutionally. Congress cannot violate the Constitution in furtherance of one of its enumerated powers. The Judiciary is not “setting rules for captures;” the Court says the Congress unconstitutionally violated the suspension clause. Your argument has no precedent or textual support. By the same argument, Lopez and Morrison were wrongly decided because “Article III does not provide the judiciary with a concurrent or superior power to” make laws regarding interstate commerce. Your jurisprudence would invalidate two centuries of American law, and render the Court an impotent body, with no power or authority to prevent unconstitutional action by the Congress or the executive.

There is no need to extend the Bill of Rights to these people, or even due process. The writ is the only question present. This due process talk is a red herring in an attempt to rhetorically smear the majority.

Eisentrager is not as helpful as you imply. Justice Jackson noted quite a few times just where the Judicial power might extend into questions of the actual enemy status of aliens:

“The resident enemy alien is constitutionally subject to summary arrest, internment, and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment. Ludecke v. Watkins, 335 U. S. 160. [Footnote 7]” Johnson v. Eisentrager, 339 U. S. 763, 775.

“Another reason for a limited opening of our courts to resident aliens is that among them are many of friendly personal disposition to whom the status of enemy is only one imputed by law. But these prisoners were actual enemies, active in the hostile service of an enemy power. There is no fiction about their emnity. Y et the decision below confers upon them a right to use our courts, free even of the limitation we have imposed upon resident alien enemies, to whom we deny any use of our courts that would hamper our war effort or aid the enemy.” Johnson v. Eisentrager, 339 U. S. 763, 779. (emphasis added)

“The decision below would extend coverage of our Constitution to nonresident alien enemies denied to resident alien enemies. The latter are entitled only to judicial hearing to determine what the petition of these prisoners admits: that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing. Ludecke v. Watkins, 335 U. S. 160. While this is preventive, rather than punitive, detention, no reason is apparent why an alien enemy charged with having committed a crime should have greater immunities from Executive action than one who it is only feared might at some future time commit a hostile act.” Johnson v. Eisentrager, 339 U. S. 763, 784. (emphasis added)

Eisentrager is premised on the assumption that the individuals there were enemy aliens – the exact status that the detainees challenge. Even Eisentrager recognizes Courts (though admittedly not in this exact situation) have the power to make factual determinations, such as whether the person is an alien enemy.


The question has nothing to do with the allegedly unlawful enemy combatants having or not having rights, it is only whether Congress exceeded its power by suspending the writ, without invasion or rebellion, in violation of Article I, Section 10, Clause 2.

My argument is not that Congress properly suspended the writ, but rather a predicate points that the writ does not extend to foreign POWs and most certainly does not allow the judiciary to change the rules for captures enacted under express provisions of Articles I and II.
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I don’t have a problem with a reasonable dispute over the territorial and personal extent of the writ, but again, this rules for captures stuff has no basis in law
 

Mr. Will's column is pretty good despite some residual conservative spin, as, for example, when he says "many certainly are dangerous 'enemy combatants.' Some probably are not."

What the facts suggest is that some are dangerous, some are not, and the Bush administration hasn't been able to tell the difference for six years and counting.

But he addresses a point I've been aiming at in my dialog with Bart, the business of originalism. The apologists insist on the principle that no alien has any rights under the Constitution outside the sovereign territory of the United States. That is not a complicated proposition, and one would suppose that if it was as clear and certain as the apologists insist it is, that there would be some evidence of it in the writings of philosophers and legal theorists, so where is it?

I've read all the sophist spin they fabricate from their crabbed readings of legal precedents, but I've never seen them quote Locke, Montesquieu, or Grotius (etc) on this subject, and I've read enough philosophy to doubt they could, for the simple reason that all of those writers start from the premise that we all have the same rights, and that they are derived from god and nature, not the acts of men. The Constitution itself was based on the theory of natural rights famously stated by the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."

"All men" is not an ambiguous figure of speech, and habeas is clearly intended to protect the fundamental liberty of persons accused of crimes. We all know that the United States fell very short of this principle in regard to slavery and the treatment of Native Americans, but who would claim today that our treatment of slaves or Native Americans in the 18th century are sound precedents in the here and now?

We are not Nazis, and those were failures of principle, not expressions of it. So where exactly does this principle exist outside the hyperbole of the apologists?

You won't find it in any of the modern treaties dealing with human rights. You won't find it in any of the philosophy on which the Constitution is based either. The basic assumption starting out was that all of our rights derived from god, and were granted equally to all. Read Locke, read Aquinas.

As for legal precedents, here's one to consider -- the Norman Conquest in 1066. William wasn't merely grabbing a piece of attractive real estate by force, he was taking up arms to assert a colorable claim to the English throne. 'Dieu et mon droit' (God and my RIGHT) was William's motto, and it's been the motto of the English monarchy ever since.

Can the apologists point us to an instance where the United States has EVER asserted or accepted their proposition in regard to a US citizen who was treated the way these detainees have been by another country?

Was that our view regarding to impressed seaman during the War of 1812, or Americans robbed, murdered, or enslaved on the Barbary Coast?

For that matter, do I have a right of habeas as an American citizen sitting in California right now?

I could definitely bring a petition in a US District Court, but that petition would be summarily dismissed with prejudice for the simple reason that I'm not being detained. My right isn't habeas, but liberty; habeas is a procedural safe- guard meant to vindicate that right, because without it the right can be ignored at will. Habeas is functional by it's very nature, just as addition and subtraction are in arithmetic. So it isn't a right in and of itself, but it functions like one because it's necessary to give the right of Liberty effect, just as you can't balance an bank account without applying the rules of arithmetic.

Which brings me to my hypos --

The authority to regulate commerce is not the authority to make commerce impossible.

The authority to make rules concerning prizes and captures is not the authority to take prizes and captures without any rules at all.

The authority to define and punish crimes against the laws of nations is not the authority to commit such crimes with impunity.

And as the apologists are so fond of bellowing in other contexts, the Constitution is not a suicide pact.

So the apologists rant about this or that the British did or didn't do in order to establish their sophist view of 'original meaning', but they misrepresent and misconstrue both the facts and the law to do it. We revolted AGAINST British practice, unlawful detentions were among our grievances, and the grievance in that regard wasn't with English law, but with the unlawful actions of the Crown.

For instance, they fail to consider what the law was in places where habeas wasn't directly available (as distinct from non-existent). Habeas was available whenever a court had jurisdiction, and whenever a court did not (setting aside the jurisdictional peculiarities of Scotland and the Channel islands etc) a prisoner of the Crown in those times would presumably be subject to the Articles of War which governed British forces overseas -- and those articles do in fact recognize the rights of prisoners in a fashion, by order of the Crown.

Which brings me back to the questions I've been asking you Bart. You're very fond of the Constitution's clause touching "prizes and captures", but that doesn't even apply here, because it doesn't refer to prisoners at all -- the phrase literally means "ships and property taken in military operations". That point is trivial, because the authority to regulate the treatment of military prisoners is implicit in the authority of Congress "To make Rules for the Government and Regulation of the land and naval Forces", but it shows that what's really going on here is misrepresentation and misunderstanding on your part. The British Articles of War (1757) illustrate this clearly:

"7. All the papers, charter parties, bills of lading, passports, and other writings whatsoever, that shall be taken, seized, or found aboard any ship or ships which shall be surprized or taken as prize, shall be duly preserved, and the very originals shall by the commanding officer of the ship which shall take such prize, be sent entirely, and without fraud, to the court of the admiralty, or such other court of commissioners, as shall be authorized to determine whether such prize be lawful capture, there to be viewed, made use of, and proceeded upon according to law, upon pain that every person offending herein, shall forfeit and lose his share of the capture, and shall suffer such further punishment, as the nature and degree of his offense shall be found to deserve, and the court martial shall impose.

"8. No person in or belonging to the fleet shall take out of any prize, or ship seized for prize, any money, plate, or goods, unless it shall be necessary for the better securing thereof, or for the necessary use and service of any of His Majesty's ships or vessels of war, before the same be adjudged lawful prize in some admiralty court; but the full and entire account of the whole, without embezzlement, shall be brought in, and judgment passed entirely upon the whole without fraud, upon pain that every person offending herein shall forfeit and lose his share of the capture, and suffer such further punishment as shall be imposed by a court martial, or such court of admiralty, according to the nature and degree of the offense.

"9. If any ship or vessel be taken as prize, none of the officers, mariners, or other persons on board her, shall be stripped of their clothes, or in any sort pillaged, beaten, or evil-intreated, upon the pain that the person or persons so offending, shall be liable to such punishment as a court martial shall think fit to inflict."

The distinction between prisoners and captured property is absolutely clear there, and it's equally clear that those three articles do not support the idea British Courts had nothing to say about British military operations outside the sovereign dominions of the Crown -- they suggest they exact opposite. The courts of admiralty were just as much creatures of English law as the courts of common pleas or chancery, all deriving their authority from same source, the Crown, and all of them charged with the administration of the King's laws. It's obvious what the basic concerns were back then:

"[T]o determine whether such prize be lawful capture, there to be viewed, made use of, and proceeded upon according to law," says art. 7.

"[T]he full and entire account of the whole, without embezzlement, shall be brought in, and judgment passed entirely upon the whole without fraud," says art. 8.

And then there's art. 9, making it an offense to abuse a prisoner in any way.

There's no doubt what's going on there: everyone is on notice that they are answerable to the law, and not in Guantanamo Bay or whatever other far corner of the world they might be in right now, but ultimately, in London. There was no need for the writ habeas in that setting, because everything was under the Articles of War, which if anything kept the military on an even shorter leash than the civil authorities... You see, prize adjudications weren't just a matter of military necessities or justice, the King was in for a cut of the take, and any atrocities against the persons or property of foreigners could easily start or re-ignite a war, this in the days when it could take months to get out the word that a war had started or ended, and orders were issued from London regarding operations months and even years in the future. Regulating something isn't just a matter of telling someone what to do by fiat, but of monitoring supervising their activity. The real problem in all of this is that under the Constitution the people are sovereign, not the President. He has some of the powers that the King had, but he is not the King. The writ of habeas was issued in the King's name in England, but here it is issued in the name of We, the people who made the Constitution. The President has no authority outside that Constitution, and under it the Courts act in Our name, not his, in the interest of Our justice, not his ability to commit crimes with impunity just because he thinks it's a good idea.

[Apologies in advance for this being so long and sloppy, but I had a lot to say, and there's a lot of distractions these daze.]
 

PS:

Here's a link for the British Articles of War (1757):

http://www.hmsrichmond.org/rnarticles.htm
 

thank you m. gittings for a most informative post ..

long ?? i savored every word of it ..
 

This question has everything to do with whether foreign POWs have constitutional rights

You know, I'm beginning to understand this reasoning, or perhaps I should say this methodology: narrow the scope to the explicit text of only one document, interpreted in the way that favors a particular outcome, and you can go a long way.

I prefer the larger view expressed today by former Navy general counsel Alberto J. Mora: "The United States was founded on the principle that every person -- not just each citizen -- possesses certain inalienable rights that no government, including our own, may violate."

To be perfectly clear, EVERY PERSON includes foreign POWs, generic POWs, privileged POWs, enemy combatants, captures, any person regardless of term used to describe, without exception, period. That's what we mean by EVERY PERSON.

This is not just Geneva, although Geneva certainly encodes principles clearly and unequivocally violated here.

This is not just the Constitution, although the Court has ruled that basis is sufficient to make the administrations overreach here unlawful, plain and simple.

This is America. This Nation was founded on the principle that the State has no authority to deny ANY person certain rights. The State can't circumvent this by calling the person a particular name, or moving its torture facility offshore, or writing legal memos that ignore the law. None of that gets the State off the hook. The State has overstepped its bounds.

The State may not have to do much for certain persons, but there are rock bottom minimum standards that the State has no authority to go beyond.

So maybe this is what a failed revolution looks like: an administration that has been reminded that the standards have hit rock bottom and then gone one step lower.

And maybe this is what a successful revolution looks like: in 1787, we cemented in the idea that in our Nation the State does NOT have the power to do certain things to the people. ANY people. That idea has lasted. It was restated just a few days ago by the Supremes.
 

the author of this article is a drama queen.
 

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