HOLY CHEETOS, GONZO: WHAT WE GWINE DO WITH THESE GUYS NOW?
The military tribunal system which was declared "close enough" to due process by a certain former White House Counsel just got folded, spindled and mutilated in the US Supreme Court. Perhaps the one and only departure from accepted practices of criminal procedure that can't be blamed on Ashcroft. Happy posterity, Gonzo, as the guy who wanted to circumvent international law and the Geneva accords and actually put it writing.
posted by UMRBlog @ 10:28
9 comments
9 Comments:
That argument would be better if we discovered these folks on american soil. We went into Afghanistan "on behalf of the world community to fight terrorism." That means there is a forum for these folks to be ajudicated terrorists, rogue military or international war criminals. I think Justice Stevens worried that they lost existing Hague rights by us transporting them from their own countries or current domiciles.
Gonzo/Condi/Perle made this all sound so easy when they wanted Shrubbie to sign off on it. It's not. If this decision makes nothing else clear, providing for ajudication and punishment is hard and it's supposed to be hard in the USA. That's what makes us different from them.
Due process is frequently a pain in the rump but, in the final analysis, it's a key to ordered liberty.
The good news is that this decision doesn't turn anybody not yet tried loose. The court was careful not to invade the executive branch. Maybe they can toss the zealots out of the room and get some real lawyers to give them a balanced analysis. Then we'll have a procedure that we can keep.
Any day, we'll talk about how to square this with Padilla. That'll be fun.
Sorry about your troubles. I just got the detailed explanation. Yuch!
Thanks for stopping by.
Check Clarence Thomas' opinion.
For What? He starts with an insular view of our military powers, adds all kinds of deference to the executive and reasons around it.
To be fair, I haven't had a long look at either side's legal analysis and I'll read the both of them in detail.
The one thing that's clear to me here is that the Court has put some power back in Congress. It will be interesting whether that current cluster will use it wisely.
Thank you for coming by.
These five got this one as wrong as they got Kelo wrong. Take a long look at the analysis. Besides being a bad decision they didn't even have jurisdiction per the Detainee Treatment Act of 2005. I'm not sure how you get that they put some power back in Congress.
How old is Stevens? Can he retire yet?
In Oral argument, SG Clement (who, by the way, did a freaking brilliant job, no matter the outcome.) Conceded the DTA cannot remove jurisdiction from the SCOTUS by removing the jurisdiction from the District Courts.
Paraphrasing Stevens, he suggested that if Congress passed a Somewhat comparable scheme, it might hold up. This was a test of unfettered executive power. That makes congress the 600 pound gorilla in the next move.
As a practical matter, I don't know whether this is a real good deal for the fellows at Guantanamo Better Boys Camp. There's no tag line here that says they have to be put into a regular civil court or that they have to be cut loose.
I think the appearance of being guided at all by the GA's is the danger in this ruling. It'll be left to Roberts to help the court wiggle out of that in later cases.
Finally, even though he found a way out of deciding Padilla I, this is a clear sign that Kennedy was deeply concerned about a model that allows a Padilla detention without charge. His questioning in the oral argument would have been more expected coming form Souter or Ginsburg.
Please expound on whether you think the legal reasoning is flawed, or the result is simply bad policy. As we've seen in some of the "reverse discrimination" cases, immaculate legal reasoning sometimes leads to strained policy. I'd like to read your views.
Thanks for coming by.
I'm not an attorney, and although the logic at times is puzzling, it is clear that reasonable people could come down on either side of the issue, and still be dedicated to the rule of law.
A lot of the decision's reasoning was based on what Congress did not do, say or mean, rather than what it did do, say or mean. The court said it can and would make its own interpretations. In effect, the court said if we're wrong, go ahead and change the law.
What the decision didn't do is what most of the headlines said it did, and you did too "circumvent international law and the Geneva accords". The Bush administration's position had some support in the law, as did Hamdan's position. The Bush administration followed the rule of law, as it saw it laid out in statute and case law. A divided Supreme Court (5-4, if you include Roberts' earlier decision on the appellate court), saw the law differently.
At the end of the day, Hamdan remains ours, and the Bush administration and Congress still have plenty of ways to ladle out justice to him and other enemy combatants. Despite the hysteria of both sides, the war on terror continues as before.
This is from the majority opinion and specifically what kind of accusation is required to justify a military commission. This is separate and apart from the discussion of DTA jurisdictional limitations and whether they can ever effect habeas corpus. This discussion is the essence of when "commander in chief" powers can be used to set up an adjudicatory process.
"This high standard was met in Quirin; the violation there alleged was, by "universal agreement and practice" both in this country and INTERNATIONALLY, recognized as an offense against the law of war. 317 U. S., at 30; see id., at 35-36 ("This precept of the law of war has been so recognized in practice both here and ABROAD, and has so generally been accepted as valid by authorities on INTERNATIONAL LAW that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War" (footnote omitted)). Although the picture arguably was less clear in Yamashita, compare 327 U. S., at 16 (stating that the provisions of the Fourth Hague Convention of 1907, 36 Stat. 2306, "plainly" required the defendant to control the troops under his command), with 327 U. S., at 35 (Murphy, J., dissenting), the disagreement between the majority and the dissenters in that case concerned whether the historic and textual evidence constituted clear precedent-- not whether clear precedent was required to justify trial by law-of-war military commission."
So it is a bit difficult to argue that the Hamdan case itself was not decided with regard to international law, to the extent that international law has been incorporated into our common law.
If you want to argue that reasoning is not the centerpiece of this decision, I have no quarrel with that. Further, I think it's safe to say the general procedure for these commissions was not found to be in violation of international law. But the triggering event as to Hamdan was found insufficient and the basis was that it didn't meet so much of international law as was already incorporated into our law in Quirin and Yamashita and the cases leading up to them.
Now, getting away from the legal analysis, I still think this has handed Congress a whole lot of power in the area of enemy combatant adjudicative processing. If I were a republican in a swing district right now, I'd be proposing a Tough Enemy Combatant tribunal Statute and just dare my dem opponent to join with me in supporting it. This would put the dem. in the position of either saying "me too" or having to explain yet another layered position, "I'm not for prisoner coddling. I'm against unfettered executive power."--a dog loser of a position, if I've ever heard one.
I'm not saying it wasn't decided with regard to international law.
The high standard met in Quirin that was not met here was that the Supreme Court managed, in some particularly contorted logic, to find a way to diasgree with the lower court which ruled that Hamdan did not fit the Geneva Convention's definition of a prisoner of war.
Oversimplified, it came down to concluding that the war against terror was not "a conflict of international character." The lower court disagreed.
Partisan comments such as "It (SCOTUS) upheld the rule of law in this country and determined that the executive has gone beyond the constitution and international law" by a Gitmo defense attorney are similar to your statements of "departure from accepted practices of criminal procedure " and "the guy who wanted to circumvent international law and the Geneva accords" To say that the Bush administration was flouting the law is just not true. If you read the decision together with the appeals court opinion, the conclusion is inescapable: The Bush administration followed the rule of law, as it saw it laid out in statute and case law.
I agree it could potentially be politcally beneficial to R's.
I don't think JPS' logic is contorted and I think the Lead opinion and the concurring op conclude the executive branch did exceed its constitutional authority. I'd concede in a heartbeat this ruling only applies to a very narrow set of facts.
The End Zone Dances by the ACLU types don't do anything for me, either. That doesn't mean Gonzo gets off the hook, though. This stuff wasn't as easy as he led his executive types to believe. It is impossible for me to believe he gave the Quirin and Yamashita decisions the scrutiny they deserved or that he really contemplated the implications of rubbing out Habeas Corpus Jurisdiction.
Fifty years in the rear view mirror, Gonzo will be the guy who didn't say "Hey, wait a minute! Let's either extend more due process or get congress in on this."
Thanks for coming back by. We appreciate your thoughts.
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