SCOTUS says no to military trials

[Judy G. Russell]

By a 5-3 vote the US Supreme Court today said no to the Administration's plan to substitute military tribunals for other more traditional trials for so-called "enemy combatants" helt at Guantanamo. (Chief Justice Roberts did not participate since he was one of the judges of the DC Circuit whose decision in favor of the military tribunals was at issue.)

How this will play out in the long run isn't clear, since Congress went into its usual "give the President anything he wants" mode last year and passed the Detainee Treatment Act, which stripped federal courts of jurisdiction over Guantanamo detainees' habeas corpus petitions that were "pending on or after" the date of the law's enactment.

More as this develops...

[Lindsey]

How this will play out in the long run isn't clear, since Congress went into its usual "give the President anything he wants" mode last year and passed the Detainee Treatment Act, which stripped federal courts of jurisdiction over Guantanamo detainees' habeas corpus petitions that were "pending on or after" the date of the law's enactment.
But the court also kicked the props out from under the idea that the detainees didn't qualify for any sort of consideration under the Geneva Convention, and, it seems to me, out from under the whole notion that the president can pretty much do whatever he wants when he's acting as commander-in-chief. See the analysis at SCOTUSblog (http://www.scotusblog.com/movabletype/archives/2006/06/the_common_arti.html).

--Lindsey

[Judy G. Russell]

It's better than it might be, but worse than I'd have hoped. I'd have hoped, for example, that the Court would at least consider whether this is the kind of situation in which the right of habeas corpus can be suspended at all, not merely that this isn't the suspension that Congress authorized.

[Lindsey]

I'd have hoped, for example, that the Court would at least consider whether this is the kind of situation in which the right of habeas corpus can be suspended at all, not merely that this isn't the suspension that Congress authorized.
That's an interesting question -- I hadn't considered it from that angle. Article I, Section 9 of the Constitution says, "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." We're definitely not in a rebellion, as we were when it was suspended under Lincoln. Are we under invasion? You might have made that case immediately after 9/11. But now, nearly 5 years later? If we can be said to be still under invasion at this point, then we will always be under invasion, and Article I Section 9 has been stripped of most of its meaning.

Of course, there's still the qualification "when the public Safety may require it." Even if we are under invasion, is the situation such that public safety can only be assured by suspending habeas corpus? I don't think so, but the important question is: What will Anthony Kennedy say when that question comes up?

We desperately need a Democratic majority in the Senate. Justice Stevens is 87 years old, and God help us all if Bush gets to appoint a third Supreme Court justice with a Republican majority.

--Lindsey

[Judy G. Russell]

Justice Stevens is 87 years old, and God help us all if Bush gets to appoint a third Supreme Court justice with a Republican majority.I said something along the same lines this afternoon, and then mentioned (gulp...) that Justice Ginsburg isn't all that young and has not been well...

[Lindsey]

I said something along the same lines this afternoon, and then mentioned (gulp...) that Justice Ginsburg isn't all that young and has not been well...
Jesus...

--Lindsey

[ndebord]

I said something along the same lines this afternoon, and then mentioned (gulp...) that Justice Ginsburg isn't all that young and has not been well...

Judy,

*^&(87 years old? Yipes. And Ginsburg sick? I'm sick just hearing this.

[Judy G. Russell]

Yep. 73 years old and colon cancer in 1999. Yikes...

[Judy G. Russell]

Now now. Don't exaggerate. Stevens is only 86 (born April 1920).

[earler]

He's been dead for over 2000 years.

-er

[Lindsey]

Now now. Don't exaggerate. Stevens is only 86 (born April 1920).
I stand corrected. ;) (I was going by something I saw or heard in some of the commentary coming out of the decision.)

How about I rephrase it this way: Stevens is in his 87th year. :p

--Lindsey

[Judy G. Russell]

How about I rephrase it this way: Stevens is in his 87th year. :p Fair 'nuff.

[ndebord]

Judy,

This from Slate, in which the letter writer argues that this decision restores legislative oversight by the Congress over the Preisdent, courtesy of the Supremes.

http://www.slate.com/id/2144476/entry/0/

from: Walter Dellinger
to: Dahlia Lithwick
Still "the Most Important Decision on Presidential Power Ever"

"Hamdan is about the OLC torture memo; and it's about whether the president can refuse to comply with the McCain Amendment. It's about all those laws the president says, as he signs them, that he will not commit to obey, if in his view foreign relations or deliberative processes of the executive or other matters may be affected. And, by the way, he won't even commit to tell Congress he is not obeying the law. That is what it's about.

...The White House's response to Hamdan was to shrug that it "requires little more than having Congress put its stamp of approval" on the some modified military trial plans or maybe on the existing plan. But that is the whole point of this ruling in Hamdan—to move the president from violating the law to complying with a new law to be enacted by Congress."

[Judy G. Russell]

It's only an effective move (from violating the law to complying with a new law) when you have more (better) than a rubber-stamp Congress.

[Lindsey]

Don't miss Jane Mayer's article from the July 3 New Yorker about "Cheney's Cheney," David Addington, who, according to Mayer, is the real legal force behind the push for increased executive power. Not available online, unfortunately.

--Lindsey

[ndebord]

It's only an effective move (from violating the law to complying with a new law) when you have more (better) than a rubber-stamp Congress.



Judy,

Could happen that way in the House, but will the Senate go along? The Supremes could then, if so inclined, go to the next step and declare it unconstitutional, not just illegal.

[Judy G. Russell]

Could happen that way in the House, but will the Senate go along? The Supremes could then, if so inclined, go to the next step and declare it unconstitutional, not just illegal.The Senate has certainly been nearly as much of a rubber stamp as the House. Just say the word "terrorist" and all of their spines turn to jelly.

As for the Court, what was deeply distressing about this particular opinion is that the Court did not seem to have one minute's worth of trouble with the notion that the Detainee Treatment Act (which essentially bars detainees from access to the courts) might itself be unconstitutional. It simply said it didn't apply to this particular case. Now I realize that there's a rule of judicial construction that says you don't reach constitutional issues unless you have to, but I didn't see any reference in the opinion (as there often is) such as "We leave for another day the question of..."

[ndebord]

Don't miss Jane Mayer's article from the July 3 New Yorker about "Cheney's Cheney," David Addington, who, according to Mayer, is the real legal force behind the push for increased executive power. Not available online, unfortunately.

--Lindsey

Lindsey,

Just finished reading the article this second and all I can do is gasp like a fish out of water. Without a doubt, this feckless and stupid President has abdicated his duties to the constitution, without abdicating his belief in autocratic rule. A stupid man in thrall to a cabal of men who have no faith in democracy or democratic rule. Addington is as close to Robespierre as we can get.

[Lindsey]

Just finished reading the article this second and all I can do is gasp like a fish out of water.
Jane Mayer has done some terrific reporting on the subject of the Bush presidency and the war in Iraq. It's Dick Cheney more than Bush that needs impeaching, but it's too late for that.

And I suppose you have seen that just as there appear to have been plans for invading Iraq before 9/11, the NSA was seeking to monitor telephone calls before (seven months before!) 9/11? If not, story at Bloomberg.com (http://www.bloomberg.com/apps/news?pid=20601087&sid=abIV0cO64zJE&refer=). It's not so much that 9/11 changed everything, it seems, as that 9/11 gave these guys the cover for changing everything.

--Lindsey

[ndebord]

Jane Mayer has done some terrific reporting on the subject of the Bush presidency and the war in Iraq. It's Dick Cheney more than Bush that needs impeaching, but it's too late for that.

And I suppose you have seen that just as there appear to have been plans for invading Iraq before 9/11, the NSA was seeking to monitor telephone calls before (seven months before!) 9/11? If not, story at Bloomberg.com (http://www.bloomberg.com/apps/news?pid=20601087&sid=abIV0cO64zJE&refer=). It's not so much that 9/11 changed everything, it seems, as that 9/11 gave these guys the cover for changing everything.

--Lindsey

Lindsey,


Tricky Dick lives on in the hearts, minds and deeds of Cheney and Rummie and their familiars.

[Lindsey]

Tricky Dick lives on in the hearts, minds and deeds of Cheney and Rummie and their familiars.
Oh, exactly so -- I have heard any number of people quoted as saying that Cheney thought that the post-Watergate reforms had damaged the presidency, and was determined to return the lost power to that office.

--Lindsey

[ndebord]

Oh, exactly so -- I have heard any number of people quoted as saying that Cheney thought that the post-Watergate reforms had damaged the presidency, and was determined to return the lost power to that office.

--Lindsey

Lindsey,

Sideny Blumenthal takes yet another looks at the Supremes vs GWB and his conclusion?

The imperial presidency crushed

http://www.salon.com/opinion/blumenthal/2006/07/06/hamdan/index.html


Writing for the majority, Justice Stevens said:"We conclude, that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions."

[Lindsey]

Sideny Blumenthal takes yet another looks at the Supremes vs GWB and his conclusion?

The imperial presidency crushed

Yes, I saw that piece. Let's hope he's right that the quest to make the other two branches of government irrelevant has indeed been crushed, but I suspect that with these guys, it's like trying to kill the Frankenstein monster. :(

--Lindsey

[ndebord]

Yes, I saw that piece. Let's hope he's right that the quest to make the other two branches of government irrelevant has indeed been crushed, but I suspect that with these guys, it's like trying to kill the Frankenstein monster. :(

--Lindsey

Lindsey,

If they can't get it through the House before the mid-terms, this nightmare is on its way to being over. OTOH, if it passes there, we'll probably get to see if the filibuster crew are still alive and kicking in the Senate.

[Lindsey]

If they can't get it through the House before the mid-terms, this nightmare is on its way to being over. OTOH, if it passes there, we'll probably get to see if the filibuster crew are still alive and kicking in the Senate.
I'd like to think that reason will prevail, but I've seen so much in the last 6 years that simply defies reason, that I just don't know what to expect any more. Nothing, absolutely nothing, would surprise me.

--Lindsey

[ndebord]

I'd like to think that reason will prevail, but I've seen so much in the last 6 years that simply defies reason, that I just don't know what to expect any more. Nothing, absolutely nothing, would surprise me.

--Lindsey

Lindsey,

IF I were to believe that, I'd be an expat tomorrow.

[Lindsey]

IF I were to believe that, I'd be an expat tomorrow.
Don't think I haven't considered it. Less and less every day is this the country I was brought up to honor and more and more is it just another place to live. And if it's just a place to live, there's no reason somewhere else wouldn't do just as well.

My great-grandfather headed for Nova Scotia after the end of the Civil War. Maybe I should follow his example. A little more global warming, and Nova Scotia just might have the ideal climate. :-|

--Lindsey

[ndebord]

Don't think I haven't considered it. Less and less every day is this the country I was brought up to honor and more and more is it just another place to live. And if it's just a place to live, there's no reason somewhere else wouldn't do just as well.

My great-grandfather headed for Nova Scotia after the end of the Civil War. Maybe I should follow his example. A little more global warming, and Nova Scotia just might have the ideal climate. :-|

--Lindsey

Lindsey,

Ah, just saw "An Inconvenient Truth" and I don't think I want to be that close to Greenland just now.

<sigh>

[Lindsey]

Ah, just saw "An Inconvenient Truth" and I don't think I want to be that close to Greenland just now.
Hmmm -- good point. Not a good idea to be anywhere near the coast, come to think of it. :(

--Lindsey

[ndebord]

Hmmm -- good point. Not a good idea to be anywhere near the coast, come to think of it. :(

--Lindsey

Lindsey,

Hmmm, Palisades real estate. "Be the first one to get your 'red hot' beach front property now!"

[ndebord]

By a 5-3 vote the US Supreme Court today said no to the Administration's plan to substitute military tribunals for other more traditional trials for so-called "enemy combatants" helt at Guantanamo. (Chief Justice Roberts did not participate since he was one of the judges of the DC Circuit whose decision in favor of the military tribunals was at issue.)

How this will play out in the long run isn't clear, since Congress went into its usual "give the President anything he wants" mode last year and passed the Detainee Treatment Act, which stripped federal courts of jurisdiction over Guantanamo detainees' habeas corpus petitions that were "pending on or after" the date of the law's enactment.

More as this develops...


Judy,

The Times stepped in today with an editorial holding the Administration's feet to the fire.

http://www.nytimes.com/2006/07/12/opinion/12weds1.html

[Judy G. Russell]

And isn't this a telling bit...
Lt. Cmdr. Charles Swift of the Navy, who represented Salim Ahmed Hamdan, the prisoner whose case was before the Supreme Court, provided damning evidence about how utterly flawed those commissions were — from military prosecutors. He quoted one, Capt. John Carr of the Air Force (since promoted to major), who condemned “a halfhearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged.”

[ndebord]

And isn't this a telling bit...


Judy,

Reminds me of the late 70s when I was handling, oh, an 800 caseload of 'Nam Vets with undesirable discharges in front of administrative review by the V.A. adjudicators. We (both) knew that they only approved 13% of the cases. The rest were, how to say, S.O.L.

Understand that during Vietnam, the tour of duty was 1 year (unless you were a jarhead, in which case being a hardhead meant you got to do 13 months) and new troops and old troops mixing was bad for morale. So instead of court-marshalling people who were labeled as "troublemakers," they offered a non-court martial discharge, aka, undesirable discharge, with the "verbal" promise that in five years you could get a general discharge.


Wait for it...
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What they didn't say was that the review process was rigged (see above) and that if you went to the roving appeals board, they only handled 400 cases a year. (Let's see...800,000 pieces of bad paper (undesirable discharge) divided by 400 cases a year. Hmmmmm. Perhaps you'd do well to drink some dutch beer and wake up a 100 years in the future. so you could get a portion of your V.A. benefits and not be labeled as a bad person!

[Judy G. Russell]

What they didn't say was that the review process was rigged (see above) and that if you went to the roving appeals board, they only handled 400 cases a year.Oh geez... what a crock...

[ndebord]

Oh geez... what a crock...

Judy,

It was a very quiet and very effective method of separating bitter vets from cherries before they had to take their turn at the front.

The really bad thing about it was that I (among others) had to decide who the lucky 13% were when I went in front of the V.A. adjudicators. We had this little informal arrangment where I insisted "harder" when I thought the person in question really deserved a break. (Talk about your God complex.)

<sigh>

[Lindsey]

with the "verbal" promise that in five years you could get a general discharge.
Sort of like the "verbal" promises military recruiters make that if you sign up for this program, or enlist for 5 years, you won't be sent to Iraq. Which is exactly why there is now a counter-recruitment program launched by mothers and other concerned citizens to try to be sure potential recruits are at least given a chance not to make an irrevocable decision based on lies.

And the military wonders why so much of the civilian community regards it with extreme suspicion...

--Lindsey

[ndebord]

Sort of like the "verbal" promises military recruiters make that if you sign up for this program, or enlist for 5 years, you won't be sent to Iraq. Which is exactly why there is now a counter-recruitment program launched by mothers and other concerned citizens to try to be sure potential recruits are at least given a chance not to make an irrevocable decision based on lies.

And the military wonders why so much of the civilian community regards it with extreme suspicion...

--Lindsey

Lindsey,

The military and the Army in particular, still have not gotten over Vietnam. In fact, no western power has figured out how to fight and win a guerilla war since Mao. (The Malays and ethnic Chinese in the Malay Peninsula were a different story and others would argue similarly about Greece.)

A professional military can only work in small scale conflicts. At some point, before it is too late, the draft needs to be reinstated.

[Lindsey]

In fact, no western power has figured out how to fight and win a guerilla war since Mao.
I'm not so sure they knew how to do it before then, either. A large part of the reason the Americans were successful in their revolt against the British is that Washington realized early on that he did not actually have to win the war, he only had not to lose it. Thus he very studiously avoided "all or nothing" battles with the British and concentrated on simply making war very costly for them. He knew that time (and distance) was on his side, or at least it was if he could manage to hold the army together despite the refusal of Congress to do much in the way of paying the soldiers or providing them supplies.

The South might have managed the same thing in the Civil War but for the disinclination of its leaders to employ that sort of strategy -- during the war, anyway. One might argue that it was exactly the sort of strategy they employed during Reconstruction and well into the 20th century through such organizations as the KKK and the White League.

At some point, before it is too late, the draft needs to be reinstated.

Yeah, if we're going to continue to launch voluntary wars. The one good thing about reinstating the draft is that it might take away a lot of popular support for bellicose foreign policy.

--Lindsey

[Judy G. Russell]

It was a very quiet and very effective method...And very unfair and very wrong...

[Judy G. Russell]

A professional military can only work in small scale conflicts. At some point, before it is too late, the draft needs to be reinstated.That is a thoroughly terrifying statement, Nick, suggesting, as it does, an inevitability of large scale conflict...

[ndebord]

That is a thoroughly terrifying statement, Nick, suggesting, as it does, an inevitability of large scale conflict...

Judy,

Your point is? History tells us that bloodletting on a large scale is cyclical. If it is done via a draft, perhaps we can have "civilian" oversight, otherwise...

[Judy G. Russell]

Your point is? History tells us that bloodletting on a large scale is cyclical. My point is that I'd rather not have the cycle come 'round on my watch...

[ndebord]

My point is that I'd rather not have the cycle come 'round on my watch...

Judy,

Actually, by historical standards, we're overdue.

[Judy G. Russell]

Actually, by historical standards, we're overdue.It can wait a bit longer. Another 50 or 60 years would be just fine.

[ndebord]

It can wait a bit longer. Another 50 or 60 years would be just fine.

Judy,

The rule of thumb is that Grampa saw hell on earth and said "Never Again" and Dad, growing up at Gramp's knee said "I'm with you on this," but the grandson, living off the spoils of victory (or the ashes of defeat), saw nothing, didn't listen to anyone over the age of 30 anyhow, and was astonished to learn that supporting war meant that when war came, real blood was spilled!

[Judy G. Russell]

Grandson isn't even really noticing yet... After all, it's not his blood.

[Lindsey]

The rule of thumb is that Grampa saw hell on earth and said "Never Again" and Dad, growing up at Gramp's knee said "I'm with you on this,"
Nope, Dubya has disproved your rule. His own father did see combat, in WWII. Poppy launched a war, albeit a small, quick one, but his was hardly a "never again" stance. And his son, well; he apparently grew up salivating to be a "war president."

--Lindsey

[ndebord]

Nope, Dubya has disproved your rule. His own father did see combat, in WWII. Poppy launched a war, albeit a small, quick one, but his was hardly a "never again" stance. And his son, well; he apparently grew up salivating to be a "war president."

--Lindsey

Well, your fallacy is this. In this respect, Daddy is Granddad, etc. The peaceniks in the Bush family tree will be from the next generation, if the family genes aren't totally corrupted that is.

(The previous generation going back didn't serve, preferring to bankroll war rather than join in and fight one.)

[Lindsey]

Well, your fallacy is this. In this respect, Daddy is Granddad, etc. The peaceniks in the Bush family tree will be from the next generation, if the family genes aren't totally corrupted that is.
I apparently have completely misunderstood the point of your original statement, because that's the exact opposite of what I took (and still take) it to say.

--Lindsey