Strengthening Constitutional Self-Government

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Hamdan ruling

The Supremes ruled 5-3 against the Bush Administration. There’s discussion here (Andrew McCarthy’s "pre-mortem"), here, and here (another pre-analysis).

After I’ve had a chance to read the opinions, I might have something more to say.

Update: You can read the syllabus, with a little commentary, here and this WaPo article (which, it strikes me, doesn’t say everything that needs to be said). The opinion (all 185 pages) is here.

Discussions - 33 Comments

Moral of the story: If you don’t kill these people on the battlefield, you have to hold them prisoner. If you hold them prisoner, sooner or later liberals will come to their aid. And sooner or later, liberal judges will agree with them and you’re hosed.

I wonder how long before the right starts screaming "judicial activism!!!" or Ramirez draws a cartoon of The Supreme Court justices hiding Osama under their bench.

Frisk, didn’t your trusted sources at NewsMax or Fox tell you that these people have NOT been held as "prisoners" of war at all, but enemy combatants. Beyond that, the holes in your "moral of the story" are manifold. First, we heard that the Gitmo "detainees" (as well as the Abu Ghraib prisoners), who were held without charge and not allowed to see the evidence against them, were the "worst of the worst" and such, but then, who knows why (and therein lies a big part of the problem), about 300 have been released. Since there was essentially NO transparency, the only way we know who was released who shouldn’t have been is when they engage in terrorist activities. But certainly one must wonder, if they (including those under the age 17) were the "worst of the worst," then why were they released? Again, who knows? One of many reasons pushed for our invasion of Iraq, especially after the WMDs didn’t turn up, was that Saddam and Co. were torturers. So, we were above that, presumably. But then, when McCain introduced a bill to strictly prohibit any and all torture methods by U.S. forces at U.S. detention facilities, Cheney protested and Bush pulled one of his "signing statement" exemption stunts. So, if we assume that the recent remainder of detainees are truly "darn dangerous" as Bush has described them, then one must wonder why at least one of the three persons who committed suicide at Gitmo was scheduled to be released along with about 140 others. And then comes the beyond black humor of Bush saying that, aw shucks, he’d really like to send some of these fellas home ("Sorry about locking you up for a few years - no harm done, right?"), but there are fears that those released might be tortured in their home countries (wait a minute, if their home countries are part of the "Axis of Evil," then won’t they be greeted upon their homecoming with flowers and ticker tape parades, much like the way Cheney predicted U.S. troops would be greeted in Iraq?)!! So, even apparently the Bush-anointed sub-deciders at Gitmo have determined that some of these "worst of the worst" are okay to be released. They started out as guilty until proven innocent, and later someone decided that they could be released. So much transparency, it’s as clear as 10W-40!

Frisk, would you propose that the terrorist-loving "liberal judges" be tossed into a cage at Gitmo, too, for purposes of national security? Maybe they could be "hosed" until they finally admit that they hate America, eh?

I have read a bit about the opinion. It seems the Court held that current law (and treaty) disallows the action. There is nothing constitutional restraining the government from doing what Bush wants. Congress can pass all necessary laws to give Bush the power to do it, in fact the Senate alone could expressly reserve from the Geneva Convention, stating something like this Convention shall only apply between forces of recongized nations, or whatever. It is time to see if Congress is serious about terrorism and the like.

Also, although I am not entirely clear on this, the Court said the President has to abide by US laws while he is within the jurisdiction of the Court. This would seem to imply that Bush can do whatever he wants outside of the Court’s jurisdiction (CIA secret prisons in Egypt and the like). Maybe Bush should just say he is disbanding the prison in Cuba and send those guys to Egypt or whereever. I bet they would not like that.

Final note, Congress is always free to redefine the Court’s jurisdiction to hear these cases. I guess it attempted to limit its ability to hear this case, but for some reason the Court found that law was invalid. I bet Congress could pass a valid law if it wanted to.

They aren’t U.S. citizens, and they are not signatories to the Geneva Convention, as I recall. Bush should just start a new prison elsewhere and thumb his nose at the Supremes. Take about superseding executive privilege!

But Bush won’t do it...that’s my prediction, and the Senate won’t lift a finger either. There is no courage left in Washington.

My son has been stationed as a corpsman at Guantanamo for the last five months. No, he cannot tell us much about the place, except that is an amazing facility and that most of the news photos we see of the detainees on site are still from the first few months.


The fact that my son is there means I am very sensitive to news about Gitmo, reading every news item that is actually new to me and I think about it all the time. For example, when Bill O’Reilly had footage from a visit down there, I watched carefully. I already knew from what my son had told me that there had been no expense spared to build that prison, and the fact was evident on that TV show. The inspector of prisons for the US has called it a model prison, and to preserve world opinion, I am sure the Department of Defense has been careful to make it so.


(I have seen my son’s pictures of his barracks and I can only say that expense was definitely spared on those buildings.)


So, I wonder not only why we would abandon the facilty for economic reasons (wondering as a tax-payer) but also WHERE would we build a new prison. If we sent these guys to any Muslim country, that prison, that country, would be under attack if the place were not secret. And if the place were secret, what would be the point? Then, where in the US do we want them? Perhaps a prison in northern Alaska would do? The Alaskans won’t mind.


Craig, I suggest to you that to keep some questionable people captured in this kind of war is merely prudent. To establish the innocence of such is something our government and our interrogators have been learning to do, and it is certainly not a perfected system, yet. (Who suggested watching The Battle of Algiers as an example of how to deal with terrorists? I did, though I could not bring myself watch the French torture scenes.)


So, from my inside information, as if any were really needed, most of the detainees are really most evidently not people that anyone, any sane and humane person, wants to see free. The stories from Guantanamo will not be told for many, many years; my son says ten years and then he can speak and write about this. Even when they are permissibly public, I am assured many of the stories, while entirely factual, will not be believed. History will have been written and the way it is going now, it will be written falsely, by the justifiers and justifications of the accused.


While I do hope that the right thing will be done by the US. I am sickeningly suspecting that dain is correct, and that Congress, which could certainly pass the requisite laws will not do so. Also, that the Bush Administration has become too weak to stand against the Supreme Court and the supine Congress combined.

I’ll have to read the opinion, but if the early reports are true - they can be held for the duration of hostilities & don’t necessarily ever have to have any sort of hearing, etc. - then this decision could turn out to be all smoke & no fire.

According to David, "If you hold them prisoner, sooner or later liberals will come to their aid. And sooner or later, liberal judges will agree with them and you’re hosed."

The solution is simple: get rid of all "liberal" judges, as many on the right have advocated. Then start taking the necessary steps to achieve one-party rule.

The founders would be proud.

2: "Scanlon," your compulsion to use last-name-only is reminiscent of a 10-year-old boy who won’t even pretend to be civil. Instead of coming up with an elegant put-down, you refer to an opponent by last name only when speaking to him. Really, it wouldn’t hurt you much to just say "David," or "Mr. Frisk," or nothing.

Better you should say nothing, Craig.
You have nothing to share substantively, so why waste the space and the keystrokes?

Have you written a check to Ned Lamont yet? Mr. Lamont, and no doubt dozens of other rich liberal dimwits, needs your help. We don’t.

7: Mr. "Pain," you’re wrong. Getting rid of liberal judges would not be a prelude to one-party rule. It would be a huge step toward the restoration of self-government. Your formulation implies that judges are part of "rule," that they should "rule." They shouldn’t. In a perfect world, you would not be allowed to vote, because you would have flunked the necessary civic-knowledge test. Fortunately for you, life is unfair.

We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would causegreat harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. (Last paragraph of the opinion of the Court)

As BD57 suggests, the opinion appears to say that if you are going to try him, you have to do it in a court of competent jurisdiction and the military court is not such a court of competent jurisdiction. But that paragraph certainly suggests that there is no obligation to give him a trial at all so long as hostilities continue.

Message to David Frisk:

Skip past pain’s comments. Everyone else does.

I’m sorry, David; no offense intended. Also, I have little to no interest in Ned Lamont, and I didn’t realize that the intended purpose of allowing comments here at NLT was to "help."

David, didn’t your trusted sources at NewsMax or Fox tell you that these people have NOT been held as "prisoners" of war at all, but enemy combatants? Beyond that, the holes in your "moral of the story" are manifold. First, we heard that the Gitmo "detainees" (as well as the Abu Ghraib prisoners), who were held without charge and not allowed to see the evidence against them, were the "worst of the worst" and such, but then, who knows why (and therein lies a big part of the problem), about 300 have been released. Since there was essentially NO transparency, the only way we know who was released who shouldn’t have been is when they engage in terrorist activities. But certainly one must wonder, if they (including those under the age 17) were the "worst of the worst," then why were they released? Again, who knows? One of many reasons pushed for our invasion of Iraq, especially after the WMDs didn’t turn up, was that Saddam and Co. were torturers. So, we were above that, presumably. But then, when McCain introduced a bill to strictly prohibit any and all torture methods by U.S. forces at U.S. detention facilities, Cheney protested and Bush pulled one of his "signing statement" exemption stunts. So, if we assume that the recent remainder of detainees are truly "darn dangerous" as Bush has described them, then one must wonder why at least one of the three persons who committed suicide at Gitmo was scheduled to be released along with about 140 others. And then comes the beyond black humor of Bush saying that, aw shucks, he’d really like to send some of these fellas home ("Sorry about locking you up for a few years - no harm done, right?"), but there are fears that those released might be tortured in their home countries (wait a minute, if their home countries are part of the "Axis of Evil," then won’t they be greeted upon their homecoming with flowers and ticker tape parades, much like the way Cheney predicted U.S. troops would be greeted in Iraq?)!! So, even apparently the Bush-anointed sub-deciders at Gitmo have determined that some of these "worst of the worst" are okay to be released. They started out as guilty until proven innocent, and later someone decided that they could be released. So much transparency, it’s as clear as 10W-40!

David, would you propose that the terrorist-loving "liberal judges" be tossed into a cage at Gitmo, too, for purposes of national security? Maybe they could be "hosed" until they finally admit that they hate America, eh?

Kate - Here’s hoping your son gets home as soon as possible without injuries of any kind.

I would suggest to you, Kate, that you lack sufficient skepticism. From what I could tell in your post, you seem to think that:

- whoever is being held is guilty, or at least "questionable" until the government/interrogators "establish" their "innocence."

- everything done at Gitmo is appropriate, proper, humane, legal, and only helpful to American interests because the Bush administration, Bill O’Reilly (!!) and your son - who you’ve already conceded, is not allowed to tell you much of anything - say that it is. And the prison is in Cuba simply to protect American lives (if that is so, why aren’t all federal prison facilities located on foreign soil?).

For more on the ridiculous concept of Bill O’Reilly visiting Gitmo, to get to the bottom of things see here.

What is your son’s job title at Gitmo? I’m sure that many soldiers there, by nature of their specific duties, never see anything the slightest bit awry. If you’re on shore patrol or kitchen duty or working the mailroom, then I doubt you’d see anything controversial in the first place. Yet, even if he is involved in interrogations or guarding prisoners directly, then I hardly doubt that he’s giving you "inside information," unless he’s violating military rules and protocol, and sharing confidential or secret information with you.

Lastly, I think that this speaks volumes:

"(Who suggested watching The Battle of Algiers as an example of how to deal with terrorists? I did, though I could not bring myself watch the French torture scenes.)"

12: Craig,

Apology accepted.

The bottom line is that while I’m not uncritical of this administration, I trust them more, on all of this, than I trust the Democratic media.

What to do with liberal judges? Delegitimize them, and swamp them with so many conservative judges that they eventually become irrelevant.

I’m disappointed that you won’t give to Ned Lamont. Defeating Joe Lieberman in the Democratic primary would be a good thing, as it would make it even clear where the Democratic party really stands. It might also hurt Democratic challengers in CT House races, and conceivably (though I’m not holding my breath) result in a more conservative Lieberman in ’07, since he’d have to run as an independent.

Go, Lamont! Go, Nutroots!

Craig,
"Battle" - how do you think I knew there were scenes of torture? Much of what I did not watch carefully involved electro-shock; the sort of thing used on mental patients in my youth.

My son is in the prison hospital. I said he was a corpsman, which indicates medical. He was supposed to work directly with the detainees. However, when he got there and went through the initial training, he had an idea, happened to encounter the officer who might implement it, and had that job the next day. I do not know what he does, but he is only an E-3, which means a nobody. However, he is on a computer all day, (some days, I can email and have a response within an hour over and over, all day long) So, I do know he does data entry, and speaks of spending days going around the prison and hospital getting information. That’s why I think he knows.

He says they were all appalled by Abu Ghraib, and made rules to try to ensure nothing like it ever could happen there. The only good thing to come out of that mess is a certain scruplosity through the system. They were horrified and all felt tainted by it. I don’t suppose that is the sort of inside information the US military would mind having get out.

I was not citing O’Reilly as an impeccable source of reportage. It was the first time I’ve watched him and I watched the thing on a TV in a bar on my anniversary and there was no sound. I merely SAW the place, and that was what I was speaking to. My son had been picked to sit across from Mr. O’R. at lunch and I was watching for that carefully lest I catch a glimpse of my boy. No, I never saw him. But to see where he works and lives was nice, anyhow. Well, not nice. It IS a prison.

As to why all prisons are not on other than American soil, why is this not a special circumstance? How do these people, not American citizens, not uniformed enemy combatants, have any standing in any American civil court or even military ones? I am not alone in wondering this and I quote Antonin Scalia from earlier this spring, "Why do these people have standing?" I wonder what he wrote about this case and hope one of the above links tells me.

I think part of what my son is doing is to establish, to document the excellent care, the improved health, of all of these people being held. Perhaps good dental care, treatment of high blood pressure, whatever, does not equate with freedom. And, my dear, I am smiling there, but surely it counts for something in the balance.

And when prisoners are released to go home who is to say that they will greeted as warmly as you suggest? Might there not be some presumption that they might have given information? Then how would they be received? Maybe better to kill yourself than go back home to face the skeptical of that crowd?

And thank you for the kind sentiments about my son. He was to come back in April, then the end of July, now, he has just said maybe not till October. How does the Navy need another E-3 down there for so long? All of my mom-instincts cry out, and all of my patriotic instincts are happy and proud as anything.

The good news, the Supreme Court still retains its ability to protect the Constitution, despite Bush’s attacks against it. I am impressed that Roberts recused himself. The bad news: "Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented. Chief Justice John G. Roberts Jr. did not participate because he served on the three-judge appeals court panel whose ruling upholding the commissions was under review"

The rest of the Justices are deciding along party lines! One more Bush appointee, and we can watch the Constitution go down the toilet.

The Supreme Court protected the Constitution with this decision?

Are you really serious with that assertion?

Isn’t that their job, when people act in violation of it? Especially when those actors are sworn to uphold it?

Fung...sigh...the detainees ARE NOT AMERICAN CITIZENS. The Constitution does not apply to them, I’m afraid. Kennedy and co. had to resort to international "law" to make this ruling. I would argue that, in fact, they undermined the Constitution by violating executive priviledge and undermining legislative rule. You need to read a few synopses of this ruling before you spout off in your typical Bush-hating fashion.

I thought that there was a Constitutional limit to Presidential powers, including the need for the President to advise Congress of his plans, even during wartime, and to get their permission to enact "War Tribunals," for instance. Isn’t that what this is about?

Congress passed a law in 2005 that specifically stated that "no court" could hear habeus corpus cases from enemy combatants. The SCOTUS ignored the law and heard the case anyway. There’s no Constitution protection going on here...just an imperial court. You may like it now, Fung, but you won’t like it in the future.

My brief reading of the decision tells me that laws and actions subsequent to violation of UCMJ 36 and violation of the Geneva Convention are themselves illegal, and are therefore not binding.

I agree with Craig. You can spin this so that it looks like its opposite, but the Bush Administration keeps finding ways to change, circumvent, or ignore individual rights in the name of safety from enemies: a classic and normally transparent strategy.

A part of that strategy is to demonize and scapegoat any part of the system (a free press, the court system, checks and balances) that gets in the way of his quest to increase presidential powers at the expense of individual rights and freedoms.

Davey’s crying about ’liberal judges," the tired old "MSM argument, all of it is conformity to Bush’s power-grabbing scapegoating strategy. If it works, I am guessing that YOU won’t like it much, my friend.

Where does it say in the Constitution that during war-time our respect for all civil rights will be unchanged? I think it says something quite other, that during war-time, civil liberties may be abbrogated as the government requires, because it is a special situation.


To the anti-war gentlemen, the implication of what you say is that America has no right to defend itself if that defense will "change, circumvent or ignore individual rights." You are speaking of the civil rights of non-citizens, at that! In that case, America has no right to defend itself? Since when? Do the individual civil rights of non-citizens trump the responsibility of the executive to ensure the saftey of our nation and its citizens? That is what you seem to be suggesting. Do I read you correctly?

Sorry, "abrogated." Also, since the rights of US citizens are not absolute in war, according to the Constitution, the idea that non-citizens have a superior set of rights in our courts is absurd.

OK, Fungus, please tell me what part of Al Qaeda or the Taliban signed the Geneva Convention? I’m waiting.

"Do I read you correctly? "

Of course not! Your statement implies that defending our country is equivalent to breaking the law. I can defend my family without breaking the law, and I am not welcome to break the law in order to defend my family. Where does it say that all constraints on the President are nil when we are at war? The answer: nowhere. Ever since 9/11, this country has been divided into two camps: (1) those who are willing (and disturbingly eager, in my view) to hand over any civil right this president wants to take away, in return for his promise of safety from villains abroad and at home, and (2) those who believe that victory over our enemies will be meaningless if we hand over (with no good reason) the freedoms that make this country worth fighting for in the first place.

If you fell for the lie that victory in Iraq or(even more important) over terror, won’t happen without military tribunals, or illegal wiretapping, or domestic spying, or secret CIA prisons, or gag orders on attorneys, or outing Valerie Plame, then you probably also fell for the lie that the "Mission" was accomplished.

Dain, where is the rule saying that Al Quaeda and the Taliban suddenly became the standard of behavior for Americans? Aren’t we supposed to be better than they are? Values, morals, ethics, rule of law, freedom, tolerance, democracy. Stuff like that? I am waiting.

To assert that this decision represents the attempt at stemming a tyrannical Executive is the lie and the delusion.

You don’t have to be very versed in the law to understand that.

Fung, no one is saying we should be like the Taliban or like Al Qaeda. Sure, some people on venues like this one have stated turning the country to glass, ie nukes, but that is not the majority sentiment of those posting on the internet or, it appears, of the people at large.

You know, I am not very confident we could win a war like WWII with the amount of crud that is coming from a significant portion of America today.

And, that is exactly what OBL and others like him hoped for and are still hoping for.

Fung, you’ve just admitted that their was no legal basis for the current SCOTUS ruling...increasingly typical, unfortunately. You fall back on feelings, morality, and "the sensibilities of the international community" and a bunch of other rot. The Constitution doesn’t many any more to you than it means to Souter and Co.

And drop your silly arguments about moral equivalency. Call me when they start beheading people at Gitmo. Only fools unilaterally obey the rules of any game...you tend to get your head handed to you...literally.

I sure wish the reasonable Fung would return...the Moveon.org.idiot doesn’t do much for me.

Okay, Dain and Dale (whatever it was that Dale said -- I am not sure) understand the law better than the Supreme Court does. I forgot that. And failing to behead people is now the new bar for moral superiority.

You guys take the cake.

Hey, I’m not the one who said the the SCOTUS was "defending the Constitution." Shooting from the hip if ever I saw it.

As for unilaterally obeying the Geneva convention, I suggest you talk to anyone who fought in the Pacific during WWII. We don’t obey one-way treaties because that’s stupid.

I suppose my respone should have been ...

You are wrong.

And left it just at that.

Fung,
Sometimes you cannot defend your family without breaking the law. When the law does not, or is not able to defend your family, you take the law into your own hands and defend yourself and yours. When would it be right for me to shoot someone? When they invade my home? And yet, I will end up in court, defending my freedom if I shoot the invader. According to you, the same thing applies here. If we defend ourselves against enemies, we must pay legal penalites. Well.

Amendment III. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. In other words, in time of war, a different rule applies


Amendment V. No person shall be held to answer for a 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;

in other words, during war, things are different.


Freedom of speech can be abridged during war and has been, as has freedom of assembly. We have known, Americans have known, that in time of war, somewhat different rules apply and have been able to put those other rules on and take them off, without harming basic tenets of liberty and governmental restraint. I agree with dismay that not all liberties are given back, but also know that if the American People really wanted to have those liberties back, we could have them.


I agree, I agree, I hate having to give up freedoms. Hate it. But I also accept that in time of war to do otherwise is just foolish - I live in an area where we do not even lock our doors and we leave our keys in the car all the time. But if there were known to be thieves in the neighborhood, I would lock up as mere prudence. Not to defend ourselves against marauders, even when it means limiting our liberties, is foolish. As soon as the local thieves would be caught, we would all go back to our loose and easy ways. And as soon as the international theives of our freedoms are caught, we ought to go back to our easy ways of liberty. I surely do hope we will.

I think, my dear, that you fall for some lies, too. Joe Wilson "outed" his own wife for self-aggrandizement. No one has seen a "secret CIA prison" yet. The "wiretapping" was not illegal. And we do NOT treat our enemies as they treat us, most evidently.

Right on, Kate!

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