Just for reference, here’s a copy of the Executive Order:
http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html
And this page links to the District Court’s opinion ruling in favor of Hamdan, the Court of Appeals opinion overruling the District Court, the briefs currently before SCOTUS, and news articles about the case:
Or, for that matter, every juror in Zacharias Moussaoui’s case.
What’s the precedent or legal argument for that policy? It sounds nice, but on what basis would the courts compel the executive branch to act thusly?
Are you making an argument for legislation that Congress should pass, or a ruling that the SCOTUS should give? I’d have a different reaction depending on the context.
I’d say your irony meter is severely miscalibrated. The complaint Justice Scalia has is in the courts relying on foreign law for precedential or persuasive effect. It’s a far cry from simply studying foreign law to determine which provisions thereof might be wisely imitated and applied by the appropriate law-making authority.
In short: Scalia doesn’t suggest we can learn nothing from foreign law. He suggests that the courts are not the places to implement such knowledge.
Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously assertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Let’s start from there as a first cut at a defensible position. The first question is whether or not this is a criminal prosecution. If it is the course is clear. Follow the amendment. If it isn’t then we need to fall back and see if maybe it is a matter of law or treaties. If it isn’t any of those then I favor deciding in favor of the accused. Bring them before a magistrate and argue out whether or not the person should be admitted to bail or be remanded to confinement pending trial.
Some guy captured in Afghanistan on a battlefield, or in a neighborhood where a battle has occured should, in my opinion, be treated as a prisoner of war until it is determined otherwise by a competent reviewing authority. The competent reviewing authority to be determine according to applicable treaties.
This is an unusual situation in that terrorists are unorganized and don’t quite fit any previous experience. I don’t think that gives the executive sole, unlimited authority to act at his or her discretion without any check whatever.
I, at least, am a firm believer that no one under any circumstances can be trusted with absolute power to accuse, try, and determine punishment.
I got that from the news article linked in the OP.
That’s the $64 question, isn’t it? “Does the Constitution follow the flag?” Does it bind the U.S. government in its treatment of everyone who falls under its authority, even outside our borders? That was the key issue in the “Insular Cases” – http://en.wikipedia.org/wiki/Insular_Cases – in which SCOTUS repeatedly found that, in the recently annexed or conquered territories such as Hawaii and the Philippines, Congress could govern however it damned well pleased and the natives could not invoke the Bill of Rights. That’s how I learned it in high school, anyway; the linked article states the matter less strongly. But, in any case, don’t you think it’s about time we tossed that kind of thinking in the same ashcan as the Dred Scott decision?
But, the same is true of any court martial. The judges are military officers, not politically independent jurists. Does that mean courts martial are inherently unfair?
In broad terms I agree, but you’re stating the case too strongly. Please remember that the Constitution is not the country, and a situation that threatens tyranny and a situation that threatens our “national existence” are two different things. The U.S. is a nation-state like France (five monarchies and five republics since 1789, but still the same country), not an idea-state like the Soviet Union.
Emphasis added. I think that pretty much renders this moot, unless the court is in Afghanistan.
That’s the kicker-- the applicable treaties. I can’t see how you could possibly think that the GC applies to al Qaeda suspects. Taliban fighters, maybe. But no way does it apply to al Qaeda. The president could, of course, apply the GC to them, but the courts can’t compel them to do so.
Just out of couriosity, how do you get that they should be claissified as POWs under the GC? I’ve quoted the POW section in many threads, and it simply can’t be read to apply to international terrorists. Even the “lefty” lawyers on this board (or at least one of them) has agreed with that.
If we “toss” that sort of thinking, the courts are not the correct throwers. It’s not a Constitutional mandate to act otherwise; therefore the courts have no role in forcing us to act otherwise.
BTW, this is one instance (unlike the NSA wiretap issue) when there can be no question that the AUMF gives the president (extraodinary) war powers. We are, after all, dealing with the very people that the president was authorized to use force against (emphasis added):
David: I, too, am uneasy about this power being granted to the president. I just don’t see any way around that fact that it was granted to him by our elected representatives.
I think the key is to look at what precedents exist for the minimum requirements of these military tribunals. There must be some, and I assume we’ll learn about them as this case procedes.
So? Justice Taney thought the Constitution “mandated” the Dred Scott decision. I don’t think any constitutional scholar believes he was right, even under the antebellum Constitution.
Sure. But Justice Taney’s thought was not derived by a simply textual analysis. In fact, Taney’s decision was the beginning of the much-discussed (and much-maligned by me) doctrine of substantive due process. He extended the Constitution’s reach (in dicta, admittedly) to buttress his Dred Scott decision.
Baloney. The substance of his decision, the reality of the case, was a textbook example of strict constructionism. You can portray the decision as “substantive due process” because of one paragraph of dicta, or you can face the reality that the decision was strict constructionism at its prime.
“No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.”
Dred Scott
Scalia finds it hard to recuse himself on any case because if he did, that would mean he only gets one vote instead of his usual two.
And (getting back to the OP) do you think Scalia’s expressed prejudgment of the Hamdan case is based on “textual analysis,” or something else?
The problem is not that these individuals are are not being treated as POW’s- it’s that neither are they being treated as foreign nationals. In either case, international law (Geneva Convention in the first case, treaty obligations between USA and home countries in the second) requires that they be given a swift and fair trial, before an appropriate board (i.e. not the military tribunal the administration wants to use), and (I believe, although am unsure) prevents the use of the death penalty. Up until now, all those arrested by the US have fallen into one of these two camps, or else been proclaimed “war criminals” and tried by international courts.
The problem here is that the Bush administration is seeking to create a new class of criminal, the “enemy combatant”, who is neither given the protections guarenteed a POW, nor the rights of a foreign national, nor the international scrutiny accorded a war criminal. Since they invented this category, they are free to make up any rules they want about how those who fall into it can be treated. As it is, I’m frankly suprised that they are being so “lenient” with the Gitmo detainees- I’d anticipated indefinite detention without any outside access, coupled with shadowy “trials” and firing squads without ever seeing counsel. That doesn’t detract from the fact that the US has no right, under international law, to detain these men- they need to be
a) repatriated as POWs now that the war is over
b) sent to their home countries to face trial for offences there
c) tried under US law (including all rights and priveliges granted thereof) as criminals against US citizens
d) handed over to the Hague for trial before an international tribunal
That is, of course, if the US wished to obey international law. (IANAL, and this was gleaned from newspaper reading. I may well be ripped to shreds by a qualified legal thingamabob)
Well, you have it somewhat wrong. According to what the ICRC has said, it appears the USA has the authority to decide by any reasonable process (including a tribunal) whether or not a dude is a POW or a terrorist (they don’t say “terrorist” but they use terms like “bearing arms not under colour of an organized military force”). This hearing should be held swiftly. We are not doing this, and the ICRC isn’t happy about that. But- once we have the hearing, and we do decide the dude isn’t a legit POW, we can do pretty much anything (in Europe, no death penalty, sure, but that doesn’t apply world-wide). Now, if the dude IS a POW, we can still try him, by the tribunal process, for “warcrimes”- which is exactly what the Allies did to the Nazis at Nuremburg. Really, dudes talk about “international law” but few (and I am not one of them) understand it. About all the USA has to follow here is the Geneva Conventions/Accords. Now, the Accords do specify we have to have that hearing in order to make the determination “criminal or POW?”, but it does not specify how long. Thus, the USA isn’t technically in “violation”, but certainly the ICRC thinks (and I agree) that we are taking too damn long. You seem to have the idea that the Hague is the only body that can try dudes for warcrimes, but the Geneva accords don’t seem to specify anything of the sort.
David Simmons- As to the 6th Admendment, this has already been hashed out in the Supreme Court when they decided the fate of the nazi sabotuers in WWII. SCOTUS said that in that case, those dudes were neither POWS (and since they weren’t wearing anything like uniforms, this seems correct) nor US nationals etc, thus a Tribunal type hearing was Okeydokey. The nazis were then (mostly) executed. And, it was completely legal. Now sure, you may have a different interpretation than the Supremes did, but honestly, unless you are admited to practice before the US Supreme Court, your opinion means little. SCOTUS has already ruled, and you are wrong, thankyouverymuch. Don’t get me wrong, my opinion means just as little.
Incidentally, I’ll bet a nickel SCOTUS will follow the precedent set by that WWII nazi case.
Well, I have always questined whether subordinate officers can really be depended upon to risk their careers by going counter to what a martinet CO wants. So I guess I would have to say that yes, I think Courts Martial, if not unfair in the strictest sense are right on the feather edge.
Yes. I probably should have said that the continued erosion of the latitude given the individual vs. the state can easily result in a US that is vastly different and more restrictive than the framers imagined and will not be the country envisioned for most of our history to date.
But that is saying that there is no limit to the power the elected representatives can give to the president. That there is no possible review of Congressional action other than voting for a new and different Congress. I certainly don’t buy that.
So far the excutive seems to claim the unreviewable authority to give these tribunes any power it chooses without any check to that authority except maybe impeachment. I think that the tribunal requirements would have to be so bad as to turn even Carl Rove’s stomach before impeachment would arise. In my opinion that is such a dangerous course that I don’t understand the lack of outcry about it. I don’t buy this “This is the most dangerous situation we’ve ever been in.” Hell, in 1860 the Union was dissoved and it took four years of bitter war to settle that. In 1812 Washington, DC was taken and the White House burned. In 1941 most of the Pacific Fleet was put out of commission at Pearl Harbor by an enemy that had the means to follow up immediately with more attacks had it so chosen. Our Army was 160000 strong plus a bunch of draftees who had been in a little over a year and were training with wooden rifles. I still say that serious and tragic as it was, the 9/11 attacks do not rise to such levels.
As was the internment of Japanese in WWII, at that time. It has since been apologized for all over the place so, although the Supreme Court’s decision is final and legal by definition it isn’t necessarily just. In addition, the WWII sabateurs case was that of a group that was intentionally smuggled into the continental US for the purpose of sabotage. They weren’t fighters captured in a foreign country in which we were the invaders.
Gee whiz, I really appreciate this brand new information.
Good, because that’s not what I’m selling. 
Seriously, I’m surprised you read my post that way. I was specifically refering to power granted to Bush by Congress in the AUMF. Congress could certainly rescind or pass an amendment to the AUMF. However, it appears that Congress is moving more in the opposite-- eg, when it passed the Detainee Treatment Act last year.
Now, I expect Bush would try to ignore any limits that Congress tried to put on his authority, but that’s not what we’re talking about hear. We’re talking about how the courts should interpret the law, not Bush.
There is no doubt, on thinking it over further, that Congress has the power to pass all laws necessary and proper to carry out the Constitutional mandate for Congress to see to the general welfare, common defense, and so on. So it’s going to take some heavy lifting. I guess maybe the only attack would be that laws giving the president such power aren’t “proper” given the guarantees in the amendments. And I suspect no attorney would go to the Supreme Court with that. Damn!