By Damn! I mean that it appears to me that right in the Constitution are the makings of a dictatorship if people are scared badly enough. Goering’s quote about being able to get the people to buy anything if they are scared enough seems to be true.
I don’t know about that. If we were talking about US citizens, it would be completely different. In fact it is completely different-- see how things went for Hamdi and Padilla.
Bush is only a dictator outside the US.
I don’t like this military tribunal business one little bit, but I’m forced to agree with Scalia. The detainees are not members of a legitimate military force, and hence cannot be considered POWs. “Unlawful combatant” is as good a description as you’re likely to get.
I’d also like to point out that the Gitmo tribunal isn’t any more biased than the Nuremberg Tribunal was. If the Nuremberg Tribunal has been accepted as legitimate for the past 60 years, then on what basis can the current tribunal be declared invalid?
Again, I don’t like what 's going on down there. But this is one of those cases where legality and morality diverge.
Offhand, I’d say a judge is only required to recuse himself from a case because he has direct involvment with it. The fact that he has expressed opinions on it should not require him to recuse himself.
You mean right now. However, with a frightened populace what are the chances of overturning any of the precedents that are believed to increase public safety?
I believe there is too little appreciation for the cumlative effect of such precedents. Isn’t there already in place from the Civil War a precedent for suspension of habeas corpus for US citizens in time of war? So couldn’t a US citizen be imprisoned and using the precedent couldn’t the President deny a court order to produce the prisoner if things got really dicey? I don’t mean tomorrow, but if the habit of increasing the sovereign power contiues I can see it as a distinct possibility in the future.
I don’t take a lot of comfort from the fact that right now a dictatorship is highly unlikely. A Jewish of friend of mine was born in Freiburg, Germany. She remembers her relatives discussing the persecution of the Jews when she was a child. Her father insisted that he was going to get his family out, which he finally did. But most of the relatives were saying that their family had been Germans for 500 years and it wouldn’t happen to them. She doesn’t know where most of them are now. I really believe that we need to preserve as much freedom as possible for future generations.
David Simmons, this is only slightly a hijack.
How would you describe the scope of the powers of this Chief Executive compared to other administrations you have lived through?
Well, FDR did have Japanese sent to internment by executive order. The entire economy was pretty much under executive department control with wage and price controls and government allocation of vital resources.
WWII was, of course, a war in which the entire nation participated. It was entirely different from the Iraq case where professional volunteers do the fighting and everyone else enjoys a tax cut. However, it’s true that the executive had considerable power during the war.
I must add though that at no time did FDR ever sign a law and also issue a statement that it didn’t apply to the Presidency in wartime. My contention is not that GW is trying to be a dictator. However, sooner or later a Huey Long with a lot more malice will come along.
Okay, bunch of comments.
First, only one person on this planet has the power to require Justice Scalia to recuse himself – and that person is Justice Scalia himself. Of course, everybody from anonymous message board posters to the other eight justices have the right to put pressure on him to do so – but under our system, only he is the proper judge of his putative need to recuse himself. Even C.J. Roberts is not entitled to require it of him.
Second, I for one am grateful that the discussion here has not degenerated into Bush-bashing or Bush-defense. I especially approve of the comment that it sets a bad precedent.
IMO, anybody taken into custody by agents of the U.S. pursuant to law is entitled to some form of fair trial, even, and perhaps especially, if the evidence against them is overwhelming. It may not be constitutionally mandated to give an enemy alien intending to make de facto war upon us one, but it’s part and parcel of our tradition to ‘do it right’ and prove guilt before a judge before executing a sentence. The typical Western posse with the cliché that “he’s entitled to a fair trial and a first-class hangin’” speaks to that. Nobody doubts that the cattle rustler/train robber/bad guy of whatever sort is in fact guilty, but as a people we go through the form of establishing that guilt and permitting him to advance a defence if he so chooses.
David Simmons, a Doper-at-law will have to speak to the gist of Ex parte Valladingham (which by memory is the name of the relevant case), but it’s my understanding that the decision said, in essence, (a) President Lincoln had no right to suspend habeas corpus, (b) Congress was the appropriate party to do so, and they approved Lincoln’s doing so retroactively, and © that being the situation, the case was effectively moot. The case is not on all fours with the present circumstance, though, since this involves enemy aliens, while the other involved an American citizen charged with being a Confederate sympathizer who acted contrary to law.
I think you men Ex Parte Milligan. And one of the multitude of issues before the court in Hamdan may be the authority of Congress to regulate habeas. In December, our fine members of Congress removed statutory habeas relief to the prisoners in Guantanemo (oddly enough as part of the torture resolutions) and tried to apply it retroactively. One issue is whether they can make that make that stick against cases that were already filed, such as Hamdan.
But, a judge is supposed to go into a case with an open mind. Everyone knows the general drift of Scalia’s thinking (and of every other justice’s but the two newest); it’s all right that they have legal and political opinions, in general terms. But to express definite opinions about specific questions of law that will be at issue in a pending case is another matter, isn’t it?
That was my point. There is now an approved precedent for denying habeas corpus to a US citized during wartime. Building on that our future malicious Huey Long might also begin to cut into those other frivolous impediments to the executive’s desires, such as the right to counsel, public trial, etc. After all, we’re trying to save the nation here and one person shouldn’t be able to hinder that.
In that assertion the Honorable Justice Scalia is simply wrong. Our courts have a long and distinguished history of citing and relying on foreign law (for instance, read some of the old contract law cases relying on English common law if you don’t believe me) but this isn’t the thread to debate that.
That’s different. Our legal system is based on the English CL system. Can’t find a cite, but I think there was an early Act of Congress adopting the English common law in toto to the extent compatible with the U.S. Constitution and statutes enacted thereunder.
So what exactly is wrong with adopting any legal principle from any source whatever “to the extent compatible with the U.S. Constitution and statutes enacted thereunder?”
There would be nothing wrong with it, of course. But it isn’t the role of the courts to find law on their own. If there is a law passed by a foreign country that ought to be passed here, it is properly the role of the legislature to go and do it.
That is close to the most absurd statement I’ve ever seen you make. Go find out the difference between “law” and “a law” – in fact, ask Bricker, so you won’t think I’m playing liberal-interpretation games.
It is exactly the job of the courts to “find law on their own.” It’s their job to apply the relevant principles of law, including the applicable constitutional, statutory, and precedential references, to the case before it – and make law by adjudicating that particular case.
The difference is, American courts are expected take “judicial notice” of decisions in common-law jurisdictions, American and foreign, but not others. At that, such decisions are not binding on a state court unless issued by an appellate court of the same state.
Sounds like an argument in favor of more Scalia-type justices. He issued the stongest rebuke against executive power in the Hamdi case.
It’s right there in the constution, but can only be done by Congress, and not just because we’re at war. Again, see the decision in Hamdi vs Rumsfeld. In particular, read Scalia’s opinion.
I don’t see why. A judge’s legal and political opinions will have the same influence on his judgment whether or not he articulates them publicly. The only difference is the importance of maintaining the appearance of impartiality, but those already convinced that’s a polite fiction won’t have that view changed by the judge’s silence. One might even say it’s *helpful * to have the judge’s human prejudices out in the open so that legal arguments can address them more effectively.