This seems like a pretty pertinent question, considering that many of the questions that were asked in oral arguments concerned issues of what the U.S. might be involved in doing to these “outside the law” human assets it acquired.
Kevin Drum points out one interesting example along these lines:
Well, as we now know, mild torture and making the prisoner think we are going to kill him (which qualifies as torture under out own laws) were indeed authorized for just such a use by the CIA and Justice Department for high level Al Qaeda people thought to have critical information.
At first blush, as Drum notes, this would imply that the Solicitor General was either ignorant of the policies he was arguing for, or he outright lied to the Supreme Court about what our executive would and has authorized. (I can just see it now: "George Bush: “Look, this isn’t the George Bush I know. It’s another George Bush that doesn’t live up to the ideals of the real George Bush. Just because I DID in fact authorize something, doesn’t mean I WOULD authorize it, that it’s in my character to do something like that.”)
However, I can think of several twists on this: what if the executive, for instance, was personally involved in or informed about such implementation decisions, per se. How far does it have to go down the chain of command before authorizing torture is just an accidental thing and not a policy for which we should be concerned as setting a precedent?
And this is just one thing for the court to consider. Will this and other questions comnig out of all the new things were are learning about our military intelligence structure and practices affect the court’s thinking on whether there should be judicial oversight on what the executive branch does to people it declares to be outside the law?
In theory, no. Such evidence wasn’t a part of the record and wasn’t presented in court so the justices aren’t supposed to even know about it as far as this case is concerned. Or at least I think that’s the case.
If after a trial has concluded and while the jury is deliberating a juror reads something in a newspaper and bases his vote on that it is a violation of the process. I would think the same thing would apply even more to a Supreme Court Justice.
Well, but judges are not jurors, and the Supreme Court justices are about as far as you can get from normal when it comes to the usual practices of judges. The SC has never been immune to outside events, and rarely even pretends that it is, often citing them in majority and minority arguments.
But note, in this case, we seem to have evidence that the testimony of the solicitor general was, at the very least, misleading. Doesn’t that factor in somehow?
Maybe. However, if outside events are going to influence them I would think that at least some of them would already have been aware of stories about conditions at Guantanamo etc. and would have questioned the Solicitor General’s claims at the time of the hearing before them.
However, it sure sounds as if they took the record of the case as presented to them without any outside influence.
And by the way, jurors are just as influenced by outside events as are Justices.
It may influence their decisions but it won’t change the overall outcome. 5-4 vote will come down allowing the extra-judicial detentions at worst, 9-0 at best. That’s the way the dice will most assuredly fall.
be a large and radical step, overturning 400 years of legal history.
undermine public confidence in the judiciary
surrender a core of judicial power to the executive.
support the attempt by the executive to oust the jurisdiction of the court by a device (the “Guantanamo” fictions)
contradict a number of laws written in plain english, black and white.
Judges just don’t make those sorts of decisions. Instead I anticipate either: A decision affirming oversight by the judiciary absolutely; or a compromise between the executive urgency position and the strict legal enforcement of rights.
Frankly however the former is more likely, it’s hard to come up with a judicial rationale for the latter other than “we think this is a good idea” and that’s hardly good enough. Remember the Judges’ role is to enforce the law, not to protect national security.
I think Lazarus is right, it is absurd to think the Court could deliver a judgement accepting the “trust us” rationale, in the light of recent facts. The judiciary would be brought into disrepute by accepting that argument.
The judiciary has long allowed the executive vast powers in these “martial” matters, even when they interfere with civil liberties. And plenty of lower courts have consistently overturned stuff concerning gitmo and allowed it all to progress.
Here’s a website created by a Virginia attorney asserting the likelyhood that a President can get away with quite a lot in regards to martial matters overlapping on certain rights, with or without official declaration of anything:
Thanks for that link. It is very interesting, although I don’t believe it give support to the Admin’s current position. For example
Secondly it doesn’t appear as if the particular issues in G-Bay have been litigated:
Namely: The admin’s claim of it’s power to suspend normal procedures and detain without process for an unlimited time.
: the admin’s power to create a zone beyond the reach of any law at all.
: the claim of a right to act outside the Geneva Conventions, which are generally binding on the US govt.
Overall I think the US govt is aware it’s policy hangs on a slender thread, which is why the policy takes place off-shore. I believe the telling factor is that the court will consider G-Bay a transparent device to evade USSC jurisdiction and look to the fact that it is effectively part of the US jurisdiction. Once it makes that determination a whole lot of laws and principles fatal to the admin’s case come into play.
BTW did you know the admin chose it’s principal legal advisor in the policy, Olsson in part because his wife died in the WTC attack.
There has been no pretence of a right under martial law. So the analogy with the earlier circumstances is not strong. Rather the case argued was that the policy is outside jurisdiction.
Secondly, a probable reason for the above is that martial law itself does require the use of military tribunals and a standard of conduct in interrogations, both of which are evidently absent.
The write up is explicitly designed to WARN US against the martial law (declared and undeclared) powers of the President.
The law firm in question is one that specializes in Constitutional Law and has fairly libertarian leanings.
But they point out a lot of things that just show how much power the President really has if he wishes to exercise it. And a lot of court cases showing judicial apathy or even acceptance of that power. So it’s logical to assume the stuff going on down in Gitmo isn’t all that extraordinary in terms of “violation of expected rights.” The only difference is a jurisdictional matter relating to Guantanamo Bay’s position on the map is the reason given now instead of the reasons given in the cases explored in that document.
Rehnquist wrote a book about his year as a clerk at the Supreme Court. He was there during the seizure of the steel industry by Truman, which worked its way up to the Supreme Court in record time. He comments that in his opinion, the fact that it all played out politically in Washington, right in front of the justices, inevitably affected their views on the case - that they wouldn’t have been human if they had been able to ignore it.
That same analysis would seem to have some relevance here. Obviously, the events at Abu Gharib aren’t right in front of the justices in the same way as the steel seizure, but they can’t have avoided seeing the images - and the political fallout in Washington.
Nonsense. The USSC has no power to enforce its decisions. “John Marshall has made his decision, now let him enforce it” comes to mind. Absolute power the court does not have. It’s not really unreviewed, either. I mean, sure, there’s no higher court, but if the politicians don’t like a decision, they can (with time) change the makeup of the court so that it decides differently.
That’s like a Democrat saying everything Bush does is okay because they can vote him out in four years. While it is obvious to every Democrat and leftist communist on this forum that the “damage”(their perception, not mine) that Bush has done obviously isn’t reversable immediately and painlessly via a simple election.
To try and assert that being able to slowly over the course of 20-30 years change the make up of the court is a check on the USSC’s power is a naive assumption. In the American political landscape 20+ years is forever.
And the “enforceability” argument is like saying Bush has no power because all of his subordinates could refuse to follow his orders.
:shrug: I’m not the one who made the categorical statement. Anyways, I don’t believe there’s a precedent for all presidential subordinates refusing to follow orders. There is a precedent for a president refusing to enforce a SC decision.
They’ve already allowed themselves to be used like ten dollar whores over the matter of the 2000 election, why would they give a fuck about some Iraqi prisoners?
The implications of the cases extend well beyond the particular detainees.
The power of the Court to oversee individual liberty is the very core of its role. The system reserves to the judiciary the right to ultimately deprive people of that liberty.
Surrendering that right to the executive would be the largest and most radical deviation from legal history the Court would make.
It would radically re-define the Court’s role and with that the entire system.
what i found disturbing is how quick we were in abandoning “rule of law, civil liberties ect” in the war against terror, when the use of “rule of law ect” could be used to win the war against terrorism. now that we lost the moral high road i find it hard to believe anything that the administration says