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Author Topic:   Supreme Court Rules Bush Overstepped His Authority with Guantanamo
Mirandee
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posted June 29, 2006 10:29 PM           Edit/Delete Message   Reply w/Quote
High Court: Bush Overstepped With Guantanamo

POSTED: 9:57 am EDT June 29, 2006
UPDATED: 6:44 pm EDT June 29, 2006


WASHINGTON -- The Supreme Court ruled Thursday that President George W. Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees, saying in a strong rebuke that the trials were illegal under U.S. and international law.

Bush said there might still be a way to work with Congress to sanction military tribunals for detainees and the American people should know the ruling "won't cause killers to be put out on the street."

The court declared 5-3 that the trials for 10 foreign terror suspects violate U.S. military law and the Geneva conventions.

The ruling raises major questions about the legal status of the approximately 450 men still being held at the U.S. military prison in Cuba and exactly how, when and where the administration might pursue the charges against them.

It also seems likely to further fuel international criticism of the administration, including by many U.S. allies, for its handling of the terror war detainees at Guantanamo in Cuba, Abu Ghraib in Iraq and elsewhere.

White House counselor Dan Bartlett said the administration's task now is mostly technical - trying to determine how to design military tribunals that would pass muster under the decision. Republican senators said they would cooperate.

Justice John Paul Stevens, writing for the court, said the Bush administration lacked the authority to take the "extraordinary measure" of scheduling special military trials for inmates, in which defendants have fewer legal protections than in civilian U.S. courts.

The decision blocked a trial for Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring to commit terrorism against U.S. citizens from 1996 to November 2001.

It was a broad defeat for the government, which two years ago suffered a similar loss when the high court held the president lacked authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers.

Thursday's vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court's liberal members in most of the ruling against the administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday's ruling, the final one of the court's term, overturned that decision. Justices began a three-month break after releasing the ruling. Six different justices wrote 176 pages.

The administration had hinted in recent weeks that it was prepared for the court to set back its plans for trying Guantanamo detainees.

The president also has told reporters, "I'd like to close Guantanamo." But he added, "I also recognize that we're holding some people that are darn dangerous."

The court's ruling says nothing about whether the prison should be shut down, dealing only with plans to put detainees on trial.

"Trial by military commission raises separation-of-powers concerns of the highest order," Kennedy wrote in his opinion. "Concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid."

The prison at Guantanamo Bay, erected in the months after the Sept. 11, 2001, terror attacks on the United States, has been a flash point for international criticism. Hundreds of people suspected of ties to al-Qaida and the Taliban - including some teenagers - had been swept up by the U.S. military and secretly shipped there since 2002.

Three detainees committed suicide there this month, using sheets and clothing to hang themselves. The deaths brought new scrutiny and criticism of the prison, along with fresh calls for its closing.

Justice Clarence Thomas wrote a strongly worded dissent from Thursday's ruling and took the unusual step of reading part of it from the bench - something he had never done before in his 15 years. He said the court's decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

The court's willingness, Thomas wrote in the dissent, "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous."

Justices Antonin Scalia and Samuel Alito also dissented.

In his own opinion, Justice Stephen Breyer said, "Congress has not issued the executive a 'blank check."'

"Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary," Breyer wrote.

Justices also rejected the Bush administration's claim that the case should be thrown out on grounds that a new law stripped the court's authority to consider it, and that Hamdan should not have been allowed to appeal until after the conclusion of his trial.

The court said the law passed last year to limit lawsuits by Guantanamo detainees does not apply to pending cases like the one brought by Hamdan.

"It's certainly a nail in the coffin for the idea that the president can set up these trials," said Barbara Olshansky, legal director of the Center for Constitutional Rights, which represents about 300 Guantanamo detainees.

Hamdan has claimed he is innocent and worked as a driver for bin Laden in Afghanistan only to eke out a living for his family.

Stevens suggested that the administration would be best off trying Hamdan and others before regular military courts-martial trials.

The case is Hamdan v. Rumsfeld, 05-184.


Copyright 2006 by The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed

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ozonefiller
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posted June 29, 2006 11:01 PM     Click Here to See the Profile for ozonefiller     Edit/Delete Message   Reply w/Quote
This is not news, this should be called "olds".

I'm glad that someone with some pull just realized that what Bush does is all wrong, but don't worry though, minds will change after November!

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jwhop
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From: Madeira Beach, FL USA
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posted June 29, 2006 11:26 PM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
Bullsh*t, the President acted within precedents established by both Abraham Lincoln, Franklin D. Roosevelt and others in establishing military tribunals to try enemy combatants.

Of course, leftists want their terrorist friends to be tried in civilian courts..which would cost hundreds of millions of dollars, take 2 decades before all the trials were done and if convicted and given a death sentence, their terrorist friends would perhaps be executed by year 2050.

BTW, military tribunals have already passed the legal hurdle when the United States Supreme Court approved them when Roosevelt used them in World War II.

So, let's hear no more leftist bullsh*t about Bush overstepping his authority.

THE CRITICS ARE WRONG:
Why President Bush's Decision To Bring Foreign Terrorists To Justice Before Military Tribunals Should Not Offend Civil Libertarians
By JOHN DEAN
----
Friday, Nov. 23, 2001

I have been surprised at the vehemence of critics' reactions to President Bush's proposed use of military tribunals to bring accused al-Qaeda terrorists to justice. It is not only that I support the use of tribunals ¨C which I suggested in an earlier column might be the right solution. It is also that I believe the adamant critics of the tribunals are working under the wrong framework. While their concern for civil liberties is admirable (and I share it), it is also misplaced.

The critics suggest that the constitutional standards of our criminal justice system should be applied in a military proceeding for war criminals ¨C but that makes little sense. Many of these critics earlier called for a military response to terrorism. Now they want to demilitarize it.

In effect, what the critics of military tribunals would have the President do is turn enemy belligerents over to civilian law enforcement authorities for prosecution. To do so, however, would not only be unprecedented, but would set a horrifically bad precedent.

Wars, including this war, are fought under well-understood rules. They don't include providing Miranda warnings when capturing an enemy, nor employing the legal niceties of the Federal Rules of Criminal Procedure when punishing them.

To take a clear example, Secretary of Defense Rumsfeld's current "take no prisoners" policy for the war in Afghanistan could get him a jail sentence if he were a police chief. But most people see it as an inevitable byproduct of our having limited numbers of Special Forces troops in Afghanistan, who are not equipped to handle POWs, and of the fact that we are dealing with Taliban and al-Qaeda members who have a suicide ethic and will take others with them if they can.

Congress has formally declared war only four times: in 1812 against Britain, in 1898 against Spain, and for both the First and Second World Wars. Nonetheless, the United States is engaged in the legal equivalent of a formally declared war, as it did in Korea, Vietnam and Kuwait.

Indeed, a war declaration would certainly have been made, in the days after September 11, had the enemy been known. As Senator John Breaux, a Democrat from Louisiana, noted, "you can't just go off and [formally] declare war when you don't know who you are declaring war against."

And while no declaration of war issued, Congress did authorize President Bush "to use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." By doing so, Congress provided the legal and practical equivalent of a formal declaration of war.

House Judiciary Committee member and former U.S. Attorney Bob Barr, a Republican Representative from Georgia, appreciates the legal difference between a military action and a law enforcement activity. When Congress authorized the use of military force, he stated appropriately: "We are not interested in reading them [the terrorists and those harboring them] their rights. We are interested in taking them out, lock, stock, barrel, root, limb."

Column continues below ¡ý We have deployed soldiers, not peace officers. And although we are fighting terrorism with both a military and law enforcement response, these activities should not be confused or conflated. In all past American wars, our law enforcement officers have turned over enemy belligerents to military authorities. Critics of military tribunals have not explained why it should be different -- or the reverse -- this time.

In committing the country to fight terrorism with armed forces, we have not created a new national police force. Yet opponents of military tribunals simply ignore the conspicuous differences between the traditional methods employed by law enforcement to resolve problems, and military solutions. For that reason, I find most of the condemnation baseless or fallacious. A few examples make the point.

These Are Not Kangaroo Courts

Since Safire is a stickler for word usage, I checked Sylvia Cole's and Abraham H. Lass's Cultural and Historical Allusions: From the Middle Ages Through the 20th Century. They report that "a kangaroo court is a hastily convened tribunal that metes out arbitrary and summary justice, or rather injustice." Dictionaries (I checked three) have similar definitions.

However defined, Safire's charge is unjustified because the president is not setting up courts, nor did he act hastily. As the Supreme Court stated in Ex Parte Quirin, "military tribunals ¡­ are not courts in the sense of the Judiciary Article [of the Constitution]." Rather, they are the military's administrative bodies to determine the guilt of declared enemies, and pass judgment.

There is nothing hasty about this military order, which has been in the works for two months. Clearly, it has been reviewed by attorneys in the Department of Justice, the Department of Defense, and the White House.

But more importantly, it is merely the first step, for the order directs the Secretary of Defense to promulgate the rules and procedures for the military tribunals. Setting rules and procedures is antithetical to offering the "arbitrary and summary justice" that is the hallmark of a true kangaroo court.

My reading of the order is narrower than Safire's, who concluded that "non-citizens who the president need only claim 'reason to believe' are members of terrorist organizations." But another Writ columnist, Trevor Morrison, whose judgment I respect, reads it as Safire does.

What is not clear to me is whether the President intends to focus only on non-citizens who are or were members of "al Qaeda" and who have "engaged in, aided or abetted, or conspired to commit, acts of international terrorism" against the United States. Or whether he would bring al Qaeda members and all other terrorists before tribunals.

It is clear, however that the order would include non-citizens who "knowingly harbor" such persons that can be tried by a military tribunal. Those who knowingly harbor -- that is shelter, protect, hide, or conceal these war criminals from being caught -- in effect become accessories after the fact.

Hopefully, Secretary Rumsfeld's implementing rules and regulations will clear up any and all potential confusion in the order. Indeed, if it covers all terrorists, why single out al Qaeda, and what is the penalty for being a member, since there is no law on point. But if the order, in fact, covers all terrorists I understand why civil libertarians are distressed.

Criticizing Procedures That Have Not Even Yet Been Set

To the contrary, I'm a proponent and I've never said any of those things. Nor do I know any supporter who has adopted such a devil-may-care approach. Actually, it remains unclear what these inchoate panels can and cannot do. Not only are they still being formed, but also the law is unclear.

Because these military tribunals are not courts, and because they have been used since before the Constitution was adopted, there are unresolved issues relating to the application of the Constitution. In Quirin the Court noted, "We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to cases of alien or citizen offenders against the law of war otherwise triable by military commission," even for infractions "punishable by death."

The Fifth Amendment guarantees the right to indictment by a grand jury, prohibits double jeopardy, protects against compulsory self-incrimination, and guarantees due process of law. The Sixth Amendment provides for the defendant to be afforded a speedy and public trial, to have the benefit of an impartial jury venued where the crime was committed, to be informed of the accusations against him, to be confronted by witnesses against him, to be able to use compulsory process to obtain favorable witnesses, and to have the assistance of counsel.

Whether or not the Constitution forces the President to allow defendants brought before the military tribunal these rights, it is likely the Defense Secretary will choose to set up procedures that respect all, or virtually all of these rights (the public trial right may be an exception). Indeed, President Bush's order makes clear that he wants due process and the right to counsel for terrorists. Until Secretary Rumsfeld issues his rules and procedures, it will not be clear which other provisions of the Constitution may be made part of the proceedings.

So far, Ex Parte Quirin suggests only one question regarding the constitutionality of the President Bush's order: Did the President need Congressional approval before issuing it?

Congressional Criticism

Certainly some members of Congress have criticized the order ¨C and might have withheld their approval had it been put before them. For example, Senator Patrick J. Leahy (D-VT), chairman of the Senate Judiciary Committee, said the order "sends a message to the world that it is acceptable to hold secret trials and summary executions without the possibility of judicial review, at least when the defendant is a foreign national."

Leahy also complained that the administration did not consult with Congress before acting. He plans to hold hearings soon, which will certainly address whether the President needed Congressional approval.

The fact is, though, that wartime Presidents often act, in their capacity as Commander-in-Chief, without Congressional approval. The military authority of the Congress vis-¨¤-vis the President is not clearly defined, and the Supreme Court generally seeks to stay out of these political disputes. According to the Bush Administration, the President acted promptly ¨C without going through Congress ¨C in order to make sure they had military tribunals in place should Osama bin Laden or his compatriots be captured.

The Supreme Court stated in Application of Yamashita that "[t]he trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice ¡­." The Court also added that "[t]he war power, from which the commission derives its existence, is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict, and to remedy, at least in ways Congress has recognized, the evils which the military operations have produced." The act of Congress underlying Yamashita, the Articles of War, is now the UCMJ.

There can be little doubt that President Bush has acted just as his predecessors did, namely Abraham Lincoln and Franklin D. Roosevelt. Congress had already given its approval for his actions, through these prior statutes; if it seeks to retain the power to approve each military tribunal order of each President, it must first repeal the applicable provisions of the UCMJ.

Secret Proceedings For Terrorists?

Until Rumsfeld implements the President's order, it is not possible to know whether the proceedings will all be secret. No doubt many will be closed, while others may be open. A powerful argument can be made that the Nuremberg military trials following WW II, which were public, truly showed the world the evils of the Third Reich.

These proceedings established the despicable offenses of the Nazis, showed their warped mentality, and left no doubt in anyone's mind that those who were executed were treated far more justly than their innocent holocaust victims.

Much could be learned about terrorism from open proceedings. Secret proceedings are always fraught with problems. They have a way of coming back to haunt history.

For example, the secret trials of the eight Nazi saboteurs who arrived on the Atlantic shores of New York and Florida during World War II were used to mislead Americans. The arrest of these Nazis was given much publicity by the FBI. Director J. Edgar Hoover had the world believing that his intrepid and invincible G-men had caught the Nazi spies as they had arrived ¨C law enforcement at its best. Today we know this was not true.

In fact, Hoover, along with Attorney General Francis Biddle, had made a deal with one of the eight men, George Dasch ¨C who had turned everyone in within days of their arrival in the United States. Dasch, who had lived in the United States and was married to an American, had joined the Nazis as a means of escaping Nazi Germany. He had planned from the outset to foil their sabotage, and turn everyone in to the authorities. Thus, the story of the spies did not reflect the efficacy of law enforcement; rather, it reflected a single individual's actions and decisions.

To prevent this truth from coming out, Hoover and Biddle promised Dasch that if he pled guilty, he would be pardoned by the President within six months. He agreed. Thus, when the seven others appealed to the Supreme Court, in the landmark case Ex Parte Quirin that I have discussed above, Dasch did not join them.

Dasch served six years before President Truman released him in 1948, on the condition that he would go back to Germany. But Hoover, outraged that Truman had let Dasch (and potentially his secret) out of prison, snatched Dasch at the prison gate and whisked him out of the country before he could tell his story. It took decades for the true facts to come to light.

There is a small plaque on the wall of the Fifth Floor at the Department of Justice, not far from the Attorney General's office, commemorating those secret proceedings. Francis Biddle himself prosecuted the case. It is that plaque that gave former Attorney General William P. Barr the idea of using military tribunals to bring terrorists to justice following the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland.

While it did not work out in 1988, William Barr did not forget. I understand that following the September 11th attacks, this former Attorney General suggested to the Bush Administration that they consider using military tribunals. This is the genesis of these tribunals.

That plaque in the Justice Department should also be a reminder that secret proceedings can result in misusing, if not abusing, enemies as well. George Dasch's case is a cautionary tale. Had the press been able to tell Dasch's story at the time, Hoover might have been forced to keep his promise, not to mention shown as the deceitful blow-hard he proved to be.

Not All Secrecy Is Bad

A close reading of President Bush's order suggests that the principal reason for secrecy is concern about compromising classified intelligence sources.

Many cases have never been prosecuted against criminals because to do so would force disclosure of a valued intelligence source ¨C be it an informant, an enemy code that had been broken, or an illegal electronic intelligence source that might provoke an international incident. But with suspected terrorists, the prosecutions are simply too important to be dropped due to fears of disclosing intelligence sources.

The President's order would protect such sources. At a military trial, such information could be provided the officers hearing the case; it could not, however, be given to a lay jury in a civil trial, due to the security risks. (As I discussed in my prior column on tribunals, jury service on a terrorist trial involving al Qaeda would also be a nightmare for jurors ¨C with some potentially having to go into the Witness Protection Program).

Such sources might help with convictions ¨C and they might also exonerate suspects. Either way, we need factfinders who can hear about these intelligence sources, and keep them secret, and that means we need a military proceeding.

Both Bill Safire and Senator Leahy have been critical of the provision in Bush's order providing for convicting and imposition of even a death sentence upon a less than unanimous vote of the tribunal. The President wants conviction and the death penalty with a two-thirds vote. I agree with this complaint ¨C though it should not necessarily be a wedge to broader-based criticism of the tribunals. Rather, specific lobbying for amendment of the order to require unanimity is what is called for.

Normal rules of evidence will not apply to these proceedings, and the panels will surely call on highly experience military officers with a background in the law to sit in judgment of the terrorists. In this context, it would seem only appropriate that the judgments of the panel should be unanimous, particularly before imposing a death sentence.

If an experienced military officer (or several), having heard all possible evidence, dissents, that should be enough. To execute bin Laden, or any terrorists, on less than unanimous verdicts, is going to create serious credibility problems for these tribunals.

Amazingly, Bill Safire's "solution" to the unanimity issue is simply to dispense with military tribunals, and go directly to summary executions, without any due process at all. Safire writes:

The solution is not to corrupt our judicial tradition by making bin Laden the star of a new Star Chamber. The solution is to turn his cave into his crypt. When fleeing Taliban reveal his whereabouts, our bombers should promptly bid him farewell with 15,000-pound daisy-cutters and 5,000-pound rock-penetrators.

Safire's bottom line, of course, makes short-shrift of his purported concern for civil liberties. Apparently, he'll give due process, but only if we are unlucky enough not to kill our foe first.

Such thinking only makes clear why we need to carefully work out processes that allow us to give suspected terrorists justice, but to protect ourselves, too. If we do not, we may be tempted to cover up our failures by declining to bring suspects to justice at all. Civilian juries will not work in this context, but that does not mean that we cannot create fair processes. And any process is fairer than dropping bombs simply to eliminate these problems.

The lack of a requirement for unanimity in death penalty cases is the only serious flaw I find (so far) in the President's plan. But stay tuned. Secretary Rumsfeld must fill in the blanks of the President's order, and the Senate Judiciary Committee is going to have a lot of questions. We should all want these questions answered before any of the hundreds of suspects being held around the world, and awaiting trial, go before any military tribunal.
http://writ.news.findlaw.com/dean/20011123.html

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jwhop
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posted June 29, 2006 11:29 PM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
MILITARY TRIBUNALS:
A Long And Mostly Honorable History
By JOHN DEAN
----
Friday, Dec. 07, 2001

Civil libertarians, from both the right and left, have expressed continuing concern over the President's proposed use of military tribunals for bringing terrorists to justice. Even before knowing what procedures will be used, or who will be tried by these military panels, many have anticipated that worst case scenarios will be the likely norm.

It is easy to complain. But hand wringing is not terribly helpful. Personally, I'm withholding judgment. The potential of having to mete out justice to possibly thousands of alien enemy terrorists, or unlawful combatants, who are openly violating the common law of war makes the use of these military proceedings very appealing.

As I discussed at greater length in a previous column on critiques of the tribunals, I am baffled why the critics (particularly those who support the war) want to change the rules of warfare when enemy combatants are captured. It is unclear to me why they want to use our civilian courts in a military situation.

To learn more of the historical use of military commissions, I have been looking at their history. Military commissions (interchangeably called tribunals) are not the legal equivalent of kangaroo courts, nor are they odious star chambers incapable of administering justice. Rather, they have been used repeatedly in time of war.

While military commissions were used by George Washington during the American Revolution, I have focused on their use since our Constitution was adopted in 1789. The legal scholarship of a retired Army attorney, Colonel Frederick Bernays Wiener, served as my guide. He's an expert on the history of our military law. (I learned of Colonel Wiener's work in a 1995 article by Gary Wills in the New York Review of Books.)

Early Uses Of Military Commissions: The Mexican-American War

Colonel Wiener traces the original creation of American military tribunals to the Mexican-American War (1846-48) and Major General (his then-rank) Winfield Scott. Military commissions were used with both volunteer American troops who went out of control once below the Rio Grande, and to deal with the offenses of Mexican guerrilla fighters, and the fractious local populace, in Mexico.

History reports no criticism of General Scott's use of these panels to administer justice against enemy belligerents and citizens harboring such combatants. Trying Mexican guerrilla fighters, who were not part of the Mexican Army, before military commissions is an early precedent for bringing contemporary foreign terrorists before such tribunals today.

Uses of Military Commissions in the Civil War

It was during the Civil War that the most extensive use was made of these military forums to administer justice. Senior officers of the Union Army took their guidance from their experiences with such tribunals during the Mexican-American War.

Presumably, President Bush feels towards the al Qaeda terrorists as FDR felt about the Nazis: rather cold and heartlessly. No doubt he wants known enemies treated as such. Certainly, WW II did not bring out FDR's civil libertarian instincts; to the contrary.

In his recent book, Roosevelt's Secret War: FDR and World War II Espionage, Joseph Persico reports FDR's response when Attorney General Francis Biddle reported to the President that the saboteurs - two of whom had at one time been American citizens -- had all been arrested, and nearly $174,000 in cash the Nazis had provided the group had been seized. FDR's response evidences his thinking, and the civil liberties of the Nazis bent on sabotaging our nation were not foremost in his mind.

"Not enough, Francis. Let's make real money out of them," he quipped. "Sell the rights to Barnum and Bailey for a million and a half - the rights to take them around the country in lion cages at so much a head." President Roosevelt had also decided their fate. "The two Americans are guilty of treason. I do not see how they can offer any adequate defense ... it seems to me that the death penalty is almost obligatory." As for the six German citizens, FDR found "an absolute parallel" with the Revolutionary War cases of Major John Andre and Nathan Hale. As FDR noted, "Both of these men were hanged."

Persico says that FDR, in essence, took charge of the case. Drawing on his knowledge of the Civil War, he instructed his Attorney General that he wanted all eight tried by a military tribunal. They were not entitled to a civilian trial because they "were waging battle within our country." Thus, they fell under the law of war. This would be a fast way to convict them, and one that would not be subject to protracted appeals. And a tribunal could impose a death sentence with a two-thirds vote.

As Persico explains, use of a military tribunal assured the president of the outcome he wanted. "I want one thing clearly understood, Francis," he said. "I won't hand them over to any United States Marshal armed with a writ of habeas corpus. Understand!" Accordingly, FDR issued his order to establish a military tribunal.

FDR's action would be tested in a special session of the U.S. Supreme Court, but it would pass the test: The Court unanimously approved of his use of military tribunals in Ex Parte Quirin.

Later, the United States and its Allies would bring other WW II combatants, both Nazis and Japanese officers, to trial in military tribunals. There were hundreds of these proceedings. Many of them - like those at Nuremberg, to mention the obvious - remain models of fairness and justice.

Congress Should Strengthen The Authority For the Use Of Military Tribunals

History suggests that the use of military commission should be authorized by Congress. Both Lincoln and FDR had the blessings of Congress

Critics of President Bush's planned use of military commissions assert that, unlike in the Civil War and WW II, the Congress has not declared war. Thus, unlike Lincoln and FDR, he does not have the same latitude. This is a matter that Congress can clear up, and should - although, as I explained in a prior column, I am not sure it is legally necessary in light of prior Congressional actions, as well as the fact that courts avoid adjudicating issues such as the extent of Presidential power vis-a-vis Congress.

During the Vietnam War, there were regular efforts to get federal courts to enjoin this or that government activity as unauthorized because there was no Congressional declaration of war (only the Gulf of Tonkin Resolution). These Vietnam era efforts consistently failed, for courts stay out of foreign affairs.

For example, as one federal court noted in the 1972 case of Atlee v. Laird: "Congress is, of course, the only branch of government with the power to declare war. Implicit in this constitutional provision may be congressional authority to take steps short of a formal declaration of war, equivalent to an authorization." [Emphasis added.] But this court, like other courts, noted the judicial branch has no business deciding such political questions.

To be safe, however, Congress should pass a joint resolution authorizing the use of military tribunals. But it should go no further. It would be unprecedented for Congress to write laws as to how the President should try non-citizen enemy combatants, or to require the same standards to be applied in the tribunals as are used in our criminal justice system. We are engaged in a war on terrorism, not a peace-keeping mission. It is vital that we remember there is a difference.
http://writ.news.findlaw.com/dean/20011207.html

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jwhop
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posted June 29, 2006 11:55 PM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
Nevertheless, I like the decision which was fashioned by the leftist members of the US Supreme Court. The decision highlights what everyone knows and that is that leftists can't be let anywhere near the decision making process when issues of national security are concerned.

There is a coming election where 1/3 of all the Senate seats will be up for grabs. There's also some coming legislation which, if passed will give formal authorization for the President to go forward with trials by military tribunals for the enemy combatants and illegal combatants.

All the House seats are up for grabs in November.

It will be interesting to see if leftists in the Congress cast their votes for military tribunals...or against.

SCOTUS Liberals Just Gave Repubs A 2006 Political Bullet

The SCOTUS Gitmo decision apparently was not a big surprise within the administration. When you have four liberal internationalists and one illogical egomaniac (Kennedy), you are going to lose these types of decisions. The effect is, of course, to lessen America's ability to fight the war on terror.

Bush has already indicated he's interested in finding a work-around, and apparently a Senator(s) does too. If so, that is going to be one really good political issue for the Repubs. I wonder where Maria Cantwell will come down if forced to vote on military war tribunals for terrorists such as Osama Bin Ladin's former driver?

If a congressional solution is already in the works, there are going to be a lot of Democrats up for reelection in '06 who will not be happy about being put on record. What to do for a blue state Senator? Please the nutty anti-American liberal base? Or do what a vast majority of Americans think is right?

Hopefully the ball will be in their court soon.
http://www.sagebrusher.com/index.php?/archives/333-SCOTUS-Libe rals-Just-Gave-Repubs-A-2006-Political-Bullet.html

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Mirandee
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posted June 30, 2006 12:03 AM           Edit/Delete Message   Reply w/Quote
One of Bush's latest statements: " The United States and America did not always get along. After all, for 60 years we were at war." ????????

I could not let that statement go by. Bush is continually making my moron case for me.

This was a Supreme Court Ruling, Jwhop. Not a "leftist" or "Democrats" ruling. Since it is now a predominantly conservative Supreme Court that came to this ruling you can hardly call it "leftist bullsh!it." It amounts to saying that the U.S. and America did not always get along.

FDR did not hold enemy combantants in camps. Especially by just naming them as enemy combantants without proof or allowing them due process of law. The Japanese held in detainment camps were not considered enemy combatants. FDR did establish detainment camps for the Japanese during WWII and later that was ruled an unconstitutional move on his part. Another black eye for America.

We were fighting a civil war when Abraham Lincoln was president. We were at war with the south. All wars have POW camps for prisoners. Since the Civil War was being fought on U.S. soil where did you expect the POW camps to be established, Jwhop. In Canada perhaps?

Neither case is the same as what the Bush administration is doing so you are really reaching and stretching the truth in using those as your argument. Neither FDR nor Abraham Lincoln approved of torture or used it either in the Japanese detainment camps or the POW camps during the Civil War. At least history has not proven that to that to be the case.

Really, Jwhop, that "leftist" argument for everything that goes against what poor GW wants is getting old. Can't you think of any better arguments?

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jwhop
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From: Madeira Beach, FL USA
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posted June 30, 2006 12:23 AM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
As usual Mirandee you have your head where heads don't belong.

The usual leftist suspects on the Court got together and handed the decision down. The conservatives dissented and Roberts recused himself since he had heard the case in the appeals court.

FDR most certainly did try German soldiers who were involved in attempted espionage in military courts under a tribunal and the US Supreme Court most certainly DID hear the case and approved it.

I suppose your ignorance is a reflection you didn't bother to read either article by John Dean...one of the Presidents more persistent critics.

You didn't say where you heard the tidbit that Bush said the US had been at war 60 years. Care to share the source of that with me?

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Mirandee
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posted June 30, 2006 12:27 AM           Edit/Delete Message   Reply w/Quote
Divided We Stand
United We Fall

"Divided we ever have been, and ever must be." - John Adams

"It is not enough that your Legislature should be numerous; it should also be divided." - Benjamin Franklin

Divided Government is Better Government


Yesterday, at Capitol Hill Blue, Doug Thomas cleansed his journalistic soul by confessing every reporting sin he has ever committed in this post: "In the end, all we have is the truth". While admitting he has posted and pulled a few incorrect stories, he stood by this one:

"Some of our more controversial stories have yet to be proven or disproved. Sources told us last year that President Bush referred to the Constitution as a "*** dam piece of paper." No other publication has confirmed the story but our sources remain firm on it and neither the White House nor members of Congress present at the meeting have denied the story. They simply refuse comment. It remains in our database because we believe the story is true."
The story he references is this Dec 9, 2005 post- Bush: Constitution 'just a *** dam piece of paper'

"Last month, Republican Congressional leaders filed into the Oval Office to meet with President George W. Bush and talk about renewing the controversial USA Patriot Act... GOP leaders told Bush that his hardcore push to renew the more onerous provisions of the act could further alienate conservatives still mad at the President from his botched attempt to nominate White House Counsel Harriet Miers to the Supreme Court.

"I don't give a *** dam ," Bush retorted. "I'm the President and the Commander-in-Chief. Do it my way."

"Mr. President," one aide in the meeting said. "There is a valid case that the provisions in this law undermine the Constitution."

"Stop throwing the Constitution in my face," Bush screamed back. "It's just a *** dam piece of paper!"
Whether Bush actually said this, I cannot say. The story is not inconsistent with the (politically corrected and filtered) views of this administration. If you are willing to read between the lines, you can see that former press secretary Ari Flescher said much the same thing in a press briefing shortly after the 9/11 attack (but in a much more politically correct and publicly palatable way).

"The way our nation is set up, and the way the Constitution is written, wartime powers rest fundamentally in the hands of the executive branch,' White House press secretary Ari Fleischer said. 'It's not uncommon in time of war for a nation's eyes to focus on the executive branch and its ability to conduct the war with strength and speed.'..."Every administration resets the balance with Congress as times change..."
Ultimately, what the President did or did not say, is not as important as what the administration actually did. This next excellent article details the abuse of power and the continuing erosion of our Constitutional limitations on executive power during the Bush administration. It was written by Gene Healy (author of "Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy in the Clinton Years") and Timothy Lynch (author of "Dereliction of Duty: The Constitutional Record of President Clinton), both editors at the Cato Institute:

"Power Surge: The Constitutional Record of George W Bush'"
"Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes:

a federal government empowered to regulate core political speech, and restrict it greatly when it counts the most: in the days before a federal election;

a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;

a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror, in other words, perhaps forever; and

a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush's constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers."

George W Bush believes that his post 9/11 role, as a wartime president, is to defend the country as he sees fit, regardless of legal or constitutional constraints. This is not without historical precedent. It is the rule, not the exception, that wartime presidents have a history of broadly stretching the power and reach of the executive branch. Examples include Lincoln suspending habeas corpus, FDR building detainment camps and relocating Japanese Americans, Truman bypassing Congress and the U.N. with the fictional legalistic construct of a "police action" to fight a war in Korea, and now Bush claiming the power to suspend any American's Constitutional protections if he unilaterally decides they are an "enemy combatant". In the past these presidential abuses have ultimately been rolled back over time, by Congress or the judiciary as the perceived or real crisis abated.

But there is a difference now. We are told that we are embroiled in a "forever" war against terrorism that could last decades. Now what? How many Presidents will wield these ever expanding powers?

Is this what it comes to? Have we finally become so fat and complacent that we are ready to give up our constitutional limitations on government power out of our fear of terrorism? Have we really come to this? Does fear finally trump liberty for today's Americans? Is this the generation that will finally fail to preserve the Constitution for the next generation?

We face a fundamental question about what America is to be, and how we are to be governed.

Our Constitution calls for checks and balances on power between the executive, legislative and judicial branches of government. The legislative branch has abrogated their Constitutional war-making responsibilities by handing the executive branch a blank check on Iraq and the "war on terror". The President has declared provenance over the judicial branch for Americans that he alone can label an "enemy combatant".

What are the prospects for change? We now have a majority of the Supreme Court appointed by Republicans, a Republican majority in the Senate, a Republican majority in the House, and a Republican Executive administration that weilds the reigns of the government based on criteria of personal loyalty, while freely using the whip of partisan fealty, and does not distinguish between political opposition and "aiding the enemy".

The checks and balances on government power as envisioned by the founding fathers of this country are broken.

Regardless of your political party, whether Republican, Democrat, Independent, or 3rd party -

Regardless of your political philosophy, whether Liberal, Conservative, or Libertarian -

Regardless of what you personally think about George W Bush, Dick Cheney, Donald Rumsfeld or our pork-barrel pandering Congress -

Regardless of whether you are pessimistic, optimistic, or cynical about the war and our leaders -
If you would like the Constitution to remain something more than "a piece of paper", the time has come for Americans to impose some semblance of check and balance on the federal government by ending the dangerous single party control that we have today.

The time to do this is now in 2006, and not to wait for 2008.

This is not about Republicans vs. Democrats. This is not about whether your incumbent Congressman or Congresswoman is the better candidate than their challenger. This is about creating greater partisan balance in Washington in order to restore Constitutional constraints on government power now, before it is too late.

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Mirandee
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posted June 30, 2006 12:29 AM           Edit/Delete Message   Reply w/Quote
I just saw the president say it on tape on "The Tonight Show" with Jay Leno.

That's where the tidbit came from. His own mouth, recorded.

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jwhop
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From: Madeira Beach, FL USA
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posted June 30, 2006 12:46 AM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
So, an ahole fakes a tape that no one else on earth ever saw or reported on....and they would and then, you post it as gospel truth? I would say your standards need some sprucing up but then, I'm sure even if you knew it was a total lie, like the others you've told here, you would still repeat it.

Capitol Hill Blue is another of those rumor mongers who will repeat anything a nitwit leftist tells them. I'm not surprised to find you reading his trash.

At least he's made some headway and admitted he ran stories which were not confirmed, didn't pan out, were not picked up by any other news source or service...but he still believes them, you know...because they're the same aholes who told him the other pack of lies.

But at least he's made some progress. Too bad the same can't be said about you Mirandee.

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Mirandee
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posted June 30, 2006 12:47 AM           Edit/Delete Message   Reply w/Quote
Did FDR also just name those Germans as spies without proof or hold them in prisons for years without allowing them to obtain lawyers and due process of law? Nope. It is not the same thing as Bush is doing, Jwhop. You can lie and distort the truth all you want, and you usually do. But it changes nothing. The Supreme Court has made it's ruling. So stop whining about it.

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Rainbow~
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posted June 30, 2006 01:27 AM           Edit/Delete Message   Reply w/Quote
Mirandee gives us a new "bushism" which she heard and saw on Jay Leno's tonight (good one, Mirandee.. )

...and jwhop says in defense of the shrub....

quote:
So, an ahole fakes a tape that no one else on earth ever saw or reported on....and they would and then, you post it as gospel truth?

jwhop.....did you know that gw bush does not even really exist???

His whole life is nothing but a "faked tape," and we're all buying it, hook, line and sinker...... (seems like they could have done a better job of it tho)......

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Rainbow~
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posted June 30, 2006 01:35 AM           Edit/Delete Message   Reply w/Quote
Mirandee......I know you're not all those awful things that jwhop says about you....it's plain to see that you're a smart, intelligent, clear-thinking lady...with a lot of savvy.

jwhop get's it all mixed-up, cuz you see, I think he's one of those "faked tapes" too...

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Mirandee
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posted June 30, 2006 03:10 AM           Edit/Delete Message   Reply w/Quote
Well, Gee, Jwhop. It was Bush saying it during a speech he was giving. They showed the tape of him saying it. It was not a phoney tape either because I would know that dumb look and his Texas accent anywhere. His lips were moving and the words came out of his mouth. I know you have a hard time with reality, Jwhop but how can you possibly deny what was recorded on tape during a speech? Phoney tapes. Are you trying to start a conspiracy theory here, Jwhop? Not only is the Supreme Court out to get Bush, Jay Leno is too by creating phoney tapes. lol

LOL Rainbow. Well, his repeated mantras do sound like a tape.

I haven't seen much progress in you over the years, Jwhop so once again it is the pot calling the kettle black. You do have tranferance issues.

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ozonefiller
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posted June 30, 2006 03:46 AM     Click Here to See the Profile for ozonefiller     Edit/Delete Message   Reply w/Quote
It really doesn't matter about anything that is being said here anyway, for the fact that once one of the branches within the Separation of powers concludes any order, the rest folds hands down anyway.

There would be nothing in the world that is going to stop the order from happening, not the Secretary of Defense writing anything that can undermine the order, for that would be an act of treason, not the public for it would be held as a "stat" opinion....

...even if the laws changed within the executive and/or legislature branches, it wouldn't do any good anyway, the order was passed before any "new" laws have writen and have been established, it's a "blown dust".

The Bush Administration has no other choice then to concede to the ruling anyway.

The only thing the Bush Administration can possibly do now is to make an appeal against the order of the Supreme Court and they look at the case, but that in itself is a long enough process as it is.

Plus the fact, nobody really knows whether or not these detainees are what the Bush Administration says they are(I'm sure that everyone would like to know), I'm sure the three branches will consider the case of J. Edgar Hoover's in mind nonetheless.

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jwhop
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From: Madeira Beach, FL USA
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posted July 04, 2006 09:36 AM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
As usual, Mirandee, the "constitutionalist" got it wrong. The decision in this case IS wrong beyond any argument...according to that very same Constitution leftist justices claim to be following.

Of course, every leftist sycophant in America hails another Supreme Court decision which dismantles another article of the Constitution.

The "out of control" Federal Judiciary is one of the items which will be on the agenda in the November elections and again in 2008.

If federal judges, including Supreme Court justices will not be restrained by the clear language of the Constitution, then we will restrain those who nominate and consent to their appointments by making sure those who wish to deconstruct America never get into positions in the White House and Senate of the United States in the first place.

The Hamdan majority: Rewarding barbarity
Posted: July 3, 2006
8:45 p.m. Eastern
David Limbaugh

The best explanation for the Supreme Court's holding that a military tribunal lacks jurisdiction to try suspected terrorist Salim Ahmed Hamdan is not to be found in the Constitution or the cases interpreting it, or in the Court's interpretation of congressional legislation, but in extrajudicial factors.

The Court lacked jurisdiction to hear Hamdan's appeal, but once assuming jurisdiction, it ruled incorrectly that the Geneva Conventions apply to his case. The Court strained, in the first instance, to inject itself in this matter, despite the clear intent of Congress to deprive it of jurisdiction, and it strained to grant Hamdan, a suspected al-Qaida member, Geneva Convention protections.

Such an unwarranted assumption of jurisdiction by the Court, coupled with its bending over backward to treat a suspected civilian-killing terrorist the protections guaranteed to bona-fide soldiers of Geneva signatories, can only be explained by the psychology of the court's majority.

When learning of this decision, I was reminded of the words of Justice Antonin Scalia in a speech on the growing (and disturbing) influence of international law on our Supreme Court jurisprudence. Scalia's words, even more than his brilliant dissent in this case, contain the key to understanding the mindset of the Hamdan majority.

Scalia said that judges inclined toward the "living Constitution" approach think "there really is a brotherhood of the judiciary who indeed believe it is our function, as judges throughout the world, to determine the meaning of human rights. And what the brothers – and sisters – in one country say is quite relevant to what the brothers and sisters in another country say. And that's why I think if you are a living constitutionalist, you are almost certainly an international living constitutionalist."

To grasp the magnitude of the arrogance of the Court's majority in extending Geneva protections to Hamdan, you really need to understand that it had no power to decide this case.

Justice Scalia devoted his entire 24-page dissent to making this point. On Dec. 30, 2005, Congress passed the Detainee Treatment Act, or DTA, in which it expressly and unambiguously stripped all courts, including the Supreme Court, of jurisdiction to consider habeas corpus petitions of Guantanamo Bay detainees, such as Hamdan.

The DTA provides, "No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." The provision, said Justice Scalia, took effect on the date the act was passed: Dec. 30, 2005. As of that date all courts were deprived of jurisdiction in all such cases, including pending cases, like Hamdan's.

The majority went out of its way to find that Congress did not mean to deprive the courts of jurisdiction over pending cases. But as Scalia explained, previous Supreme Court precedent makes clear that "when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law." And there was no such reservation in the DTA. As the Court stated in Ex parte McCardle (1869), "Without jurisdiction, the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."

It is inconceivable that the Court's majority was in doubt about Congress's intent to deprive it of jurisdiction in these cases. But it decided to snub its nose at those annoying scalawags, whom, after all, are not fit to tie the shoes of members of the elite global fraternity of judges.

Once it usurped jurisdiction of the case, the majority further demonstrated its determination to go the extra mile for al-Qaida (and thus please its international brethren) by straining to interpret "Common Article 3" of all four Geneva Conventions as applying to Hamdan even though al-Qaida is not a nation, not a Convention signatory, and the conflict is clearly international in scope. Can you imagine the implications of granting Geneva protections to terrorists who lurk incognito among civilian populations and target them for extermination? What incentive remains for anyone – even from signatory nations – to abide by the rules? Leave it to the liberal elite to reward rule breaking and barbarity.

Above all, this case illustrates the urgent need for at least one more Bush Supreme Court confirmation: an originalist who is a lifetime non-member of the international brotherhood.
http://www.wnd.com/news/article.asp?ARTICLE_ID=50908

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Mirandee
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posted July 04, 2006 12:14 PM           Edit/Delete Message   Reply w/Quote
The Supreme Court has been wrong before in the minds of some Americans, Jwhop, when in 2000 they went over the heads of voters and appointed Bush president. However, we were stuck with the decision anyway. As you are now.

Sorry but there is no provision in the Constitution that allows torture and there is no provision in the Constitution which allows for the denial of due process of law. Regardless of Bush saying that as president he can do what he pleases in wartime he is wrong. He is obligated by the oath of office to uphold the Constitution of the U.S. and he is obligated by law to obey the decisions of the Supreme Court. To do otherwise would be high treason.


quote:
Above all, this case illustrates the urgent need for at least one more Bush Supreme Court confirmation: an originalist who is a lifetime non-member of the international brotherhood.

And then the court will be lifetime members of the Bush brotherhood and they can at last burn the Constitution which is as Bush says, " Just a Gawd damn peice of paper," anyway. Then he and his traitorous followers will at last have their complete Fascist government.


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jwhop
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From: Madeira Beach, FL USA
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posted July 04, 2006 01:16 PM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
Blowing more smoke out of the wrong orifice again Mirandee?

What is it you don't understand about Congress removing from the jurisdiction of the Courts and Judges, the issue of Habeas Corpus petitions to the Courts for Illegal Combatants/terrorists held at Gitmo?

Could anything at all be made more clear that Congress both has that power and exercised that power in 2005...in order to prevent what the Supreme Court just did...which was to throw the US Constitution in the trash can and rule directly against the Constitution.

Article III
"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Not only did those ninny's grab power from the Congress, they brought in foreign law and even misconstrued, distorted and shredded what it said.

And all the leftists cheer....including one who is "self described as a constitutionalist".

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Petron
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posted July 04, 2006 01:37 PM           Edit/Delete Message   Reply w/Quote
"Congress has not issued the executive a 'blank check,' " Justice Stephen Breyer wrote in a concurring opinion. "Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here."

Breyer noted, however, that "nothing prevents the president from returning to Congress to seek the authority he believes necessary."

The other justices in the majority were Ruth Bader Ginsburg, David Souter and Anthony Kennedy.

"To the extent there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so," Bush said at a news conference with Japanese Prime Minister Junichiro Koizumi. (More reaction)

The ruling means the Bush administration will have to adopt a military commission system for trying accused terrorists that meets international standards.

The court's ruling also establishes that federal courts have jurisdiction to hear appeals involving "enemy combatants" held overseas in U.S. military custody. The Bush administration had argued they lacked it.

Late last year, Congress passed and Bush signed the Detainee Treatment Act, which ostensibly limited court intervention over the prisoner issue.

Senate Majority Leader Bill Frist said Thursday afternoon he would introduce legislation after the Fourth of July break that would authorize military tribunals.
http://www.cnn.com/2006/LAW/06/29/scotus.tribunals/index.html

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jwhop
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posted July 04, 2006 01:53 PM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
You're going to see and hear this decision play out in the process of several future elections.

You may think most people hold the same position you do on "out of control judges" but I think you're entirely wrong about that.

The President clearly has the authority to set up a fair trial system for terrorists who are not fighting under the banner of any country. He did so...and he did so using the same type procedures used by past Presidents...including the icon of leftists everywhere...Franklin D Roosevelt, who set up trials by military tribunals for German soldiers engaged in espionage in the United States.

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jwhop
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posted July 05, 2006 10:56 AM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
And all the leftists/Marxists/Socialists/Stalinists/Leninists and other examples of grubby collectivists cheered the Courts trampling of the Constitution and the failure to be guided by previous Court rulings.

Perhaps before going further down the road in the war on international terrorism, the United States should first make war on the fifth columnists in America...in the form of radical leftist judges, in the form of radical leftist members of Congress and in the form of radical leftist journalists who reveal US military and secret security programs to the terrorists...all of whom are giving aid and comfort to our enemies.

Giving aid and comfort to America's enemies is the very definition of treason.

Liberty and Justices for Al-Qaeda
By Patrick Poole
FrontPageMagazine.com | July 5, 2006

The Supreme Court’s 5-3 ruling last week in Hamdan v. Rumsfeld, which struck down the Defense Department’s planned military tribunals for the enemy combatants held at Guantanamo Bay, should remind Americans that the most direct threat to our civil liberties doesn’t come from an imperial presidency or runaway Congress, but from the unelected, appointed-for-life philosopher kings of the federal judiciary. The Court’s majority in Hamdan was comprised of Justices Stevens, Breyer, Souter, Ginsberg, and (in part) Kennedy. Justices Scalia, Thomas, and Alito dissented. Chief Justice Roberts recused himself from the case as he was one of the D.C. Circuit judges who ruled on the matter before he was elevated to the High Court.

The Hamdan decision very well may go down in history as the turning point at which the executive and legislative branches began to curb judicial power by limiting judges from making public policy in the Global War on Terror, or when Supreme Court majorities began directing the military in violation of the checks and balances established in the US Constitution. This decision is nothing short of a grab for raw judicial power, but don’t expect the ACLU or any Leftist legal outfits decrying the Court’s move.

In making the Hamdan ruling, the Court’s majority launched a direct attack on the constitutional powers of Congress and the President. Congress enacted the Detainee Treatment Act (DTA) on December 30, 2005, which prohibited any member of the federal judiciary from hearing habeas corpus claims of Guantanamo detainees (like Hamdan’s). The DTA statute reads:

[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.
***Note, what could be more clear than this language?

As is their right under Article 3, Section 2, Clause 2 to make exceptions to the appellate jurisdiction of the Supreme Court, Congress passed the DTA to prevent the Court from hearing cases like Hamdan. In fact, during the congressional debate over DTA, both sides acknowledged that the legislation would prevent the Court from considering Hamdan’s appeal.

But in a Gold Medal performance to rival that of Mary Lou Retton, the majority of the Court engaged in legal gymnastics to ignore the constitutional check imposed by Congress. This was the chief complaint of one of the Court’s dissenting members in the case, Justice Scalia, who objected to the Court’s majority circumventing the clear exercise of constitutional Congressional power in limiting the Court’s jurisdiction on this matter:

This provision “t[ook] effect on the date of the enactment of this Act,” §1005(h)(1), id., at 2743, which was December 30, 2005. As of that date, then, no court had jurisdiction to “hear or consider” the merits of petitioner’s habeas application. This repeal of jurisdiction is simply not ambiguous as between pending and future cases. It prohibits any exercise of jurisdiction, and it became effective as to all cases last December 30. It is also perfectly clear that the phrase “no court, justice, or judge” includes this Court and its Members, and that by exercising our appellate jurisdiction in this case we are “hear[ing] or consider[ing]…an application for a writ of habeas corpus.” (Scalia dissent, pp. 1-2.)

But the Court’s majority in the Hamdan case didn’t just attack the delegation of authority to Congress; they also attacked the president’s powers to make rules in accordance with Congressional directives in the Authorization for Use of Military Force (AUMF) passed immediately after 9/11. In the AUMF, Congress authorized the President to draw up rules to conduct military judicial commissions to try those enemy combatants who are captured.

This is not something new being done. Virtually all congressional legislation charges the executive branch to draw up rules in accordance with the law. That was true in this case, as well. The Bush administration spent three years establishing the rules for the military commissions, and in one fell swoop, the Court’s majority threw that all out. As the Court’s dissenters note in Hamdan, this decision intrudes on the executive powers to conduct war and the historic deference given to the administration to make rules in accordance with legislation passed by Congress. In his dissent, Justice Thomas makes this very point:

The plurality’s willingness to second-guess the Executive’s judgments in this context, based upon little more than its unsupported assertions, constitutes an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority. And even if such second-guessing were appropriate, the plurality’s attempt to do so is unpersuasive. (Thomas dissent, pp. 8-9.)

But it is not just the power of the legislative and executive branches under attack in the Supreme Court’s majority opinion in Hamdan: the Court undermines its own authority as well by tossing out almost 150 years of jurisprudence on military commissions to impose its new judicial interventionist vision.

You might recall during the recent confirmation hearings for Chief Justice Roberts and Associate Justice Alito that the concept of stare decisis was about the only thing you could get out of leftist judicial commentators on why to oppose their respective nominations. Roberts and Alito were going to undermine the historic precedents of the Court, we were repeatedly told.

And yet in Hamdan, the Court steamrolled over stare decisis to get the verdict they wanted. Congress limited the appellate jurisdiction of the Court to hear habeas corpus petitions going back to the Civil War-era, which the Court back then recognized in Ex Parte McCardle:

Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the Court is that of announcing the fact and dismissing the cause.

The majority of this Court, however, wasn’t about to be guided by stare decisis in their decision-making. Justice Thomas notes that the Court abandons other long-upheld precedents related to the President’s power to form military commissions, such as Ex Parte Quirin (1942) and Johnson v. Eisentrager (1950), in order to reach their decision in Hamdan.

There are many more constitutional and legal points that could be raised about the Hamdan decision that are best left to more capable observers than I. There are, however, some important issues and concerns about how the Court perceives the War on Terrorism that I think are worth mentioning here.

First, it is clear that most of the members of the Supreme Court are prepared to grant the illegal combatants captured by Allied Forces rights under the Geneva Convention despite the fact that they are not due to them under the Convention itself. The terrorist organizations waging jihad against America have made it clear that they do not believe themselves bound to the rules of war established by the Geneva Convention.

The unwillingness of the jihadist forces to afford US soldiers their rights under the Geneva Convention was ruthlessly seen two weeks ago when Pfc. Thomas Tucker and Pfc. Kristian Menchaca were captured by al-Qaeda insurgents in Iraq, beheaded, their bodies mutilated and booby-trapped to kill members of the U.S. recovery team – all in contravention of internationally accepted rules of war.

But the members of the Court have built a precedent in Hamdan to conclude that enemy combatants are not to be treated as illegal combatants – even though they are under the most basic of definitions – as long as they are captured in a country that is a signatory to the Geneva Convention. This is a bizarre interpretation of the rules of war that undermines the very reason why the US is a signatory to the Geneva Convention – to protect US armed forces. The killings of Pfc. Tucker and Pfc. Menchaca demonstrate the folly of the Court’s approach.

If this is where the Court intends to plant their flag on the status of illegal combatants captured in the War on Terror, then perhaps President Bush should order all such combatants summarily executed under the Geneva Convention instead of having unelected judges and well-heeled Leftist legal groups trampling over the Constitution to intervene and impose their own policies. Dead men don’t have legal standing.

Secondly, it seems the majority of the Supreme Court still slumbers in their pre-9/11 fantasy world where terrorism is considered a law enforcement issue instead of military justice. This failed policy reigned during the Clinton Administration, which witnessed an unabated escalation of terrorist violence against the US beginning with the 1993 World Trade Center bombing to the attack on the U.S.S. Cole, and culminating on 9/11.

And the Court in Hamdan expresses its belief that criminal standards and rights should apply, and terrorist should be tried only if they are caught “redhanded”. Justice Thomas noted the slippery logic of the majority’s approach:

on the plurality’s logic, the AUMF would not grant the President the authority to try Usama bin Laden himself for his involvement in the events of September 11, 2001. (Thomas dissent, p. 9, fn. 3.)

The criminal justice approach advocated by the Court demonstrates their unwillingness to come to terms with the nature of the war we are fighting against terrorism. A common saying among military leaders is that America is always fighting the last war. Thanks to the Supreme Court’s decision in Hamdan, lacking any response by Congress, the Court has condemned us to fight on terms more appropriate to the Napoleonic Wars than what is actually needed to win the War on Terror.

A third concern is that the attacks on the Bush administration’s policies on the War on Terror are being driven by the most radical elements of the Left. Hamdan’s case was being handled by the George Soros-funded Center for Constitutional Rights (CCR). The views of the CCR attorneys are so extreme that you would think that the staff of the ACLU drove cars with “Buchanan for President” bumper stickers.

The President of CCR, Michael Ratner, argued in an earlier case, Rasul v. Bush, that captured Taliban and al-Qaeda fighters should not be detained and held by U.S. forces at Gitmo, and he has said that Saddam Hussein should not have to face a war crimes tribunal because he is a victim of US aggression. Ratner, a law professor at Columbia University, comes from a family of means (think Paris Hilton with a law degree). His brother, Bruce, owns the New Jersey Nets, and his family controls Forest City Enterprises, a mega-real estate developer that has been called the poster child for eminent domain abuse. Should it be any surprise that the Ratner family’s favorite politician and campaign contribution recipient, House Minority Leader Nancy Pelosi, was one of the first individuals to hail the Court’s Hamdan decision?

As has been the complaint of conservatives since the failed Bork nomination during the Reagan Administration, what the Left cannot achieve through presidential and congressional elections, it is perfectly content to obtain through the unelected judicial plutocracy. In fact, it is their preferred method of “political” involvement. No need to convince the unwashed masses. What the Ramdan decision shows is that the extremist elements in the legal community, embodied by Ratner and the CCR, are not only being heard, but followed by the members of the Court. That is a danger in and of itself.

The dissenting members of the Court in Ramdan themselves identified this concern of the radical position adopted by the majority and the potential implications it could have on the War on Terror. For the first time in 15 years on the High Court, Justice Thomas read his dissent from the bench when the decision was announced. In his dissent, he challenged his colleagues to get a grip on post-9/11 realities:

Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict. We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U.S.S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “redhanded,” ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy. (Thomas dissent, pp. 28-29)

There are some bright points to be seen for those who see the glass half-full. The Court did not question the Bush Administration’s right to detain terrorists or object to the the existence of the prison at Gitmo. Nor did they free Hamdan or any of his terrorist associates.

Within hours of Court’s decision, members of Congress were openly discussing options to counteract the ruling, such as adopting the Defense Department’s military commissions procedures directly as a statute and clarifying that there are no reservations to their removal of the High Court’s appellate jurisdiction for habeas corpus petitions from prisoners at Gitmo.

But as much as they felt possible, the Court majority has tried to tie the hands of the Bush Administration in conducting the War on Terror and subverting the unmistakable intentions of Congress in passing the AUMF and removing the Court’s appellate jurisdiction in these habeas corpus cases. In that effort, they have attacked the constitutional powers of both the Executive and Legislative Branches, all while steamrolling over a century and a half of Supreme Court precdents to get where they and their Leftist litigating friends wanted to go.

If their recent efforts are any indiciation, the majority of justices of the Supreme Court appear to be ready to impose their own policies regardless of what the law and the Constitution prevent them from doing. For Congress to fail to respond to this judicial assault accordingly could jeopardize our efforts in the Global War on Terror and leave our nation vulnerable to further judicial attacks on our constitutional form of government and our most basic freedoms while giving comfort and aid to our sworn enemies.


Let us all pray that the mess created by the Supreme Court in Ramdan is resolved before Osama bin Laden and his crew are caught and before the Court decides to throw open the doors of Gitmo. With our present runaway judiciary, there’s no telling what the Court may do next.
http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=23214

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jwhop
Knowflake

Posts: 2787
From: Madeira Beach, FL USA
Registered: Apr 2009

posted July 06, 2006 10:26 AM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
Supreme lawlessness

Posted: July 6, 2006
1:00 a.m. Eastern
WorldNetDaily.com
Craige McMillan

The U.S. Supreme Court has just issued a challenge to the Congress. It goes like this: We disagree with your constitutional authority to limit our right of judicial review. Furthermore, we're going to decide the case you told us not to decide, and we're going to base that decision on international law – even if we have to soak that poor treaty in the Potomac first, then twist it inside-out and hang it upside-down to dry so we make it fit our needs. So there. Take that.

The case, Hamdan v. Rumsfeld, purports to decide whether Osama bin Laden's driver, captured while fighting in Afghanistan, is a lawful combatant under the Geneva Conventions. Hmm, let's see, that should be simple enough. Is al-Qaida a signatory to the treaty? Nope. Did they ever petition to become a signatory? Nope. Do they confine their attacks to soldiers on the battlefield? Nope – they specialize in murdering civilians.


Simple enough, said the court. They're covered. But they're not bound to obey the Conventions themselves.

In the recently passed Detainee Treatment Act, Congress expressly told the federal courts, "stay out of it." Silly boys and girls. They just didn't know the Constitution is no longer used by the Court to reach its decisions. Perhaps they counted on Article III, Section 2 of the Constitution, to "get some respect." That states: "… the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Oh, well; yes – that.

As Mark Steyn wrote in commenting on the decision ("Court finds a right to jihad in the constitution," July 2, Chicago Sun Times):

"And, of course, al-Qaida never need to sign the Conventions now, do they? As the ultimate beneficiaries of the progressive mindset, they get all the benefits with none of the obligations. We're bound, they're not. If you're captured with the severed head of a U.S. soldier in your knapsack, you're covered by Geneva – and, as your victim learned a mile back up the road, it's too late for him to call his lawyer."

Oh yes, thank you Justice Stevens. Where would be we without your tremendous legal intellect to guide us? How could we ever have known that our Constitution is toilet paper? Who had a clue that international treaties don't mean what the parties who actually signed them agreed upon? And best of all, who would have suspected that the world is really run by the U.S. Supreme Court? Yes, Swami Stevens. Please, may We The People have more of your exalted wisdom?

Can there really be any reasonable doubt that some of the boys on the Supreme Court have been sipping too much of the polluted Potomac? They've contracted a new, mutated internationalist version of Potomac Fever. Early reports are that it is a rather virulent strain and has already been spread directly from politician to politician.

America, take note. The election is this fall. The doctor is Congress. The remedy is impeachment.
http://www.wnd.com/news/article.asp?ARTICLE_ID=50937

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Mirandee
unregistered
posted July 06, 2006 12:49 PM           Edit/Delete Message   Reply w/Quote
quote:
Blowing more smoke out of the wrong orifice again Mirandee?

A simple, " I disagree with what you said," would suffice, Jwhop.

At least once in a while?????

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jwhop
Knowflake

Posts: 2787
From: Madeira Beach, FL USA
Registered: Apr 2009

posted July 06, 2006 01:17 PM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
There isn't anything to disagree about Mirandee.

The Supreme Court clearly overstepped their Constitutional authority when they ignored the Constitutional legislation prohibiting ANY...court, justice, or judge from hearing habeas corpus claims of Guantanamo detainees

Congress enacted the Detainee Treatment Act (DTA) on December 30, 2005, which prohibited any member of the federal judiciary from hearing habeas corpus claims of Guantanamo detainees (like Hamdan’s). The DTA statute reads:

[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.

"Article III
"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

There can be no doubt whatsoever the Congress has the Constitution authority to enact legislation "restricting" the jurisdiction of federal judges, federal justices and federal courts, including the US Supreme Court from hearing certain types of issues.

There can be no doubt whatsoever the Congress enacted legislation removing habeas corpus jurisdiction from federal judges, justices and federal courts to hear those petitions from detainees at Gitmo.

There can be no doubt whatsoever the US Supreme Court and the 9 justices on the Court DID hear a habeas corpus petition from a Gitmo detainee and overstepped their Constitutional authority when they did so.

So Mirandee, if you don't wish to hear smoke blowing comments...then stop blowing smoke.....out of any orifice.

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jwhop
Knowflake

Posts: 2787
From: Madeira Beach, FL USA
Registered: Apr 2009

posted July 11, 2006 09:30 AM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
Dead Man Walking
Hamdan sounds the death knell for the NSA’s Terrorist Surveillance Program.
By Andrew C. McCarthy

The Supreme Court’s decision in Hamdan v. Rumsfeld is a national-security disaster. Forget about its undermining of military commissions. Forget even about its rewriting of the Geneva Conventions into something the United States would never have ratified.

Hamdan is a disaster because it sounds the death knell for the National Security Agency’s Terrorist Surveillance Program (TSP), the early-warning system developed by the Bush administration to ward off a reprise of 9/11 by penetrating the enemy’s wartime communications.

Almost as depressing as the vertiginous 180-page decision itself has been the don’t-worry-be-happy post-mortem, which holds: “Hey, it’s not so bad — Congress can fix it.”

This is the silver lining grasped by a number of usually astute analysts. The theory goes something like this: “The Supremes may have slapped down President Bush’s effort to deny al Qaeda terrorists trials that would provide them with an education in American intelligence capabilities. But don’t fret: Congress can make it right.”

Underlying this rosy construction, though, is an implication that would have horrified the Framers: The president’s power to safeguard the United States from external threats is dependent on Congress’s willingness to “authorize” protective measures. Our forebears knew better. They had lived through over a decade of the Articles of Confederation. They had seen national security by committee. They well understood that it was no national security at all.

Of course they were wary of executive power’s tyrannical proclivities — that’s why they divided powers and left Congress in charge of the purse strings (among other things). But the Framers realized the need, in times of crisis, to concentrate the nation’s protective arsenal in a single set of hands, the president’s. Otherwise, agile enemies, unburdened by separation-of-powers anxieties, could run rings around America’s defenses. And this, mind you, was long before al Qaeda — over two centuries before weapons of mass destruction coexisted with communications systems that can transmit orders from Kandahar to New York in the click of a mouse.

In wartime, in response to threats against the body politic, all the might of government would be embodied in the president. This alone would ensure that if an adept enemy took unanticipated action, the nation could swiftly respond; or that if the enemy exhibited some sudden vulnerability, the nation could quickly capitalize. It was how wars would be won.

THE TSP & FISA
We are fighting an intelligence-dominated war against jihadists pledged to strike us domestically. Our homeland cannot be attacked absent al Qaeda cells burrowed among us, awaiting the call to action. Our only defense is to find out who they are and stop them. Yet, the electronic surveillance system we have had in place for national security since 1978, known as FISA (the Foreign Intelligence Surveillance Act), authorizes monitoring only when government can show “probable cause” that terrorist activity is afoot. That is, it permits eavesdropping only on those already known to be dangerous.

On September 10, 2001, no one knew Mohamed Atta was dangerous. No one knew his associates were a mortal peril — a cabal of 19 that could take a nation of 300 million to war.

Requiring “probable cause” proof of dangerousness will not root out the next Mohamed Attas. Instead, the Bush administration’s TSP authorizes the interception of any communications across national borders between persons reasonably suspected of al Qaeda ties and any others — even if those others are in America. Especially if those others are in America. It is the ones in America that can kill Americans.

This is common sense. It is why the Terrorist Surveillance Program (TSP) has enjoyed such one-sided public support since al Qaeda’s information service (also known as the New York Times) revealed the existence of the program in December 2005.

Unfortunately, what the public demands for its security and what the unaccountable courts are willing to countenance are two very different things. So are what FISA anticipates as a crystal-clear threat and what the murkier real world actually presents. It is because humans are not capable of foreseeing and legislating for all conceivable dangers that we need flexible executive power.

Thus, although the TSP does not comply with FISA, that did not make it illegal … at least until Hamdan drastically degraded the president’s constitutional prerogatives. The Bush administration has justified the program in two ways.

First, and most compelling, the president has an independent constitutional authority — indeed, obligation — to conduct electronic surveillance, especially in wartime, of persons he reasonably believes pose a threat to American lives. That power can be limited only by another constitutional provision, here, the Fourth Amendment. It cannot be cabined by a mere statute … or so we thought until Hamdan. The Fourth Amendment prohibits only unreasonable searches; it does not require probable cause or judicial warrants in all instances. Consequently, the administration argues, the TSP is within the president’s lawful authority because it is reasonable: It captures only international communications (i.e., where at least one party is outside the U.S. and thus there is no reasonable expectation of privacy that can be guaranteed by American law), and it targets only suspected al Qaeda operatives (i.e., not all international calls).

Second, assuming for argument’s sake that Congress’s approval is necessary before the president may exceed FISA’s limits in wartime, the administration contends that Congress has already given its approval. Specifically, the post-9/11 Authorization for the Use of Military Force (AUMF), by which Congress endorsed the president’s use of “all necessary and appropriate force,” validates all the traditional components of warfare. Importantly, this is not, as critics argue, a “blank check.” To be permissible under this theory, executive measures must be tightly related to the use of military force. Therefore, because penetrating enemy communications is as much a part of warfare as striking enemy targets, the AUMF authorizes eavesdropping on the enemy — and judges have no more competence to second-guess the eavesdropping than they would the striking.

THE TSP & HAMDAN
Into this mix drops the Hamdan bombshell. On its face, Hamdan is a case about military commissions, not electronic surveillance. Yet, its facts are saliently analogous to those of the TSP.

Military commissions, like national-security eavesdropping, originally derive from the president’s inherent authority under Article II of the Constitution. Later, legislation was enacted, in the Uniform Code of Military Justice (UCMJ) and its predecessor statutes, that arguably endeavored to limit military commissions, just as FISA legislation unquestionably undertook to restrict the executive’s ability to conduct surveillance of hostile foreign operatives.

Both situations thus present the question of whether Congress can taper presidential powers (such as conducting war, negotiating treaties, nominating judges, etc.) by passing statutes that touch on these Article II prerogatives. And in both situations, the Bush administration has argued that this question can and should be avoided — and with it, a constitutional controversy over the relative limits of executive and legislative power — by interpreting the AUMF as an implicit congressional imprimatur on all reasonable war-fighting tactics. In jettisoning military commissions, the Hamdan majority ruled against the administration on these issues. Logically, albeit very unfortunately, the court has simultaneously brushed aside both administration justifications for the TSP.

Regarding the administration’s AUMF theory, the five-member majority opined that because the AUMF does not expressly mention military tribunals, it cannot be construed to authorize them beyond any statutory limits Congress has enacted (in the UCMJ). “Repeals [of statutes] by implication,” Justice John Paul Stevens maintained, “are not favored.” This is no different from saying the AUMF did not authorize anything it failed to specify, at least if some other statute seems to have been affected.

That rationale, however, flies in the face of the AUMF ruling the Supreme Court made only two years ago. In Hamdi v. Rumsfeld (2004), the court held that even though there was no explicit reference in the AUMF to the detention of enemy combatants, such detentions were implicitly approved. The Hamdi Court reasoned that by using sweeping terms in the AUMF, Congress intended to authorize all the “important incident[s] of war.” And back then, the court said it did not matter that another federal statute, Section 4001 of the federal penal code, could be read to bar such detentions. The AUMF was deemed to override Section 4001 … by implication.

Hamdi aside, Justice Clarence Thomas observed in a withering Hamdan dissent that the majority’s flip-flop on the AUMF utterly disregarded the high Court’s 1981 decision in Dames & Moore v. Regan. There, the justices ruled that because “Congress cannot anticipate and legislate with regard to every action the President may find it necessary to take or every possible situation in which he might act,” the legislature’s failure to specify particular measures “does not, especially … in the areas of foreign policy and national security, imply congressional disapproval of action taken by the Executive.” (Emphasis added.)

Still, far more dire for separation-of-powers concerns, and thus for national security, is the Hamdan majority’s obliteration of inherent presidential authority, the administration’s first theory in support of the TSP. For the Supreme Court has now staked out a case for congressional supremacy that gives monstrous life to the Framers’ worst fears.

Under Hamdan’s logic, even if the president starts out with inherent Article II authority, that power — constitutional power — can now be rescinded by statute. The new theory is most expansively set out in the Hamdan concurrence of Justice Anthony Kennedy, who offered a “constitutional principle that congressional statutes can be controlling.”

LEGISLATIVE USURPATION — THE KENNEDY THEORY
With no discussion of the constitutional moorings of presidential power to direct wartime military commissions, Justice Kennedy began by asserting that “Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority.” He then dropped the hammer:

Where a statute provides the conditions for the exercise of a governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.

This sounds reassuring and is … preposterous. First of all, what if a president, or Congress, is wrong? What if the president signs a flawed law? That, to put it mildly, has been known to happen. The customary operation of the political branches is, well, political. It is always influenced by the pressures of the moment, which often are given precedence over what the Constitution objectively requires.

This is precisely why we insulate the federal courts from political pressures. Every now and then, a president (like Jimmy Carter) will overreact to the fleeting political currents of a scandal (like Watergate) by agreeing to a statute (like FISA) that cedes to an opportunistic legislature important presidential powers (like determining which enemy operatives should be monitored in wartime). It is in those times when we most need the Supreme Court to ignore the politics and remind us that a president’s ill-advised concessions can no more reduce Article II than Nixonian overreaches can inflate it. Constitutional authority is an objective, enduring fact. It does not shift with the winds of transitory politics.

Furthermore, the Framers were wise enough to know that standards for responding to crisis are different from those that should obtain in peacetime. They gave us a Constitution flexible enough to accommodate both. That is why Justice Oliver Wendell Holmes Jr. admonished (in a 1928 epigram echoed over a half century later by the Dames & Moore Court) that “[t]he great ordinances of the Constitution do not establish and divide fields of black and white.” They provide for more robust executive authority when the country is in danger, but don’t unambiguously preclude Congress from enacting statutes like FISA, which might function perfectly well most of the time.

The point is that standards developed in ordinary times, so admired by Justice Kennedy, may not be adequate to the challenges of a crisis. As Hamilton sagely observed in The Federalist No. 23, “The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” Yet, under the Kennedy theory, only by governing as if we were always in crisis could the political branches ensure that the powers specially needed for crisis would be available when threats finally arise. The Constitution requires no such thing, nor would that make for an America any of us would want to live in.

In any event, if the Kennedy theory takes root — as it seems to have in Hamdan — it is impossible to see how the TSP survives. Like military tribunals, electronic surveillance is a subject Congress carefully considered and has regulated for nearly 30 years. FISA, like any statute (including the ones the Supreme Court reserves its right to bypass), is the result of a “deliberative and reflective process engaging both of the political branches.” It has set “conditions for the exercise of a governmental power” since 1978. By Justice Kennedy’s lights, it does not matter if such statutes leave the nation more vulnerable than the unhindered Constitution would. We must live with them unless and until Congress acts to alter them.

Hamdan’s imperial Congress is not the system the Framers bequeathed us. For them, national security was dependent on vibrant, independent presidential authority, able to fend off what Hamilton (in The Federalist No. 73) aptly described as “[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments[.]” Thus did Madison (in The Federalist No. 48) warn of “the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”

Such usurpations make us less safe. And the fact that Congress alone may be able to fix them is something to be alarmed about, not something to take comfort in.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.
http://article.nationalreview.com/?q=YTljNWU3ZTRmYTY5YzNlOTUyM2M2Yjc4OTZkMmY2MTI=

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