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Court: President exceeded authority by creating Guantanamo tribunals

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Court: President exceeded authority by creating Guantanamo tribunals BY LESLEY CLARK [email protected] WASHINGTON - The U.S. Supreme Court this morning found President Bush exceeded his powers by creating military tribunals for prisoners at the much-maligned Guantanamo Bay detention center, reining in a portion of the administration's prosecution of the war on terrorism. The ruling, a setback for the administration's aggressive anti-terrorism stance, was written by Justice John Paul Stevens, who said the proposed trials violate U.S. law and the Geneva Conventions, signed by the United States in the aftermath of World War II. ''Trial by military commission raises separation-of-powers concerns of the highest order,'' Justice Anthony M. Kennedy wrote in a concurring opinion. The decision does not address whether the controversial camps should be closed, dealing only with whether the administration can pursue plans to try the detainees under the type of military trials not seen since World War II. President Bush said he will work with Congress to find a way to try the detainees before military tribunals -- and two leading Republicans suggested they're ready to help. ''To the extent that 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 press availability with Japanese Prime Minister Junichiro Koizumi. ``The American people need to know that the ruling, as I understand it, won't cause killers to be put out on the street.'' Bush stopped short of saying the ruling would hasten efforts to close the prison -- as many world leaders have encouraged him to do. ''We will seriously look at the findings, obviously,'' Bush said, noting he'd only had a ''drive-by'' briefing on the decision. ``And one thing I'm not going to do, though, is, I'm not going to jeopardize the safety of the American people. People have got to understand that. I understand we're in a war on terror; that these people were picked up off of a battlefield; and I will protect the people and, at the same time, conform with the findings of the Supreme Court.'' Republican Sens. Lindsey Graham of South Carolina and Jon Kyl of Arizona, who back Military Commissions, were quick to announce they'd help Bush with a legislative fix. ''We are disappointed with the Supreme Court's decision. However, we believe the problems cited by the court can and should be fixed,'' the two said in a joint statement. Graham and Kyl said they found it ''inappropriate'' to try terrorists in civilian courts, arguing it threatens national security and puts jurors in danger. ''In his opinion, Justice [Stephen] Breyer set forth the path to a solution of this problem,'' the senators said, 'He wrote, `Nothing prevents the president from returning to Congress to seek the authority he believes necessary.' '' The case was brought by Osama bin Laden's one-time driver, Salim Hamdan, one of hundreds of men flown to the Guantanamo camps, which opened in early 2002 as a site for the United States to hold and interrogate al Qaeda and Taliban suspects flown in from Afghanistan. The president created special Military Commissions to try 10 or more of some of the 450 captives being held there. But Hamdan challenged the legal proceedings, arguing that they violate international law and the U.S. Constitution. Stevens agreed, writing that the commission ''lacks the power to proceed because its structure and procedures'' violate both U.S. law and the Geneva Conventions. But Justice Clarence Thomas, in a sharply worded dissent, disagreed, saying the decision ``openly flouts our well-established duty to respect the executive's judgment in matters of military operations and foreign affairs.'' The decision, Thomas noted, would ''sorely hamper the president's ability to confront and defeat a new and deadly enemy'' and he called his colleagues' ''willingness to second-guess'' the president ``both unprecedented and dangerous.'' But lawyers for the detainees hailed the ruling as upholding the Geneva Conventions, which governs the treatment of prisoners of war. ''We're looking at this with welcome hopefulness that the democratic institutions in this country are stepping forward to take their power back from a president [who] has tried to seize it for the last five years,'' said Barbara Olshansky, an attorney with the Center for Constitutional Rights, which represents hundreds of detainees. ''The court has clearly stated that the president cannot invoke wartime powers to circumvent U.S. laws and international treaties that the United States has ratified,'' said Amnesty International attorney Jumana Musa, who had been a Pentagon-approved observer at the commissions. In arguments before the court in March, Neal Katyal, Hamdan's attorney, said the Pentagon had concocted a conspiracy charge that isn't a war crime, had ignored rights retained in the Geneva Conventions, such as prisoner-of-war status, and fell short of standards that Congress has set for how the United States conducts either military and civilian justice. ''This is a military commission that is literally unbounded by the laws, Constitution and treaties of the United States,'' he told the court. Critics have argued that the accused would be more fairly treated in the civilian courts or through a traditional military court martial. But Solicitor General Paul Clement argued on behalf of the United States that Congress had given President Bush the power to craft the Military Commissions when it authorized the use of force after the Sept. 11, 2001, terrorist attacks. He called such commissions ``part and parcel of the [presidential] war power for 200 years.'' The ruling is all but certain to increase international scrutiny and calls for the camps' closure -- pressure that has mounted following the suicides earlier this month of three captives. Bush has acknowledged the camps hurt U.S. credibility abroad and has said he'd like to close the detention center -- but warns it holds dangerous detainees who should be tried for their crimes. Others, he said, can be released, but the United States has had difficulty finding suitable countries to accept them. The State Department has said U.S. diplomats are seeking agreements with dozens of countries to let some detainees return home, while seeking assurances from their native countries that the men won't threaten U.S. soldiers, security or American targets. But State Department officials said the task is complicated by a number of countries that deny the detainees are actually nationals of their countries. And the U.S. has ruled out repatriation to some nations, including China, for fear that Muslim nationals now held at Guantanamo would be tortured if returned to the communist country. One detainee has been returned to Iran, but the administration continues to detain two dozen Algerians, along with Iraqis, Libyans, Palestinians, Somalis, Sudanese, Syrians and Uzbeks -- men from countries that are either too unstable or have human rights records that would suggest the U.S. is unable or unwilling to negotiate their return. The Pentagon, however, announced last Saturday that it had sent 14 Saudi detainees home, the second major transfer in little more than a month. Miami Herald staff writer Carol Rosenberg contributed to this report from Guantanamo Bay Navy Base, Cuba. http://www.mercurynews.com/mld/merc...ws/14930131.htm

Bush: 750
Constitution: 1

The battle continues.

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Originally posted by josh4 Bush: 750 Constitution: 1 The battle continues.

I'm actually shocked. I figure with his two nominees (1 of which who couldn't vote, but probably would have upheld like he did at the lower circuit and made it 5-4 instead of 5-3), he'd stacked the court well enough. He seems to be getting everything 5-4 these days in his side's favor. No surprise from the 3 in favor of giving him the blank check, though.

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Originally posted by Groundhog Boy I'm actually shocked. I figure with his two nominees (1 of which who couldn't vote, but probably would have upheld like he did at the lower circuit and made it 5-4 instead of 5-3), he'd stacked the court well enough. He seems to be getting everything 5-4 these days in his side's favor. No surprise from the 3 in favor of giving him the blank check, though.

shocked? about what? stacked the court? even if Rhenquist was still on board it would have still come out the same way. even your bias makes no sense. you got life and bullshit all f**ked up.

this was pretty much a disasterous decision...for the detainees! think about it logically. leave aside your hatred for a second. what exactly did the court say, and what does Bushitler do now with'em?

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Originally posted by Q5echo shocked? about what? stacked the court? even if Rhenquist was still on board it would have still come out the same way. even your bias makes no sense. you got life and bullshit all f**ked up. this was pretty much a disasterous decision...for the detainees! think about it logically. leave aside your hatred for a second. what exactly did the court say, and what does Bushitler do now with'em?

First off, I didn't get into it much in the first post, because I haven't had much time to review everything coming out since it just happened today while I am at work, but I'll try to argue based on what I'm aware of now. I don't even understand what was controversial in the orginal post, but whatever.

Stacked the court? Are you even going to deny that in the past year, there has been a huge shift in power on the Supreme Court. Lots of decisions that would have went 5-4 are still going 5-4, but in the other direction. Just look at what's been decided lately. Surely you're more informed than this, or do your conservative blogs not bother to mention how much ass-kicking their "activist judges" are doing now. They're ruling in the opposite direction of what the court 5 years ago would have on a lot of big decisions.

Are you trying to say that what the Bush administration wanted, military tribunals, is what was best for the detainees? I wouldn't go that far, but I do think that it sucks for them that they're now left hanging in limbo for a 2nd time since the Bush administration instists upon violating their rights. For those who are going to be found guilty, why is this worse for them? For those, who once Bush and co. come up with a new, 3rd plan that abides by what the now conservative leaning Supreme Court says is acceptable, may be found innocent, this is a step in the right direction, but unfortunately does drag out their time in Gitmo. I guess the bottom line is, would you rather be processed quickly and unfairly, or drag it out, but do it right?

Also, this "enemy combatant" bullshit is just an insult to both our government and the Geneva convention, as Bush insists all the time "We're at war," but refuses to treat them as POWs, because he'd have to treat them better to abide by Geneva.

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Originally posted by Q5echo shocked? about what? stacked the court? even if Rhenquist was still on board it would have still come out the same way. even your bias makes no sense. you got life and bullshit all f**ked up.

Oh, and one more thing. You do realize that Roberts replaced Rehnquist as CJ and that Roberts wasn't allowed to vote on this because he'd already ruled at the Appellate level? Had Roberts voted, the same as he did before, it would have been 5-4, so yes, it still would have come out the same way.

When I say stacked, I mean O'Connor -> Alito. Rehnquist was already a conservative on the court, replacing him with Roberts didn't do that much. O'Connor at least was a moderate, who was replaced with another conservative. I wouldn't be surprised if she was still on and Alito wasn't in the picture, that it'd have been 6-2 rather than 5-3, so the end result would be the same.

Personally, I fear what happens if Stevens, who I consider to be a moderate, dies before 2008.

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Originally posted by Groundhog Boy Oh, and one more thing. You do realize that Roberts replaced Rehnquist as CJ and that Roberts wasn't allowed to vote on this because he'd already ruled at the Appellate level? Had Roberts voted, the same as he did before, it would have been 5-4, so yes, it still would have come out the same way.

and what i said is that O'conner and Rhenquist, if they had decided, would have prolly ruled the same. so your right. i'm right.

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When I say stacked, I mean O'Connor -> Alito. Rehnquist was already a conservative on the court, replacing him with Roberts didn't do that much. O'Connor at least was a moderate, who was replaced with another conservative. I wouldn't be surprised if she was still on and Alito wasn't in the picture, that it'd have been 6-2 rather than 5-3, so the end result would be the same.

O'conner became a moderate. she was appointed a conservative. this is what usually happens. but you're still filled with hate.

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Personally, I fear what happens if Stevens, who I consider to be a moderate, dies before 2008.

why fear? the Donks will obstruct till the next administration and you can live free of any fear and loathing because everything will be peaches and cream.

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Originally posted by Groundhog Boy I don't even understand what was controversial in the orginal post, but whatever.

Bushitler puts two of the finest jurors in the country on the SCOTUS and you spout propaganda from the feverswamp about "stacking" the court...thats whatever, whatever.

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Are you even going to deny that in the past year, there has been a huge shift in power on the Supreme Court.

yes and no. what decisions do you take issue with?

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Are you trying to say that what the Bush administration wanted, military tribunals, is what was best for the detainees?

yes. as apposed to what, in your opinion?

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I wouldn't go that far, but I do think that it sucks for them that they're now left hanging in limbo for a 2nd time since the Bush administration instists upon violating their rights. For those who are going to be found guilty, why is this worse for them? For those, who once Bush and co. come up with a new, 3rd plan that abides by what the now conservative leaning Supreme Court says is acceptable, may be found innocent, this is a step in the right direction, but unfortunately does drag out their time in Gitmo. I guess the bottom line is, would you rather be processed quickly and unfairly, or drag it out, but do it right?

so what you're saying (and i'm sorry to keep doing this to you) , by this decision, is that the "liberal" judges have got it wrong in the larger scope of this beyond just Hamden, right?

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Also, this "enemy combatant" bullshit is just an insult to both our government and the Geneva convention, as Bush insists all the time "We're at war," but refuses to treat them as POWs, because he'd have to treat them better to abide by Geneva.

thats because you think this is just Bushitler's war, and nothing else.

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Originally posted by Q5echo and what i said is that O'conner and Rhenquist, if they had decided, would have prolly ruled the same. so your right. i'm right. O'conner became a moderate. she was appointed a conservative. this is what usually happens. but you're still filled with hate. why fear? the Donks will obstruct till the next administration and you can live free of any fear and loathing because everything will be peaches and cream.

No, I was saying that it would be 6-2, because O'Connor would have voted in the majority, and Alito voted in the minority on this one. I was surprised because one of your normal guys didn't side with you this time, because even he viewed Bush as going too far this time. I think it's great when people actually think for themselves instead of falling into line because you're supposed to. That doesn't happpen often enough, thus the shock. I expected it to lock 4-4 and Roberts be the tie-breaker, approving.

I know O'Connor was a conservative turned moderate. Hopefully the same happens to you with age. BTW, not sure if I've mentioned before, but I was a Republican at 18. It was primarily the Republican's current insistence upon imposing it's "moral values" and taking us to this war that should have been handled when we actually had cause, not lies, that caused the change. I own guns, violent video games, like money and big business (with some responsibility, there's a point where enough is enough and causing the genereal public harm can't be accepted), etc.

I'm glad how much you realize who's taking this next congressional election since your boys have been fucking up so bad.

Lastly, Bushitler

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Originally posted by Q5echo Bushitler puts two of the finest jurors in the country on the SCOTUS and you spout propaganda from the feverswamp about "stacking" the court...thats whatever, whatever. yes and no. what decisions do you take issue with? yes. as apposed to what, in your opinion? so what you're saying (and i'm sorry to keep doing this to you) , by this decision, is that the "liberal" judges have got it wrong in the larger scope of this beyond just Hamden, right? thats because you think this is just Bushitler's war, and nothing else.

Jurors , Jurists, maybe. And, yes, it was whatever, because it was a stupid comment. I don't think anyone'll deny that he's stacked the court. Fortunately, eventually, half of your Republican posts break rank lately because you guys are going too far. I mean, 7 of 9 are Republican appointed, 4 by the Bushes.

Skipped. Do your own research and read the news, you know I'm right.

Opposed. How many words have you misspelled in your jabs at me today. Didn't realize I was your new target. It's OK, I prefer reaction to unnecessary pre-emption anyhow.

It is a war, right?? Why aren't they prisoners of our "War on Terror?" Follow the fucking Geneva Convention, that we signed back when Bush wasn't the President, and I have no problem.

Bascially it just means they won't be tried via Bush's way.
That doesn't mean they're going to be let go or freed.
They're still going to get their day in court; just in a different manner.

It's a win for the libs in the sense that the Islamofascists, who don't believe or recognize modern justice, now have more rights than those that perished in 9/11.

I understand the ruling and it does make sense; it was a slip of beaucracy on Bush's part and for that, a longer wait for everyone...

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Originally posted by Fir3start3r It's a win for the libs in the sense that the Islamofascists, who don't believe or recognize modern justice, now have more rights than those that perished in 9/11.

Oh yeah, they had the RIGHT to be tortured, humiliated, and dehumanized. Even though mojority of them are completely innocent. Lay off the crack dude.

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Originally posted by Fir3start3r Bascially it just means they won't be tried via Bush's way. That doesn't mean they're going to be let go or freed. They're still going to get their day in court; just in a different manner. It's a win for the libs in the sense that the Islamofascists, who don't believe or recognize modern justice, now have more rights than those that perished in 9/11. I understand the ruling and it does make sense; it was a slip of beaucracy on Bush's part and for that, a longer wait for everyone...

I completely agree, I'm not pissed that they're not being let go in either route. I'd just rather see justice performed in a manner which abides by the laws of our country and by rules that conform to the treaties we've signed.

I'm not a fan of stooping to others' levels and ignoring principles. Criminals always disobey the laws, does that mean the police system can do the same, or do we have some rules and standards? We have enough ability to prevent this sort of thing from happening, abiding by our own laws and principles. I hardly side with these cowardly fucks that attacked us. I just believe in trying criminals as criminals, and that's not what's happening with the current course of action.

Like I said before, I'd rather a longer wait to apply proper justice than letting unlawful actions take place. I'll be happy when a properly balanced stack of a couple of conservatives, a couple of liberals, and a couple moderates get thrown up there and we get things decided on a fair basis, rather than down party lines (with the occasional Republican defector.

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Originally posted by Groundhog Boy I'm glad how much you realize who's taking this next congressional election since your boys have been fucking up so bad.

don't be so sure. i have special powers

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Lastly, Bushitler

i know. it's stupid isnt it?

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Originally posted by Groundhog Boy Jurors , Jurists, maybe. And, yes, it was whatever, because it was a stupid comment. I don't think anyone'll deny that he's stacked the court. Fortunately, eventually, half of your Republican posts break rank lately because you guys are going too far. I mean, 7 of 9 are Republican appointed, 4 by the Bushes.

you're right. literacy is something i take a fair amount of pride in so there is no real excuse other than i've had my hands full lately and have been coming here sporadically.

i don't see it as stacking the court so much as it is putting very highly competent "JURISTS", something that all presidents are given extraordinary lattitude to do except that when a Republican does it's construed as some sort of sinister plot to crush the Rebellion. do you forget that Justice Kennedy, appointed by Bushitler's father (the Emperor), has arguably abandoned his conservative jurisprudence to swing with the likes of Clintons apointees?

really, this is all a tangent to the real subject that i care more about.

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Opposed. How many words have you misspelled in your jabs at me today. Didn't realize I was your new target. It's OK, I prefer reaction to unnecessary pre-emption anyhow.

listen, i'm jabbing you because i want you say something substantive about this decision. i want you to tell me what you think about why some justices went one way and why others didn't. what does this mean NOW to you regarding these prisoners of war. up until now you haven't really said anything other than tired old liberal accusations of a president.

sure, your pissed because you think those prisoners have been neglected their rights. fine. you want to let'em go. give'em back to whatever country they sprouted from?

you want to try'em in court? what court? because your esteemed colleagues on the SCOTUS just used the Geneva Conventions to deny them any trial at all!! did you know that? THATS WHAT I WAS TRYING TO GET YOU TO FOCUS ON IN MY FIRST JAB AT YOU!!!

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Why aren't they prisoners of our "War on Terror?" Follow the fucking Geneva Convention

now it's up to Congress to pass new legislation just to give what Bushitler has wanted all along for them. a day in court. because if Congress would have actually used the word "WAR" in their declaration 4 yrs ago instead of being P.C. we wouldn't be having this discussion. i'd prolly be jabbing you about something else trivial.

this gives some insight (non-partisaned as far as i can see) on what the "liberal Justices were thinking. while i don't agree with a small part of it, i think Kennedy and Stevens want Congress to be more clear.

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June 30, 2006 Hamdan v. Rumsfeld: Common Sense at War By Ronald A. Cass Liberty may have been the traditional casualty of war, but common sense is its new colleague. The Supreme Court, trying hard on the anniversary of last term's Kelo decision to find a suitable sequel, performed a rare triple loop in Hamdan v. Rumsfeld. It found jurisdiction in the face of a statute directly taking jurisdiction away from the Court. It second-guessed the President on the need for particular security features in trials of suspected al Qaeda terrorists. And it gave hope to One-World-ers by leaning on international common law to interpret U.S. federal law. If that weren't enough, the (left, lefter, and far left) turns were executed in the course of giving a court victory to Osama bin Laden's driver. What a perfect way to end the term! The case challenged the Bush Administration's plan to use military tribunals to try Guantanamo detainees as enemy combatants who are neither within the criminal law and due process protections of the U.S. Constitution nor within the protections afforded prisoners of war by the Geneva Conventions. The Administration has been assiduously trying to prevent al Qaeda terrorists from learning what it knows and doesn't know about their operations - an effort opposed by The New York Times, the left side of the Democratic Party, and most of France. Its plans for trial by military commission and its detention at Guantanamo of al Qaeda suspects captured outside the United States are part and parcel of that effort. The five-justice majority of the Supreme Court that decided the Hamdan case yesterday showed great interest in demonstrating their commitment to upholding constitutional protections and protecting international human rights, both admirable instincts in many settings. They showed less appreciation for the fact that Americans are threatened, and thousands of innocent Americans were killed by brutal thugs - the sort who behead civilians, film it as sport, and post the video on the Internet. And the justices showed no appreciation for the fact that Congress and the President might well know more than they do about the security needs of the United States. Of course, the justices wrote a careful, precedent-laden, critically analyzed decision, well within the bounds of ordinary judicial craftsmanship - just as they did in Kelo. The proper criticism of their decision is not that it is politically inspired, not that it boldly ignores the law, and not that it is a decision that is utterly without support (though all these critiques may well come from the right). Instead, the proper criticism is that the decision is simply wrong, just as Kelo was, and will have consequences that no sensible American should applaud. The first misstep was in finding jurisdiction at all. When Congress passed the Detainee Treatment Act of 2005, it included a provision saying that "no court, justice, or judge" has jurisdiction to hear applications for habeas corpus from any prisoner detained at Guantanamo. The Act also provides, in another provision, that pending challenges to decisions of military commissions on matters such as the detainee's status could not be heard except by the U.S. Court of Appeals for the D.C. Circuit. The five-justice majority - taking a page from the two-plus-two-equals-five school of new math - read the two provisions together and concluded that it could hear a pending habeas petition. Small wonder Justice Scalia, in dissent, seemed almost apoplectic over the majority's reasoning. The only sad part is that his dissent didn't come complete with the appropriate gestures. The justices clearly had something big to say on the military tribunal issue and didn't want to have Congress pull the rug out from under them. Fortunately, what they actually said wasn't as big as the headlines suggested. They didn't say anything about the legality of the detentions at Guantanamo, or the treatment of the prisoners, or tell the President he had no authority to set up military commissions no matter what. But they did take shots at the President, the Congress, and common sense in an opinion that has more twists and turns than one of John Kerry's speeches - or a run down the slopes of Davos. Under the law passed by Congress in 2005, the President is authorized to alter the design of military tribunals if he deems it impracticable to offer the procedures ordinarily applied in other trials. That is exactly what the President did here. The President clearly said that Guantanamo terror suspects could not be given the same protections as citizens charged with criminal acts. And even Justice Stevens said the Court should defer to the President on that. But, said the Court, the President did not make "a similar official determination that it is impractical to apply the usual rules for courts-martial." Actually, he did. But he didn't utter the magic incantation, the Harry Potter phrase that would make the tribunals fly. As Justice Stevens observed "the only reason offered in support of that determination is the danger posed by international terrorism." Those whose loved ones died at the hands of al Qaeda terrorists may be surprised that isn't enough - as might anyone who understands that these are trials for terrorism, not trespassing. But the justices said it is "not evident to us why" concerns over terrorism justify changing the rules. So we come to the last loop in the Court's triple jump - its reliance on international common law. The Court, interpreting the requirements of federal law, makes a critical observation, one no one would have expected a few short years ago: the military tribunals do not provide the sort of procedures "recognized as indispensable by civilized peoples." There you have it. We can now turn to international common law to find out what our laws require. Who better than the Iraqis and North Koreans, Khaddafi's Libya, Mugabe's Zimbabwe and Chavez's Venezuela to tell us what our laws command? That's the Court's reading of the law. To make matters worse, by making Common Article 3 of the Geneva Conventions (the linchpin of this analysis) both legally enforceable and dependent on international common law, the Court has opened a door to criminal liability for American citizens, soldiers, and government officials on terms we cannot predict and would never approve. The President may not have made perfect choices on the procedures used for these trials. He may not have perfectly balanced concerns over fair process with concerns over national security. But the President, not the Court, has expertise on this subject. Justice Breyer's concurrence says that Congress didn't give the President a blank check to fight the war on terror. But the Constitution also doesn't give the justices a blank check to write the law. It especially doesn't give them a check drawn on a foreign bank. Yesterday's decision may bring a smile to the faces of Bush-bashers. It should be as fleeting as the smiles with which developers greeted the justices' creativity in Kelo. Let's hope it's as easily corrected. Ronald A. Cass is Chairman of the Center for the Rule of Law, Dean Emeritus of Boston University School of Law, and author of �The Rule of Law in America� (Johns Hopkins University Press).

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Originally posted by Q5echo i don't see it as stacking the court so much as it is putting very highly competent "JURISTS", something that all presidents are given extraordinary lattitude to do except that when a Republican does it's construed as some sort of sinister plot to crush the Rebellion. do you forget that Justice Kennedy, appointed by Bushitler's father (the Emperor), has arguably abandoned his conservative jurisprudence to swing with the likes of Clintons apointees?

Kennedy was appointed by Ronald Reagan - well known for his liberal views.

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listen, i'm jabbing you because i want you say something substantive about this decision. i want you to tell me what you think about why some justices went one way and why others didn't. what does this mean NOW to you regarding these prisoners of war. up until now you haven't really said anything other than tired old liberal accusations of a president.

It comes down to the fact that 5 justices, sadly only five, still respect the rule of law the republic was founded upon.

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you want to try'em in court? what court? because your esteemed colleagues on the SCOTUS just used the Geneva Conventions to deny them any trial at all!! did you know that? THATS WHAT I WAS TRYING TO GET YOU TO FOCUS ON IN MY FIRST JAB AT YOU!!!

That's incorrect. The court simply held that bush's military tribunals where the administration's hand-picked officials could weigh the fate of detainees were illegal under article 3 of the Geneva Conventions (binding US law as the treaty was ratified) and the Uniform Code of Military Justice.

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Originally posted by Fir3start3r It's a win for the libs in the sense that the Islamofascists, who don't believe or recognize modern justice, now have more rights than those that perished in 9/11.

False Analogy and Non-Sequitur.

And the Bush administration also doesn't recognize or believe in "modern justice" if you define modern justice as compliance with the constitution the president swears to uphold and protect.

Oh wait, that's right, after 9/11 "everything changed."

I think Katrina proved nothing changed and when, not if, but when the next terrorist attack or natural disaster occurs Americans will be further appalled by the lack of preparedness and lack of actions taken towards readiness or harm reduction on the part of this government.

I'm glad that the court did something to curtail the executive's power.
now they need to curtail congress' expanding powers.

And lastly congress needs to curtail's the courts expanding power.


Long live limited government!

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Originally posted by DaveSZ Kennedy was appointed by Ronald Reagan - well known for his liberal views.

liberal views? now, yes. when appointed, no. the man swings unconstructional over half the time. yes i was wrong about who appointed him.

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It comes down to the fact that 5 justices, sadly only five, still respect the rule of law the republic was founded upon.

are you f**king mad! they just ratified a treaty for gods sake! wtf! who normally ratifies treaties? not judges.

contrary to what you say, (this couldn't be any more contrary) this decision is a textbook example why we need strict constructionalists on the bench, not paragons of extra-ordinary decisions.

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That's incorrect. The court simply held that bush's military tribunals where the administration's hand-picked officials could weigh the fate of detainees were illegal under article 3 of the Geneva Conventions (binding US law as the treaty was ratified) and the Uniform Code of Military Justice.

answer me this. does the Geneva Conventions guarantee these prisoners a right to trial? does it guarantee any prisoner a right to trial? do you want a trial for these people?

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Originally posted by DaveSZ It comes down to the fact that 5 justices, sadly only five, still respect the rule of law the republic was founded upon.

i just found this. these justices respect the rule of law my dying ass. you cound't be more wrong.

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JOHN EASTMAN The Detainee Treatment Act of 2005, enacted last December, gives the U.S. Court of Appeals in Washington, D.C., exclusive jurisdiction to review habeas-corpus petitions from the terrorists detained at Guantanamo Bay. The act also expressly provides that, other than that court, �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 . . .� Legislative word-smithing does not get much clearer than that. Equally clear is Congress�s authority to restrict the appellate jurisdiction of the Supreme Court; Article III, Section 2, of the Constitution describes that the appellate jurisdiction of the Supreme Court is subject to �such Exceptions, and under such Regulations as the Congress shall make.�

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Originally posted by Yoepus I'm glad that the court did something to curtail the executive's power. now they need to curtail congress' expanding powers. And lastly congress needs to curtail's the courts expanding power. Long live limited government!

this was new territory. what can you do?

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Originally posted by Q5echo are you f**king mad! they just ratified a treaty for gods sake! wtf! who normally ratifies treaties? not judges.

Perhaps I misunderstood this, but when we ratify a treaty are we not obligated under the Constitution to abide by that treaty?

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contrary to what you say, (this couldn't be any more contrary) this decision is a textbook example why we need strict constructionalists on the bench, not paragons of extra-ordinary decisions.

What specifically do you believe these judges were not abiding by the Constitution?

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answer me this. does the Geneva Conventions guarantee these prisoners a right to trial? does it guarantee any prisoner a right to trial? do you want a trial for these people?

No, but the Uniform Code of Military Justice does, right?

Re: Re: Re: Re: Re: Re: Re: Re: Re: Court: President exceeded authority by creating G

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Originally posted by Q5echo i just found this. these justices respect the rule of law my dying ass. you cound't be more wrong.

There's a really interesting history of the McCain Amendment (Detainee Act), much of which has to do with some rather highly questionable acts by Senator Graham and Kyl trying to outright deceive the Supreme Court members with an amicus brief filed. Here's a rundown over at Scotusblog on their outright deceptions:

http://www.scotusblog.com/movablety...sis_hamdan.html

Emily Bazelon at Slate picked up on it as well:

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The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains. Inserting comments into the Record is standard practice in Congress. What's utterly non-standard is implying to the Supreme Court that testimony was live when it wasn't.

Well when it came to the DTA 2005, the court wasn't fooled by their deceptions when it noted in footnote 10 in the majority opinion:

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While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention that the final version of the Act preserved jurisdiction over pending habeas cases . . . those statements appear to have been inserted into the Congressional record after the Senate debate. . . . All statements made during the debate itself support Senator Levin's understanding.

John Dean over at FindLaw.com has the story in case you didn't follow. It's a lengthy read, but it explains quite a bit as to why the majority opinion didn't buy into the Scalia bullshit:

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Senators Kyl and Graham's Hamdan v. Rumsfeld Scam: The Deceptive Amicus Brief They Filed in the Guantanamo Detainee Case By JOHN W. DEAN ---- Wednesday, Jul. 05, 2006 Last week, the Supreme Court issued its historic decision in Hamdan v. Rumsfeld. There, it dealt a substantial blow to the Bush/Cheney Administration's plans for the treatment of detainees at Guantanamo and, potentially, elsewhere as well - ruling out, for instance, the option of using military commissions without due process to try detainees. The decision itself has been widely discussed. Less widely discussed, however, has been its backstory. The Bush/Cheney Administration has been doing everything possible to keep its treatment of purported terrorist detainees out of the federal courts, particularly the Supreme Court. To assist the Administration, Republican Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona engaged in a blatant scam that was revealed during the briefing of Hamdan. Senators Graham and Kyl not only misled their Senate colleagues, but also shamed their high offices by trying to deliberately mislead the U.S. Supreme Court. Their effort failed. I have not seen so blatant a ploy, or abuse of power, since Nixon's reign.[/v] To understand their ruse, a bit of background information about both the Hamdan case and the Detainee Treatment Act is necessary. The Chronology Of The Hamdan Case Salim Ahmed Hamdan is undoubtedly a bad fellow. Indeed, he is claimed to have once served as Osama bin Laden's driver and bodyguard. Hamdan was captured by tribal forces and turned over to the U.S. Military in November 2001, during the hostilities in Afghanistan against the Taliban. In June 2002, Hamdan was sent to Guantanamo. In July 2003, the President designated Hamdan for trial by military commission, and in December 2003, Hamdan was given military counsel. In February 2004, Hamdan's attorneys filed an action under the Uniform Code of Military Justice (UCMJ) asking that formal charges be made against Hamdan, and that he be given a speedy trial. The U.S. military, however, held that the UCMJ did not apply. Next Hamdan's attorney filed a petition for habeas corpus in federal court, to test the legality of his detention. That petition made its way from the state of Washington, where it was filed, to Washington, DC. On November 8, 2004, Judge James Robertson of the U.S. District Court for the District of Columbia (a Clinton appointee, who had been active in civil rights) ruled that both the UCMJ and Common Article 3 of the Geneva Conventions were applicable, so he stayed the proceedings of the military commission that had taken jurisdiction of Hamdan. The government appealed immediately to the U.S. Court of Appeals for the District of Columbia. There, on July 15, 2005, a three-judge panel (which included the future Chief Justice John Roberts) ruled in the government's favor. But Hamdan's attorney filed a petition for review by the U.S. Supreme Court. And the Court took the case on November 7, 2004. Subsequently, Congress passed the Detainee Treatment Act (DTA), and on December 30, 2005, President Bush signed it. Then, on February 13, 2006, the government filed an extraordinary motion before the Supreme Court, calling for the Court to dismiss Hamdan's case on the ground that the DTA had stripped the High Court of jurisdiction of any and all habeas corpus actions emanating from the detainees at Guantanamo. In support of the government's motion, Senators Kyl and Graham filed an amicus brief. There, they brazenly attempted to hoodwink the Court regarding the actions of Congress in adopting the DTA. (It is not clear if their attorney, Jeffrey Lamken, a distinguished and highly able appellate practitioner, was privy to their scheme. But I would be at a loss to explain how he might have missed it.) The Passage of the Detainee Treatment Act Readers may recall that, after the Abu Ghraib scandal and related revelations became public, Senator John McCain sponsored provisions of law geared specifically to prevent the use of torture by the Bush/Cheney Administration, as well as those that follow. Those provisions, along with others, constitute the DTA. The other provisions were championed by Senators Graham and Kyl, who sought to nullify the Supreme Court's ruling in Rasul v. Bush. In that June 28, 2004 ruling, the High Court held that federal courts - contrary to the government's claim - do indeed have jurisdiction over Guantanamo's military prisons. [b]Following Rasul, virtually all the detainees at Guantanamo filed habeas corpus actions. On the morning of Thursday, November 10, 2005, the government filed a motion in the U.S. District Court for the District of Columbia to put on hold many of these pending actions - as many as 160, if not more - until all the procedural issues could be resolved by the cases already on appeal. That same Thursday, in the afternoon, as the Senate was rushing to leave town for the Veterans Day holiday, Senator Graham proposed an amendment (to an Defense Department authorization bill) that would deny detainees at Guantanamo the right to file habeas actions in federal courts, and strip the federal courts, including the Supreme Court, of jurisdiction over all the cases then pending, including the Hamdan case. The thrust of Senator Graham's argument was that he wanted to reverse the Supreme Court's ruling in Rasul. "Habeas corpus rights have been given to Guantanamo Bay detainees because the location is under control of the United States," Graham observed. He then incorrectly told his colleagues, time and again, that the United States had never before given aliens, enemy combatants, and prisoners of war the right to file a habeas corpus action. "Never in the history of the law of armed conflict has an enemy combatant, irregular component, or POW been given access to civilian court systems to question military authority and control, except here," Graham protested. In fact, the U.S. Supreme Court had considered just such habeas petitions during and relating to World War II in Ex parte Quirin and In re Yamashita. Graham's proposal caught the Senate by surprise. It is not the Senate's practice to address complex issues willy-nilly. (These are the kinds of ploys played in the House of Representatives, where Graham started his political career.) Accordingly, Republican Senator Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee, told his colleagues that until his committee had held hearings on the matter, he was "not prepared, at this stage, to support legislation which calls for removal of habeas corpus." Senator Specter believed the matter "require[d] a lot more analysis." Similarly, Democratic Senator Jeffrey Bingaman of New Mexico, one of the more able attorneys in the Senate (a Stanford Law graduate and former Attorney General of New Mexico), objected. As the debate proceeded, Senator Bingaman did eventually call Graham on his misleading claim about federal courts and habeas actions. Another of the Senate's better lawyers, Democratic Senator Carl Levin of Michigan -- who agreed that some restrictions should be placed on putative terrorists being given open access to federal courts -- noted, however, that Graham's proposed amendments would strip the federal courts of jurisdiction over habeas petitions that had already been filed. The relevant provision's Effective Date clause made clear, after all, that it would "apply to any application or other actions that is pending on or after the enactment of this Act." "[The Act] would eliminate the jurisdiction already accepted by the Supreme Court in Hamdan," Levin pointed out, and he objected to that consequence. Nonetheless, that same pre-holiday Thursday afternoon, the Republican leadership forced a vote on Graham's Amendment, which had its blessing - and surely that of the Administration. It passed, and was made part of the Defense Authorizations Act for Fiscal Year 2006, by a vote of 49 to 42. Amending the Graham and Kyl's Jurisdiction-Stripping Provisions Over the long holiday weekend, Senator Levin and others advised Graham that they were going to seek to amend his provision. Graham, always congenial with his colleagues, agreed to work with Levin, and they fashioned revised language. On November 14, the Senate debated the revised amendment. "Last week, when Senator Levin was arguing with me about my amendment, I think he made some very good points," Senator Graham explained during the debate. "By working with him, � and Senator Kyl, we have addressed some of the weaknesses in my original amendment," Graham said. Senator Levin provided further explanation for the record: "The � problem which I focused on last Thursday with the first Graham amendment was that it would have stripped all the courts, including the Supreme Court, of jurisdiction over pending cases. What we have done in this [new] amendment, we have said that � the amendment will not strip the courts of jurisdiction over those cases. For instance, the Supreme Court jurisdiction in Hamdan is not affected." The change had been accomplished by redrafting the Effective Date clause to eliminate habeas corpus actions. Senator Levin summarized the change this way: "The habeas prohibition in the [original] Graham amendment applied retroactively to all pending cases -- this would have the effect of stripping the Federal courts, including the Supreme Court, of jurisdiction over all pending cases, including the Hamdan case. The [new] Graham-Levin-Kyl amendment would not apply the habeas prohibition � to pending cases. So, although the amendment would change the substantive law applicable to pending cases, it would not strip the courts of jurisdiction to hear them. Under the Graham-Levin-Kyl amendment, the habeas prohibition would take effect on the date of enactment of the legislation. Thus, this prohibition would apply only to new habeas cases filed after the date of enactment." The revised Graham-Levin-Kyl amendment passed 84 to 14. Graham and Kyl's Ghosted Legislative History Given the fact the Administration was fighting tooth and nail to defeat Senator McCain's prohibitions against torture, which were also part of this legislation, it did not exactly sail through the House of Representatives. While there was some effort in the House to change the language relating to habeas actions, that effort failed, and the provisions as agreed upon in the Senate remained. When the conference report came back to the Senate on December 21, 2005, the Congressional Record reported a lengthy colloquy between Senators Graham and Kyl, briefly joined by Senator Brownback. (This extended dialogue runs some 12,000 words.) In this discussion of the meaning of the legislation, Graham and Kyl make several startling statements -- none more so than those that concerned the jurisdiction of federal courts over pending habeas petitions. "So once this bill is signed into law, you anticipate that the Supreme Court will determine whether to maintain their grant of certiorari [in the Hamdan case]?" Graham asked Kyl. Kyl answered, "Yes, in my opinion, the court should dismiss Hamdan for want of jurisdiction. . . . I think that a majority of the court would do the right thing--to send Hamdan back to the military commission." In other words, after previously insisting - and to address Senator Levin's very specific concern on this score - that the revised language would in no way strip the Supreme Court's jurisdiction over Hamdan, Kyl was now maintaining exactly the opposite, with Graham's full cooperation. Kyl continued, "As for legislative history" -- which he and Graham, his reference implied, were clearly making right then on the floor of the Senate -- "I think it usually is regarded as an element of the canons of [statutory] construction. It gives some indication of what Congress at least understood what it was doing--the context in which a law was enacted. Although, I understand that Justice Scalia does not read legislative history. I suppose that for his sake, we will have to strive to be exceptionally clear in the laws that we write." (Ironically, one reason Scalia disregards legislative history appears to be that he is well aware that Senators have been known to distort it.) Those viewing C-Span's coverage of the Senate, and the Senators on the floor of the Senate, never heard this part, or any of the rest of, this lengthy colloquy between Graham and Kyl. That's because it never happened. No doubt aides of the Senators wrote this bogus and protracted dialogue, and either Graham or Kyl had it inserted in the record. I first became aware of it when Emily Bazelon, a senior editor at Slate, wrote about it, after she confirmed the colloquy had never happened. As she noted, inserting comments into the Congressional Record is "standard practice." But what is "utterly nonstandard is implying to the Supreme Court" that Senate debate was live, when it most certainly was not. "When a senator wants to put a statement into the record," Bazelon noted, "he or she signs it, and writes 'live' on it, and, with the routine consent of the rest of the body, into the record it goes." This fact was not revealed by Graham and Kyl in their brief, however. The Graham-Kyl Amicus Brief in Hamdan In February 2006, Senators Graham and Kyl filed their amicus brief in the Hamdan case, supporting the Government's motion to dismiss the case for lack of jurisdiction under the Detainee Treatment Act (DTA). If they had been keeping faith with Senator Levin and the rest of their colleagues, they should have filed a brief on precisely the other side - making clear that the DTA, as amended, had had no intention to touch the Supreme Court's pending Hamdan case, and thus opposing the government's motion! Instead, Graham and Kyl advised the Court they were sponsors of the Graham-Levin-Kyl amendment, and throughout their brief, cited their fictitious colloquy on December 21, 2005. Indeed, that colloquy is the core of their brief and its argument as to why the Court should dismiss the Hamdan case. Their hubris reaches the point of deception when they claim that the "legislative history confirms that Congress intended all pending claims to be governed by the DTA." "In an extensive colloquy (which appears in the Congressional Record prior to the Senate's adoption of the Conference Report), Senators Graham and Kyl made it clear that the statute 'extinguish[es] one type of action - all of the actions now in the courts - and create[s] in their place a very limited judicial review of certain military administrative decisions." (This misleading statement is cited again later in the brief.) Absent this bogus colloquy, in which the brief quotes Senator Graham as saying "I want our colleagues to know exactly what they will be agreeing to," there was actually no dispute throughout the deliberation of the Graham-Levin-Kyl language in the House or Senate as to the fact that the DTA would not retroactively remove the jurisdiction of the federal courts over pending cases. Indeed, it is unlikely any of Graham and Kyl's colleagues were aware of this dispute, which was manufactured after the fact. Remarkably, the government's brief, too, relied on the same sham exchange when seeking dismissal of the Hamdan case. The Hoax Fails: The Supreme Court Is Not Fooled Hamdan's lawyers, however, spotted the hoax. In their opposition to the motion to dismiss the case, they advised the Court that the supposedly conflicting legislative history was entirely invented after the fact, and that it consisted of "a single scripted colloquy that never actually took place, but was instead inserted into the record after the legislation had passed." The brief noted, quite accurately, that this Graham-Kyl colloquy was "simply an effort to achieve after passage of the Act precisely what [they] failed to achieve in the legislative process." Ultimately, the Supreme Court did not decide the jurisdictional issue until it rendered its full ruling on June 29 of this year. There, Justice Stevens concluded correctly that the Congress had not stripped the Court of jurisdiction with the DTA. Out of an apparent concern for interbranch comity, the High Court has chosen to ignore the bogus brief filed by Senators Graham and Kyl, rather than reprimanding the Senators. Nevertheless, when Graham and Kyl sought to file the very same brief, a month later, with the U.S. Court of Appeals for the District of Columba, Slate's Emily Bazelon reports that court "issued an unusual order rejecting" their amicus brief alone, although they accepted five others. No one familiar with this remarkable behavior by Graham and Kyl can doubt why the court did not want to hear from these senators. http://writ.lp.findlaw.com/dean/20060705.html

Well shucks, darn luck that. Guess those folks at NRO are gonna have to do a bit of reviewing on the case itself before attempting to pass on such utter bullshit to its minions. Of course most of their minions will bite into it regardless, but can one do?

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Originally posted by MisterOpus1 Perhaps I misunderstood this, but when we ratify a treaty are we not obligated under the Constitution to abide by that treaty?

it's called Protocol 1 of the Geneva Conventions. something we are not signatories to, nor do we want to be.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Court: President exceeded authority by creating G

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Originally posted by MisterOpus1 What specifically do you believe these judges were not abiding by the Constitution?

one, by invoking powers explicitly left to the Executive by the Constitution. two, by forcing statutory mandates upon the Executive ahead of the Executive's Constitutional mandate to wage war.

forget about the legality of military tribunals for these people(which you cannot tell me is illegal under Con-Law without trumping up and twisting Article 3 of the GC) this is clearly about 5 Justices who over-stepped their boundries.

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No, but the Uniform Code of Military Justice does, right?

why don't we just expose them to our civil courts? lets enter into discovery all we know thats classified information of on-going operations. fuck it!

bottom line is you don't f**king trust military tribunals for these people do you?

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Originally posted by MisterOpus1 There's a really interesting history of the McCain Amendment (Detainee Act) Well shucks, darn luck that. Guess those folks at NRO are gonna have to do a bit of reviewing on the case itself before attempting to pass on such utter bullshit to its minions. Of course most of their minions will bite into it regardless, but can one do?

seriously is this all you have? this is the equivalent of crying over spilt milk. does this somehow negate SCOTUS's stepping all over Congress' legisalation after the fact?

maybe those five justices were looking for some retribution? scary stuff.

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