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Court: President exceeded authority by creating Guantanamo tribunals (pg. 2)
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| Q5echo |
| quote: | Originally posted by Groundhog Boy
I'm glad how much you realize who's taking this next congressional election since your boys have been ing up so bad. |
don't be so sure. i have special powers:)
| quote: | | Lastly, Buler :conf: |
i know. it's stupid isnt it? |
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| Q5echo |
| quote: | Originally posted by Groundhog Boy
Jurors :conf:, 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 Buler'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.
| quote: | | 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!!!
| quote: | | Why aren't they prisoners of our "War on Terror?" Follow the ing Geneva Convention |
now it's up to Congress to pass new legislation just to give what Buler 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. |
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| Q5echo |
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.
| quote: | 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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| DaveSZ |
| quote: | 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 Buler's father (the Emperor), has arguably abandoned his conservative jurisprudence to swing with the likes of Clintons apointees?
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Kennedy was appointed by Ronald Reagan - well known for his liberal views.
| quote: |
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.
| quote: |
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.
| quote: | 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.
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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. |
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| 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! |
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| Q5echo |
| quote: | 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.
| quote: | | 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.
| quote: | | 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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| Q5echo |
| quote: | 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.
| quote: | 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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| Q5echo |
| quote: | 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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| MisterOpus1 |
| quote: | 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?
| quote: | | 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?
| quote: | | 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? |
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| MisterOpus1 |
| quote: | 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:
| quote: | | 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:
| quote: | 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 bull:
| quote: | Senators Kyl and Graham's Hamdan v. Rumsfeld Scam: The Deceptive Amicus Brief They Filed in the Guantanamo Detainee Case
By JOHN W. DEAN
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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 Yamaa.
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 bull to its minions. Of course most of their minions will bite into it regardless, but can one do? |
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| Q5echo |
| quote: | 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. |
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| Q5echo |
| quote: | 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.
| quote: | | 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. it!
bottom line is you don't f**king trust military tribunals for these people do you? |
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