More Thoughts On Hamdan
Today, as I reported this morning, the Supreme Court issued its ruling in Hamdan v. Rumsfeld. Hamdan was a body guard to Osama bin Laden, and hsi driver when hostilities started in Afghanistan in 2001. He was caught as an enemy combatant on the battlefield, and was sent to Gitmo as a detainee. He appealed his detention through the courts (thanks greatly to the decisions in Hamdi and Rasul), and the verdict today, in my humble opinion, was a terrible interpretation of the facts regarding this case.
I've read the whole decision now, including three brilliantly worded dissents from Justices Thomas, Alito, and Scalia. Justice Thomas, for the first time since he arrived on the high court, read his dissent clearly for the court. Justice Thomas is correct. This was, in short, a separation of powers case.
Under Article II, the president is the sole executive officer of the nation. He is it's leaders, and it's foreign policy face. In the event that war breaks out, he is the Commander-in-Chief of the military. Congress, in 2001, granted the president the power to wage war against al Qaeda in Afghanistan. In the authorization for the use of military force, they stated that the president had the authority to prosecute this war. Part of that prosecution involves trying these detainees in military tribunals. That is explicitly under the president's powers to wage war. The tribunals, under the auspice of the military, fall into the executive branch's powers.
The Supreme Court opted to limit the scope of that power today. In tying the president's hands so that he can't execute the tribunals when they're needed, they have removed powers from him--from the office of the president--that have been part of the executive branch since the founding of the nation. Now, if the president wishes to move forward on such trials, he has to go to Congress and play a "Mother, may I" game with them. In addition, the people involved in this case are now able to follow the footsteps of Moussaoui; they will be tried in our criminal justice system.
That's a mistake, and a serious one. As WE observed after the Moussaoui decision, it's painfully clear that the people of America can't handle the gravity of such a case. Marty Lederman of SCOTUS Blog has some interesting thoughts regarding this case. As a matter of fact, the whole crew over at SCOTUS Blog had thoughts about this case all day, and their perspective in Hamdan is a welcome breath of fresh air. Far too many on talk radio today that have no law degrees, and no real clue about the jurisprudence in question, have literally been talking out of their @$$e$. It would also help if people actually read the decision itself to better understand exactly what the Supreme Court did today.
I maintain what I stated this morning. This decision was a travesty.
Publius II
ADDENDUM: 5:26 p.m. Arizona Time
Since Thomas' initial post this morning, and his follow-up this evening, keeps bringing up the Geneva Convention. True, the United States is a signatory to the convention. They are bound by it, but only to a point.
The convention applies to war between two signatories. When one nation, who is a signatory, is engaged in military action against another that is not a signatory, the convention is moot. It does not technically apply. We are the only nation on the face of the planet that does its best to:
1) Abide by the rules of the convention, and
2) Treat prisoners as best we can.
Anyone who proclaims that the prisoners at the Guantanamo Bay detention facility is either a blatant liar, or a presumptuous twit. They have received far better treatment from the United States than any other coalition member.
And to the extremists out there that are fuming, ranting, and raving over this decision you really need to clam down. Yes, the decision was incorrect. Thomas is correct, as Justice Thomas pointed out, in the end this is a separation of powers issue. So, for the president to accomplish what he wants with the remaining detainees (and no, the decision does not release the animals from their cages) he has to go to Congress and get them to sign off on special tribunals for these people. The president should not have to do that. He is the Commander-in-Chief, and this nation is at war. As past presidents have convened these tribunals, and this president should also have this privilege.
Marcie
Today, as I reported this morning, the Supreme Court issued its ruling in Hamdan v. Rumsfeld. Hamdan was a body guard to Osama bin Laden, and hsi driver when hostilities started in Afghanistan in 2001. He was caught as an enemy combatant on the battlefield, and was sent to Gitmo as a detainee. He appealed his detention through the courts (thanks greatly to the decisions in Hamdi and Rasul), and the verdict today, in my humble opinion, was a terrible interpretation of the facts regarding this case.
I've read the whole decision now, including three brilliantly worded dissents from Justices Thomas, Alito, and Scalia. Justice Thomas, for the first time since he arrived on the high court, read his dissent clearly for the court. Justice Thomas is correct. This was, in short, a separation of powers case.
Under Article II, the president is the sole executive officer of the nation. He is it's leaders, and it's foreign policy face. In the event that war breaks out, he is the Commander-in-Chief of the military. Congress, in 2001, granted the president the power to wage war against al Qaeda in Afghanistan. In the authorization for the use of military force, they stated that the president had the authority to prosecute this war. Part of that prosecution involves trying these detainees in military tribunals. That is explicitly under the president's powers to wage war. The tribunals, under the auspice of the military, fall into the executive branch's powers.
The Supreme Court opted to limit the scope of that power today. In tying the president's hands so that he can't execute the tribunals when they're needed, they have removed powers from him--from the office of the president--that have been part of the executive branch since the founding of the nation. Now, if the president wishes to move forward on such trials, he has to go to Congress and play a "Mother, may I" game with them. In addition, the people involved in this case are now able to follow the footsteps of Moussaoui; they will be tried in our criminal justice system.
That's a mistake, and a serious one. As WE observed after the Moussaoui decision, it's painfully clear that the people of America can't handle the gravity of such a case. Marty Lederman of SCOTUS Blog has some interesting thoughts regarding this case. As a matter of fact, the whole crew over at SCOTUS Blog had thoughts about this case all day, and their perspective in Hamdan is a welcome breath of fresh air. Far too many on talk radio today that have no law degrees, and no real clue about the jurisprudence in question, have literally been talking out of their @$$e$. It would also help if people actually read the decision itself to better understand exactly what the Supreme Court did today.
I maintain what I stated this morning. This decision was a travesty.
Publius II
ADDENDUM: 5:26 p.m. Arizona Time
Since Thomas' initial post this morning, and his follow-up this evening, keeps bringing up the Geneva Convention. True, the United States is a signatory to the convention. They are bound by it, but only to a point.
The convention applies to war between two signatories. When one nation, who is a signatory, is engaged in military action against another that is not a signatory, the convention is moot. It does not technically apply. We are the only nation on the face of the planet that does its best to:
1) Abide by the rules of the convention, and
2) Treat prisoners as best we can.
Anyone who proclaims that the prisoners at the Guantanamo Bay detention facility is either a blatant liar, or a presumptuous twit. They have received far better treatment from the United States than any other coalition member.
And to the extremists out there that are fuming, ranting, and raving over this decision you really need to clam down. Yes, the decision was incorrect. Thomas is correct, as Justice Thomas pointed out, in the end this is a separation of powers issue. So, for the president to accomplish what he wants with the remaining detainees (and no, the decision does not release the animals from their cages) he has to go to Congress and get them to sign off on special tribunals for these people. The president should not have to do that. He is the Commander-in-Chief, and this nation is at war. As past presidents have convened these tribunals, and this president should also have this privilege.
Marcie
posted by Syd And Vaughn | 5:06 PM
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