Opposite ends of the world?
A Supreme Court Conversation – Still “the most important decision on presidential power ever.”
You are right that opinions are mixed on how significant yesterday’s Hamdan decision is. Views seem to range from a ho-hum from the usually very astute Richard Samp of the Washington Legal Foundation (he’d “be surprised if any of the holdings … end up having large practical significance”) all the way to … well, I guess all the way to me. My flash assessment that it was “the most important decision on presidential power ever” seems to have come in as yesterday’s high bid.
In Hamdan however, the court confronted and rejected a deep theory of the Constitution that had been developed by the incumbent administration and was invoked to justify perhaps hundreds of executive decisions (so many of which seem to be secret we will never even know how many) that at least appeared to violate valid acts of Congress. The rejection of that imperial claim is what is important about this case. […]
It’s not about the military commissions. I think what explains differing assessments of the importance of Hamdan is that different people are all viewing the decision from different levels of generality. And the farther back you stand, the more significant it appears. Up close, it’s a case about Mr. Hamdan, or maybe about Hamdan and a dozen others. Whether it makes much difference to them is hard to say. If you look at it as a case about the validity of shortcut military commissions, it looks a bit more significant, but Congress will provide some kind of fix for those commissions.
[…]It’s about all those laws the president says, as he signs them, that he will not commit to obey, if in his view foreign relations or deliberative processes of the executive or other matters may be affected. And, by the way, he won’t even commit to tell Congress he is not obeying the law. That is what it’s about.
This was about the Supreme Court taking power. Congress specifically said that they couldn’t hear cases about detainees, but then they ignored that, because they don’t want to be inferior to Congress, even if that’s what the Constitution says. Then they decided they would take away the President’s war powers, though for now they gave that to Congress, subject to their approval(they said the military trials were ok if passed by Congress.) Then they decided to give themselves the power to write treaties and said the Geneva Conventions apply to Al Qaeda.
This also shows that no matter who is appointed to the Supreme Court, they tend to rise above party politics….otherwise all the Bush appointed judges would have fallen in line.
The Supreme Court isn’t inferior to Congress. All 3 branches of goverment are equal, each with it’s own task to perform. Oversight is one of those tasks. If one branch is lax in it’s duties, you can be sure the other 2 will try to fill the gap.
Congress is supposed to make law and the SCOTUS is supposed to apply those laws based on their interpation of the the laws constitutionality.
This was an over-reach by the Executive branch, filling a void they thought they could fill without Congresses explicit permission. There is nothing here that removes a Presidents war powers as previously outlined by law and precedent or Congresses war powers as outlined by law or precedent. Basically the Court returned everyone to their own half of the playing field, to play by the rules as already in place before 9/11.
The court said that Congress could(if it wished) pass law that would allow the President to have these tribunals or the military courts could handle these cases as it is presently constituted. But the court made it clear that the defendents do have certain rights by the Geneva Convention(which we are signatories to) and that any law passed by Congress must recognise those rights(basically, no secret hearings, right to know the charges etc.) and that the Executive branch must also recognise those rights.
This is NOT an overeach by the court, it’s simply their reading of the law and the Constitution. To be honest, it’s a good ruling, this is after all the United States, we should not be in the business of holding secret tribunals of anyone, it smacked of the Soviet Union.
This was about the Supreme Court taking power.
Actually, I think it was about bringing the executive branch back in line with little things like the consititution. But you know what? The decision still sucks and it sucks because the court agreed that people who are merely alleged to be enemny combatants can be held without charge or trial “so long as hostilities continue.” Since the war on Tara, just like the war on drugs, is a war without end, the Supreme Court has just said that the King can throw people in prison at his whim…forever. That SHOULD scare you a lot more than anything Osama bin Laden can do.
>The Supreme Court isn’t inferior to Congress.
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Congress specifically said the SUpremem Court has no jurisdiction here, so the President is entitled to ignore this ruling.
#5
How do cases involving citizens from other countries not involve Ambassadors?
Also since Malbury vs Madison the Court has always had the power of judicial review of ALL laws passed by Congress.
Your god has lost a big one.
#5.
If he ignores this he should be arrested like any other law breaker.
I think it was deToqueville who said, “Americans will arrive at the best solution, after they’ve tried everything else,” (and I apologize if I’ve mangled it.) The point being, most Americans know that this administration is way off the rails. This gives me hope that we’ll get back on the rails sooner rather than later.
#5 AB CD, Justice Stevens dismissed the Government’s argument (to which you allude) that certain provisions of the Detainee Treatment Act of 2005 repealed the Supreme Court’s appellate jurisdiction in this case, on the basis that it is “rebutted by ordinary principles of statutory construction.” That seems to be judge-speak for “not terribly complicated.”
I give the Supreme Court ruling two thumbs up, but frankly, I wouldn’t mind seeing Bush reject the decision outright, as you suggested that he could. It would cut through a lot of crap and let even more of the American people see Bush for what he really is. That realization will come with historical perspective, but sometimes I get impatient…. sigh.
AB CD, time to have your meds adjusted again.
Article III, Section 2, Clause 1,:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Gee, that sure sounds like they have jurisdiction to me.
This is definitely a ruling against Bush. Probably much less so then Padilla was for Bush. While Padilla gave Bush the authority to hold an American without access to a lawyer, incommunicado, and beyond the reach of the courts, Hamdan only said the government must give an accused an open and fair trial.
Hamdan, and the others in Gitmo, will now have to wait another two or three years before they have a chance to be before a fair tribunal.
Hamdan only said the government must give an accused an open and fair trial.
Actually, Hamdan doesn’t say that they have to be given a trial at all. It only says that if you do decide to give them a trial, that trial must be in accordance with the UCMJ and the laws of war as defined under the Geneva Conventions to which the United States is a signatory.
As it stands now, the mere accusation that you are an enemy combatant or a terrorist is all it takes for the King to detain you…forever.
#8 Mark…….Actually it was Winston Churchill who said it…..quote…* You can always count on the Americans to do the right thing….after they have tried everything else*….one of my favorites.
The main reason Bush didn’t want these people given Geneva Convention rights is because of the secret tribunal thing. If he has to treat them as enemy combatants then he has to allow them access to the Red cross or the Red Cresent, letters from home and letters to home, etc., etc.
But, as enemy combatants they can be held until the war is over, however long that is.
In case you couldn’t tell I quoted from the Constitution too. I think It’s right after what you quoted.
#12, Roman, you raised a very good point. At first I was all ready to agree with you but then I did some verification and read the majority opinion through. The last line reads:
But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.
So now that they have decided to put him on trial, they must follow the rules and presumably that would include the right to a speedy trial. If they withdraw the charge then that would open up again for a writ of habeas corpus. where once again the Federal Courts would gain jurisdiction.
I’m not a lawyer, so take my comment for what it cost.
#14, AB CD, and thinking was your first mistake. You saw something that appeared to bolster your point. (or was that Limbaugh’s point?) You didn’t look at the whole picture or read that clause in context of the whole section. Cherry picking is something neo-cons have made an art of.
So now I’m cherry picking? Reading the whole Constitution, there tends to be a large statement, and then go down to details.
It is possible that the exception specified refers to exceptions with regards to original and appellate jurisdiction. The Federalist Papers suggest that both readings are correct. Congress can limit the Supreme Court with regards to jurisdiction and the type.
http://www.constitution.org/fed/federa80.htm
http://www.constitution.org/fed/federa81.htm
From the first, which covers Clause 1 that you quoted
If some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.
From the second, covering what I quoted
The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source.
AB CD, you did well quoting from another source, even though you didn’t put it in quotations and I doubt you have any clue what it means.
The Federalists Papers are ONLY opinion on what the framers were thinking. The pieces you cited were opinion written by Hamilton. They are not law. It is obvious you don’t understand the difference between a Court of Original Jurisdiction and an Appellate Court.
Second, the Supreme Court’s ruling may be summed by the 4th Amendment.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; …nor be deprived of life, liberty, or property, without due process of law; …
The offenses Hamden was charged with all occurred BEFORE 9/11. The court reasoned that because of that he could be tried under either the Military Rules for a Court Martial or in a civilian court, but NOT by a military tribunal without any rules or meaningful form of appeal.
As I said before, read the opinion before relying on Limbaugh or O’Reilly for the truth.
I did read the opinion, and they didn’t say it was unconstitutional for him to have this tribunal, only that it needs to be authorized by Congress. Why would they say that if it is violation of the 4th amendment? The point of what I quoited form the Constitution and the Federalist papers supporting it is that COngress ahs the authority to restrict the Supreme Court’s jurisdiction. The Supremem Court then went and said it applied to Hamdan. By their reasoning, it doesn’t apply to anyone caught after the law passed, and for those people the Supreme Court can’t hear those cases. I think the Supreme Court can hear the cases, because Congress said THE DC Circuit can hear the cases. I don’t think they have the right to make a lower Court the final court, but maybe they do.
Saying the Federalist Papers are just opinions is a little silly here. They are arguing for the adoption of the Constitution and against the fear that the Courts might get too much power, and explaining why that can’t happen under the Constitution.