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| Supreme Court rulings "a modest victory" for the presidency -- WSJ |
| 2004-06-29 |
| EFL. The instant reading of yesterdayâs Supreme Court rulings on terror suspects is that they were, as the Associated Press asserted, "a setback to the Bush Administrationâs war against terrorism." In certain segments of the press, a warm sunny day with not a cloud in the sky would be reported as "a defeat in the Bush âwarâ on âterror.â" After reading the opinions, weâd say itâs more accurate to call them a modest but important victory for the Presidency. The Courtâs three rulings will surely complicate U.S. detention policy, at least at the margins. But at the same time they uphold the longstanding and proper deference that the Supreme Court has shown throughout its history to the executive branch on national security, especially in wartime. . . . Most important, the Court upheld the authority of the Commander-in-Chief to detain enemy combatants, including U.S. citizens. Thatâs the key finding of Hamdi, and the implicit basis of Padilla, which the Court threw back to the lower courts on jurisdictional grounds. Itâs true that in its Guantanamo ruling--Rasul v. Bush--the Court has opened the door to a flood of litigation by ruling that both U.S. citizens and foreigners detained as terrorists can challenge their treatment in the federal courts. This pretty much guarantees that the 600 or so Guantanamo detainees will bring 600 or so habeas corpus cases--perhaps in 600 or so different courtrooms, with 600 or so different judges demanding 600 or so different standards of what evidence constitutes a threat to the United States. Justice Antonin Scaliaâs dissent shreds the majorityâs messy reasoning. But the solution here is for Congress to step in with legislation consolidating all of the Gitmo cases in a single court. Arlington, Virginia would be a good choice, as thatâs where the detaineesâ ultimate warder, Defense Secretary Donald Rumsfeld, is located. It also has the advantage of being located in the jurisdiction of the Fourth Circuit Court of Appeals, which has already examined these issues in a serious way. At the same time, however, yesterdayâs Hamdi decision suggests that the courts must give considerable deference to the executive in handling these habeas petitions. While Hamdi concerned a U.S. citizen-detainee, it isnât likely that the non-citizens at Gitmo can expect more favorable treatment. And anyone who reads Justice Sandra Day OâConnorâs plurality opinion can only conclude that Yaser Esam Hamdi--or anyone else--is unlikely to be sprung from detention anytime soon. . . . . . . the burden is on the petitioner in these cases to prove that the governmentâs designation is wrong. Just to be sure the ACLU gets the point, Justice OâConnor added that "the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting." Even more striking, Justice OâConnor all but invited the Administration to set up a military court to hear Hamdiâs plea. That suggestion goes a bridge farther than even President Bush has dared. His controversial 2001 order establishing military tribunals to try enemy combatants specifically excluded U.S. citizens even though there is ample legal precedent for their use. The Courtâs ruling is also an implicit suggestion that the military is capable of adequately reviewing challenges brought by the Gitmo prisoners. All in all, the Court stepped away from the chaos of making judges the arbiters of American security. Thatâs a welcome victory for the Presidency, no matter who wins in November. |
| Posted by:Mike |
| #16 (Don't bag on beagles. Mine is a loyal 'merkin. :) ) |
| Posted by: eLarson 2004-06-29 7:23:20 PM |
| #15 The 5th column legal beagles will only stop when public outrage silences them. We are fighting this war with one hand tied behind our backs and getting it from the front and the rear. The question that keeps coming back is whether it will take some more 9-11 type hits on us to turn the public around. This is just like pre ww-2 in the 30s. |
| Posted by: Alaska Paul 2004-06-29 4:27:17 PM |
| #14 Congress, if it is truly committed to winning the WOT can over rule the Supreme Court decision. It's Congress's right to do so, with a simple majority vote. Anyone holding their breath for Congress to show some inner courage should have an oxygen tank on hand. http://www.washingtontimes.com/commentary/20040522-102507-1868r.htm "Override the Supreme Court?" By Arnold Beichman , Washington Times, May 23, 2004 [Fyi, Arnold Beichman, a Hoover Institution research fellow, is author of "Anti-American Myths: Their Causes and Consequences"] ...By a simple majority vote in both Houses, Congress under Article III, Section 2, can curtail the Supreme Court's appellate jurisdiction...This is the language of the Constitution: "The Supreme Court shall have appellate jurisdiction, both as to law and to fact, with such exceptions, and under such regulations as the Congress shall make."...Here is a list of other congressional powers over the Supreme Court as enacted by the Founding Fathers:[5 listed] #3-Congress has the power to define the jurisdiction of the lower federal courts because the Constitution grants Congress the right "to ordain and establish such courts." Nowhere in the Constitution, directly or implicitly, are federal judges granted the right to manage schools, hospitals, prisons and other institutions...The distinguished legal scholar the late Professor Herbert Wechsler has said, "Congress has the power by enactment of a statute to strike at what it deems judicial excess." And yet Congress has rarely acted on its undoubted privilege..."With all these powers over the courts granted by the Constitution to House and Senate, why do our 535 representatives sit on their hands? I have an answer: The U.S. Supreme Court and the lower courts, state and federal, have gotten away with their power grab because of simple cowardice on the part of the Congress in exercising its constitutional power over the Supreme Court. In this era of judicial supremacy, it is forgotten the Founding Fathers made Congress â not the president, not the Supreme Court â the ultimate power. It is no accident that Article I of the Constitution is Congress, Article II, the presidency and last, Article III, the Supreme Court... I'm going to send this article to Bill O'Reilly as a suggestion for a topic to be discussed on his TV show. Maybe all of us should send this article to our elected representatives to remind them that they should stop blaming the Supreme Court for legislating from the bench. Congress should start properly representing the authority of the common people to over ride the Supreme Court when decisions are not good for our nation, and this Gitmo prisoner/detainee decision clearly is not in the best interests of national security. Duh. . |
| Posted by: rex 2004-06-29 4:24:57 PM |
| #13 RM: AMEN BROTHER! Finally some gets it! Only when we grow tired of hearing about supposed legal rights and watching our countrymen cut up like animals will the public call for some action. Execution cures the infection of dissent very quick. And whomever believes that these animals are motivated by Abu Grabass has been litening to too much Al Jiz or works for the DNC. |
| Posted by: Cyber Sarge (VRWC CA Chapter) 2004-06-29 3:53:47 PM |
| #12 Cyber Sarge, I was watching a program about post war Germany on History Channel last night. The US military executed those who did not follow the riles and certainly executed any who took up arms against us after the cessation of hostilities. This was done to send a message. There were also reprisal killings and summary executions conducted by US and allied forces. We were in a war then and we are in one now. The difference as Wretchard has noted, is then we had been at open war for 5+ years. Our sympathy for the enemy was at near zero. We are not in that position today...yet. RB'ers might be, but the general populace is not. |
| Posted by: remote man 2004-06-29 3:16:30 PM |
| #11 These people are not prisoners of war but unlawful combatants. They could also be legally called âspiesâ or âsaboteursâ because they were not wearing any uniform but were caught with arms in a combat zone. Because they were found on the filed of battle with weapons and not uniform they can be summarily executed IAW the rules of war. I would hope that they would broadcast these executions over the three Arab networks so that the âJihadis-in-waitingâ would think twice about taking up arms. This would all be done after a âswiftâ Military tribunal for the accused (no more than ten minutes). I wonder if a military court would understand the UK Jihadis explanation that he was seeking a wife and took a wrong turn? We are too nice to these terrorists. FYI I still say they are only still breathing air because we removed them from Afghanistan/Iraq. Maybe we could hand them back over to them and see what President Karzai wants to do with them? Or what are the Iraqi plans for dealing with foreign insurgents? |
| Posted by: Cyber Sarge (VRWC CA Chapter) 2004-06-29 2:35:50 PM |
| #10 Ooops: I meant "Rasul decision" when I said "Hamadi decision." |
| Posted by: Mike 2004-06-29 1:38:45 PM |
| #9 As the article says, in part, it's really not that hard to work around the Hamdi decision: 1. Pass a statute forcing venue in all of the Gitmo litigation into one district court. 2. Suspend the writ of habeas with respect to Gitmo. The Constitution specifically allows for this--Lincoln did it during the Civil War. |
| Posted by: Mike 2004-06-29 1:22:48 PM |
| #8 Hold on, #6, I did not say EXECUTE the Gitmo prisoners. You are right , that would be stupid. I said LET THEM GO. And letting them go could involve transporting them to a deserted island somewhere in the Pacific or to the Antarctic, far far away from the US mainland would be fine by me. Actually, I always wondered if we taxpayers were expected to pick up the tab indefinitely for feeding and sheltering these pondscum. So now this court decision just forces the WH to put some closure on this ridiculous PC-compassionate taxpayer supported camping experience. We squeezed out all the intelligence we will ever get from these losers one and half years ago, let's face it. If the ACLU wants to give these scuzballs legal counsel, they can hike their lawwwyyyer butts to the deserted island to do so...he, he ...we might also thin the lawwwyyyerr herd, too, with this idea, which would be fine by me. You are right #6 about new terrorists we meet on the battlefield. Take no prisoners should be the bottom line. |
| Posted by: rex 2004-06-29 1:01:15 PM |
| #7 Well it is clear to me our country's legal system, lawyers and civil libertarians would rather see 3,000 dead Americans than one live detained Muslim. Oh well, back to Predators, Hellfires and battlefield interdiction. Prisoners will be treated humanely, if our field spooks take them. But as they must know, it is now far better to disappear these terrorists and forgo an iterrogation with lawyers crawling up your ass than to hold out hope for 'actionable' intel with the interrogation tools they have imposed on them now. |
| Posted by: badanov 2004-06-29 1:00:28 PM |
| #6 CS and rex: I think most would agree that killing terrorists on the battlefield is the solution, because captured prisoners WILL be let out -- either early (due to "human rights" pressure), or late (after things die down for a year or two), and the prisoners WILL still present the same threat. However, the story of executing captured prisoners WILL get out, and it will be even worse than the Abu Ghraib hubbub. So, the only real solution as I see it is increased battlefield lethality (especially, *pinpoint* lethality, i.e. dropping FAEs on a village to take out a couple of terrorists is not the way to go). So, the emphasis we have seen in the past year or so on increased sniper training and development of more varieties of smart weapons is exactly the right approach for us as a society. |
| Posted by: Carl in N.H 2004-06-29 12:44:28 PM |
| #5 I agree with you, #4. There is no benefit to capturing enemies anymore. They should let all those detainees go now because they will all be let go in the future, but at greater cost to you and me. It makes to crazy to know that all those scuzballs at Gitzmo will have access to legal counsel on the taxpayers' dime and they now have the right to SUE us, too, for wrongful detention. At this very minute lawyers from the ACLU are busting their ankles to sign up to defend these creeps, who would kill them in a heartbeat if they were not in cells. Correct, #3. It would have been be difficult to have formally declared war unless our politicians had the courage to name the enemy as radical Islam. The closest that GWB came was to call the enemy "evil doers" and Congress...I don't know if any of those guys have...too busy with the golf games and meetings with their stock brokers. |
| Posted by: rex 2004-06-29 12:18:05 PM |
| #4 I am sticking with my original suggestion: As we capture them, SHOOT THEM. No gitmo, Brig, ACLU, an we are on sound legal footing to do this. It also has the beauty of eliminating any further legal wrangling and reduces and unnecessary cost associated with detaining them at gitmo or any other facility. Also IF we had left these bad guys in Afghanistan they would already be enjoying Allahâs company (or the Devils in most cases). |
| Posted by: Cyber Sarge (VRWC CA Chapter) 2004-06-29 11:59:07 AM |
| #3 A little legalism, if you please? Just who are we s'posed to declare war against? A declaration of war is traditionally a declaration against a government. We were not attacked by a government, if you will recall 911. If SCOTUS wants their decisions to be remembered as helpful in the War on Terrorism, they will dispense with their 70s outlook and take a hard look at what happened in 2001 and the best way to conduct this war, to call it what it is. |
| Posted by: badanov 2004-06-29 11:58:05 AM |
| #2 I watched O'Reilly last night interviewing a lawyer and a judge about the Supreme Court decision and basically they said this all could have been avoided if the President and Congress had made a formal declaration of war. So even though everyone knows we are at war, war was never formally and legally declared. |
| Posted by: rex 2004-06-29 11:54:16 AM |
| #1 I guess I prefer a half a glass to none. It would be better still if lawyers were barred from litigating matters of national security if the issue is concurrent or ongoing. It was clear, I thought, in the inital going (after 911 )that enemy combatants' issues as they relate to those people's rights were endorsed by the court some time ago. This issue should have been a static one, one where a lawyer trying to litigate a matter relating to enemy combatants would be rejected as a matter of law. If civil libertarians want to affect national security policy (and they do want to, IMHO, in order to wreck national security ) they should be held to doing so in time of peace, not in time of war. There is too much at stake to allow this continual chipping away at our security. I know there will be howls from the more liberal side of Rantburg, so I would also like to point out that the only issue this post is about is allowing lawyers to litigate in a matter of national security in time of war which was settled long ago. |
| Posted by: badanov 2004-06-29 9:05:08 AM |