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| The high court's Hamdan power grab |
| 2006-07-07 |
| By John Yoo A President responds to an unprecedented war with unprecedented measures that test the limits of his constitutional authority. He suffers setbacks from hostile Supreme Court justices, a critical media and a divided Congress, all of which challenge his war powers. Liberal pundits and editorial pages would have you believe this describes President Bush after the Supreme Court last week rejected military commissions for trying terrorists. But it just as easily fits Abraham Lincoln when he issued the Emancipation Proclamation freeing the slaves or Franklin D. Roosevelt when he made the United States the great "arsenal of democracy" in the lead-up to World War II. The court's decision in Hamdan vs. Rumsfeld ignores the basic workings of our separation of powers and will hamper the ability of future presidents to respond to emergencies with the forcefulness and vision of a Lincoln or an FDR. Long-standing U.S. practice recognizes that the president, as commander in chief, plays the leading role in wartime. Presidents have started wars without congressional authorization, and they have exercised complete control over military strategy and tactics. They can act with a speed, unity and secrecy that the other branches of government cannot match. By contrast, legislatures are large, diffuse and slow. Their collective design may make them better for deliberating over policy, but at the cost of delay and lack of resolve. |
| Posted by:ryuge |
| #10 Why do I have a mental pic of Dubya standin' before the Supremes (who will try and "enforce" this ruling) saying "Oh yeah, you and what Army?" I imagine the military will be standin' behind him (as CiC), much like the verizon "network" (thousands of people) do behind 1 guy in all their cell phone commercials. |
| Posted by: BA 2006-07-07 22:33 |
| #9 NS - the "power grab" per se was siezing powers they are not entitled to. They essentially ran over the Executive and Legislative branches in proclaiming the President's role as Commander in Chief during wartime no longer counts. This was evident by their requiring the CIC obtain authority from Congress during an ongoing war. Secondly, they essentially established a treaty with Al Qaeda by unilaterally applying Geneva Convention Section 3 to enemy combatants, even though AQ does not meet the qualifying criteria set out in GC. Charles Krauthammer lays this out well in today's Washington Post. |
| Posted by: Captain America 2006-07-07 22:22 |
| #8 If it was a power grab, what power did they grab? |
| Posted by: Nimble Spemble 2006-07-07 18:17 |
| #7 Nimble, the SCOTUS has no jurisdiction in the case of foreign terrorists being detained by the US military in a foreign country. This was a power grab of epic proportions, no matter how you spin it. It was also a gross distortion of the Constitution's separation of powers. The executive wages war. Not the Judiciary. Also, the twisted logic of Stevens and Ginsberg in somehow applying the Geneva Conventions to non-signatories from non-nations is a travesty. F*ck off SCOTUS. |
| Posted by: mcsegeek1 2006-07-07 17:43 |
| #6 You don't get it. The Detainee Treatment Act of 2005 passed by Congress exercised their power under the Constitution to limit the federal court system's authority and purview over the detainees. Congress's authority under the Constitutioin , Art III, Section 2, "In all the other cases before mentioned, teh supreme court shall have appeallate jurisdiction, both as to Law and Fact, with such exceptions, and under the regulations as the Congress shall make." SCOTUS did a big f***you to that. It is a power grab to have oversight on the conduct war that the court did not exercise during the last major worldwide conflict. And as Yamashita versus Styer shows, theyÂ’ve created a NEW requirement. Be sure, that it is the first of many. But please, enlighten us with the appropriate writing [Federalists Papers, et al] which showed the founding fathers intended SCOTUS to referee a war. |
| Posted by: Jeating Glavinter6466 2006-07-07 15:57 |
| #5 Didn't say I agreed with the decision, just that it wasn't a power grab, as it is not. A track record of liberals overturning precedents will not be a bad thing to have down the road. But then I also think direct election of senators is a mistake. |
| Posted by: Nimble Spemble 2006-07-07 12:56 |
| #4 NS - SCOTUS ruled in 1946 in Yamashita vs Styer that the Executive could assemble such courts - The military commission appointed to try the petitioner was lawfully created. P. 9. (a) Nature of the authority to create military commissions for the trial of enemy combatants for offenses against the law of war, and principles governing the exercise of jurisdiction by such commissions, considered. Citing Ex parte Quirin, 317 U.S. 1, and other cases. Pp. 7-9. (b) A military commission may be appointed by any field commander, or by any commander competent to appoint a general court martial, as was respondent by order of the President. P. 10. (c) The order creating the military commission was in conformity with the Act of Congress (10 U. S. C. @@ 1471-1593) sanctioning the creation of such tribunals for the trial of offenses against the law of war committed by enemy combatants. P. 11. SCOTUS knows no bounds other than that they place upon themselve, just like kings, above the people. |
| Posted by: Unolush Omiting9393 2006-07-07 12:45 |
| #3 Hardly a power grab by the court. They get no new power, they just told Bush to get Congress' permission before he exercises his. A bad decision in my opinion for all the reasons Scalia outlined, but hardly arrogation of power. |
| Posted by: Nimble Spemble 2006-07-07 12:20 |
| #2 John Yoo is top-notch. Thanks for the post. |
| Posted by: Captain America 2006-07-07 11:58 |
| #1 Make them elected, 12 year terms, for the area they cover, district, appellate or national. If it was good enough to clip the wings of the Senators a hundred years ago by making them directly accountable to the people, weÂ’re way behind the power curve on these [Jonathan Swift] yahoos. |
| Posted by: Unolush Omiting9393 2006-07-07 09:30 |