T Nation

US Guantanamo Tribunals 'Illegal'

I can’t deny that I smile while I write this - thank you US Supreme Court, you have shown that the US is indeed a nation ruled by the law and concern for humanity!

Makkun

The US Supreme Court has ruled that the Bush administration does not have the authority to try terrorism suspects by military tribunal.
http://news.bbc.co.uk/1/hi/world/americas/5129904.stm

The US supreme court ruled today that the US president, George Bush, overstepped his authority in creating military war crimes trials for detainees at Guant?namo Bay.
http://www.guardian.co.uk/guantanamo/story/0,,1809111,00.html

It will take awhile to digest this - 185 pages of opinions - quite a mess.

[Edited because I needed to remove the listing of opinions, which actually applied to the TX redistricting case]

One initial note. People are quite upset around here with what they perceive as executive usurpations of power. What about judicial usurpation of power? Congress passed a law, that the president signed, specifically stripping the courts’ jurisdiction over these matters, the Detainee Treatment Act.

See the Scalia dissent for more on this.

EXCERPT:

The Supreme Court ruled on Thursday that Congress did not take away the Court’s authority to rule on the military commissions’ validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the “military commissions” illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.

The Court expressly declared that it was not questioning the government’s power to hold Salim Ahmed Hamdan “for the duration of active hostilities” to prevent harm to innocent civilians. But, it said, “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.”

Unfortunately I am not surprised. The courts grab power at every opportunity.

They put their own power above any ideology.

This is exactly why Bush put off the tribunals as long as possible.

These fuckers do not belong in American courtrooms.

One more interesting note:

http://volokh.com/archives/archive_2006_06_25-2006_07_01.shtml#1151601422

Interpreting Common Article 3 and Justice Thomas:

A major aspect of today’s Hamdan v. Rumsfeld opinion was the Court’s conclusion that Common Article 3 of the Geneva Conventions applies to Al Qaeda. (Common Article 3 applies to “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.”) Some conservative bloggers have expressed outrage about such an interpretation of Common Article 3. See here ( http://littlegreenfootballs.com/weblog/?entry=21284_Supreme_Court_Rules_in_Favor_of_Jihad&only ) and here ( http://corner.nationalreview.com/post/?q=MGM3NmEzYzJiZDlhNTI0N2MzOTA3NWFmYWUxZDU0ZGU= ). They seem to be saying that the language of Common Article 3 simply cannot be read to extend to this sort of conflict.

Unless I missed something (always a possibility based on a quick read), the only dissenter who says he disagrees with the majority’s reading of Common Article 3 as applying to Al Qaeda is Justice Thomas. Scalia focuses on jurisdiction, and Alito talks about how Common Article 3 should apply to the specifics of this case. Scalia and Alito join the portion of Thomas’s dissent that talks about whether Common Article 3 applies, so that’s where the discussion is. Thomas focuses most of his discussion on arguments that do not directly consider the language of Common Article 3, but rather focus on legal authorities that might constrain the Court from interpreting the language on the merits. He says that Johnson v. Eisenstrager forecloses the majority’s application of Common Article 3 to Al Qaeda, and that the Court should defer to the executive’s interpretation. He may or may not be right in making these arguments, but they don’t address the key point that bloggers are making ? namely, that the language of Common Article 3 doesn’t apply to Al Qaeda, period. On that key question, Justice Thomas says that both the President’s and the majority’s positions are plausible and reasonable. Here is the entirety of the discussion (raised in the context of Thomas saying the Court should defer to the President’s interpretation, rather than interpret the language on its own):

The President’s interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also “occurring in the territory of” more than “one of the High Contracting Parties.” The Court does not dispute the President’s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President’s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with “furnish[ing] minimal protection to rebels involved in. . . a civil war,” ante, at 68, precisely the type of conflict the President’s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.

Bloggers (and others) can continue to say that the language of Common Article 3 simply cannot be read to apply to Al Qaeda. But not a single member of the Supreme Court agrees. That doesn’t make the bloggers wrong, of course – just lonely.

Unfortunately I need to remove myself from this and not read the decisions today because I have much to do, but one final note, from Roger Alt:

http://bench.nationalreview.com/post/?q=MTlkYWE2NmM3ZGIxMGI0ZWE3YmFiM2FkYTdiMTJiOGM=

While today’s Hamdan decision gives conservatives reason for despair, there is reason to believe that it could have good electoral effects. The damage done by the Court may be undone by Congress by simple legislation, and press releases already issued by Senators Cornyn, Graham, and Kyl make clear that they plan to do just that. In response to any legislation, expect the usual suspects from the left to hyperventilate about how Congress is stomping on the Geneva Convention. And the more they hyperventilate, the more the American people will distrust Democrats about national security issues.

Given recent scandals and stagnant poll numbers, the Democrats seemed to have an opportunity to capitalize in some measure in the coming elections. But their consistent overreaction on national defense issues (witness the recent cut-and-run bills) will prevent them from succeeding. And so, ironically, by celebrating too boisterously about the Supreme Court’s decision today and by resisting any attempt to reverse its bad effects, liberals may very well create the political conditions necessary to appoint more conservatives to the high court.

[quote]BostonBarrister wrote:
It will take awhile to digest this - 185 pages of opinions - quite a mess.

[Edited because I needed to remove the listing of opinions, which actually applied to the TX redistricting case]

One initial note. People are quite upset around here with what they perceive as executive usurpations of power. What about judicial usurpation of power? Congress passed a law, that the president signed, specifically stripping the courts’ jurisdiction over these matters, the Detainee Treatment Act.

See the Scalia dissent for more on this.[/quote]

“Judicial usurpation of power?”

Like, congress passes a law that courts can no longer look into a specific law and courts happily ignore that?

Confgress can easily do that, make what you want to be save from courts part of the constitution. If they are no able to do that, everything a government does must be because of a law that can be challenged in a court room.

Judicial usurpation of power, pffft…

That is EXACTLY why courts have those powers.

OMG, these “unlawful combatants” are actually POWs that do have rights under the Geneva Convention.

Shocking, who would have thought…

I understand the complications of having trials where a lot of the evidence is either confidential or revealing the legitamacy of the evidence would be confidential, but the military tribunals are indefensible.

I have no problems punishing terrorists to the full extent of the law. Send them to the chair. But given how many people we have released without charges, how mitigating evidence doesn’t have to be shown in trial, and how confessions obtained through torture or torture light can be used to convict someone, the whole thing is an unjust sham.

I think inserting “the court can’t decide this, nah nah nah” into a law is ridiculous and probably unconstitutional, but I know that there is disagreement on that matter.
Either way, good outcome.

The Supreme Court stopped a runaway abuse of human rights executed by a president who has proven that he wants the government to have a tremendous amount of power.

The torture bill and Bush’s little addendum to it proved that he will go over Congress’ head if he has to…but he couldn’t get away with it this time.

Good.

[quote]
BostonBarrister wrote:
It will take awhile to digest this - 185 pages of opinions - quite a mess.

[Edited because I needed to remove the listing of opinions, which actually applied to the TX redistricting case]

One initial note. People are quite upset around here with what they perceive as executive usurpations of power. What about judicial usurpation of power? Congress passed a law, that the president signed, specifically stripping the courts’ jurisdiction over these matters, the Detainee Treatment Act.

See the Scalia dissent for more on this.

orion wrote:
“Judicial usurpation of power?”

Like, congress passes a law that courts can no longer look into a specific law and courts happily ignore that?

Confgress can easily do that, make what you want to be save from courts part of the constitution. If they are no able to do that, everything a government does must be because of a law that can be challenged in a court room.

Judicial usurpation of power, pffft…

That is EXACTLY why courts have those powers.

OMG, these “unlawful combatants” are actually POWs that do have rights under the Geneva Convention.

Shocking, who would have thought…[/quote]

Yeah, you see, the Constitution has these little things called “checks and balances.”

One of them is that Congress can set the jurisdiction of the lower courts entirely, and can strip certain things from the jurisdiction of the Supreme Court.

I would suggest reviewing the Constitution.

However, as we know, the Constitution isn’t always crystal clear, especially as to separation of powers issues. But if one applies the common-sense reasoning of the Jackson concurrence in the Steel Seizure cases to the unclear areas of separation of powers generally, then we would conclude that a branch’s assertion of Constitutional power is at its lowest ebb when it is opposed by the other two branches. Not to say it’s gone, but at it’s lowest ebb.

In this case though, it’s pretty clear Congress can strip jurisdiction.

However, if you disagree, you’ll note that the Court’s power is at it’s lowest ebb, given that Congress and the President (he signed the law and didn’t even append a Presidential signing statement questioning it) passed a law saying the Court had no jurisdiction here.

So, yes, “judicial usurpation” of power.

People are letting their fear and hatred and bigotry get the better of them. Cowards.

[quote]BostonBarrister wrote:
However, if you disagree, you’ll note that the Court’s power is at it’s lowest ebb, given that Congress and the President (he signed the law and didn’t even append a Presidential signing statement questioning it) passed a law saying the Court had no jurisdiction here.

So, yes, “judicial usurpation” of power.[/quote]

What this, the above, really points to is that everyone knew they were doing something inappropriate.

Oh, this won’t work, let’s just excuse ourselves from the judicial system then, so we can do whatever want and screw the checks and balances. I’m the dictator, I mean president, and I can do what I want.

Hate filled cowards.

[quote]
BostonBarrister wrote:
However, if you disagree, you’ll note that the Court’s power is at it’s lowest ebb, given that Congress and the President (he signed the law and didn’t even append a Presidential signing statement questioning it) passed a law saying the Court had no jurisdiction here.

So, yes, “judicial usurpation” of power.

vroom wrote:
What this, the above, really points to is that everyone knew they were doing something inappropriate.

Oh, this won’t work, let’s just excuse ourselves from the judicial system then, so we can do whatever want and screw the checks and balances. I’m the dictator, I mean president, and I can do what I want.

Hate filled cowards.[/quote]

You mean the “dictator” who was elected and, got the elected legislature to pass the law in question? As opposed to the unelected judicial oligarchy that is asserting extra-Constitutional authority? You could cut the irony with a knife.

[quote]BostonBarrister wrote:

BostonBarrister wrote:
It will take awhile to digest this - 185 pages of opinions - quite a mess.

[Edited because I needed to remove the listing of opinions, which actually applied to the TX redistricting case]

One initial note. People are quite upset around here with what they perceive as executive usurpations of power. What about judicial usurpation of power? Congress passed a law, that the president signed, specifically stripping the courts’ jurisdiction over these matters, the Detainee Treatment Act.

See the Scalia dissent for more on this.

orion wrote:
“Judicial usurpation of power?”

Like, congress passes a law that courts can no longer look into a specific law and courts happily ignore that?

Confgress can easily do that, make what you want to be save from courts part of the constitution. If they are no able to do that, everything a government does must be because of a law that can be challenged in a court room.

Judicial usurpation of power, pffft…

That is EXACTLY why courts have those powers.

OMG, these “unlawful combatants” are actually POWs that do have rights under the Geneva Convention.

Shocking, who would have thought…

Yeah, you see, the Constitution has these little things called “checks and balances.”

One of them is that Congress can set the jurisdiction of the lower courts entirely, and can strip certain things from the jurisdiction of the Supreme Court.

I would suggest reviewing the Constitution.

However, as we know, the Constitution isn’t always crystal clear, especially as to separation of powers issues. But if one applies the common-sense reasoning of the Jackson concurrence in the Steel Seizure cases to the unclear areas of separation of powers generally, then we would conclude that a branch’s assertion of Constitutional power is at its lowest ebb when it is opposed by the other two branches. Not to say it’s gone, but at it’s lowest ebb.

In this case though, it’s pretty clear Congress can strip jurisdiction.

However, if you disagree, you’ll note that the Court’s power is at it’s lowest ebb, given that Congress and the President (he signed the law and didn’t even append a Presidential signing statement questioning it) passed a law saying the Court had no jurisdiction here.

So, yes, “judicial usurpation” of power.[/quote]

I would argue that you cannot exempt a law, or a set of laws from the jurisdiction of a Supreme Court.

If it violates the constituation, the Supreme Court can an must overturn it.

Therefore it must be able to look into all laws.

Legislature cannot argue that they kind of made sure that it was constitutional, because the Supreme Court is the final judge of that, not the Congress.

Yes,checks and balances, they should remain intact.

[quote]orion wrote:

I would argue that you cannot exempt a law, or a set of laws from the jurisdiction of a Supreme Court.

If it violates the constituation, the Supreme Court can an must overturn it.

Therefore it must be able to look into all laws.

Legislature cannot argue that they kind of made sure that it was constitutional, because the Supreme Court is the final judge of that, not the Congress.

Yes,checks and balances, they should remain intact.
[/quote]

Are you familiar with Marbury v. Madison?

If not, here you go:

It’s pretty famous for something that was not its holding.

Care to guess what the holding was?

[Note, I accidentally posted this before I was finished]
It had to do with jurisdiction.

And within it, the Court recites how Congress can control the jurisdiction of the federal courts.

At any rate, Congress can strip items from the jurisdiction of the lower federal courts completely. It can restrict certain things w/r/t the USSC’s jurisdiction, but it can’t add to its original jurisdiction (the holding, fyi, is this last clause).

With the Detainee Treatment Act, Congress stripped all lower federal courts of jurisdiction on habeus claims from detainees, and these aren’t in the USSC’s original jurisdiction. If the case were to come to the USSC, it should have gone through a state court (which Congress can’t strip of jurisdiction), all the way up through its Supreme Court, and then have been subject to USSC appellate review.

That isn’t what happened in this case.

Appellate review for cases through military tribunals were also funneled through the DC Circuit, which would then have been appealable through the USSC – that isn’t what happened either.

Thus, “judicial usurpation.” I know vroom doesn’t care, as he obviously has no respects for checks and balances, but I thought I would elucidate the process.

[quote]BostonBarrister wrote:
orion wrote:

I would argue that you cannot exempt a law, or a set of laws from the jurisdiction of a Supreme Court.

If it violates the constituation, the Supreme Court can an must overturn it.

Therefore it must be able to look into all laws.

Legislature cannot argue that they kind of made sure that it was constitutional, because the Supreme Court is the final judge of that, not the Congress.

Yes,checks and balances, they should remain intact.

Are you familiar with Marbury v. Madison?

If not, here you go:

It’s pretty famous for something that was not its holding.

Care to guess what the holding was?

[Note, I accidentally posted this before I was finished]
It had to do with jurisdiction.

And within it, the Court recites how Congress can control the jurisdiction of the federal courts.

At any rate, Congress can strip items from the jurisdiction of the lower federal courts completely. It can restrict certain things w/r/t the USSC’s jurisdiction, but it can’t add to its original jurisdiction (the holding, fyi, is this last clause).

With the Detainee Treatment Act, Congress stripped all lower federal courts of jurisdiction on habeus claims from detainees, and these aren’t in the USSC’s original jurisdiction. If the case were to come to the USSC, it should have gone through a state court (which Congress can’t strip of jurisdiction), all the way up through its Supreme Court, and then have been subject to USSC appellate review.

That isn’t what happened in this case.

Appellate review for cases through military tribunals were also funneled through the DC Circuit, which would then have been appealable through the USSC – that isn’t what happened either.

Thus, “judicial usurpation.” I know vroom doesn’t care, as he obviously has no respects for checks and balances, but I thought I would elucidate the process.[/quote]

I’d like to know you opinion on the decision itself.

The judicial usurpation here seems like a red herring- something to get angry over without having to comment on the issue. Could a suit have even been brought up in a state court? Isn’t saying lower federal courts cannot judge the matter effectively saying the Supreme Court can’t either if the state courts jurisdiction doesn’t cover it?

BB, don’t bother. Non-Americans just argue about what they THINK our Constitution says or what they think it should say, they don’t care what it actually says. They are too cowardly and hate-filled to actually study and understand it.

Boston, the constitution sets limits… and without changing the constitution, those limits can’t be ignored.

[quote]ExNole wrote:

I’d like to know you opinion on the decision itself.

The judicial usurpation here seems like a red herring- something to get angry over without having to comment on the issue. Could a suit have even been brought up in a state court? Isn’t saying lower federal courts cannot judge the matter effectively saying the Supreme Court can’t either if the state courts jurisdiction doesn’t cover it?[/quote]

Suits can always be brought in state court – general jurisdiction, remember?

No, it’s not – because state courts always have jurisdiction, and the USSC always has appellate jurisdiction over federal law matters decided by state courts.

I’ll need to read the decisions and get back to you – I definitely haven’t even attempted to parse through all 180+ pages yet – have you?

Until then, I’ll need to pick my issues.

[quote]BostonBarrister wrote:
ExNole wrote:
Suits can always be brought in state court – general jurisdiction, remember?

No, it’s not – because state courts always have jurisdiction, and the USSC always has appellate jurisdiction over federal law matters decided by state courts.

I’ll need to read the decisions and get back to you – I definitely haven’t even attempted to parse through all 180+ pages yet – have you?

Until then, I’ll need to pick my issues.[/quote]

Thanks for clearing up the jurisdiction misconceptions.

And, no, I havn’t read the decision yet either. I didn’t really expect a full account of the legal reasoning, more of an off the cuff opinion on the legality of military tribunals.

Focusing on a procedural dispute seems like a flimsy defense of the system. Given how volatille the issue is allowing it to be controversial on a procedural point seems like really bad judgement. It’d be like a murderer getting off because someone didn’t read his rights.

Given that, I’m still not convinced about limiting judicial oversight. I’ll try to read some more about it.