"The Supremes Have Made Their Decision, Now Let Them Enforce It," Says Senate

[wit>trope]

Someone made the implication that the Supreme Court is above the Congress. That's not true. Supreme Court is not above Congress; neither is Congress above Supreme Court. They are both under the same Constitution. This means sometimes there can be potential for constitutional conflict; when that happens it is called "constitutional crisis"

For instance Executive Privilege is something asserted by the Executive. It's not something the Executive merely asks the courts to recognize; it's something the Presidents have asserted on their own authority without conceding any authority of a court to overrule that assertion. When courts have asked Presidents to hand over things covered under the assertion of Executive Privilege, Presidents have only VOLUNTARILY handed them over -- i.e. without conceding any of their assertion of Executive Privilege. So what would happen if a President refuses to hand it over when a court asks him to? Constitutional crisis. But that's a healthy thing.

It's healthy because that's how it's supposed to work. When a court exceeds its authority, the president and/or congress must assert their own authority and challenge the exceeding of the court in its authority. Likewise, when president exceeds his own authority (like declaring war without congressional permission), then Congress can challenge that publically and assert its own authority (including impeachment if necessary). Judges, including Supreme Court justices, can be impeached too. The Constitutino says they are their on condition of "good behavior" and the Congress is the judge of that. And in fact one bold Senator -- the Medical Doctor Senator -- hinted that he may call for impeachement of renegade judges if need be.

Andrew Jackson is an American hero and great American President. He brought great honor to the office of the Presidency and upheld its authority. Whether you agree or not with his policies, his standing on principle when the authority of Presidency came under attack was awesome.

If Senate is also now standing on principle to uphold the authority of Congress, then that's awesome too.

If courts become too bad, then Congress should just impeach them all (or a whole lot of them). Impeachment is not something that can be reviewed; just like presidential pardons can't be reviewed. As a last resort, Congress can also use the "power of the purse" to just shut down the courts until better judges are put in place. Judges like John Roberts and Samuel Alito and Clarence Thomas (he's actually fairly intelligent, not sharp, but fairly intelligent) and Scalia.

So comparing Senate to President Andrew Jackson far from an insult should be badge of honor for the Senate.

 

[Flak]

Senate makes the laws, court should only interpret it. The court had no right to challenge the Senates decision last year. I don't see why you would want to give a person who blew your family up a trial. This decision is good for America, that why Senators from both parties voted for it.

Do you have any evidence that any of those prisoners did anything illegal at all, much less blew your family up? If you do have evidence, would you be willing to put any of those prisoners into trial and present your evidence to a judge or jury to decide a on a conviction and sentence? It seems to me that if you are confident enough to put someone in prison for years for any crime, putting them on trial for said crime should be a trivial procedural matter.

Don't get too caught up in the rhetoric these Senators are blowing out into the winds. Even in strict military trials, the accused has the right to see the evidence against them and make some sort of defence, even if it is inadequate. These prisoners haven't even been accused of a crime.

Also, many of these prisoners have already been let go, set completely free! You really think the U.S. is going to set the people who blew your family up free? I have a bit more faith than that.

No, these people are just being held by a rogue policy and can be enforced because there is nobody else strong enough to tell us we're wrong and to actually do something about it. Our own conscious (the constitution) does deal with this to some extent. If Congress wishes to override the Constitution, they should follow the process for changing it, not try to override it. There is a process. There is precedent.

Also, I don't think any Americans want to live in the world where Congress can simply pass laws and there is no check for balance against the Constitution (no Supreme Court review). That would be pretty much the end of any of the ideals upon which the nation was founded.

 

[Louis XXIV]

So what do you suggest? Give the decision to ANOTHER PART OF THE GOVERNMENT, who has no one doing the actual detective work?

Its the same reason that the police, who do the detective work, don't get the final say in whether or not someone is guilty or innocent. We are talking about due process. If they are guilty, they should be convicted in a court of law, especially when American citizens are involved (and this administration has asserted its ability to detain American citizens without trial whenever they chose to. There is no one ensuring that they aren't making a mistake).

As for this exact issue, I'm a little confused. When it says they can appeal to the Circuit court of appeals one time, does that mean they can't appeal to a higher court if they loose, or does it mean they can't appeal to the same court more than once? If its the former, they should be allowed to appeal to as high a court that will hear them, not be stopped short by legislation.

Also, they can challenge their status as enemy combatant, but not sue for the right to habius corpus? Does that mean that, if they are cleared from being an enemy combatant, but not released, they can't appeal, or does the law no longer apply to them?

BTW, those captured are put in a category with people like spies as unlawful combatants. I personally think that, unless a person is established as one at a competent hearing, they shouldn't be treated as one and should either be

A) Treated as a prisoner of war
B) Given a fair, impartial trial in the country they are a citizen of or held under the jurisdiction of (for Guanatanamo Bay, that would be the United States, even if it is on Cuban soil)
C) Let go (as bad as this idea is, that's what the other options are there for).

 

[mdwh]

Well, that would depend on if those AQ were spying or not.

The key point about spies is that they are caught *in another country*.

I presume that Germans not in uniform who were shot were those found in an allied country. If there cases where Germans not in uniform were shot without trial, and these are cases generally believed by all to be a good thing, I'd like to hear it.

The thing I find most worrying in all of this is people who seem to think that only certain categories of people deserve any rights at all, and if you don't fall into one of those special categories (US Citizen or POW), then you can be thrown in prison forever without trail. Who cares if you're innocent or what you've done?

Rubbish. What category they fall into should be irrelevant; even if they don't have the rights of a US citizen, all humans should be given a fair trial. If they are found guilty of serious crimes, *then* you can do what you like with them.

The whole point of the concept of a POW was not to say that POWs is a better status than other people, but to offer protection against soldiers who might otherwise be tried with murder, or tortured if they were captured. I imagine that it was generally understood that a country invading another country and taking people hostage was *always* in the wrong, and didn't need special protections. But obviously it seems this is not the case.

 

[MobBoss]

Lets clarify something as it seems a lot of you are ignorant of the international law of war.

The detainees are classifed as non-uniformed combatants. Which means they were not wearing a uniform representing any country but were engaged in armed conflict with U.S. forces. In the law of war this puts them in the same classification as spies and sabotuers (ie. terrorists). By the law of war, spies and sabotuers are NOT classified as enemy prisoners of war and are not to be affored their rights and privileges therein. Neither are they to be classifed as civilians. Via the international law of war they can be held indefinitely until tried by a military tribunal and possibly, sumarily executed. Basically, if you are caught as a spy (terrorist) during a war then you are flat out screwed.

The real problem in all of this is that the international law of war really does not have any provisions for todays terrorists and thus can only classify them as spies and sabotuers and deal with them as such.

 

[eyrei]

It is amusing that we are going to such lengths to ensure that Saddam Hussein gets a fair trial, and then deny that same right to people who are likely guilty of far lesser crimes.

 

[wit>trope]

It is amusing that we are going to such lengths to ensure that Saddam Hussein gets a fair trial, and then deny that same right to people who are likely guilty of far lesser crimes.

It's important that all get a fair hearing but the fair hearing need not take place in civilian courts. There are all kinds of courts or tribunals -- civilian tribunals, military tribunals, even religious tribunals (for all denominations) and tribunals within a school etc etc.

If the executive branch considers someone enemy combatant, then someone should be able to appeal to some tribunal if they disagree. This could be a military tribunal or some other tribunal within the executive branch. But the President could just overrule this tribunal of course, so the last court of appeal would be the President himself. This is the position of Bush administration -- that the Executive has power from Constitution to declare anyone enemy combatant and that the Executive has final say over who is or who isn't an enemy combatant, even though President could defer to the finding of some lower tribunal about it.

The more I think about this, the more I think this is the correct position.

Congress can always impeach a President if it turns out he is keeping one too many innocent enemy combatants. UNLESS of course President heads that off by declaring certain Congress people enemy combatants! But that would never happen. It would cause another revolution.

 

[MobBoss]

It all comes down to the law of war and how it was written. It was written in a way to encourage nations to field standing armies and to deter using illegal combatants as an option in war. That is why illegal combatants have so few rights under the current law of war.

Saddam gets a trial in the same manner that Goering and Hess got a trial at Nuremburg.

 

[mdwh]

Lets clarify something as it seems a lot of you are ignorant of the international law of war.

Firstly, what is "international law" is not something robust in the same way as law of a country. It's pretty much just that which comes from a set of treaties - you should realise this before you go accusing others as being "ignorant".

Secondly, the question isn't so much "Does this go against any treaties?" but "Is this the right thing to do?" Even if something is lawful, that doesn't make it right - and in this case, lawful simply means "No treaty specifically outlaws it". See my earlier post about people who think that because something isn't specifically outlawed, it must be okay.

The detainees are classifed as non-uniformed combatants. Which means they were not wearing a uniform representing any country but were engaged in armed conflict with U.S. forces. In the law of war this puts them in the same classification as spies and sabotuers (ie. terrorists). By the law of war, spies and sabotuers are NOT classified as enemy prisoners of war and are not to be affored their rights and privileges therein. Neither are they to be classifed as civilians. Via the international law of war they can be held indefinitely until tried by a military tribunal and possibly, sumarily executed. Basically, if you are caught as a spy (terrorist) during a war then you are flat out screwed.

And you would agree that all this is right if a friendly country was invaded, and people were captured - either ununiformed people defending their home, or an undercover resistance force? What about when this happened in the past (eg, WW2)?

There doesn't even have to be an invasion. What if say, an undercover FBI agent *acting in their own country* was taken hostage by a foreign power, because they believed this person to be a terrorist. Perhaps this agent had shot at the foreigners, or they believed that he had. That would be okay, then?

The real problem in all of this is that the international law of war really does not have any provisions for todays terrorists

I'm sorry, I missed the point where these people were convicted of being terrorists.

What you mean to say is that it doesn't have provisions for ununiformed citizens who are defending against an invasion force. I imagine this was because historically, it was assumed that any invading force that treated the native civilians in a bad way probably wouldn't listen to treaties or the UN in the first place (oh wait, just like the US doesn't!) The issue of POWs applies whilst both countries are still at war, so the idea of a treaty makes sense. But an invading country which wins is in no position to listen to treaties anyway - you just have to hope that it treats the population of the country nicely.

It's important that all get a fair hearing but the fair hearing need not take place in civilian courts. There are all kinds of courts or tribunals -- civilian tribunals, military tribunals, even religious tribunals (for all denominations) and tribunals within a school etc etc.

If the executive branch considers someone enemy combatant, then someone should be able to appeal to some tribunal if they disagree. This could be a military tribunal or some other tribunal within the executive branch. But the President could just overrule this tribunal of course, so the last court of appeal would be the President himself. This is the position of Bush administration -- that the Executive has power from Constitution to declare anyone enemy combatant and that the Executive has final say over who is or who isn't an enemy combatant, even though President could defer to the finding of some lower tribunal about it.

The more I think about this, the more I think this is the correct position.

Congress can always impeach a President if it turns out he is keeping one too many innocent enemy combatants. UNLESS of course President heads that off by declaring certain Congress people enemy combatants! But that would never happen. It would cause another revolution.

In summary: The US gets to choose to do what it likes to non US citizens.

Funnily enough, I as a non US citizen disagree.

Do you agree that other countries have the right to take US people hostages too, or is the US in some special position in the world?

 

[mdwh]

It all comes down to the law of war and how it was written. It was written in a way to encourage nations to field standing armies and to deter using illegal combatants as an option in war. That is why illegal combatants have so few rights under the current law of war.

Yes, I'm sure nations like the US, the UK, France etc have never considered having any kind of undercover resistance force if our nation was invaded. We only play by the rules!

 

[MobBoss]

Yes, I'm sure nations like the US, the UK, France etc have never considered having any kind of undercover resistance force if our nation was invaded. We only play by the rules!

Ever read any of the Rober Baer books about him being in the CIA? Basically, he acknowledges the fact that agents in the field are routinely killed and if captured by another country can pretty much kiss their ass goodbye. Oh yeah, we do it, but we dont make any illusions about what will happen if our agents get caught.

 

[MobBoss]

And you would agree that all this is right if a friendly country was invaded, and people were captured - either ununiformed people defending their home, or an undercover resistance force? What about when this happened in the past (eg, WW2)?

The conventions and treaties we are discussing were all implemented after WWII.

 

[wit>trope]

In summary: The US gets to choose to do what it likes to non US citizens.

Actually I think the Bush adminstration position is that it has this constitutional power for US citizens too (to declare them enemy combatants) but I don't remember for certain.

Funnily enough, I as a non US citizen disagree.

Do you agree that other countries have the right to take US people hostages too, or is the US in some special position in the world?

OF COURSE the US is in some special position in the world. EVERYONE knows that and EVERYONE should just try to accept it and learn to appreciate it. EXACT SAME THING is ALSO true for like China, France, UK, and Russia ... these and US are all permanent members of UN Security Council with singular veto power (I believe they can be overridden in some limited cases through the General Assembly but that is difficult if not impossible to do ... I believe this was done only once in history).

So if you want to complain about special position of US, you have to complain same way for China, France UK and Russia.

US also has special position in Americas; she is leader of the Americas; premier country in Americas; THAT is why she is called "America" not only by Americans, but also by other people too (efforts by PC people to have substitutes like US-ian and so forth in English and other languages have more or less all failed with maybe one exception) ... I mean it was America, not Brazil or whatever that is known for the Monroe Doctrine which protected the Americas. Leaders have special privileges and ALSO special responsibilities of course.

 

[eyrei]

Actually I think the Bush adminstration position is that it has this constitutional power for US citizens too (to declare them enemy combatants) but I don't remember for certain.

If this were true, it would be time to make use of that right to bear arms.

OF COURSE the US is in some special position in the world. EVERYONE knows that and EVERYONE should just try to accept it and learn to appreciate it. EXACT SAME THING is ALSO true for like China, France, UK, and Russia ... these and US are all permanent members of UN Security Council with singular veto power (I believe they can be overridden in some limited cases through the General Assembly but that is difficult if not impossible to do ... I believe this was done only once in history).

So if you want to complain about special position of US, you have to complain same way for China, France UK and Russia.

US also has special position in Americas; she is leader of the Americas; premier country in Americas; THAT is why she is called "America" not only by Americans, but also by other people too (efforts by PC people to have substitutes like US-ian and so forth in English and other languages have more or less all failed with maybe one exception) ... I mean it was America, not Brazil or whatever that is known for the Monroe Doctrine which protected the Americas. Leaders have special privileges and ALSO special responsibilities of course.

Even if you accept the first part, about certain countries being 'special', it does not give those countries the 'right' to violate the human rights of citizens of 'lesser' nations. Part of the reason the US may be 'special' is that our presence offers some safeguard for the rights and freedoms of many peoples. When we stop respecting those rights and freedoms that we supposedly stand for because of the presence of some ephemeral 'war', other nations rightly begin to question our dedication to those ideals. Even a good number of the republican legislators have broken with the Bush administration on this topic because they realize that such behavior is not acceptable to their constituents or to the rest of the world. Those who do not have enough sense to see the inherent contradiction in this policy, and the harm it is doing to any effort we make to actually bring peace, are either blindly obedient to leadership or just plain stupid.

 

[wit>trope]

If this were true, it would be time to make use of that right to bear arms.

That would be treason eyrei unless your State votes to secede or something

It is indeed the position of Bush administration (unless it has changed). It may not be a power that is recognized by the courts but it is a power asserted by the Bush administration as coming from constitution (not any court).

Americans may be held as 'enemy combatants,' appeals court rules
Government welcomes ruling upholding presidential power

RICHMOND, Virginia (CNN) -- A federal appeals court Wednesday ruled President Bush has the authority to designate U.S. citizens as "enemy combatants" and detain them in military custody if they are deemed a threat to national security.

http://www.cnn.com/2003/LAW/01/08/enemy.combatants/

More legal details in the link. I don't think SCOTUS has overturned this decision (yet at least). I know that this case (Hamden) came up during Roberts' confirmation hearings ... I guess Roberts was involved in it or something.

Even a good number of the republican legislators have broken with the Bush administration on this topic because they realize that such behavior is not acceptable to their constituents or to the rest of the world.

It's because of there constituents, because they want to get relected. It's not due to moral conviction. It may perhaps be due in some cases to short-sightedness or lack of independent thought.

 

[eyrei]

That would be treason eyrei unless your State votes to secede or something

I love when people throw around that word. Other than that, I'm not even going to comment.

It is indeed the position of Bush administration (unless it has changed). It may not be a power that is recognized by the courts but it is a power asserted by the Bush administration as coming from constitution (not any court).



http://www.cnn.com/2003/LAW/01/08/enemy.combatants/

More legal details in the link. I don't think SCOTUS has overturned this decision (yet at least). I know that this case (Hamden) came up during Roberts' confirmation hearings ... I guess Roberts was involved in it or something.

There is a reason we have a constitution, and ridiculous decisions like that one are it. Bush had best remember that this is a democracy or things may start to get ugly.

It's because of there constituents, because they want to get relected. It's not due to moral conviction. It may perhaps be due in some cases to short-sightedness or lack of independent thought.

We will see just how many members of congress get reelected next year...

 

[Elrohir]

The key point about spies is that they are caught *in another country*.

If they could have caught German spies and executed them inside Germany, they would have. Anyway, this is all irrelavent as Al Qaeda are not spies - they are terrorists.

I presume that Germans not in uniform who were shot were those found in an allied country. If there cases where Germans not in uniform were shot without trial, and these are cases generally believed by all to be a good thing, I'd like to hear it.

The thing I find most worrying in all of this is people who seem to think that only certain categories of people deserve any rights at all, and if you don't fall into one of those special categories (US Citizen or POW), then you can be thrown in prison forever without trail. Who cares if you're innocent or what you've done?

What?

Not at all. But if you're running around in the desert of Afghanistan shouting "Jihad agains the Great Satan!" then I'm willing to bet you're a terrorist. I highly doubt the US just grabs random people off the street and sends them to Guantanamo. Give our military at least a little credit.

Rubbish. What category they fall into should be irrelevant; even if they don't have the rights of a US citizen, all humans should be given a fair trial. If they are found guilty of serious crimes, *then* you can do what you like with them.

And where should this "fair trial" take place? Paris? No matter how we treat them you know we'll be accused of rigging the trials or torturing confessions out of them, or some crap like that.

The whole point of the concept of a POW was not to say that POWs is a better status than other people, but to offer protection against soldiers who might otherwise be tried with murder, or tortured if they were captured. I imagine that it was generally understood that a country invading another country and taking people hostage was *always* in the wrong, and didn't need special protections. But obviously it seems this is not the case.

The whole point of the concept of a POW was so that war was a little more civilized, and countries didn't just execute their enemies prisoners when they captured them. Everyone won out from this. But this doesn't work with terrorists; sure you don't just execute them, but you are not at war with a country that you can invade and set up a new government in - you're at war with an organization that fights all the harder when it's men are captured or killed, instead of otherwise.

 

[IglooDame]

Actually I think the Bush adminstration position is that it has this constitutional power for US citizens too (to declare them enemy combatants) but I don't remember for certain.

If this were true, it would be time to make use of that right to bear arms.

That would be treason eyrei unless your State votes to secede or something

It is indeed the position of Bush administration (unless it has changed). It may not be a power that is recognized by the courts but it is a power asserted by the Bush administration as coming from constitution (not any court).

Hmmm... I think I've read about that somewhere... "For depriving us, in many cases, of the benefits of Trial by Jury" I think there were some referring to the solution as treasonous for that one, too.

 

[jameson]

I happened across a rather pertinent article from the Washington Post today:

As the Senate prepared to vote Thursday to abolish the writ of habeas corpus, Sens. Lindsey Graham and Jon Kyl were railing about lawyers like me. Filing lawsuits on behalf of the terrorists at Guantanamo Bay. Terrorists! Kyl must have said the word 30 times.

As I listened, I wished the senators could meet my client Adel.

Adel is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.

The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later. And these facts would still be a secret but for one thing: habeas corpus.

(I didn't quote the entire article because of copyright considerations). So the US military isn't picking up random people from the street and sending them to Gitmo; they leave that to subcontractors.

 

[MobBoss]

ROFL Dog - the bounty hunter strikes again!!