Thursday, June 29, 2006

No Mo' Gitmo

Quite a beating for the administration this morning. Can't say I'm much surprised, and I think I'm glad for at least one check on the ever-expanding executive power grab--not sure though completely.

Here's the story.

ETA: All right, so on closer review this doesn't actually close Gitmo. My apologies.


The Bard said...

Question: When does "ALL" not mean "ALL?"

Answer: When the Supreme Court is looking at Congress's authorization to the President to use "ALL necessary force" in going after Al-Qaeda.

I have just read Hamdan, all 185 pages, and have a few thoughts from my Federal Courts and International law classes.

The best I can say is that the Majority did not go into the substantive constitutional claims of the Gitmo prisoners. This is a relief because as foreign aliens, the constitution does not, and should not, extend to them. Do you realize that illegal aliens in the US who are otherwise law-abiding and hard working have fewer rights under some people's view of the Constitution than terrorists? Nor did the majority reverse the precedents going back to the Civil War that permitted military tribunals. That too is good.

The worst part of the decision is the use of the Geneva Conventions. Yet again the Court is importing international law that undermines US sovereignty and promotes judicial manipulation. The court quoted only the parts that supported its view and ignored other parts that favored the evidentiary standards of the tribunals. I cannot support international "law" any more than I would play a basketball game where the other side got to have its own coaches be the referees.

This brings us to the statutory issues--in short, the Court decided that Congress did not speak clearly enough to authorize these tribunals. I'm skeptical on the decision as a matter of statutory interpretation, but as a policy matter, the decision might not be too bad. I think Congress is getting a free pass on Bush's expansion of Executive power. Congress passes vague laws because the Congressman (and women) do not have the balls to make hard decisions. Bush takes full advantages of the vagueness. Can you blame him? Congress grants Bush "all necessary force" without declaring war. That is like trying to have your cake and eat it too. Bush may be infringing on Congress's war powers and violating the separation of powers, but Congress's cowardice is not helping. If this decision prompts Congress to be more clear in the future, and to pass a law specifically authorizing military tribunals for terrorists under a specific set of rules--just like Congress did for the Civil War and WWII--I will conclude that the good of this decision outweighed the bad.

Ben said...

International law undermines U.S. sovereignty in Hamdan? HOW? Congress required that military commissions comply with the law of war! If Congress wants to take international law out of the picture, all it has to do is say so. We've known that since the Paquette Habana case (sp?).

And you might as well take the quotes off of international "law" in this case. We're not talking about the fuzzy "customary" international law. We're talking the Geneva Conventions, a treaty to which the U.S. is a signatory. The Supremacy Clause of the Constitution makes treaties the supreme law of the land right up there with statutes.

In the end, it's very likely there will be military tribunals of some sort. I don't have a problem with that.....there's nothing wrong with punishing terrorists after proving that they have committed acts of terrorism. But, like the Bard, I'm far more concerned about Congress reasserting its authority and being accountable for its actions....not giving the Executive a free pass.

Oh, and Monica, regarding your comment on my blog, you should be getting an invitation in the mail any day now. What you got before was simply a "Save the Date" card.

The Bard said...

The United States may have signed the Geneva Conventions, but we are talking here about additional protocols which we have not signed. Even if we did, this is a question of interpreting the treaty, and I believe that the Courts should review Executive interpretaions of treaties under the same deferential standards that they use in Admin Law.

I agree with you, Ben, that Congress should be able to set international law aside when it wishes so long as it is clear. I'm not so sure that the justices who wrote Hamdan agree, and that prospsect troubles me.

That said, I think Ben and I agree more than we disagree, and, given how different we are, I think that says something both about the Administration and about Congress. Congress' cowardice and Bush's overreaching are equally threatening to Separation of Powers, and Hamdan offers both one more chance get back on track.