Now that the furor has died down...

Discussion in 'Law and Justice System' started by Bullypulpit, Jul 6, 2006.

  1. Bullypulpit
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    Bullypulpit Senior Member

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    ...And the Hamdan v Rumsfeld decision has been pushed out of the headlines by North Korea and Chimpy's visit to Dunkin' Donuts, let's look at the implications of that decision on his power-grab.

    <blockquote>The first three aspects suggest a far-reaching defeat for the President: (1) The decision treats World War II precedents upholding military commissions as all but dead letters, affirming the primacy of ordinary civilian courts and formally-constituted courts martial; (2) The decision utterly rejects the Bush Administration's frequently invoked and sweeping claim that there is "inherent Executive Authority" to act unilaterally in matters of national security, recognizing instead that the Constitution gives Congress the leading role in establishing the rules for treatment of captives; (3) The decision finds the Geneva Conventions applicable to suspected al Qaeda captives in Afghanistan, thus implying that methods of interrogation that have been used against them constitute war crimes. - <a href=http://writ.lp.findlaw.com/dorf/20060630.html>Michael C. Dorf</a>, <i>Finlaw's Writ</i>, 6/30/06</blockquote>

    The first issue deals with the the precedent of <a href=http://faculty.maxwell.syr.edu/tmkeck/Cases/ExParteQuirin1942.html>the Quirin case</a> in 1942, establishing the definition of <i>unlawful combatants</i>. This undercuts administration policy with regards to the detention of unlawful combatants. Under Quirin, the prisoners were permitted to seek review and be represented by counsel. This in stark contrast to the administration policy of holding prisoners incommunicad and denying them representation or review of their status.

    The second issue dismisses Chimpy's claim to sole authority in establishing rules governing the treatment of captives as well as undercutting his arguments for a "blank check" provided by the Use of Force Authorization after 9/11. The Constituion vests authority to "...make rules concerning captures on land and water..." as well as establishing the definition of what constitutes "...offenses against the law of nations...". Chimpy's claim to a unitary executive stands repudiated in other areas as weel, particularly in his aggressive use of signing statements to sidestep bills passed by Congress which he then signed into law.

    With the advice of Alberto Gonzalez, Chimpy and his administration declared that the Geneva Conventions were "quaint" and "obsolete", and decided that any suspected Al Qaeda and Taliban prisoners captured in Aghanistan were exempt from the Article III provisions of the Conventions. Justice Kennedy, in this case, bascially said "Wrong answer!". Not only do the provisions of Article III apply, but:

    <blockquote>"By Act of Congress . . . violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel," and "there should be no doubt . . . that Common Article 3 is part of the law of war as that term is used in" the UCMJ.</blockquote>

    So, anyone involved in the use of the interrogation techniques (read as torture) can be subjected to prosecution for war crimes.
     
  2. Gunny
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    Gunny Gold Member

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    So, just WHAT is it that you would like to take a look at? A stupid ruling that goes against the best interests of this Nation during a time of war, or what?

    You libs never cease to amaze me. Let's just turn them loose. No reason why we shouldn't send the enemy reinforcements.

    And EVERY President during EVERY war has been the one to act as the leader of this Nation, and has been given power to conduct such wars. For some reason, because you lives have turned into such illogical extremists and political hacks, it's "different" now.

    Same with the signing statements. Clinton called it a line-item veto. Same crap. The ruling should be the same, big deal. I don't recall that Clinton was tried of some crime, found guilty and sent to prison for it. Precedent is set. Get over it.
     
  3. Annie
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    Annie Diamond Member

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    Funny, we get a different take on this:

    1. Congress should have declared war. They cannot escape their duty, by passing off that committment onto the executive by an 'congressional act.'

    2. Bush/executive branch needed to lay out why those held met the criteria of 'enemy non-combatants'

    3. Congress needs to step up and decide whether or not the US is at war and with whom.
     
  4. Bullypulpit
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    Bullypulpit Senior Member

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    If you'd read the analysis, you would see that "...persons who have fairly been determined to be enemy combatants can be held so long as hostilities last. Given continuing conflict in Afghanistan, not to mention the broader "war on terror," that means the Guantanamo Bay prison can remain open for business." The key words here are "fairly determined". and given that most detainees are guilty of little more than being in the wrong place at the wrong time, those individuals should be released. They can keep the hard cores for as long as they want.

    As for the signing statements...They are not "line item vetoes", which were declared unconstitutional breaches of Congressional authority. They are a deliberate attempt on the part of Chimpy to do an end-run around the constitutional authority of Congress and the Judiciary to respectively make and interpret law. Check out the first three articles of the Constiution for the enumeration of the powers of each branch of government. You will clearly see the option claimed by Chimpy in his signing statements DOES NOT exist.
     
  5. Bullypulpit
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    Bullypulpit Senior Member

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    <blockquote><b>WAR</b>: 1 a (1) : a state of usually open and declared armed hostile conflict between states or nations</blockquote>

    Now that we've gotten our definitions straight...Al Qaeda and its loose affiliation of terrorist organizations, do not constitute a "state or nation". Instead, what we see are cells, some working in concert, some not, scattered around the world. Is military force an appropriate response to these threats? Unless special ops units are the force of choice, or the target is operating in isolation from civilians and non-combatants, the answer would have to be "No." And this latter is seldom the case. So what is left absent these two options? Police work. And from what we have seen since 9/11, it has been police work that has stymied abortive attacks, both abroad and possibly at home. Congress was correct in not declaring war, as it would result in a completely open-ended and, quite likely, permanent state of war. Much like what Chimpy and his administration are pushing for anyways.

    As for Chimpy laying out criteria for determining whether or not an individual qualifies as an enemy combatant, his only criteria has, up to now been because he said so. This ruling undercuts that imperial perogative.
     
  6. Annie
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    Annie Diamond Member

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    Regarding the definition, the word 'usually' is there, but I agree the definition will now need to be reworked. This time it's not a nation-state, but rather a 'religion' or purported version of one. We can wish it were not so, but it is.
     
  7. Bullypulpit
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    Bullypulpit Senior Member

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    This "war" is best fought with good police work and co-ordination between intelligence and law enforcement organizations on an international basis. The only role for the military is in providing small unit special operations teams when needed. Unfortuantely, Chimpy's idea of anti-terrorist action is more akin to trying to kill a fly with a sledge-hammer. You may kill the fly, but the colateral damage is unacceptable.
     
  8. Annie
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    Annie Diamond Member

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    Treating these attacks as crimes did not work for over 20 years. It IS a war, not a series of crimes.
     
  9. Bullypulpit
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    Bullypulpit Senior Member

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    Funny, crimes were how the attacks of the Bader-Meinhoff gang and other marxist-leninist-troskyite wannabes were treated in Europe. National police forces as well as Interpol and special forces units handled the job quite nicely.

    You can't use the sledge-hammer of the military against foes who simply melt into the civilian population. You want to deny terrorists networks new recruits, give the citizenry jobs that will let them support their families, adequate food, accessible healthcare, a good, secular education for the children a reliable working infrastructure and a fair government.

    Every civilian killed by military forces accidentally, collateral damage I believe they call it, creates more new recruits for terrorist organizations. And unless you can iso;ate the terrorists from the civilians you will continue to have civilian deaths, this more recruits for the terrorists. But this doesn't really seem to matter to our current administration. They need boogey-men on the loose to justify their excesses.
     
  10. pegwinn
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    pegwinn Top of the Food Chain

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    I am not smart enough to comment on the long term ramifications of the USSC ruling. The Jarheads-eye view says that by recognizing the Al Qaeda as able to be covered by the Geneva conventions can be a good thing. Now anyone armed and wearing a bed sheet and captured can be given a quick field interrogation and summarily shot. Why? Article 4.

    But of course, we are better than that which is why Gitmo exists. We could have just as easily killed em all.
     

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