Posted on 08/08/2005 5:45:04 PM PDT by COEXERJ145
The real test would be when someone actually tries to execute the warrant. He would be at risk for being tried for treason. But it wouldn't necessarily be a slam-dunk for the prosecution. Treason consists of actually making war against your country. It would be up to his jury to decide if that's in fact what he was doing, and that determination would depend on quite a number of pertinent facts.
His status as Commander-in-Chief, which, remember, is no different substantively from that of a general or admiral, except that he's higher on the chain. That's the only difference.
why isn't the war powers act subject to judicial review?
Decisions of where to deploy forces, when to attack, etc., are generally not subject to judicial review because there's no applicable law governing those decisions. Matters of justice, on the other hand, are, and that's what tribunals are all about. Tribunals are by definition judicial.
"... that impeachment of judges under the Constitution is only authorized for personal misbehavior, not for exceeding their Constitutional powers, and therefore any attempt to impeach judges for their decisions would fail to get any political support."
I disagree (note: I am not a lawyer) but the key phrase here is "good behavior". Usurping power is a no no.
Article 3 section 1 "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,"
Congress does have the power I think the problem is that the anti-SCOTUS undercurrent, while strong in some circles (here for example) is not as strong in the general population. Many would see it not as an act to reign in SCOTUS but as a power grab by congress. In other words, it's not that they can't, but fear of a backlash.
As it should be IMO, impeachment powers should be a last defense. Disclaimer: I am not anti-SCOTUS like many here so take it with whatever salt you require.
Bush doesn't have the guts to do that.
Make Bolton President.
Contrary to what seems to be asserted on this thread, a ruling against the administration would not require the Gitmo camp to close down. All it would do is prevent military commissions from trying the prisoners.
no.
so what do we do with the prisoners? first this ruling, then slowly as US civil law encroaches on Gitmo, they will all have to be brought into the US for criminal trials. that obviously isn't going to happen, that's why you see so many of them being sent home. Gitmo will effectively be closed, as would any other POW camp - essentially, the court would take away the right of the executive branch to maintain a POW facility outside the jurisdiction of the US courts, no matter where it was in the world. that's insane.
the courts have taken over. they enact laws, discover new civil rights, impose new taxes in cases of equal funding for schools for example. they can do anything they want, they are unchecked.
no political courage.
the "public opinion" regarding the courts has been spoon fed to the sheeple by the media - the left wants the courts to be all powerful, so the media always touts "respect the rule of law" to mean "do anything the court tells you". there hasn't been a politician brave enough to challenge that, because it means going into the buzzsaw of the MSM and trying to root out pre-conceived notions that the sheeple has about the courts being all powerful - even in the face of decision after decision that goes against public opinion - with more to come when this court legalizes gay marriage as soon as the cases comes to them.
not Roe. But I am sure most americans don't support finding a new civil right for DC sniper Lee Malvo to avoid the death penalty (the story was buried so deep, most people probably don't even know it happened). How about the case that gave US rights to children of illegal immigrants to attend public schools? what about Kelo to allow expanded use of eminent domain to seize property? Mark Levin outlines alot of the more egregious cases in his book. Gay marriage is coming as a followup to the sodomy rulings and the tossing of the Colorado ballot initiative.
Perhaps people won't wake up until the SCOTUS tosses the 2nd amendment.
"what about Kelo to allow expanded use of eminent domain to seize property?"
Grrrr..... Thats the one if your looking for broad agreement of overreach.
We can only pray that common sense will prevail. I know it has been in short supply these days.
?????????
Is it trying to direct troop movements?
Not ours.
Is it ordering an attack?
Depends on what you mean by attack, if you mean ordering troops to talc Hill Alpha, then no, if you mean an attack on the executives war powers then absolutely.
No, it's doing absolutely nothing of the sort. It's getting involved in what are by definition, judicial matters.
Prisoners taken on the battlefield in foreign wars have never been US "judicial matters" nor should they ever be. But don't take my word for it.
From Ex Parte Quirin:
"By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
If "executive powers" are whatever the President says they are, then we have no Constitution. It's that simple. That means there has to be a limit drawn. One can argue that SCOTUS is drawing it too tight, but to say it shouldn't be drawn at all is leaving the door open way too wide.
It's not the courts role to tell the executive it can't use military tribunals in THIS war. Congress has made military tribunals the law of the land. If they have a problem with the use of tribunals, it is up to Congress to "limit" the executive, not the courts. Tribunals are Constitutional period.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.