Posted on 02/15/2006 8:09:51 AM PST by inquest
During the Second World War, six German saboteurs were landed by submarine, on the East coat. They were captured and tried by Military Tribunal. One was a US Citizen.
The Supreme Court ruled that they were tried properly, and they were executed.
If the Supreme Court found that to be constitutional, it is fair to state that the constitution provides for Military Commissions or Tribunals.
After the war, the Chief Justice presided over a Military Tribunal in Germany where numerous individuals were tried, convicted and executed.
I am certain that if the Chief Justice headed a Military Tribunal, it wasn't unconstitutional.
Well, I don't have the same confidence in their ability to always get the Constitution right, but like I said, it's not on the same level with the explicit constitutional provisions for civilian courts and the whole system of checks and balances. As such, it shouldn't be taken for granted, and even if we assume that the supreme court got it right in that particular case, it needs to be examined in the full context of that case, so as to avoid drawing too many unwarranted conclusions from it.
He can declare Alley Cat Day in Washington, DC
The FISA Court of Review found that the President has the authority, the Supreme Court declined to review that decision.
What else do you expect to happen?
When you become President you can refrain from that activity. Congress will not try to deny the authority, so where else do you expect it to go?
I wasn't denying that particular point, as far as it goes, and neither was the author of this piece. I was responding to a poster who was wondering how it could even be a matter of debate at all.
Look it up, it is Ex Parte Queran. It was decided 9 to nothing.
That case is very instructive because it goes back to the start of the Laws of War and explains the whole history.
You will understand a whole lot more about the Laws of War, Military Commissions and everything connected with it.
You can probably find it in FR archives. That is where I saw it. (The whole decision, not just an article about it.)
Especially after reading about the FISA Court of Review, I agree that it shouldn't be a matter of debate.
Here is the title of the Ex Parte Quirin case.
How GERMAN SPIES were handled in 1942-U.S. Supreme Court EX PARTE QUIRIN 317 U.S. 1 (1942)
I don't know how to make it a link.
Search using the keyword German Spies and you will find it.
It probably would require 2/3 vote in both houses to change it.
Inherent Powers of the President?: he can fly, see thru walls, predict the future, time travel.
Anyway, I found Quirin on the FindLaw site and I'll look it over when I get the chance.
Thanks for the instruction on making a link.
I'll have to try it sometime.
Is the threat of pardoning a large number of criminals greater than the threat that you could have a 3-year program of spying that people wouldn't agree to? Because that is the comparison you are making -- a lifetime pardon vs a couple of years before we throw the president out of office.
I don't mean to suggest I buy the premise of your question. The "spying" being claimed as a right of the president is not something that scares me in the way your description would suggest. I presume that things that are not "private" (meaning within my direct control and scope) are open for listening, and act accordingly. How we ever got the idea that words we type on a computer and send over a mix of private wires owned by multi-national corporations, and public lines owned by the government, woudl somehow pass unmolested and unseen is kind of naive.
And the idea that we could talk to someone in another country, and presume that nobody would listen to our words, is also a form of naivete, especially when there is a declared war and you are talking to people who nominally belong to the foreign power we are at war with.
I realise that the war on terror is an odd sort of war. It would be clearer I guess that if Canda invaded maine, and we got into a war, you would expect that calls to Canada would be monitored to make sure spies weren't helping them out.
It's harder because there isn't a clear "state" delineation, but the description of this particular spying program suggests it is modelled after listening to discussions with people who could reasonably be associated with an enemy.
While I understand that a simplistic reading of the President's assertions might suggest he could spy on a talk I have with my neighbor in his garage, I think that is more because he is trying to explain this in a SIMPLE way for common folks, not that he really believes the power would extend that far. While I think the courts will agree that any rational act which would contribute to our winning the war will be both constitutional and deemed part of the President's inherent power, I also think that they made a real decision about the "rationality" of acts when they ruled in previous cases.
I think given an irrational program, one that does not have any reasonable chance of being helpful to the war effort, the courts would rule against the program.
You're making a big assumption here. The most dangerous threats to liberty are the ones that are out-of-sight, out-of-mind. If elections were enough to maintain liberty, then we'd hardly need to have the whole array of constitutional protections. Just give the President plenary power, and let him be elected every four years.
I think given an irrational program, one that does not have any reasonable chance of being helpful to the war effort, the courts would rule against the program.
The whole point of FISA was to provide that judicial oversight. Once that's taken away, the courts would have no way of knowing whether it's rationally related to the war effort or not.
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