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The Gitmo Prisoners’ Case:What the Supreme Court Really Did, And How the Press Blew the Story
Special to FreeRepublic ^ | 29 June 2006 | John Armor (Congressman Billybob)

Posted on 06/29/2006 3:50:16 PM PDT by Congressman Billybob

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This is my analysis of the Hamdan decision, handed down this morning, and in part of the defective press coverage of it. It's a long read, and hard-slogging, but I think you'll find it useful.

I wrote this up in part in preparation with a live interview with Jerry Agar on the news in Kansas City at 6 pm local time, 7 pm, Eastern. So, I can't stay around for comments, but I'll check in after that broadcast.

John / Billybob

1 posted on 06/29/2006 3:50:20 PM PDT by Congressman Billybob
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To: Congressman Billybob

Thanks.

I know nothing about the law, but I can't help but think I have, at least, a clearer mind than at least 5 sitting SC Justices!


2 posted on 06/29/2006 3:58:02 PM PDT by Mr Rogers
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To: Congressman Billybob
Like you, I slogged through this mess.

I'm debating a rant tomorrow on why this is actually GREAT news for the coming series of elections.
3 posted on 06/29/2006 3:58:45 PM PDT by Pukin Dog (Dont be a Conservopussy! Defend Ann Coulter, you weenies!)
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To: Pukin Dog

"I'm debating a rant tomorrow on why this is actually GREAT news for the coming series of elections."

You beat me. Dern it. :)

It's great news!


4 posted on 06/29/2006 4:00:17 PM PDT by Shermy
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To: Congressman Billybob

I am a preacher, Congressman Billybob, not a lawyer. But if I understand what your post is saying is basically what many of us have suspected. SCOTUS now sees itself above the law and the US Constitution especially the concept of previously decided cases that Stari Decisis (I probably mispelled that!) that was so prominent in the Alito and Roberts hearings.
What do you see as necessary to get a court that decides on a Constructionist view rather than making up new law as they go along as they seem wont to do?


5 posted on 06/29/2006 4:04:16 PM PDT by lexington minuteman 1775
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To: Congressman Billybob
the express language of Article II, Section 2, which gives Congress control over the entire appellate jurisdiction of the Supreme Court.

Here's Article II, section 2:

Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Either the "language" to which Scalia refers is written in invisible ink, or else someone has the Article/section wrong.

6 posted on 06/29/2006 4:04:24 PM PDT by sourcery (A libertarian is a conservative who has been mugged ...by his own government)
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To: Congressman Billybob

Ok, now I'm totally confused.

BTW, I'd have gone with the law at the time of the ship's capture and left the Peggy with the privateer.


7 posted on 06/29/2006 4:04:37 PM PDT by mtbopfuyn (I think the border is kind of an artificial barrier - San Antonio councilwoman Patti Radle)
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To: Pukin Dog

Agree PD, this decision, once it is understood by the populace, will be quite instructive regarding the need for a heavy Republican majority in Congress, and a constructionist majority on the SCOTUS.

Otherwise (I used to laugh at this kind of talk), we are doomed.


8 posted on 06/29/2006 4:04:57 PM PDT by SaxxonWoods (Free Iran! WARNING! Forbidden Cartoon: .. . *-O)) :-{>. . . .)
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To: Congressman Billybob

Great legal analysis!

Kudos!


9 posted on 06/29/2006 4:06:50 PM PDT by GatorGirl
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To: Pukin Dog

Law, shmaw. The sight of Pelosi, Kerry, Kennedy, every night on the TV, saying what they will say, arguing what they argue, seeing their ideas and concerns echoed in the press foreign and domestic....it's going to be groovy, man.


10 posted on 06/29/2006 4:10:26 PM PDT by Shermy
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To: sourcery

Billybob has the article wrong; Scalia refers to the Exceptions Clause of Article III.


11 posted on 06/29/2006 4:11:39 PM PDT by AntiGuv ("..I do things for political expediency.." - Sen. John McCain on FOX News)
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To: Pukin Dog

I'm with you, Pukin Dog!


12 posted on 06/29/2006 4:13:34 PM PDT by topazbeth ("There is no safety for honest men except by believing all possible evil of evil men." –Edmund Burke)
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To: mtbopfuyn; Pukin Dog

"Ok, now I'm totally confused"

The way I read it, and I assume Pukin Dog does too, is the case is thrown to Congress.

I'm ok with that.


13 posted on 06/29/2006 4:13:42 PM PDT by Shermy
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To: lexington minuteman 1775
" SCOTUS now sees itself above the law and the US Constitution especially the concept of previously decided cases that Stari Decisis (I probably mispelled that!) that was so prominent in the Alito and Roberts hearings."

I'm sure that the liberal members of the court would agree with this EXCEPTING, of course, any precedent that supports a leftist position -- e.g. abortion "rights," prayer in schools, etc.
14 posted on 06/29/2006 4:20:31 PM PDT by vetsvette (Bring Him Back)
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To: Shermy; Pukin Dog

Do you guys sense the unease on the part of the DEMS over this ruling...they are quiet ...Bush could make political hay with this one ruling.


15 posted on 06/29/2006 4:21:22 PM PDT by Dog (The founders gave freedom of the press to the people, they didn't give freedom to the press.)
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To: Congressman Billybob

Thanks John, but I'll have to reread this pup a few more times until I really don't understand it! j/k.


16 posted on 06/29/2006 4:24:42 PM PDT by jwh_Denver (I'm politicked off!)
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To: Congressman Billybob
the crime charged here is not a recognized violation of the law of war.38 As observed above, see supra, at 40, none of the major treaties governing the law of war identifies conspiracy as a violation thereof.”

This is my objection to the idea of war-trials under normal, civilian peace-time law.

A war prisoner is not a prisoner because he has committed a crime, he is prisoner because he is perceived to be a threat by the soldiers who took him, or he is perceived to be a possible source of intelligence.

This "perception" is subjective, based on the expert but narrowly focused opinion of the military. It is not a matter of law. When the military no longer considers him to be a threat, usually at the end of hostilities, he may be released to go home. If they decide he was just at the wrong place at the wrong time, he may be released right away, and many have been.

There are some prisoners, however, who must never walk free under any circumstances. These would normally have a date with the hangman. These usually would be the ideological leaders, who by breathing represent a threat.

These are not legal decisions. There is no crime involved. These are and must be military decisions.

In any case, there would have to be periodic hearings, where the prisoner's status would have to be considered, his threat-level, his value as an intel source, and so forth. This isn't about rules of evidence. This would include reports from interrogators, intel reports, and so forth. This wouldn't be a trial in any recognizable civilian sense of the word. His legal "guilt" or "innocence" is irrelevant, only his perceived threat level.

For those making the trip to the hangman, there might be the extra step of documenting the reasons for the decision to execute him, and some verification that they've got the right man, if possible.

Lawyers ought to have no place in these proceedings. Its not about law in any normal sense.

17 posted on 06/29/2006 4:25:04 PM PDT by marron
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To: Dog
Smarter Dems are seriously worried tonight.
18 posted on 06/29/2006 4:25:48 PM PDT by Pukin Dog (Dont be a Conservopussy! Defend Ann Coulter, you weenies!)
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To: marron
There is really nothing to worry about, and Republicans are high-5-ving each other in the halls of Congress. As for the Supremes, this ruling gets overturned next Summer as soon as the ACLU files suit trying to get it enforced.
19 posted on 06/29/2006 4:28:24 PM PDT by Pukin Dog (Dont be a Conservopussy! Defend Ann Coulter, you weenies!)
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To: Dog

Well Pelosi reflexively came out pro-terrorist. Or she thought the decision was pro-terr. The matter takes some time to figure out, the judges' words need to be decoded.


20 posted on 06/29/2006 4:28:28 PM PDT by Shermy
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