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
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!
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?
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.
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.
Great legal analysis!
Kudos!
Thanks John, but I'll have to reread this pup a few more times until I really don't understand it! j/k.
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.
Brilliant. Thank you.
bump
I think one of the points is that they are attempting to prosecute Hamdan via military channels for crimes that occurred before hostilities began in US eyes. One could argue that Bin Laden twice declared war on the US during the late 90's.
What ever happened to shooting illegal combatants caught out of uniform on the spot?
bump for later
Wow! Thanks. Looks like politics has completely infested our Supreme Court.
bttt
[Reading the actual decisions (there were six of them) reveals a different and more dangerous result. To begin with, there was a unanimous Court decision, In Re Quirin in 1942, which upheld the military trials, convictions and in two cases executions, of eight German saboteurs who sneaked into the US from German submarines with plans and preparation to bomb various facilities, including one who was admittedly an American citizen.
The majority Opinion by Justice Stevens, joined by Justices Kennedy, Souter, Ginsburg, and Breyer, avoids that prior decision.]
That's nice./sarc
[And this is the greatest defect in the press reporting on this case. A majority of the Court has thumbed its nose at both the Constitution and Congress by refusing to obey the 2005 law withdrawing its jurisdiction. The Court is, in effect, saying that “we own the law,” and “neither Congress nor the Constitution should control the actions of this Court.”]
Yep. Unbelievable.
[Scalia's Dissent mentions the fact Congress stripped the courts of the very power they think they still have: Detainee Treatment Act of 2005: (1) IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following: `(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider-- `(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or `(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who-- `(A) is currently in military custody; or `(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.'.]
A good example of the Court rewriting the law to satisfy the personal ideological partisanship of the Justices.
It is disgusting enough that we have to feed, clothe, provide shelter and medical care to these subhumans while guests of Uncle Sam.
May the 5 Supreme Black Robes, Stevens, Kennedy, Souter, Ginsburg, and Breyer names live in infamy for giving succor to America's enemies. I wonder on the day that they pledged their solemn oath of office if they really meant it when they spoke those words while placing their hands on the Bible? Or, did they merely think of themselves as above it all?
As you can surmise, I do not know the specifics of the rule of law, but I do know when there are those who do not want to see America vanquish from the face of this earth the "evil doers".
Thank you for your analysis of the decision. I will indeed, slog through it to get a better understanding.
I read the opinions today and his was as strongly worded, if not moreso, than Scalia's.
Good analyis, John, and thank you. I understand what the Court did much better, now, but there's lots I don't understand about the Court.....