An Outrage

National Review Online ^ | June 30, 2006 | The Editors

[Mia T]

June 30, 2006, 0:49 a.m.

An Outrage

By The Editors

The Supreme Court’s decision to impose by judicial fiat a treaty that no politically accountable official would dare propose — a one-sided compact wherein the United States gives elevated due process to al Qaeda’s terrorists while they continue slaughtering civilians and torturing their captives to death — is an abomination.

The extent of the abomination is difficult to quantify. Thursday’s decision in Hamdan v. Rumsfeld gets worse the more one studies it.

To begin with, the Court had no business deciding this case at all. Not only did it target the president’s commander-in-chief authority to determine what is militarily necessary in wartime, it also imperiously slapped down the U.S. Congress. In last December’s Detainee Treatment Act (DTA), Congress — acting on its constitutional prerogative — rescinded the unprecedented jurisdiction that the Supreme Court, in the 2004 Rasul case, had tried claimed over alien enemy combatants captured in wartime and held outside the U.S. (that is, outside the jurisdiction of U.S. courts). This Court, however, acknowledges no limits on its powers — whether imposed by Congress or by the English language, which it had to torture in order to construe the DTA’s unambiguous limitation of its jurisdiction as an invitation to meddle.

And meddle it did. It rewrote legislation that clearly authorized the military commissions for captured terrorists that President Bush ordered in late 2001. It rewrote the Geneva Conventions. And it claimed for itself the mantle of final authority over both international relations and military necessity — matters in which it is wholly lacking institutional competence and which the Framers committed singularly to the chief executive.

The result was somehow to find that the military commissions are unauthorized under federal law and unfair under international law. Never mind that they guaranteed our enemies the rights to counsel, to the presumption of innocence, to proof beyond a reasonable doubt before conviction, to the privilege against self-incrimination, to confront the government’s witnesses and summon witnesses in their defense, and to prepare a defense with broad discovery of the government’s evidence and investigative file.

How could this conceivably be insufficient due process for alien combatants with no legitimate claim on Bill of Rights? The Court fretted that the procedures might not permit captives like Salim Ahmed Hamdan — the driver and bodyguard of Osama bin Laden — to be present at every stage of their trials. This is perhaps the most deplorable of the excesses endorsed in Justice John Paul Stevens’s majority opinion (joined by Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer). First, the concern is sheer speculation. There hasn’t been a commission trial yet, and there is no way to know whether Hamdan would have been excluded from any part of a trial, much less whether the degree of exclusion would have been unjustifiable. Second, the rules allow for the combatant’s military lawyer to be present even when he is not. But third, and most fundamentally, safeguarding national security is the highest obligation of government. The commissions wouldn’t have guaranteed Hamdan’s right to be present at every stage of the trial in order to preserve the government’s ability to conceal from the enemy, during wartime, our national-security secrets, as well as our methods of obtaining them. Protecting Americans from attack depends on that ability. But five justices of the Supreme Court, completely unaccountable to the Americans whom the government is obliged to protect, have subordinated that obligation to the hypothetical interests of enemy operatives who have no judicially enforceable rights under American law.

In deciding as it did, the Court also ignored its own venerable precedent — of over a half-century’s standing — that the Geneva Conventions, even when they do create binding obligations on governments, do not create judicially enforceable rights for individuals. Disputes over their application are, rather, to be worked out diplomatically, among the political representatives of sovereigns. Moreover, the Geneva Conventions were irrelevant to Hamdan’s case. He is a terrorist combatant who fails to meet the conventions’ definition of a prisoner of war; consequently, he is not entitled to the conventions’ POW protections. In order to get around this inconvenient fact, the Court had to invoke (and distort) “Common Article 3” of the conventions, which applies only to civil wars taking place within the territory of a single country, as opposed to international conflicts. The Court argued, absurdly, that because al Qaeda is not a nation, it cannot be in an international conflict: so the global War on Terror is not “international,” despite having been fought in the United States, Somalia, Yemen, Kenya, Tanzania, Afghanistan, and Iraq. As for Article 3’s requirement that the conflicts to which it applies be confined to a single country, the Court’s majority found an easy way to get around it: by ignoring it.

Hard as it may be to believe that the Court, without any grounding in either American law or the Geneva Conventions, has effectively signed a treaty with al Qaeda for the protection of its terrorists, there may be a silver lining. The case implicates only trials of enemy combatants, whom the president remains authorized to detain until the end of hostilities — however long that takes. In addition, the Court held that military commissions would be permissible if Congress authorized their precise terms and procedures. Sens. Lindsay Graham and John Kyl, who were the engines behind the Detainee Treatment Act that the Court cashiered, have already indicated they are ready to get to work on this. Arlen Specter also has a proposal. There is no issue more important than national security, and with the 2006 elections beckoning it is essential that Republicans move quickly on legislation. Our elected representatives need to be on record, now, about what rights they would give to Qaeda terrorists in wartime.

As yesterday’s decision again demonstrates, this Court would rather impose its preferences on us than simply follow the law. We should find this unacceptable in any case. But when the consequences of the Court’s arrogance rise to the level of life and death, there is only one word to describe what it is: an outrage.

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National Review Online - http://article.nationalreview.com/?q=ZTYwOTYzMWY5NGZlNDM0MTg2MDc3ZjkxYmI4ZmY4NmU=

[MNJohnnie]

http://www.pbs.org/weta/thewest/events/1830_1840.htm


Happened in 1832.

****Snip*****

Defying the court, Georgia keeps Worcester in jail, and President Andrew Jackson, when asked to correct the situation, says, "The Chief Justice has made his ruling; now let him enforce it."

[MNJohnnie]

1832 In Worcester v. State of Georgia, the Supreme Court rules that the federal government, not the states, has jurisdiction over Indian territories. The case concerns a missionary living among the Cherokees, Samuel A. Worcester, who was jailed for refusing to comply with a Georgia law requiring all whites residing on Indian land to swear an oath of allegiance to the state. In ruling against Georgia's actions, Chief Justice John Marshall writes that Indian tribes must be treated "as nations" by the national government and that state laws "can have no force" on their territories. Defying the court, Georgia keeps Worcester in jail, and President Andrew Jackson, when asked to correct the situation, says, "The Chief Justice has made his ruling; now let him enforce it."

[moonhawk]

Screw the Tribunals...

The Supremes have effectively given all the detainees a life sentence.

Let 'em rot.

[moonhawk]

Neither did Alito, who's there in her stead.

[demkicker]

Are you implying we'd be better off with Miers on the court insted of Roberts?

[demkicker]

No, Roberts is there in her stead.

[savedbygrace]

No, Alito replaced Meiers.

http://www.whitehouse.gov/news/releases/2005/10/20051003.html

[Mia T]

bump

The Gitmo Prisoners' Case:What the Supreme Court Really Did, And How the Press Blew the Story

[Mia T]

thx.

It is disputed by some that he ever said it. This is what the Arthur Schlesingers of this world do: Make history into the proof of their theories.

[khnyny]

A pretty good book about the Supreme Court is called "Men in Black" by Mark Levin. He makes a pretty good argument about our "activist Judges". After the Kelo eminant domain case and Hamdan vs. Rumsfeld, it's time to wake up. This book was written before either of those two decisions, btw. The following is part of one reader's review:

[The framers of the Constitution took care to see that our government would depend upon a delicate balance between the executive, legislative and judicial powers, each there to hold the others in check and preserve the republic. But what if one branch began to usurp the power of the other two branches, and in effect, become a self-legislating body? And what if this was the one branch not elected by the people, but rather appointed by the other two branches? This is exactly the dilemma we have today, according to Mark Levin. The Supreme Court was seen by the framers as a body that acts only on the constitutionality of a particular legislative action when brought before them. When the Supreme Court becomes an activist court, it makes, rather than interprets, the law. In doing so it usurps the authority of the executive and legislative branches, disenfranchising the will of the people, which is correctly exercised through the people's duly elected representatives.

Mark Levin, an expert in constitutional law, and a strict constitutionalist, takes a close look at the judicial activism of the Supreme Court and the mischief it has wrought upon the Constitution. Levin doesn't limit his examination to recent event, but starts from the beginning of American history, with Madison v. Marbury, in which Chief Justice John Marshall declared that the Court would now decide what is and is not constitutional. President Thomas Jefferson, a leading opponent of judicial activism, saw the consequences of such an action only too clearly: "But the opinion which gives to judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislative and Executive also in their spheres, would make the Judiciary a despotic branch."]

[Mia T]

bump. thanx.

Leftists, whether on the court or in congress, are relics of an another time and an another war; hence they are absurd and will always be absurd. But, in this age of loose nukes, manufactured microbes and crazy terrorists not constrained by MAD, they are also dangerous.

Time is not on our side. Bush must not let these decisions stand.

When a free and great society is hijacked by a seditious bunch of dysfunctional, power-hungry malcontents and elitists, it will remain neither free nor great for long. When hijacked by them in the midst of asymmetric warfare, it will soon not remain at all.

If President George W. Bush is serious about winning the War on Terror, he will aggressively pursue the enemy in our midst.

Targeting and defeating the enemy in our midst is, by far, the more difficult task and will measure Bush's resolve and courage (and his independence from the MPRDC (mutual protection racket in DC)) more than any pretty speech, more even than 'staying the course.'

IN A 'PINCH': RETHINKING THE FIRST AMENDMENT
(Which came first, the 'journalist' or the traitor?)
by Mia T, 6.27.06

[demkicker]

Thanks for setting me straight!

[theFIRMbss]

>Are you implying we'd be better off with Miers on the court insted of Roberts?

Of course! Are you nuts?!
Everybody on the Right
should have expected

the Bush agenda
on GITMO to get the shaft
because enemies

of Bush all witnessed
the disintigration of
the wide Right-wing base

over issues like
Miers and immigration and
fair tax (and Terri . . .).

With Right-wing nutjobs
calling the President worse
things than the 'Rats do,

no one in power
in any branch can expect
to risk their career

for a Bush program.
The Miers case demonstated
Bush could be beaten.

[demkicker]

Sorry, but you're the one who is NUTS! Roberts had a conservative track record and Miers was an unknown. Bush only nominated Miers to avoid a fight with the left, which justifiably angered his conservative base. Both President Bushes have gotten in trouble by trying to apease the left. It never has worked and never will.

Psssst: I hate to tell you but the "right wing base" hasn't disintegrated. Far from it. The only way that Bush can be beaten is to turn his back on issues the base cares deeply about: increasing the conservative majority on the Supreme Court, securing our borders, holding down taxes AND standing up and fighting the left when they are dead wrong!

[nopardons]

bttt

[theFIRMbss]

>Miers was an unknown

Look! There's a truckful of comments like yours . . . Miers was Bush's pick, that's not an "unknown." We're not a "democracy" where folks vote on everything. We're a republic -- We elect leaders we trust and then let the lead. The right-wing nutjobs made a mess. Now all of us live with the garbage.

[Mia T]

thanx :)

[garbageseeker]

Good Post

[demkicker]

Of course! Are you nuts?! Everybody on the Right should have expected the Bush agenda on GITMO to get the shaft Earth to theFIRMbss, even without Roberts accusal, we were outnumbered. Can't you count?

You are rather pathetic to be bitching about John Roberts as Chief Justice of the Supreme Court. You correctly pointed out that we don't get to vote on everything, but we expect our President, after winning a hard fought election, to make appointments to the Supreme Court that will be in the best interest of the country. Clearly, Roberts and Alito were better choices over Harriet Miers and to argue otherwise is admitting your ignorance.

Sorry, but you're whistling in the wind boo-hooing about Harriet's rejection by the right. Just as leaders are supposed to represent their constituents, they NEED TO LISTEN TO THEM! Like it or not, political support is conditional. It has always been so in politics and will always be so, and Bush found that out in spades and it should have taught him a lesson not to take his supporters for granted. Having a good ear will make him a better President.

Conservatives want him to make border security a priority, and rather than ignore the base once again, he should remember the Harriet Miers lesson.

[theFIRMbss]

>Sorry, but you're whistling in the wind boo-hooing

Dr. Jack Wheeler: The Moonbat Right