Bush Insisted Only He Should Decide Who Should Stand Trial Before Military Court

NEW YORK, Nov. 18 /PRNewswire/ -- After he signed an order allowing the use of military tribunals in terrorist cases, President George W. Bush insisted he alone should decide who goes before such a military court, his aides tell Newsweek. The tribunal document gives the government the power to try, sentence -- and even execute -- suspected foreign terrorists in secrecy, under special rules that would deny them constitutional rights and allow no chance to appeal.

(Photo: http://www.newscom.com/cgi-bin/prnh/20011118/HSSA005 ) Bush's powers to form a military court came from a secret legal memorandum, which the U.S. Justice Department began drafting in the days after Sept. 11, Newsweek has learned. The memo allows Bush to invoke his broad wartime powers, since the U.S., they concluded, was in a state of "armed conflict." Bush used the memo as the legal basis for his order to bomb Afghanistan. Weeks later, the lawyers concluded that Bush would use his expanded powers to form a military court for captured terrorists. Officials envision holding the trials on aircraft carriers or desert islands, report Investigative Correspondent Michael Isikoff and Contributing Editor Stuart Taylor Jr. in the November 26 issue of Newsweek (on newsstands Monday, November 19).

The idea for a secret military tribunal was first presented by William Barr, a Justice Department lawyer -- and later attorney general -- under the first President Bush, as a way to handle the terrorists responsible for the 1988 bombing of Pan Am 103 over Lockerbie, Scotland. The idea didn't take back then. But Barr floated it to top White House officials in the days after Sept. 11 and this time he found allies, Newsweek reports. Barr's inspiration came when he walked by a plaque outside his office commemorating the trial of Nazi saboteurs captured during World War II. The men were tried and most were executed in secret by a special military tribunal.

"Southack, anyone who claims that the President is acting constitutionally without citing the Article which empowers the action they're referring to carries the burden of proof for their assertion. Since I was not the one claiming the the President had the power, granted in the Constitution, to issue such an EO then I was not the one remiss in failing to cite from Article II."

But you were remiss. To wit, you claimed that:
"Bush just showed himself to be a Constitutional illiterate or a corrupt President."

Furthermore, you were incorrect in that claim. You base your claim on some tortured logic, in particular that:
"Article I, section 8 mentions that Congress shall have the power to declare war, grant letters of marque and reprisal and to make rules concerning captures on land and water. It omits any power of Congress to delegate lawmaking powers to any other branch, as well as any power of Congress to empower the President to assume wartime powers absent a declaration of war.

That same section empowers Congress to establish tribunals inferior to the Supreme Court, but fails to empower Congress to delegate that power to the President. According to the 10th Amendment, the only powers the federal government has are specifically enumerated in the Constitution. If it ain't listed, it ain't a federal power."

One problem with your logic is that you presume to distinguish between the "federal government" and "Congress". The 10th Amendment limits the powers given to the whole entirity of our government, not just Congress. Congress is given the authority to write the laws necessary to carry through its powers and obligations. This means that Congress can delegate its authority, so long as Congress had the specific authority granted to it by our Constitution in the first place.

But in your world, only Congress can execute its Constitutional powers even if Congress chooses or finds it necessary to delegate said powers. That's a gross mis-application and misinterpretation of the 10th Amendment (and would in fact deny Congress the ability to have various bureaucracies create their own rules and regulations, among other things).

Talk about tortured logic, yours takes the cake. Our form of government is divided into three branches, each with its own exclusive powers. This is known as separation of powers.

Congress is specifically granted its legislative powers in Article I. In section 1 the opening statement reads, "All legislative powers granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." The President can't be said to fit that description. Congress is not granted the power to delegate legislative powers to another branch. That would override the designed separation of those powers.

If you're my age or older, which I think you are, all of this is 9th grade civics class material. The President is a few years older than I am and has a vastly superior education, yet he appears to have missed freshman civics in high school. If he opens his EO with the usual "by the powers vested in me by the Constitution and by act of Congress", then goes on to issue an order which usurps legislative powers of Congress, then he's either unread in the Constitution, or he knows better and is acting illegally anyway.

The 10th Amendment refers to the "United States" which is the name given by the framers to the federal government they were creating with the Constitution. That government is composed of three branches. There is no way to distinguish between any single branch and the federal government in regard to the limitations prescribed by the 10th Amendment. Those limitations apply equally to all three branches or they apply to none.

Consider what you just said. If Congress is to be able to delegate its legislative powers to other branches of the government, then they might hand over their power to legislate the institution of new taxes to the judiciary or to the President. They might be acting within their powers to delegate their power to determine the rules of Congressional proceedings to the President. That sounds like a sure prescription for disaster. Any President could seize dictatorial powers at will under your scenario, once Congress delegated any of the powers mentioned.

Each of the three branches of government are specifically empowered to perform certain duties. They are not granted blanket permission to do whatever they decide is expedient at any given time. You're arguing for the loose construction of the language of the document which is known as "the living Constitution". If we're going to accept that bizarre theory, we may as well have no Constitution.

You are misinterpreting the Tenth Amendment. The Tenth Amendment limits the overall powers of the Federal Government. It does NOT prohibit one branch of the federal government from delegating authority, period.

If Congress was forbidden from delegating ANY authority, then federal laws could only be enforced by members of Congress. Bureaucrats would have no delegated authority to enforce Congressional laws...

Your misreading and misapplication of the Tenth Amendment would have members of Congress literally issuing federal pilots licences, rather than bureaucrats in the FAA issuing those licenses.

Your interpretation would deny mailmen the authority to verify that a postage stamp on any particular letter was valid. Instead, that letter would have to be physically examined by members of Congress.

That's simply not the case. Congress can delegate any of its power as it sees fit, so long as it has that power in the first place.

Wrong. The executive branch is charged with enforcing federal laws. Anyway, Congress is limited in what it can legislate. The FAA for instance is an unconstitutional federal agency. Congress has no power of enforcement other than their power to enforce their own rules of procedure and conduct for members, except for their impeachment powers. They don't police their own ranks as they are supposed to either, BTW.

No offense intended, but you've never read the Constitution, have you? You're having a hard time understanding that The President can't delegate his war making powers to Congress or to the courts and the courts can't delegate their judiciary powers to Congress, and Congress cannot delegate legislative power to either of the other two branches. Somehow, I can't see that you even understand that there is a separation of powers in our system of government.

Read the document and cite me the pertinent Article and section which empowers any branch of the federal government to delegate its powers to another branch. Article I is the legislative article. Article II is the executive article, and Article III is the judiciary article. Remember, every power the federal government has is granted within the Articles and the amendments. Good hunting. I'll wait for you to do your research.

"The FAA for instance is an unconstitutional federal agency. Congress has no power of enforcement other than their power to enforce their own rules of procedure and conduct for members, except for their impeachment powers."

Rubbish.

Article 1.
Section. 8.

"Congress shall have the power to ... regulate Commerce with foreign nations, and among the several states, and with the Indian tribes;"

"Congress shall have the power to ... make all laws necessary and proper for carrying out the forgoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

"The President can't delegate his war making powers to Congress or to the courts and the courts can't delegate their judiciary powers to Congress, and Congress cannot delegate legislative power to either of the other two branches."

Says who?

As supreme military commander, the President can vest ALL warmaking responsibility to a single general, or to a single civilian, or to a corporation, or to Congress, or to a Court (or whomever he/she desires at his/her whim to manage/conduct military affairs). There are no Constitutional limits to the President's military power. Congress can even grant letters of marque and reprisal such that common citizens are empowered to act on their own accords to attack and destroy the assets and armies of foreign powers.

Non-military courts are granted ALL of their power from Congress, and can be modified or disbanded at Congress' whim (with an exception to the Supreme Court itself). Their power rests solely in the hands of Congress, and Congress can form new courts subordinate to the Supreme Court at its whim, including making Congressmen or Congress itself the judges in said courts.

Military courts are subordinate to the President, who retains full authority over them, as well as full pardon authority for civilian courts.

Congratulations. You skimmed our founding document and seized upon the jurists' amendment and the commerce clause to establish the conclusion that Congress may do whatever it can do. Now, since Congress is empowered in your mind to rule us, then why do we have a Constitution?

First, the 14th empowers Congress to "enforce by appropriate legislation the provisions of" the 14th Amendment. Enforcing by legislation must mean, to you, that Congress can control anything and everything that seems expedient by issuing laws, is that it? Since you've established that, cite the section in the 14th which mentions delegation of legislative powers to the judiciary and the executive. I know that it doesn't exist, but every liberal judge who has legislated from the bench has found his authority somewhere in that amendment as you have. I guess the 14th means whatever anyone dissatisfied with our form of government wants it to mean. Only someone skilled in interpreting English into Martian could claim that "enforcing by legislation" means "delegating Congressional power". Have another drink.

Second, you're trotting out FDR's favorite justification for having Congress do anything convenient. Now, are domestic airlines foreign nations, states or indian tribes? No, not the last time I checked. The commerce clause doesn't state "Congress may dictate anything that pops into the head of any member of the legislative branch just so long as it can be shown that someone somewhere may be assumed to cross a state line in doing his business". Until the Constitution is amended to read in the way I described, then Congress may regulate the way state governments interact in legislating business done by citizens of other states with citizens of their state. That's as far as it can be stretched for interstate commerce. Remember, the Constitution isn't binding on citizens, only on governments.

Third, you've discovered a bizarre empowerment for Congress to act on "whim". I suppose then that anything a majority of politicians want to do is fine. You've taken a turn into delusion now. Congress most certainly may not create courts by whim. Those courts are not empowered by Congress, but by Article III, once they are established. Congress only creates them, it can't give them any power not delegated to the judiciary by the Constitution. I think you're confusing the US Congress with the Politburo of red China.

You're stretching quite a bit to conclude that because the President may delegate warmaking powers to his generals, then he may hand them over to federal courts or to Congress. Give me the cite for that "discovery" of yours. Also give the cite for this imaginary power you're claiming for Congress to abolish the entire judiciary system except the SCOTUS. That one is a huge leap of logic, if the word logic even applies. You've failed utterly to cite anything in any article which even mentions the word "delegate" in regard to powers of one branch being transferred to another. Hint: you'll never find that justification, because the doctrine of separation of powers would be nullified by it. Wait for an amendment.

Keep trying, and one day the design of the Constitution just might become clear to you. You'll have to stop this habit of translating English into Martian, though.

One of these days, if the government decides that you "appear to be intended" to commit an act of terrorism, then you will appreciate the principle of the presumption of innocence until a person is proven guilty.

Given our government's bent, they probably enjoy -- if not outright encourage -- the occasional acts of terrorism or hate crimes that are his posts.

Some folks just are already "with the program" as it were and have less to worry about than others ... or so they think, anyway. They're probably just the sorts who suspect there's a hot meal in a trough waiting for them just because the chutes of the charnel house remind them of the route -- less traveled -- to their secure little pen with all the rights and amenities a long pig could want back home.

"You're stretching quite a bit to conclude that because the President may delegate warmaking powers to his generals, then he may hand them over to federal courts or to Congress. Give me the cite for that "discovery" of yours."

On the contrary, it is no "stretch". The Constitution places the entire military under the civilian command of the President, with no limitations on that command. Thus, if the President wants a general or a Joint Chiefs of Staff to be in command of an operation, then that is the way it will be. If the President wants a civilian defense contractor to manage comlex equipment during a battle, then that's the way it will be because ALL aspects of our military are subordinate to the President's wishes. Likewise, the President can place judges in charge of certain operations, as happened at Nuremberg after WW2.

"Third, you've discovered a bizarre empowerment for Congress to act on "whim". I suppose then that anything a majority of politicians want to do is fine. You've taken a turn into delusion now. Congress most certainly may not create courts by whim. Those courts are not empowered by Congress, but by Article III, once they are established. Congress only creates them, it can't give them any power not delegated to the judiciary by the Constitution."

On the contrary, Congress has the express right to create an unlimited number of courts (see Article III, Section 1). Further, Congress can grant said courts any and all legislatively-derived powers legally created by Congress (via signed bills) or deemed as a Judiciary Power by the Constitution in the first place.

Again, you show that you are misinterpreting and misapplying the 10th Amendment. You are trying to believe that since the 10th Amendment limits the overall scope of Power of "government", that it prevents the delegation of Power between the three branches of government. That is simply not true. Delegation is not forbidden. In fact, delegation of power is incumbant upon enforcing legislation.

Your bizarre, twisted, and visibly DISPROVEN interpretation of the 10th Amendment would hold that the FAA was unConstitutional. Your view would laughably hold that Congress did not have the authority to delegate its Power to the Post Office to issue and verify stamps, but that members of Congress must issue and verify stamps.

You are guilty of trying to re-interpret the Constitution to fit your own personal version of what our government should look like. You are trying to manipulate the facts to fit your own pre-determined conclusion. It won't work.

Congress CAN delegate power. The President CAN delegate power. Courts even delegate power when they release a prisoner under the supervision of another person.

So repeat after me until it finally soaks into your skull: "Power can be legally delegated".

Here, by the way, is a link to the Supreme Court's unanimous decision approving FDR's trial of the 1942 German saboteurs by military commission, EX PARTE QUIRIN, 317 U.S. 1 (1942) . I do not believe the present situation can be effectively distinguished from the situation that the Supreme Court approved in that decision.

The tibunal at issue in Quinn was created by Congress and the Judicial branch served as the final arbitor.

The Bush tribunal was created by the Executive Branch and the Executive Branch acts as the final arbiter. (In addition, the EO abolishes Habeas Corpus -- something only the Legislative branch can do.)

If you still fail to appreciate the difference, I'd give up trying.

"The Bush tribunal was created by the Executive Branch and the Executive Branch acts as the final arbiter. (In addition, the EO abolishes Habeas Corpus -- something only the Legislative branch can do.)"

To abolish Habeas Corpus, it must exist in the first place. Sure, Habeas Corpus exists for U.S. citizens, but where and when did foreign beligerents gain the right of Habeas Corpus?

President Bush has created military tribunals for trying foreign beligerents under his authority as supreme military commander in chief. This is within his authority, and abolishes nothing (certainly not habeas corpus, as you and I still retain that right - ergo it can't have been "abolished" by definition).

I don't mean to butt in, but I've been following your discussion.

Both of you seem to be arguing whether or not Congress can delegate the authority to set up a judicial system to Bush.

Regardless of the answer, I would like to see the statutory authority which purportedly made this authorization.
The EO cites 3 statutes for authority. None of them say anything whatsoever about the President erecting a tribunal. Indeed, 10 USC 820 and 10 USC 836 specifically say the President can't do anything contrary to or inconsistent with Congress' version set forth in Chapter 478 of Title 10. (It is obvious and not fairly deniable that the EO is extremely contrary to and inconsistent with Chapter 47.)

So... would someone mind taking a time out and explaining where Bush recieved the authority to do what he has done?

Thanks. ;)

P.S. I'd also like you to address Section 7(b)(2) of the EO. This section abolishes writs of habeas corpus. Didn't the Supreme Court already state that such an action is illegal and unconstitutional? Lincoln tried the same thing and the Court slapped him down. Why is Bush engagin in an act that is not only contrary to the text of the Constitution (which states that only Congress can abolish habeas corpus), but also contrary to the extremely famous and pivotal case of Merryman which dealt with the exact same issue?

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