Posted on 11/18/2001 1:30:37 PM PST by It'salmosttolate
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.
The critical words "which may not be contrary to or inconsistent with this chapter" may only mean that the president's regulations concerning courts martial -- as opposed to military commissions -- cannot contravene what the UCMJ provides concerning courts martial. The courts will decide what the words mean. In view of what they decided in Quirin, I think it is most unlikely that they will decide that President Bush's order violates this provision.
"What’s wrong with that?"
333 posted on 11/21/01 5:26 PM Pacific by Fred25
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The provisions I listed in my previous post -- appeals, habeas corpus, etc., etc. -- apply to every possible form of tribunal/commission/trial found in Chapter 47 of Title 10 that could ever arguably be applicable to those subject to the EO.
The courts will decide what the words mean.
And how exactly will the issue ever come before a court? The EO specifically states in Section 7(b)(2) that "the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual=s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal."
If one has to violate the EO in order to determine whether the EO is legal, it's a pretty good bet the EO is illegal. ;)
Nothing, and one wonders why you would confuse the delegation of enforcement power with the delegation of legislative power.
Your initial claim was that Congress was prohibited from delegating any level of any power to anyone outside of Congress by the 10th Amendment.
That claim is incorrect and easily disproven. Clearly Congress can delegate its authority over postage to bureaucrats or private contractors in the Post Office system, so obviously power can be delegated.
"The President isn't delegating any powers to another branch by assigning tasks to military leaders or civilian contractors."
That's correct, but pointless. The President IS delegating power when he assigns a general to carry out a certain task. He IS delegating power when he assigns a civilian contractor to oversee complex communications jamming equipment during a battle. Likewise, he IS delegating authority when he assigns federal judges or Congressmen to a military tribunal. Clearly the President can and does delegate Power, contrary to your uninformed, wild-eyed claims above.
At least part of the attack was done against the American citizens. The American citizens deserve a right to to know what is going on. What's your take on this point?
Maritime Law, the UCMJ, and the U.S. Constitution would all seem to differ with your opinion. Under maritime law, pirates can be executed for a variety of reasons in a variety of ways, a trial not always being guaranteed and an appeal not even being an option for most circumstances. The UCMJ and the Geneva Convention permit summary executions for certain POW's, which means no trial, no appeal, and certainly no writ of habeas corpus. Further, the U.S. Constitution places ALL concievable military authority, including military tribunals, under the President. Military tribunals are clearly Constitutional, too.
Frankly, if foreign beligerents are granted an American trial of any form or fashion at all, they should be rather grateful for such benevelent treatment. Their only other option, after all, is to be killed by our military on the battlefield (wherever they may be located, including in the U.S. itself).
The Constitution has a basic principle. That which is not granted is prohibited. You made up your mind before you ever read the Constitution. Read the document and read the essays written during the ratification process. Until you do, you aren't going to accept anything except what you've been told by people who have a stake in gaining public acquiescence to the trashing of the Constitution by politicians.
Look back into your posts and you'll see that you've argued that because there is no specific prohibition of delegation of powers, then any branch may do so. This is the exact opposite of the way the Constitution is designed. Government must have a specific grant of power to do anything. Where no grant exists, prohibition is the rule.
They may file such with the tribunal. So how has habeas corpus been abolished?
I too share your concern that a future President may not be as trustworthy as Bush. I just don't think this EO will have an effect on a lawless President. Suppose Hillary were elected. Do you think she would say: "I'd like to use EO against conservatives but there's no precedent? If only Bush had enacted an EO for using tribunals against his enemies!" No, she'd go ahead and enact whatever EOs she felt like whether there was precedent or not.
Does it legally matter if Dick Cheney physically uses the veto stamp at President Bush's request, but we digress?
The issue is not whether the President can delegate his right to veto legislation. The issue is not whether Congress can delegate its right to enact legislation. At issue is whether Congress can delegate the authority to enforce/enact/maintain legislation (e.g., can Congress delegate the power to enforce the $.34 stamp to bureaucrats in the Post Office, or must Congressmen themselves physically issue and verify stamps to all Americans).
You claim that since the Constitution doesn't use the word "delegate", that Congress can't transfer any level of power or authority to anyone else, especially those in another government branch.
That's simply not accurate. Although the word "delegate" is not in the Constitution, there are numerous examples of text in our Constitution in which Congress is explicitly given the right to enact all legislation necessary for the enactment and enforcement thereof. Such enforcement can include delegating power to non-Congressional bureaucrats such as Postmen, and once you realize that the language in the Constitution thusly permits said delegation of Power and authority, then the rest of your claims fall apart.
Clearly Congress CAN delegate authority to Postmen. Clearly Congress can delegate authority to the President. Likewise, the President can delegate the authority to run any part of a war to anyone he chooses.
I disagree with your claim (above). The reason that you falsely believe that our Constitution is being violated is because you have an incorrect view of the 10th Amendment, and you combine that incorrect opinion with your ability to ignore the numerous Constitutional clauses which explicitly permit the delegation of Power from various branches (e.g. "Congress shall have the power to enforce xxx via all appropriate legislation", et al).
The tenth Amendment DOES limit overall federal power, however, it DOES NOT prevent the numerous Constitutional enforcement clauses from being enacted to delegate power, even among the three federal branches themselves.
Once you comprehend that Each federal branch can and does delegate power, you will no longer have a reason to claim that our Constitution is being "ignored". It isn't being ignored, nor is it being violated. Congress can delegate power down to even lowly bureaucrats in the Post Office such that they can verify stamps instead of forcing actual Congressmen to perform such mundane tasks. The President can delegate military power to generals or private defense contractors. Federal Courts can delegate power to the individual(s) responsible for a prisoner who is being released, etc.
Our government can legally, Constitutionally, delegate power.
One day, I hope that you can understand that fact.
You say that because there's no prohibition listed in the Constitution, then the president may create courts, though that's a Congressional power. The way the Constitution works, everything that any of the three branches of the federal government does must be specifically granted as a power in the Constitution. The Constitution is not a list of prohibitions, it's a document which details what, precisely, CONSTITUTES the proper form and function of our government.
I gave you the benefit of the doubt for a while, but you've proven yourself to be not only totally uninformed, but arrogant enough in your ignorance to state that the 10th amendment is merely a limit on government's overall powers rather than the clear statement that any power not granted the federal government nor prohibited to the states is power reserved to the states or to the people. Read the amendment and stop embarassing yourself.
I've been discussing these things long enough to recognize a constitutional illiterate when I encounter one. You're just the latest in a long line.
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