"President Bush overstepped his authority"
June 29, 2006 7:23 AM   Subscribe

The U.S. Supreme Court has just ruled President Bush overstepped his authority in creating military war crimes trials for Guantanamo Bay detainees. The 5-3 vote (Roberts recused himself) found the "military commissions" illegal under both military justice law and the Geneva Convention. More from SCOTUSblog.
posted by XQUZYPHYR (191 comments total) 2 users marked this as a favorite

 
OH SNAP!
posted by beerbajay at 7:25 AM on June 29, 2006 [2 favorites]


pwned
posted by StrasbourgSecaucus at 7:26 AM on June 29, 2006


This made my morning!
posted by kaseijin at 7:27 AM on June 29, 2006


Hoot!
posted by Atreides at 7:28 AM on June 29, 2006


Will Bush dare to ignore this tho? They believe in limitless power of the Executive.
posted by amberglow at 7:29 AM on June 29, 2006


Nod in that direction and continue to pursue the unprecedented power grab is my guess on how POTUS will play it.
posted by ahimsakid at 7:37 AM on June 29, 2006


Dude it's like they don't want being President to be fun anymore.
posted by freebird at 7:38 AM on June 29, 2006 [1 favorite]


Big deal.

In the time it'll take to resolve the appeal and political fuss, he'll ram through the trials for all ten folks. Then, he'll provide a folksy mea culpa, shrug his shoulders, and go on to stomp on several other areas of the Constitution.

I'll put it bluntly - if this decision doesn't trigger a successful impeachment, then it's useless. "Yeah, you're right, I broke the law. My bad. And now, to continue breaking the law..."
posted by FormlessOne at 7:39 AM on June 29, 2006


"When they lose their sense of awe, people turn to religion. When they no longer trust themselves, they begin to depend on authority." -
"Lao-Tzu"

Makes not one wit of difference, GW likes his role of "authority"
people like to be protected... nuff said.
posted by Unregistered User at 7:39 AM on June 29, 2006


In the time it'll take to resolve the appeal - am I missing something? I didn't think you could appeal a Supreme Court ruling. If you can ... how?
posted by kaemaril at 7:42 AM on June 29, 2006


Not an appeal in a legal sense, but the usual public appeal Bush makes in which he explains that he did this for all of us, for liberty, for freedom.
posted by FormlessOne at 7:44 AM on June 29, 2006


From ScotusBlog:

"The Court appears to have held that Common Article 3 of Geneva aplies to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. .......This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes)."
posted by CunningLinguist at 7:44 AM on June 29, 2006


Time to roll out more pr ads w/the halo behind ol sunking...
posted by Unregistered User at 7:45 AM on June 29, 2006


they are so poisoning Stevens' dessert one of these nights
posted by matteo at 7:45 AM on June 29, 2006


What CunningLinguist said. This is huge, and goes far beyond the tribunals.
posted by monju_bosatsu at 7:47 AM on June 29, 2006


This is good.
posted by languagehat at 7:47 AM on June 29, 2006


Mmmmm.... war crimes.

Here's hoping for a life sentence of hard labor after the trial.
posted by beerbajay at 7:47 AM on June 29, 2006


What does this mean... that now we're just going to leave the prisoners languishing at Gitmo without trial?
posted by chef_boyardee at 7:48 AM on June 29, 2006


"... joining the court's liberal members in ruling against the Bush administration."

Why must anyone who makes a decision in the US be categorised as either liberal or conservative? This over simplification is so annoying.
posted by cmacleod at 7:48 AM on June 29, 2006


What does this mean... that now we're just going to leave the prisoners languishing at Gitmo without trial?

Or we could give them a fair trial by a jury of their peers, ha ha ha.
posted by rxrfrx at 7:50 AM on June 29, 2006


What CunningLinguist said. This is huge, and goes far beyond the tribunals.

Mr. Gonzalez, the Court just called. They don't like your memo.
posted by norm at 7:50 AM on June 29, 2006


Chef, yes, but it also means that they have to stop torturing them.

I'm perfectly okay with detaining genuine taliban fighters (even if they aren't terrorists) indefinitely as long as they are treated humanely and decently.
posted by empath at 7:50 AM on June 29, 2006


Surely, this...

I can't believe no one else said it.
posted by fungible at 7:52 AM on June 29, 2006


Great news for the Rule Of Law, to say nothing of common sense. But it isn't a done deal until the administration actually abides by the ruling.
posted by ilsa at 7:53 AM on June 29, 2006


What I think is interesting is that even had Roberts not recused himself the ruling would still have been the majority.
posted by OmieWise at 7:53 AM on June 29, 2006


Doesn't this also mean that they have to be allowed communication with the outside world, red cross visits, etc?
posted by empath at 7:54 AM on June 29, 2006


empath says ... I'm perfectly okay with detaining genuine taliban fighters (even if they aren't terrorists) indefinitely as long as they are treated humanely and decently

Karl? Is that you?
posted by fullerine at 7:56 AM on June 29, 2006


oh get off it. Some of those people are dangerous and yet not prosecutable. I don't know how many, maybe a few dozen at most. I'd wager that 95% of them are in there for no good reason at all, though.
posted by empath at 7:58 AM on June 29, 2006


Unregistered User: Time to roll out more pr ads w/the halo...

Oh wow. I had forgotten all about those. Does anybody have a link to one so I can save it?
posted by kaseijin at 7:58 AM on June 29, 2006


Following up on CunningLinguist's comment, can any of the more law-aware among MeFi opine on what will likely happen next? Will this go away or does it absolutely beg for further action?
posted by NationalKato at 7:59 AM on June 29, 2006


FormlessOne writes "I'll put it bluntly - if this decision doesn't trigger a successful impeachment, then it's useless."

I don't really understand this attitude. I mean, I get and share the frustration, but it seems like this comment wants it both ways: we don't need the SCOTUS to rule on these issues, we already know what's illegal and what isn't, and, when the SCOTUS does rule, rather than being a check on Executive power, in other words, an interpretation that must then be respected, it's actually a post hoc ergo propter hoc reason for impeachment.

I do think that GWBCO. knew this was illegal, but it was illegal in the execution of US govt policy and therefore a ruling by the Supremes is exactly the way that it gets dealt with...only if he decides to not abide by that ruling (therefore initiating an illegal takeover of the entire US govt), does it seem like something impeachment worthy.

(And just to be crystal clear, there are other things which I feel like GWB could be impeached over, and there's no way in which I support the detention policy.)
posted by OmieWise at 8:00 AM on June 29, 2006


This too, will pass. (IANL)
posted by IronLizard at 8:00 AM on June 29, 2006


A preview of the reax from the administration's supporters:


"Make no mistake: if this happens, the Supreme Court will have dictated that we now have a treaty with al Qaeda — which no President, no Senate, and no vote of the American people would ever countenance. "
posted by CunningLinguist at 8:02 AM on June 29, 2006


Will this go away or does it absolutely beg for further action?

I'm not even close to a lawyer, but it seems to me that if it's true that the ruling declares these detainees as covered under the Geneva Convention, it opens to the door to a flood of lawsuits and challenges on multiple fronts, most obviously on human treatment.
posted by empath at 8:02 AM on June 29, 2006


Justice Clarence Thomas wrote a strongly worded dissent, saying the court's decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy." -NY Times article

I suppose this was said when we rounded up all the ethnically Japanese Americans about sixty years ago?
posted by Atreides at 8:04 AM on June 29, 2006


Omie, most of us know they have no intention of following this ruling, so what's the alternative? They knew it was illegal all along and this ruling doesn't change that--it only affirms it. They don't follow what the Legislative says either.
posted by amberglow at 8:05 AM on June 29, 2006


The opinion just went up.
posted by monju_bosatsu at 8:06 AM on June 29, 2006


"It means we can't be scared out of who were are. And that's victory, folks." - Hamdan's lawyer just now outside the court.
posted by CunningLinguist at 8:07 AM on June 29, 2006


It seems to me that putting aside the Geneva Convention, the Constitution and all the other legal technicalities, that we are still dealing with and talking about actual human beings here, and the the principles of this country were not founded on the concept that Americans alone have rights by virtue of being American, but that all people every where have them.

And I don't see how a terrorist is any worse than the Nazis, who we gave trials to, or a child molestor or a serial killer or a rapist or any of the other categories of horrible people that we still extend rights to when trying and detaining them.

Whatever the legal path that it takes to get there, it's absolutely clear to me that the right answer is to treat everyone (who is not an active danger -- ie, on a battlefield or engaging in violent activity) fairly, decently and humanely, unless and until they've been proven to be a criminal and sentenced.
posted by empath at 8:08 AM on June 29, 2006


To make up for his error, Bush made an unannounced trip to Guantanamo to visit with the inmates. He went from cell to cell, apologizing to imates. He was also overheard saying "I pahhdon you."
posted by pmbuko at 8:08 AM on June 29, 2006


oh get off it. Some of those people are dangerous and yet not prosecutable.

Where do I send my list of people I'm afraid of, so they can be unjustly imprisoned indefinitely, too?
posted by odinsdream at 8:09 AM on June 29, 2006


OmieWise: Decision without action is useless.

The Supreme Court has indicated that the President has broken the law, repeatedly and deliberately.

I do think that GWBCO. knew this was illegal, but it was illegal in the execution of US govt policy and therefore a ruling by the Supremes is exactly the way that it gets dealt with...only if he decides to not abide by that ruling (therefore initiating an illegal takeover of the entire US govt), does it seem like something impeachment worthy.

I'm confused. See, when I knowingly break the law, and deliberation finds me guilty of doing so, my usual expectation is that renumeration, either punitive or compensatory, is expected. I'm not told, after committing first-degree murder, that if I just don't do it again, everything's OK.

The very fact that he knowingly and deliberately broke the law is indeed impeachment-worthy, in and of its own right. When Clinton was found guilty of perjury, I don't think everyone said, "well, if he stops lying from here on in, we're OK with it?"

No, impeachment proceedings were started because he was found to have already broken the law. Why is this different?
posted by FormlessOne at 8:09 AM on June 29, 2006


amberglow writes "Omie, most of us know they have no intention of following this ruling, so what's the alternative?"

I'm not entirely sure what the alternative is (although we all also know an impeachment ain't gonna happen), but I'm also not sure that we can say on the one hand that we're pissed that GWBCO are operating outside the accepted constitutional methods of governance, and then on the other suggest that because of that those in opposition should also do the same. To make it a bit spicier, the very conundrum I'm posing seems to me a bit like the conundrum of how to maintain integrity when fighting a non-national fighting force whose main weapon is terrorism.
posted by OmieWise at 8:09 AM on June 29, 2006


kaseijin: Seek and ye shall find.
posted by anomie at 8:09 AM on June 29, 2006


if this decision doesn't trigger a successful impeachment, then it's useless.

Take a slightly longer view. It may not get what you want this year - or even this term - but it's as much about the Precedent as the President.
posted by freebird at 8:10 AM on June 29, 2006


Teflon.
posted by stbalbach at 8:11 AM on June 29, 2006


Ha hah HAH ha hahh:

The opinion just went up.

I totally thought that was a link to a Poll.
posted by freebird at 8:12 AM on June 29, 2006


kaseijin, take your pick.
posted by Unregistered User at 8:12 AM on June 29, 2006


From the NYT article: Two years ago, the court rejected Bush's claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this follow-up case, the justices focused solely on the issue of trials for some of the men.

Nothing happened then either.
posted by amberglow at 8:12 AM on June 29, 2006


FormlessOne writes "I'm confused. See, when I knowingly break the law, and deliberation finds me guilty of doing so, my usual expectation is that renumeration, either punitive or compensatory, is expected. I'm not told, after committing first-degree murder, that if I just don't do it again, everything's OK."

Yeah, but that's the wrong analogy. The way it works under the constitution is that SCOTUS determines if a law or the application of a law violates the US Constitution, and if it does, the law or the application of the law is abandonded by those previously applying it. There may be other things that go along with that, but when the US govt is doing something which is later deemed unconstitutional no one ends up going to jail because the govt was doing that unconstitutional thing. That doesn't change no matter how much we hate Bush, nor do I want it to. I think you're letting your anger run away with your reason.
posted by OmieWise at 8:13 AM on June 29, 2006


freebird: I am taking a longer view. If we don't establish, and soon, that the executive branch has to suffer swift consequences for breaking the law, then we're screwed as a country.

We've told the rest of the world that, yes, the highest court in the land has acknowledged that our current President has violated both U.S. and international law. They're going to watch and see what we do about it.

The response to this finding is going to dictate how the rest of the world perceives our mouthings of democracy for a long time to come.
posted by FormlessOne at 8:14 AM on June 29, 2006


Where do I send my list of people I'm afraid of, so they can be unjustly imprisoned indefinitely, too?

If you capture someone on a battlefield, you can hold them indefinitely, until the war is over. I believe that some of these people were actually caught and captured on the battlefield, and hostilities in Afghanistan are ongoing. The same goes for insurgents in Iraq. I think that very limited case, it's perfectly fine to detain those people until the fighting stops and we leave the country. I think they should be kept in the exact same conditions that we'd like our own soldiers kept as prisoners of war, though, not in some black-hole prision in eastern europe. And I certainly don't think they should be tortured or mistreated in anyway, and they should be allowed contact with family and the red cross, where possible.

You can't put down an insurgency if you keep releasing everyone you capture.
posted by empath at 8:15 AM on June 29, 2006


I don't think this will go away. I don't have any legal reasons, really, I just think GWB will comply because it would be a major overstep to refuse to comply. (IAAL) I believe what it means is that these people must now be charged and tried in civilian courts, and consequently are afforded all the associated rights, but I'm not sure. Can't wait to read the opinion.

What's the use if it doesn't lead to impeachment? It could jumpstart a closing of GITMO, it could result in some real trials and some of the innocent people could be released. It makes us look better to the world (and in my mind that decreases our risk of terrorist attacks).

Neal Katyal - the attorney who argued for Hamdan - is really on a roll. I'd like to see where he takes this next.
posted by Amizu at 8:15 AM on June 29, 2006


Impeachment is part of the Constitutional methods of governance--i know it won't happen, but this is not at all the only occasion where they've been proven to have broken and/or ignored the laws of our country and the Constitution.

I can't see anyone actually thinking they'll abide by this when they didn't abide by the last ruling the Supremes made.
posted by amberglow at 8:16 AM on June 29, 2006


empath, we never declared war, did we? we're not legally at war.
posted by amberglow at 8:17 AM on June 29, 2006


Thanks, anomie!
posted by kaseijin at 8:17 AM on June 29, 2006


OmieWise: Perhaps. But, it's not just an issue of renumeration. What comes of this will affect our relationship with the rest of the world, as I mentioned to freebird. I'm not as concerned about the "let's get Bush!" push as I am about how we, as a country, will be perceived if the best response we can provide to our President breaking the law is "well, I just won't do it again."
posted by FormlessOne at 8:17 AM on June 29, 2006


oh get off it. Some of those people are dangerous and yet not prosecutable

Nonsense. In what way are they not prosecutable? If they've broken laws they're criminals and should be prosecuted. If they've not broken laws they shouldn't be there, unless as genuine POWs in which case it would be valid for them to be treated as prisoners but should not be prosecuted.
posted by kaemaril at 8:18 AM on June 29, 2006


swift consequences

"The wheels of justice grind slowly, but they grind exceeding fine."
posted by empath at 8:18 AM on June 29, 2006


Not an appeal in a legal sense, but the usual public appeal Bush makes in which he explains that he did this for all of us, for liberty, for freedom.
posted by FormlessOne


Not just that, but also ignoring the ruling, and then waiting for another case to go up to the Supreme Court to determine that he has ignored it. With that case, Roberts could vote and maybe Bush would have appointed another.
posted by Happy Monkey at 8:19 AM on June 29, 2006



posted by Unregistered User at 8:19 AM on June 29, 2006


Why must anyone who makes a decision in the US be categorised as either liberal or conservative? This over simplification is so annoying.

It's less obvious than saying "us" and "them" maybe?

Good news. It would have been nice to see where Roberts would have landed on this.
posted by three blind mice at 8:20 AM on June 29, 2006


kaemaril: Do you really want to prosecute a bunch of nationalist insurgents for mass murder, conspiracy etc? At some point, these people will actually be released, hopefully.
posted by empath at 8:20 AM on June 29, 2006


FormlessOne writes "If we don't establish, and soon, that the executive branch has to suffer swift consequences for breaking the law, then we're screwed as a country."

I continue to be confused by your idea of how the gov't works. Is there something I'm missing here? When the SCOTUS rules against another branch of govt', that determines when something is illegal. Even if someone (say, South Dakota) passes a law that they strongly suspect may be illegal, the consequence that they suffer is that they have to change the law. That is the consequence, no matter how bad the faith in which they passed the law in the first place. If they then continue to flaunt their "law," well, that's when a principled Pres sends in the National Guard.

I understand the concern that BUSHCO will just ignore this ruling, I share it. It's at that point, though, after he has ignored the ruling (not simply after it has been handed down) that impeachment becomes a recourse (in this case, for this thing). Otherwise, the SCOTUS would have to rule on laws and policies and their application before they were ever put into effect in order for govt officials to be assured that they wouldn't be sent to jail if the laws and policies were later ruled illegal.
posted by OmieWise at 8:21 AM on June 29, 2006


empath, we never declared war, did we? we're not legally at war.

We never declared war on North Vietnam, yet we demanded that our POWs be treated accordingly by Geneva (though they weren't). The same has been true of engagements since and before (Korea).

We've set a precedent of undeclared wars with expectation of prisoners to be treated as if in declared war. There's no reason why we can't now classify the Gitmo prisoners as POWs.

Course, we have to treat 'em better.
posted by Atreides at 8:23 AM on June 29, 2006


Exactly OmieWise - if this ruling is about breaking existing law, sure, there should be a punishment. But if it's clarification of a grey zone, immediate action would be wrong, frankly. Rule of law and the infrastructure that maintains it is far more important than any punishment for almost anything a president could do, in the long run.
posted by freebird at 8:26 AM on June 29, 2006


Lest anyone misunderstand me: I think the war in Iraq was an illegal war of aggression, and by all rights its architects, including Bush and Rumsfeld should be prosecuted for Crimes Against Humanity on that basis alone.

But if you take for granted the assumption that the wars in Iraq and Afghanistan were legal, then there is nothing wrong with detaining battlefield combatants from those conflicts for the duration of the conflict -- as long as it's limited to combatants and they are treated in accord with the Geneva Convention.

And, since the administration has not done that either, they should have been prosecuted for war crimes for that. But at this point, I'd be marginally happier if they at least started complying with the Geneva Conventions from this point forward.
posted by empath at 8:27 AM on June 29, 2006


Atreides, but the administration all along specifically did not want them classified as POWs and invented the classification of "enemy combatants" on purpose to avoid having to treat them according to Geneva--why would they now change their tune? and what happens if they don't?
posted by amberglow at 8:32 AM on June 29, 2006


there is nothing wrong with detaining battlefield combatants from those conflicts for the duration of the conflict

Without clearly defining "battlefield combatants" and "the duration of the conflict" (which no one has done), that's just ridiculous. I hereby declare you to be a battlefield combatant in this conflict, which will last forever. Please report to prison immediately.
posted by scottreynen at 8:33 AM on June 29, 2006


The Chief Justice was out of the case because he had sat on the D.C. Circuit Court when it issued the decision that the Court overturned Thursday. On the Circuit Court, he supported the legalilty of the commissions.

Though it doesn't mention what his opinion was exactly, or how close it was to todays dissenters.
posted by rschroed at 8:33 AM on June 29, 2006


when does it become a Constitutional Crisis?
posted by amberglow at 8:35 AM on June 29, 2006


Torture teachers
posted by Unregistered User at 8:35 AM on June 29, 2006


OmieWise: You're right, of course - but, I still maintain that the perception of whatever falls from this may end up more important, in the long run, than the actual response.

I don't think it's going to be enough to simply say, "OK, I'll stop doing that," even if that's the proper legal response by the executive branch. I'm fully expecting the Bush administration to look for another "angle" that will allow them to do what they want - they will destroy the spirit by following the letter. Completely legal, utterly harmful.
posted by FormlessOne at 8:37 AM on June 29, 2006 [1 favorite]


You're just being stupid. We managed to do it just fine in WWII. If you capture somebody who was firing at US (or Iraqi or afghan) troops, he's a combatant.

If we didn't have a completely fucked up administration, we'd have tribunals set up to decide who was a legitimate combatant and who needed to be cut loose. Unfortunately, we're stuck with the one we have.

You could also reasonably define the end of the conflict by say-- when we stop having our troops killed on a regular basis.

Unfortunately the current administration is perfectly willing to bleed our army dry forever, apparently, which means that we'll end up holding those poor bastards forever.

The ultimate solution, is, as it was 2 fucking years ago, to vote out the sons-of-bitches, and put somebody in charge who will actually make reasonable, decent decisions about the war, the conduct of it, and the ending of it.
posted by empath at 8:37 AM on June 29, 2006


empath : kaemaril: Do you really want to prosecute a bunch of nationalist insurgents for mass murder, conspiracy etc? At some point, these people will actually be released, hopefully.

Yes. Yes, I do. If there is evidence to suggest they have broken the law they should stand trial and have the case against them put to them in court.

If they have committed mass-murder, conspiracy etc they won't be getting out anytime soon under the US legal system.

What exactly is it that you think makes these guys a special case?
posted by kaemaril at 8:39 AM on June 29, 2006


I'm glad to see some sanity in our government for once, but I don't know that this will change anything. If the President doesn't have to be constrained by the legislative branch when it comes to interpreting the Constitution and prosecuting a war, why should he be constrained by the judicial? Look for lip service to this decision while behind the scenes, they merrily keep on doing as they please.
posted by EarBucket at 8:39 AM on June 29, 2006


amberglow,

Honestly, I see no motivation for them to change their tune at all, but the option is there if for some reason they opted to. Like most of the other "victories" against Bush policies of the past, until there is a Congress willing to flex its muscle against the executive branch, I doubt much if anything will happen.
posted by Atreides at 8:40 AM on June 29, 2006


amberglow -- we've been in a constitutional crisis since 9/11, when bush used it as an excuse to trample over congress and the courts. The only remedy is impeachment, and until we get democrats in charge of one house of congress at least, it's not going to happen.
posted by empath at 8:41 AM on June 29, 2006


Without clearly defining "battlefield combatants" and "the duration of the conflict" (which no one has done), that's just ridiculous. I hereby declare you to be a battlefield combatant in this conflict, which will last forever. Please report to prison immediately.

Jose Padilla could probably speak to that issue. What's worse, is that the reason for which he was imprisoned as an enemy combatant is not the reason for which he is currently on trial, years later.

I hereby declare you to be an enemy combatant, because I have it on good word that you're building a "dirty bomb." Oh, wait, sorry - now that I'm forced to send you to trial, you're actually, um, yeah, providing - and conspiring to provide - material support to terrorists, and conspiring to murder individuals who are overseas. That whole "dirty bomb" thing? Yeah, forget about that.
posted by FormlessOne at 8:43 AM on June 29, 2006


What exactly is it that you think makes these guys a special case?

The geneva convention. Under the geneva convention you can hold soldiers who have not committed a crime indefinitely. Even if they've killed a bunch of people, and even if they haven't killed anyone.
posted by empath at 8:43 AM on June 29, 2006


FormlessOne writes "I'm fully expecting the Bush administration to look for another 'angle' that will allow them to do what they want - they will destroy the spirit by following the letter. Completely legal, utterly harmful."

Yeah, me too.
posted by OmieWise at 8:44 AM on June 29, 2006


The Jose Padilla and Hamdi cases are clearly bullshit. People get confused here because the Bush administration has intentionally confused them by lumping actual criminals (and completely innocent people) in with POW's who are not criminals and should not be treated as such, even if they are held captive.
posted by empath at 8:45 AM on June 29, 2006




Anyone else listening to the press conference with the Japanese Prime Minister? Bush opened with, "The United States and America enjoy a close relationship."
posted by fandango_matt at 8:50 AM on June 29, 2006


I'm curious to see what John Dean will have to say about this.
posted by clevershark at 8:51 AM on June 29, 2006


As far as I can see, there are three classes of people that bush has tried to lump together as unlawful combatants:


Actual Terrorists -- these are people who really should be tried, and if guilty, convicted and sentenced to prison (or worse).

Innocent people - People who were detained with no evidence or turned over for bounties-- they should be released immediately (or after a trial where they are acquited), but the bush administration won't because it's embarassing or worse.

Enemy Combatants -- People who are members of insurgent groups-- these people should be given POW status (after a tribunal determines their status) and be treated humanely, allowed contact with the outside world, and released whenever hostilities stop in the country they were captured in.

In no case should anyone be held indefinitely without some determination of their status and with no plan to release them at a future date or at least try them for an actual crime.
posted by empath at 8:52 AM on June 29, 2006


Stop hurting Metafilter.

Ha Ha! Yeeeeah....
posted by BobFrapples at 8:52 AM on June 29, 2006


Correct me if I'm wrong, but hasn't the supreme court in this decision eliminated the concept of an 'unlawful combatant'?
posted by empath at 8:54 AM on June 29, 2006


"Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary," Breyer wrote.

I think this bit from Breyer's opinion is interesting, because as time goes on Bush is less likely to get the things which he might have previously been able to get out the the legislature. In other words, his policy of having the executive go it alone seems to provide not just diminishing returns, but, as time and tides shift, fewer and fewer positive returns in the future.
posted by OmieWise at 8:56 AM on June 29, 2006


It would have been nice to see where Roberts would have landed on this.

He was on the D.C. Circuit panel that got reversed here, so absent a dramatic change of heart, he would have dissented.
posted by brain_drain at 8:56 AM on June 29, 2006


I do think it bears repeating that President Bush is guilty of violating both American and international law. The only question now is whether the United States is the kind of country that will allow a war criminal to remain in power.

(Hint: Yes.)
posted by EarBucket at 8:57 AM on June 29, 2006


Earbucket: Agreed on both counts.
posted by empath at 8:58 AM on June 29, 2006


empath: Yes, but you cannot prosecute them. Not unless it's for a crime, in which case the third geneva convention requires that they be tried using the same method as if it were one of your own troops. Further, the third geneva convention states that if accused of a crime you're not allowed to treat them any worse than if they were one of your own.

Military tribunals fail miserably on the former. Guantanamo bay fails miserably on the latter.

Further, even if they're not accused of crimes and are 'just' POWs then Guantanamo fails on that score also.

So, as my first post said:
If they're accused of criminal acts they should be prosecuted.
If they're not accused of criminal acts they shouldn't be there UNLESS they're POWs in which case they should not be prosecuted.

Maybe we're arguing semantics, but in my eyes there's a difference between 'not prosecutable' (which to me suggests we'd like to prosecute them but we just can't, 'cos they're too dangerous or what have you) and we can't prosecute because they've done nothing to warrant prosecution. I suspect, but have yet to confirm, we're on the same side here.
posted by kaemaril at 9:00 AM on June 29, 2006


Maybe GWB will just rule the Supreme Court void- and abolish them.

He can ya know. He thinks he can do whatever he wants......
posted by stevejensen at 9:00 AM on June 29, 2006


from scotus blog:

As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons).

More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

posted by empath at 9:00 AM on June 29, 2006


FormlessOne: When Clinton was found guilty of perjury. . .impeachment proceedings were started because he was found to have already broken the law.

What? This is news to me.
posted by Neiltupper at 9:01 AM on June 29, 2006


kaemiril, yes we agree. I meant they are dangerous (ie -- likely to continue fighting if released) but not prosecutable (have not committed a crime)
posted by empath at 9:02 AM on June 29, 2006


Alas, the ruling, it does nothing.

Yes, on paper, it's a huge slap to BushCo.

What will happen.

Nothing.

We've seen this game a thousand times. Bush refuses to be bound by the law. Congress refuses to do anything about it. Therefore, the ruling means nothing.
posted by eriko at 9:02 AM on June 29, 2006


An interesting perspective over at Think Progress.
posted by EarBucket at 9:05 AM on June 29, 2006


Correct me if I'm wrong, but hasn't the supreme court in this decision eliminated the concept of an 'unlawful combatant'?

Yes and no. The SCOTUS has agreed that such detainees may not be subject to other protections of the Geneva Convention, but it, critically, has determined that they *are* subject to "common" article III of the Geneva Conventions, which basically guarantees a degree of humane treatment and due process in military trials. That, and the determination that the administration must follow the law as Congress writes it instead of just making stuff up, are the two big holdings out of this case as I read it.
posted by norm at 9:08 AM on June 29, 2006


And, just in case anyone can't be bothered to google for article 3, here it is from the third convention. Article 3 of the fourth convention (treatment of civilians) is almost word for word identical.

Article 3 of the third Geneva Convention relative to the Treatment of Prisoners of War

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

So there ya go :)
posted by kaemaril at 9:16 AM on June 29, 2006 [1 favorite]


A couple of thoughts:

First, the argument that the administration broke the law and should be punished is unlikely to gain any traction. The government loses all the time in the Supreme Court, and it's rarely followed by investigations into lawbreaking. The reason a case gets to the Supreme Court is generally that the law is not clear. Even in this case, the judges were evenly split. A majority of the appellate judges who heard the case actually sided with the administration (7-5). I know people will say the dissenters are Bush lackeys, and maybe there's truth to that, but it will be hard to convince the public that the administration did something that was clearly and unmistakably off-limits.

Second, paradoxically, I could see this ruling turning out to be a good thing for the administration. Bush has been taking heat for years now on these issues. Here's a chance for him to take the issues off the table and blame everything on the judiciary. "I would be doing what I can to protect the American people, but the courts have tied my hands." Or even worse, after the next terrorist attack: "This wouldn't have happened if the courts had let us fight the terrorists the way we want." Etc.
posted by brain_drain at 9:22 AM on June 29, 2006


Roberts recused himself because as a member of a lower court he had previously ruled in favor of the president. If he had voted, the vote would have been 5-4.

That means the president is one nomination away from turning the Supreme Court into a rubber stamp for any fool idea that pops into his head, and Justice Ginsburg is in poor health. One more appointment, and the court will be stacked with Republican activists.

Not that it really matters. The Bush administration simply ignores any rule that contradicts what they want to do. In this case, they will keep these suspects interred indefinitely without a trial, and to avoid this hassle in the future, fresh suspects will be tortured and killed more privately.
posted by Jatayu das at 9:26 AM on June 29, 2006


I apologize if many of you think this is a stupid question, but why did Roberts have to recuse himself? What was his conflict? I mean, I can think of a couple of things, but nothing that applies to him and not Alito, so I'm confused (and not a lawyer)...
posted by Dormant Gorilla at 9:28 AM on June 29, 2006


brain_drain:First, the argument that the administration broke the law and should be punished is unlikely to gain any traction. The government loses all the time in the Supreme Court, and it's rarely followed by investigations into lawbreaking. The reason a case gets to the Supreme Court is generally that the law is not clear.
Absolutely. The chances of Bush getting slapped for prior actions is virtually nil, but now he's been told in no uncertain terms to quit it. He no longer has the dubious defence of claiming he didn't know his administration's actions were unconstitutional/unlawful.

He either has to rethink or ignore the SC and carry on regardless, in which case there can be no doubt that he is acting unlawfully. In which case congress, as men and women of honour, have no choice but to follow their oaths to support and defend the constitution, put aside party loyalties and impea...

... sorry, I just re-read that last sentence and started laughing. My colleagues are giving me funny looks. Heh. Honour ... put aside party loyalties ... support the constitution ... honestly, what WAS I thinking?
posted by kaemaril at 9:33 AM on June 29, 2006


This just added to CNN's coverage:

At a news conference with Japanese Prime Minister Junichiro Koizumi, President Bush said that he had not had a chance to review the ruling. He said, however, he would take the ruling seriously.

"To the extent there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so," Bush said.

"The American people need to know that the ruling, as I understand it, won't cause killers to be put out on the street," he added.

posted by NationalKato at 9:34 AM on June 29, 2006


dormant, they were reviewing a case he has previously ruled on.
posted by empath at 9:34 AM on June 29, 2006


Wow, now what would be really cool is if we still lived in a democracy where the President actually listened to the checks on his power. This Congress will not enforce the Supreme Court decision, our media will not inform the people of this so what we have is a President in contempt of court and a citizenry to cowardly and/or ill-informed to do anything about it. This isn't the first time this has happened with Bush and I assume that this has been the path to dictatorship for more than one nation. When are we going to wake up?
posted by any major dude at 9:37 AM on June 29, 2006


Why even bother caring about the decision if you think it's so meaningless?
posted by smackfu at 9:38 AM on June 29, 2006


Are you talking to me smackfu?
posted by any major dude at 9:42 AM on June 29, 2006


any major dude : President in contempt of court

I don't know if that's possible. Any lawyers around to say one way or the other? The SC is a court of judicial review, it only gets to say what's lawful and what isn't. It can only say 'X is unlawful' I don't believe it has the power to say 'OK, Y, stop doing X'

Or that's my understanding, anyway. Obviously IANAL.
posted by kaemaril at 9:45 AM on June 29, 2006


Well, wouldn't that mean he'd be in contempt of the lower court decision that the SC confirmed?
posted by any major dude at 9:49 AM on June 29, 2006


Are you talking to me smackfu?

I'm talking to any of the people who are complaining even though the decision could not have gone any better.
posted by smackfu at 9:52 AM on June 29, 2006


any major dude: our media will not inform the people of this

You're right, the story is being buried in obscure places like the CNN and the New York Times.
posted by brain_drain at 9:54 AM on June 29, 2006


Bottom line, folks: this is a good decision, and one that should be celebrated. What should be closely watched and worried about is an appointment of another Justice by this administration.
posted by NationalKato at 9:58 AM on June 29, 2006


I don't believe it has the power to say 'OK, Y, stop doing X'

It succeeded in saying "OK, Y, you get to be president now," so I wouldn't put it past them.
posted by rxrfrx at 9:59 AM on June 29, 2006


This case has some pretty big implications. For analysis, I always turn to Greenwald:

(3) The Court dealt several substantial blows to the administration's theories of executive power beyond the military commission context. And, at the very least, the Court severely weakened, if not outright precluded, the administration's legal defenses with regard to its violations of FISA. Specifically, the Court:

(a) rejected the administration's argument [Sec. IV] that Congress, when it enacted the 2001 Authorization to Use Military Force in Afghanistan and against Al Qaeda ("AUMF"), implicitly authorized military commissions in violation of the UCMJ. In other words, the Supreme Court held that because the AUMF was silent on the question as to whether the Administration was exempt from the pre-existing requirements of the UCMJ, there was no basis for concluding that the AUMF was intended to implicitly amend the UCMJ, since the AUMF was silent on that question.

This is a clearly fatal blow to one of the two primary arguments invoked by the administration to justify its violations of FISA. The administration has argued that this same AUMF "implicitly" authorized it to eavesdrop in violation of the mandates of FISA, even though the AUMF said absolutely nothing about FISA or eavesdropping. If -- as the Supreme Court today held -- the AUMF cannot be construed to have provided implicit authorization for the administration to create military commissions in violation of the UCMJ, then it is necessarily the case that it cannot be read to have provided implicit authorization for the administration to eavesdrop in violation of FISA.

(b) More broadly, the Supreme Court repeatedly emphasized the shared powers which Congress and the Executive possess with regard to war matters. Indeed, in his concurring opinion, Justice Kennedy expressly applied the mandates of Justice Jackson's framework in Youngstown (the Steel Seizure case) on the ground that this was a case where the adminstration's conduct (in creating military commissions) conflicted with Congressional statute (which require such commissions to comply with the law of war).

Applying Youngstown, Kennedy concluded that the President's powers in such a case are at their "lowest ebb" and must give way to Congressional law. In other words, Kennedy expressly found (and the Court itself implicitly held) that even with regard to matters as central to national security as the detention and trial of Al Qaeda members, the President does not have the power to ignore or violate Congressional law. While one could argue that Congress' authority in this case is greater than it would be in the eavesdropping context (because Article I expressly vests Congress with the power to "make Rules for the Government and Regulation of the land and naval Forces"), the Supreme Court has rather loudly signaled its unwillingness to defer to the Executive in all matters regarding terrorism and national security and/or to accept the claim that Congress has no role to play in limiting and regulating the President's conduct.


So, plan on seeing this decision come up again with respect to Bush's ignoring FISA laws.
posted by Cycloptichorn at 10:02 AM on June 29, 2006


Maybe a signing statement is in order here. You know--so Gonzales' legal opinion on what GWB has to abide by overrides SCOTUS's opinion.
posted by leftcoastbob at 10:07 AM on June 29, 2006


SCOTUS has made his decision. Now, let's see him enforce it.
posted by anotherpanacea at 10:11 AM on June 29, 2006


Him? SCOTUS is a person now?
posted by agregoli at 10:17 AM on June 29, 2006


From the President's press conference today:

"Yeah, I -- thank you for the question on a, quote, "ruling" that literally came out in the midst of my meeting with the prime minister, and so I haven't had a chance to fully review the findings of the Supreme Court."

Do those quotation marks worry anyone else?
posted by EarBucket at 10:20 AM on June 29, 2006


Hey, it's just the so-called "Supreme" Court, EarBucket.
posted by interrobang at 10:23 AM on June 29, 2006


The Cherokees successfully challenged Georgia in the U.S. Supreme Court. President Andrew Jackson, when hearing of the Court's decision, reportedly said, "[Chief Justice] John Marshall has made his decision; let him enforce it now if he can."
posted by marxchivist at 10:23 AM on June 29, 2006


"Do those quotation marks worry anyone else?"

Only if he made that motion in the air with his fingers when he said it.
posted by mr_crash_davis at 10:23 AM on June 29, 2006


The Cherokees successfully challenged Georgia in the U.S. Supreme Court. President Andrew Jackson, when hearing of the Court's decision, reportedly said, "[Chief Justice] John Marshall has made his decision; let him enforce it now if he can."

That statement is apocryphal. Jackson actually said that "the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate."
posted by monju_bosatsu at 10:26 AM on June 29, 2006


He probably didn't say it. But the effect is the same: look at what it took to enforce Brown v. Board of Education. Frankly, I'd really like to see a good old fashioned showdown between the executive and the judiciary. I'm think Bush loses; Karl Rove isn't smart enough to take on these nine, even with Clarence Thomas weighing them down.
posted by anotherpanacea at 10:28 AM on June 29, 2006


Yes, I know, that is why I emphasized the word "reportedly."
posted by marxchivist at 10:29 AM on June 29, 2006


Then why discuss it in lieu of what he actually said?
posted by monju_bosatsu at 10:31 AM on June 29, 2006


dormant, they were reviewing a case he has previously ruled on.

Thanks- I should've known that, must've gotten lost in the Great Big File O' Scandals and Atrocities.
posted by Dormant Gorilla at 10:32 AM on June 29, 2006


Then why discuss it in lieu of what he actually said?

Because someone had tossed out a paraphrased version of that, I thought I'd offer it with some context, and let people know it was not a verified quote.
posted by marxchivist at 10:34 AM on June 29, 2006


So what does enforcement look like here? SCOTUS rarely takes on the executive branch, after all. It depends on the executive to enforce its decisions....
posted by anotherpanacea at 10:37 AM on June 29, 2006


"
And, just in case anyone can't be bothered to google for article 3, here it is from the third convention."


That's something I like about the Geneva Convention, also exemplified in UN resolutions - the concept is boiled down a few short simple sentences in plain and frank language.

When you look at a bill that is being passed, in comparison, it's a gravy train, especially for the lawyer industry. A vast and labyrinthine mess, the people who vote on it don't have the time to read it (not even the sponser, since the bill was likely drafted and written by lobbiests), and there are countless devils in those unread details, quite deliberately, to fly them under the radar of people and smuggle them into law. For all the lawyer-speak involved, the bills often remain strangely ambiguous in key areas. The worst of all worlds.

It's so refreshing to read something from the UN, or the Geneva convention, in comparison.
posted by -harlequin- at 10:39 AM on June 29, 2006


...the ruling, as I understand it...

I wish I could help GWB understand it:
Go to Jail
Go directly to Jail
Do not pass Go
Do not collect $200.
posted by taosbat at 10:48 AM on June 29, 2006


brain_drain writes "I could see this ruling turning out to be a good thing for the administration. Bush has been taking heat for years now on these issues. Here's a chance for him to take the issues off the table and blame everything on the judiciary. 'I would be doing what I can to protect the American people, but the courts have tied my hands.'"

Would Bush really undermine the authority of the supreme court in this manner?

posted by Mitheral at 10:51 AM on June 29, 2006


That's something I like about the Geneva Convention, also exemplified in UN resolutions - the concept is boiled down a few short simple sentences in plain and frank language.

I assume this is due, in part, to the need to cover the translation into many different languages?
posted by NationalKato at 10:57 AM on June 29, 2006


I assume this is due, in part, to the need to cover the translation into many different languages?

You assume wrong. Everything the EU puts out has to be translated into 20 languages, and if you think EU reports consist of "a few short simple sentences in plain and frank language," well, you have another think coming. As a totally random example (I just googled "EU report" and took what Googlegod sent me),
here
's a protocol (pdf) on mutual assistance in customs matters. Read it and sleep.
posted by languagehat at 11:21 AM on June 29, 2006


Article 3 of the fourth convention (treatment of civilians) is almost word for word identical.

Hence the wording "Common Article 3". This is crucial, because it's presented as a basic definition of the rights of the detained, regardless of status.

empath, we never declared war, did we? we're not legally at war.

All due respect, amberglow, we are legally at war. The War Powers Act military-force authorization is legally commensurate with a declaration of war (they are both resolutions of Congress). Obviously a state of war can exist between two countries (or entities) even without formal acts -- we were at war with Japan in every legal sense the moment that Japanese planes entered Hawaiian airspace. We could shoot back, we could take prisoners. It wasn't until the next day, some 36 hours later, that the declaration of war was passed by Congress. Please stop using this bogus argument.

As for the next steps, I think it's clear that the administration will -- as with Padilla -- try to rethink its approach. They still have custody of Hamdan, and just because the Commission has been invalidated doesn't mean they have no means to try him. The Supreme Court simply insisted that it be under the Uniform Code of Military Justice, without the invisible amendment that the White House asserted the AUMF had written in. This will severely restrict the ruleset for the trials, though, to a code which is strongly based in American law.
posted by dhartung at 11:23 AM on June 29, 2006


What exactly is it that you think makes these guys a special case?

The geneva convention. Under the geneva convention you can hold soldiers who have not committed a crime indefinitely. Even if they've killed a bunch of people, and even if they haven't killed anyone.

Okay, fine, but since we're "at war" with an abstraction (i.e. terror) then doesn't it follow that the president can classify anyone who resists our aggression/occupation as an enemy?

And don't you find that power, unchecked, as a bit far-reaching?

Regardless of what the spin doctors at Fox tell you, no country ever waged war against us. 9-11 was a criminal act, and should have been investigated and prosecuted as such. Period. This whole "war on terror" is just ballyhoo, a smoke screen that allows the administration to carry out its private agenda under the pretext of a war, and with a claim on special powers granted by that war.

The nation's top court just called bullshit to some of those claims, and I think it's a good thing.
posted by squirrel at 11:28 AM on June 29, 2006


dhartung: You want to cite where it says that the Authorisation for Use of Military Force (AUMF) - to my understanding authorised via the 1973 War Powers Resolution, slightly more recent than the act you mention - is the same as a declaration of war? 'cos from what I've read of it, the resolution makes a distinction between the two.

To me it's counter-intuitive to suggest that every single significant use of American forces overseas is a declaration of war.
posted by kaemaril at 11:33 AM on June 29, 2006


kaemaril: I don't know if that's possible. Any lawyers around to say one way or the other? The SC is a court of judicial review, it only gets to say what's lawful and what isn't. It can only say 'X is unlawful' I don't believe it has the power to say 'OK, Y, stop doing X'

Well, I don't know that Bush really has the political capital to just thumb his nose at the SCOTUS here. Prosecutors, both civilian and military, gain nothing from pushing cases that will either be automatically overturned, or mired in years of appeals. Most of them hope to have careers long after our sitting duck president leaves office, and have a vested interest in maximizing wins and minimizing time or energy.

The power of the judiciary also isn't just in the hands of the Supreme Court. Judges for all jurisdictions can tell a prosecutor "not in my court you don't" and dismiss the case. Appeals courts can overturn verdicts and decisions. Bush really does not have any power to tell judges what to do in their own courts.

anotherpanacaea: So what does enforcement look like here? SCOTUS rarely takes on the executive branch, after all. It depends on the executive to enforce its decisions....

Probably an order to retry the persons in question in the proper venue, or release them. In the future, judges will be obligated to refer similar cases to the proper venue. Appeals on similar cases are much more likely to be decided in favor of the defendant at a lower level of the appeals process.

The SCOTUS really does not need the executive to enforce its decisions. What the SCOTUS does in many cases is to define rules and regulations that the executive must follow.
posted by KirkJobSluder at 11:38 AM on June 29, 2006


languagehat, thanks for the link. Is that the same as a UN resolution, though? That's what -harlequin- was referring to.
posted by NationalKato at 11:40 AM on June 29, 2006


You want to cite where it says that the Authorisation for Use of Military Force (AUMF) - to my understanding authorised via the 1973 War Powers Resolution, slightly more recent than the act you mention - is the same as a declaration of war?

The Supreme Court assumed in its opinion, as it did in Hamdi, that the AUMF activated the President's war powers. That's not an unequivocal affirmation that it did so, but none of the lawyers were seriously arguing that it did not.
posted by monju_bosatsu at 11:46 AM on June 29, 2006


what kaemaril said. A declaration of war is not the same as authorizing an invasion or military action.
posted by amberglow at 11:46 AM on June 29, 2006


And i've read the administration purposely didn't want a declaration of war, exactly because of that pesky Geneva Convention and other related constraints.
posted by amberglow at 11:47 AM on June 29, 2006


Out of interest, is there a resource out there enumerating in one place the actual 'war powers' of a president?
posted by kaemaril at 11:50 AM on June 29, 2006


None that the administration wouldn't contest.
posted by sonofsamiam at 11:56 AM on June 29, 2006


I think any prolonged military conflict should be considered a war, declaration or not.

Iraq and Afghanistan are both dirty, colonial wars that won't ever end unless we leave.
posted by empath at 11:59 AM on June 29, 2006


The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule

Am I the only one reminded that "Supreme Court Rules Supreme Court Rules"? And they do, for today at least.

Something good happened today. Can we just be happy with that and leave dios out of it?
posted by yerfatma at 12:05 PM on June 29, 2006


kaemaril writes "Out of interest, is there a resource out there enumerating in one place the actual 'war powers' of a president?"

I believe they're enumerated in the War Powers Act of 1973. Plus any case law interpreting that act, but the WPA would be the place to start...
posted by mr_roboto at 12:19 PM on June 29, 2006


mr_roboto : they're really not, you know.
posted by kaemaril at 12:23 PM on June 29, 2006


dhartung, the AUMF and a declaration of war are different things. Arguing that they're not is just dumb. I can't even think of a good counter-argument, because it's like arguing that A=B, when that's the smallest piece of logic that you can have, and clearly, it's false.
posted by odinsdream at 12:46 PM on June 29, 2006


Oh wait, empath thinks otherwise. So, forget what I said. Whatever empath "thinks" or "feels" is good enough.

This is why we have laws - because everyone can read them, and it doesn't matter what you "feel."
posted by odinsdream at 12:47 PM on June 29, 2006


Who, exactly, are we at war with?

I know that sounds stupid, but I seriously don't have a clue.
posted by leftcoastbob at 12:58 PM on June 29, 2006


kaemaril writes "mr_roboto : they're really not, you know."

Sorry; I hadn't read the entire thread and didn't realized you'd already discussed this. I though I was being helpful....
posted by mr_roboto at 1:02 PM on June 29, 2006


EarBucket writes "Do those quotation marks worry anyone else?"

Worry? it should. Surprise? it shouldn't.
posted by clevershark at 1:08 PM on June 29, 2006


Seriously. Who are we at war with?

Wasn't "Mission Accomplished" years ago? Wasn't that like a declaration that the "war" was over? Haven't we been in the "occupation and reconstruction" phase since then?

And if this GWOT is actually a war, then can't we hold drug dealers indefinitely as enemy combatants in our War On Drugs?
posted by leftcoastbob at 1:37 PM on June 29, 2006 [1 favorite]


Bingo, leftcoastbob. Personally, I'm at risk of being held indefinitely as part of the War on Poverty.
posted by squirrel at 1:53 PM on June 29, 2006


languagehat, thanks for the link. Is that the same as a UN resolution, though? That's what -harlequin- was referring to.

My link was purely for illustrative purposes, to show that documents that have to get translated can be just as numbingly badly written as any others. It was not meant to apply to anything else in the thread.

On another topic, I think dhartung and his critics are talking past each other. Certainly two countries can be at war without a formal declaration (and routinely were for most of history); that has nothing to do with the details of the War Powers Act.
posted by languagehat at 2:01 PM on June 29, 2006


I just want everyone to know I'll be launching the first salvo in the War on Beer in approximately 30 minutes. Official notice has been given. SCOTUS be damned!
posted by NationalKato at 2:03 PM on June 29, 2006


Certainly two countries can be at war without a formal declaration (and routinely were for most of history); that has nothing to do with the details of the War Powers Act.
posted by languagehat


Kay. But we're not at war with any country here, are we? If so--which one? And how in the hell do we know when we've won????
posted by leftcoastbob at 2:12 PM on June 29, 2006


dhartung, the AUMF and a declaration of war are different things. Arguing that they're not is just dumb. I can't even think of a good counter-argument, because it's like arguing that A=B, when that's the smallest piece of logic that you can have, and clearly, it's false.

I did not say they were the same thing. I said they were commensurate. Every time we go through this, I have to go back to Biden:
I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.

I'm not saying there isn't an argument that a Declaration is better, and I'm not saying there isn't an argument that Biden is overreaching. But no serious entity is litigating that question. In the Supreme Court decision today, they say

First, while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507 (2004) (plurality opinion),

Noting that Hamdi decided, for now, that question. Also,

23Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may notdisregard limitations that Congress has, in proper exercise of its ownwar powers, placed on his powers.

... in a footnote explicitly endorses the Congressional War Powers Resolution (sometimes dubbed) as being a "proper exercise of its own powers", thus an Act (passed over Nixon veto), and law. Also,

the AUMF—the Act of Congress on which the Government relies for exercise of its war powers

seems another endorsement of the idea that the AUMF activates war powers generally. In his concurring opinion, Stevens footnotes:

JUSTICE THOMAS would treat Osama bin Laden’s 1996 declaration of jihad against Americans as the inception of the war.... But even the Government does not go so far; although the United States had for some time prior to the attacks of September 11, 2001, been aggressively pursuing al Qaeda, neither in the charging document nor in submissions before this Court has the Government asserted that the President’s war powers were activated prior to September 11, 2001. Cf. Brief for Respondents 25 (describingthe events of September 11, 2001, as “an act of war” that “triggered aright to deploy military forces abroad to defend the United States bycombating al Qaeda”).

In other words, the majority opinion rejects the idea that the war began in the 1990s, but endorses the idea that the war was immediately active beginning with September 11, 2001 -- prior to the AUMF. This is the only point on which the court seemed to disagree (regarding this angle). The Hamdan decision rests in part on this question so they did not treat it lightly. Thomas, in fact, discusses the question at length (taking a broader view), but represents a minority opinion. His question was whether the AUMF itself or prior acts activated the President's war powers.

dhartung: You want to cite where it says that the Authorisation for Use of Military Force (AUMF) - to my understanding authorised via the 1973 War Powers Resolution, slightly more recent than the act you mention

kaemaril, the War Powers Act of 1973 is often referred to as the War Powers Act. The 1917 "War Powers Act" is usually called the Trading with the Enemy Act. The AUMF explicitly cites the sections of the 1973 act on which it is based. Don't be obtuse, OK?

To me it's counter-intuitive to suggest that every single significant use of American forces overseas is a declaration of war.

The argument at hand is the war powers of the President of the United States. The argument accepted by the Court is that those war powers were activated by the 9/11 attacks. The War Powers Act was intended to give Congress a voice in deciding when the use or continued use of force was justified. It does not modify international law (which recognizes de facto states of war and really doesn't care much about resolutions or declarations).

Seriously. Who are we at war with?

That's an excellent question, leftcoastbob. The Iraqi insurgency probably provides plenty of "evidence" of war to satisfy the need, but if we leave Iraq, and find less and less evidence of OBL (or maybe a dead body) -- it will be harder and harder to justify the state of war.

At that time an explicit challenge of the state of war could be made. At this time, nobody of notice is arguing that there is not a state of war.
posted by dhartung at 2:16 PM on June 29, 2006


are we still at war in Afghanistan then, even tho they have a sovereign government and the Taliban are not in charge anymore? (can't say that without laughing)

When does that war end? When does Iraq end? Are we also at war with Iran? And North Korea? Or is it just war with Iraq?

(and most of the people in Guantanamo were picked up in Afghanistan--how does that fit into the whole thing?)
posted by amberglow at 2:27 PM on June 29, 2006


The war ends when people stop dying through military violence, amberglow. I would think that's obvious.

Insurgencies do end, usually when the occupying power leaves, which I think will be the case in Iraq eventually. Afghanistan could go either way.
posted by empath at 2:32 PM on June 29, 2006


Help me out here. If we're at war in Iraq, (not with Iraq, but at war in their country) Bush claims to have the right to monitor phone records without warrants, monitor bank transactions to catch al Quaida, etc. But as soon as we pull out of that country, then we are no longer in a state of war and then Bush loses all the powers he has been racking up for himself?

Sheesh! No wonder he says that it will be up to a future administration to end the debacle in Iraq!
posted by leftcoastbob at 2:34 PM on June 29, 2006


At this time, nobody of notice is arguing that there is not a state of war.

Agreed, and I think this decision is a major U.S. victory in that war.
posted by Ty Webb at 2:46 PM on June 29, 2006 [1 favorite]


Cf. Brief for Respondents 25 (describing the events of September 11, 2001, as “an act of war” that “triggered a right to deploy military forces abroad to defend the United States by combating al Qaeda

Okay then, let's say for the sake of argument that congress' force authorization against Al Qaeda was equivalent to a declaration of war. Does declaring a limitless war against a phenomenon that Blair, himself, called "not an organization... a way of working" not strike you as a cover-up for a massive power-grab? How are we supposed to ever win against a way of working? And how does that authorization justify the invasion and continuing occupation of Iraq?

Face it, the war on terror is a cynical hoax made possible by fear and ignorance.
posted by squirrel at 2:48 PM on June 29, 2006


Squirrel--pretty much what I meant except that you put it considerably more eloquently.
posted by leftcoastbob at 2:59 PM on June 29, 2006


...Congress can reverse almost every aspect of the decision as it specifically pertains to these military commissions. It could abrogate any treaties it wants. It could amend the UCMJ to allow military commissions with the rules established by the President. It has already stripped the Court of jurisdiction to hear future habeas corpus challenges by Guantanamo detainees, and could act to further strip the Court of jurisdiction in these areas. We will undoubtedly hear calls by Pat Roberts, John Cornyn, Jeff Sessions, Tom Coburn (and perhaps Joe Lieberman?) et al. for legislation which would accomplish exactly that.
...
Congress could amend the UCMJ to exempt military commissions from the law of war (either generally or as it pertains to Al Qaeda members), casting into serious doubt the ongoing validity of the Court's ruling as it pertain to these commissions. Or, Congress could simply abrogate the Geneva Conventions altogether, which would certainly free the administration from those requirements. I would speculate that the Republican-controlled Congress could, without a great deal of difficulty, enact legislation exempting Al Qaeda members from the Article 3 protections. ...

posted by amberglow at 3:17 PM on June 29, 2006


dhartung: Wasn't being obtuse. Since you chose to use an example from World War I took it to mean you meant the War Powers act prevalent at the time. I don't consider that all that unreasonable an assumption.
posted by kaemaril at 4:09 PM on June 29, 2006


Or, Congress could simply abrogate the Geneva Conventions altogether, which would certainly free the administration from those requirements

Well, that sort of reaction's one way of getting the pentagon really pissed off at you, I suppose. Wouldn't it be less permanently damaging to call them a bunch of wusses instead?
posted by kaemaril at 4:15 PM on June 29, 2006


"... joining the court's liberal members in ruling against the Bush administration."

Why must anyone who makes a decision in the US be categorised as either liberal or conservative? This over simplification is so annoying.


FYI, 7 of the 9 current Supreme Court members were appointed by Republican presidents.
posted by flug at 4:31 PM on June 29, 2006


This Swift (Hamdam's lawyer) is wonderful--really seems like a good guy. (he was just on Hardball which is actually spinning it all as "the Court said it's illegal", not "it's illegal")
posted by amberglow at 4:40 PM on June 29, 2006


What I think is interesting is that even had Roberts not recused himself the ruling would still have been the majority.

Roberts recused himself because as a member of a lower court he had previously ruled in favor of the president. If he had voted, the vote would have been 5-4.

That means the president is one nomination away from turning the Supreme Court into a rubber stamp for any fool idea that pops into his head, and Justice Ginsburg is in poor health.


Um, yep. I haven't even read anything about this, but I think I can guess who the 3 of 5-3 are - Alito, Thomas, and Scalia.

Bad, bad, times to come.
posted by mrgrimm at 6:55 PM on June 29, 2006


The war ends when people stop dying through military violence, amberglow. I would think that's obvious.

No, that isn't obvious, it's obtuse, because that's the same as calling the war indefinite.
posted by odinsdream at 7:18 PM on June 29, 2006


Time for Bush to roll out FDR's court-stacking plan.
posted by herc at 8:19 PM on June 29, 2006




Didn't they recently change it from “The War on Terror” to “The Long War”?
posted by Tenuki at 8:42 PM on June 29, 2006




Look, ultimately one of the key reasons that it's important that the Court considers the US to be at war is that this establishes case law limiting the war powers of the President.

Saying that the President can't do X because we're not at war does nothing to limit wartime powers.

At any rate, the Court has always been reluctant to overturn itself just because its composition changes, so don't worry quite so much about that. The repercussions of this decision will be felt for the remainder of the Bush administration.
posted by dhartung at 8:52 PM on June 29, 2006


Bill Frist & Arlen Specter "protect and defend the Constitution"...thank you very much.
posted by taosbat at 8:54 PM on June 29, 2006


...Bill Frist - Mr Bush's personal choice to lead the Republicans in the Senate, and a man who hopes to replace him in the White House - declared that he would press for a law giving the president the power to do what the Supreme Court said he could not.

Now there's a sentence designed to strike fear into the heart of well, pretty much everyone I know.
posted by leftcoastbob at 11:25 PM on June 29, 2006


Do those quotation marks worry anyone else?

Now that the video's up, it looks like whoever did the rush transcript misheard "court ruling" for "quote, 'ruling.'" Much less scary.
posted by EarBucket at 4:25 AM on June 30, 2006


Note that there are two outcomes here that are entangled. One issue is the disposition of the Guantanamo cases, and the Court has signalled that a law passed by a majority of the elected Congress is a vast improvement over a series of executive orders drafted, discussed, approved, and implemented solely within the White House.

Congress may yet pass a law slavishly following the WH plan, although I don't think it will be quite what they originally wanted. So the outcome for Hamdan et al. may not be all that different.

But the outcome for our democracy is vastly different. The Bush administration has asserted unlimited authoritay as part of his "inherent" war powers. The Court has said no fuckin' way to that. The voices within the administration which have backed this unitary executive interpretation now know that they will get no joy from this Court on a host of other issues where they have invoked that theory. Ultimately, they will be forced to come to Congress on some of these issues.

Today, the WH leverage with Congress is reduced because of the ruling, even among Republicans. After November, it is almost certain that Dem increases will further corner this lame duck President. The unitary executive policy has been largely used to bypass the disadvantages of lame duck status. No more.
posted by dhartung at 8:44 AM on June 30, 2006 [1 favorite]




Maybe The Guardian should start looking for OBL since it sure doesn't look like the US government is ever going to find him, either.
posted by leftcoastbob at 5:05 PM on June 30, 2006


Maybe The Guardian should start looking for OBL since it sure doesn't look like the US government is ever going to find him, either.
Isn't that supposed be the October Surprise? (is is it invading Iran?)
posted by amberglow at 5:32 PM on June 30, 2006






...Today's rebuke to the president still feels hollow to me because I just don't believe the Bush administration cares what the Supreme Court thinks about the constraints on executive war powers. As a legal matter, Bush lawyers always claimed they'd won the last round of enemy combatant cases, even when the rest of us heard O'Connor's admonition, in Hamdi v. Rumsfeld, about a state of war not being a "blank check" for the president. As a practical matter, even if it's true that U.S. forces and interrogators must now abide by the Geneva definition of torture, when is the petition for relief of a tortured detainee going to present itself before this court? And even if Guantanamo is closed, which I gather may soon happen, what is to stop Bush from falling back on secret prisons and extraordinary renditions—which we will never know about?

When I covered oral argument in Hamdan, I marveled at how Solicitor General Paul Clement unfailingly staked out the most extreme legal positions—positions that seemed utterly contemptuous of the court—and then refused to budge from them. He told an astonished Justice David Souter that it was possible for Congress to suspend the writ of habeas corpus accidentally. He told Justice Ruth Bader Ginsburg that enemy combatants simply have no rights under the Constitution and laws of the United States. He just kept repeating the Bush administration mantra: This is war and President Bush is king of the war. ...

posted by amberglow at 11:39 AM on July 1, 2006




More Legal Trouble at Gitmo

Exclusive: Salim Hamdan, fresh from his victory in the Supreme Court, now claims his legal notes were confiscated, in violation of attorney-client privilege
posted by taosbat at 7:32 PM on July 21, 2006


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