Legal system and the WoT
It's good to hear that the US Supreme Court, despite having been filled up with conservative judges, still has the gumption to strike down the executive's attempts to try Guantanamo suspects extra-judicially. Nonetheless it appears that they've simply placed an extra hurdle in front of the administration, requiring it to get a law through Congress explicitly allowing these military trials to take place. I have no notion of how hard it might be to get Congress to pass such a law, but it's nice to see the Americans reaffirming their enthusiasm for democratic processes. It will make for an interesting debate.
Ultimately it will be a hell of a shame if they pass it though, and this does seem to be a real risk. I'm sympathising with some points Germain has made previously, namely that by pursuing the WoT in this manner the US is violating some important principles of its own. Henry put up a big speech by Condi Rice earlier, and you've got to take her point about this being a different kind of war, a different kind of enemy, it's not just for the benefit of the US but of the whole of the West... But you don't go about changing your standards of behaviour in response to provocation from others, especially when you're the most powerful state in the world.
[Update] Of course there's a parallel battle going on over here, between the Home Office and the judiciary, in which Mr Justice Sullivan is frustrating the Home Secretary's efforts at keeping terror suspects under curfew. The control orders placed on six suspects (which stipulate that they're not allowed out of their one-bedroom flats for more than six hours a day) are deemed to violate the suspects' right to liberty under the Human Rights Act. I'd bet on there being a compromise eventually, but there's no way John Reid will let those guys go completely; MI5 reckon they were plotting a bomb attack.
Ultimately it will be a hell of a shame if they pass it though, and this does seem to be a real risk. I'm sympathising with some points Germain has made previously, namely that by pursuing the WoT in this manner the US is violating some important principles of its own. Henry put up a big speech by Condi Rice earlier, and you've got to take her point about this being a different kind of war, a different kind of enemy, it's not just for the benefit of the US but of the whole of the West... But you don't go about changing your standards of behaviour in response to provocation from others, especially when you're the most powerful state in the world.
[Update] Of course there's a parallel battle going on over here, between the Home Office and the judiciary, in which Mr Justice Sullivan is frustrating the Home Secretary's efforts at keeping terror suspects under curfew. The control orders placed on six suspects (which stipulate that they're not allowed out of their one-bedroom flats for more than six hours a day) are deemed to violate the suspects' right to liberty under the Human Rights Act. I'd bet on there being a compromise eventually, but there's no way John Reid will let those guys go completely; MI5 reckon they were plotting a bomb attack.
posted by Peter at 08:48
15 Comments:
I'm confused. Are you suggesting that these sorts of trials are novel and that holding them would be a change in Western or American standards?
I'm suggesting that whether these sorts of trials are novel or not, it would be a violation of American and international standards to hold them. This isn't really my opinion; it's the opinion of the US Supreme Court: "the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the Uniform Code of Military Justice and the Geneva conventions."
Yes, but even Mr. Justice Stevens agrees that military trials are not, simplicitur, repugnant to the Constitution or in abrogation of a treaty. It's important to understand Hamdan thoroughly, and that's not easy when the decision is 185 pages long.
The first matter of importance and contention was jurisdiction, i.e. whether the Detainee Treatment Act, which stated specifically that "no court... shall have jurisdiction to hear or consider... an application for... habeas corpus filed by... an alien detained at... Guantanamo Bay," really meant that the prisoners held could not seek relief through the American court system. In proving that some justices aspire for the court to be a tyranny of nine, Mr. Justice Stevens denied that the statement means what it plainly says.
What your quote neglects, but even Mr. Justice Stevens does not, is that the supreme court in "ex parte quirin" also said such commissions themselves are not illicit or a violation of American and international standards. What is in contention in re a commission for Hamdan is whether and to what extent the accused gets to see the evidence against him. Hand wringing from Amnesty International types aside, can we agree that there are complications arising from any potential rehearsal of the evidence that make this case rather less than easy?
Yes Kevin. I agree it's less than easy. The main point of my post was to applaud the proper functioning of the "checks and balances" often cited as a strong point of American democracy.
I find the quotation from the Detainee Treatment Act intriguing. What becomes of checks and balances when legislation states that the checks and balances don't apply in certain cases? I was not aware of the extent to which US law had placed Guantanamo specifically outside the law.
THe Onion always has something appropriate:
Supreme Court Cock-Blocks Iowa Man
September 11, 2002 | Issue 38•33
WASHINGTON, DC—By an 8-1 decision, the U.S. Supreme Court cock-blocked Des Moines, IA, bar patron Jon Carmody Friday, severely curtailing his power to score with fellow bar-goer Megan Navarre. "Carmody's right to put the moves on Navarre does not and cannot be construed to supersede this court's right to hit on her, too," Justice Antonin Scalia wrote in the majority opinion. "That Carmody scored last weekend with that blonde girl at P.J.'s serves to illustrate that he's had enough for now. We will preclude the shit out of that tool getting any from Navarre."
The Onion is always funny.
Actually, the supreme court ignored proper checks and balances with its decision, and I imagine Congress will move swiftly to remedy their deficiency. Congress derives authority in this case from a couple of places in the Constitution. Article I enumerates some powers of Congress, among which is:
"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"
Hamdan was captured on land, so clearly it's within Congress's scope to make rules about how any such cases, if there are cases, will proceed.
Second, and perhaps more to the point, Article III says:
"the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make."
Congress made a specific exception to the supreme court's jurisdiction as per its prerogative in the Constitution and the supreme court ignored it. That either of us likes or dislikes the court's reasoning after that is quite beside the point. The court flaunted the plainly written black-letter law.
If the court is so clearly in breach of the constitution why should Congress or anyone else bother listening to it? Why has it been allowed to sit on this case if it doesn't have jurisdiction? I can't imagine you're the only one in America to have noticed those provisions in the constitution.
Perhaps it's because the Court simply reminded Congress that the administration was trying to contravene a set of standards it had previously signed up to?
You're quite right noting that surely I'm not the only American who noticed SCOTUS's overreach. It's noted in the dissenting opinion. To answer your question, the court has been allowed to sit on a case for which it has no jurisdiction because the court decided that, despite the clear intentions of Congress, it would sit and no president is likely to call out the National Guard to stop them from doing so, even if the court's action is a travesty.
As for your suggested answer, I can't make any sense of it. The SCOTUS cannot issue advisory opinions, so it cannot "remind Congress" of anything. It can only decide on cases of law. In this case, it violated the Constitution by ignoring a properly (i.e. Constitutionally) executed Congressional limitation on court authority. If you want to be democratic about it, the unelected branch ignored the will of BOTH elected branches to impose its own policy preferences on 300 million Americans.
I can't imagine you endorse such a process, even when you favor the resulting policy outcomes.
Go ask 300 million Americans (or a representative sample, if you'd prefer) whether they approve of the US going back on agreements it has made with other countries.
Personally if I had to choose between violating the US Constitution or the Geneva Convention, I know which I'd go for. But I'm not an American, so I don't get a say.
Your comment inspires a question and a comment:
1. Does your response mean you endorse judicial tyranny in general, or only when it achieves policy outcomes you desire?
2. If you want to be strict about Geneva Conventions, then let's be strict. Those being held at Gitmo aren't entitled to the protections afforded by those agreements because they were captured while violating the minimum requirements as prerequisite for receiving those protections (e.g. being uniformed soldiers).
1. Actually, I trust judges to do what they think is right and interpret the law correctly. I think the expression "judicial tyranny" vastly overstates the gravity of what's occcurred.
2. The Supreme Court and the administration have now declared that the Geneva Convention applies to Guantanamo detainees. Clearly one could make arguments about uniforms, but I'd hope for better from a civilized nation, and am glad to see that they've recognised this.
1. Well, perhaps the Atlantic explains our divide on this question. Someone from the country of Blackstone and Coke should be forgiven for having a too-great respect for oracular judges. On this side of the ocean, however, one should remember that it was the Supreme Court that returned escaped slaves to their chains, and the Supreme Court that created the heinous regime of "separate but equal" treatment of black people. More recently, the SCOTUS has fashioned new rights out of nothing and ignored the plainly written invocations of Congress's Constitutionally appointed authority. Judges are as prone to error as the rest of us, only their errors often have far greater consequences and their jobs encourage arrogance. The Constitution vested the lion's share of power in the Congress, and it is fact here now that the Supreme Court has that share. Taken on the whole, it is not an overstatement to call the U.S. government an oligarchy (tyranny should probably be reserved for a singular use as its original meaning meant a strong man/leader) of judges (I believe no less than Robert Dahl made a very similar if not that exact statement). All that is to say, your faith in American judges is terribly misplaced.
Will it remain if any of the more leftist justices retires soon and the court majority swings to those who would strictly interpret the Constitution??
2. What is "worse" about abiding by the agreements made? Was it not you earlier calling for fidelity in applying these agreements? Riddle me this: if one's enemies can receive the protections of the Geneva Conventions without reciprocity, without participation in the agreements, and without abiding by the laws of war, then what incentive is there for them to join the agreements? They already have all the benefits.
3. I now think I understand, but please correct me if I'm wrong. What your endorsement boils down to is not a claim that what the SCOTUS has done was right by either moral or legal standards; it's only a claim that what they have done comports with your favored policy position.
1. Excuse my lack of knowledge of US legal history.
Last I heard was that with the retirement of Sandra Day O'Connor the balance had swung conservative, although I'm sure you know more about this.
2. Regarding reciprocity: that's not the point. There's a lot of talk in the WoT about making tough decisions; you need to be really tough to be able to treat your enemies better than they treat you.
3. Moral standards. Although that is the basis of my favoured policy position.
I prefer judicial tyraanny to executive tyranny...
About the prisoners of war in The Guantanamo prison camp, its not clear they were violating the minumum requirements for much of anything (which is why so many have been released)...
I prefer judicial tyranny to executive tyranny...
About the prisoners of war in The Guantanamo prison camp, its not clear they were violating the minimum requirements for much of anything (which is why so many have been released)...if there was hard evidence against them, this would be an easier decision to make.
The executive overstepping its prerogatives doesn’t seem to bother you so much...
You ask about the difference related to reciprocity, according to those in DC the difference between 'you' and 'them' is civilisation...I think there are other reasons not based on neo-colonialism and self-flagellation for supporting the rule of international law; the law (Constitution) is after all what you claim to be defending.
For someone who criticises others for supporting something “when it achieves policy outcomes you desire,” your positions sure seem to ‘coincide’ with the outcomes you yourself desire…but I always thought democracies were based on supporting what one, as an individual, believes in.
I prefer a republic to a tyranny.
It is perfectly obvious those held at Gitmo were captured while they were violating the Geneva Conventions. For starters, they were not wearing uniforms that differentiate them from the civilian population.
The executive overstepping Constitutional bounds would bother me greatly, but it's immaterial to the current discussion.
I have no idea what you were addressing with the remarks about reciprocity and international law (seriously, you were finishing off last year's Beaujolais Nouveau before it goes bad, weren't you?)
I have endorsed no particular policy outcome. I have taken the stand that the SCOTUS lacked jurisdiction to hear the case -- that's a Constitutional procedural question.
Post a Comment
<< Home