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Supreme Court Bars Miltary Tribunals

By Jeralyn, Section Court Decisions
Posted on Thu Jun 29, 2006 at 08:20:06 AM EST
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Update: The New York Times calls the decision "the most significant rebuff to date to President Bush. In a nutshell,

Justice Stevens declared flatly that "the military commission at issue lacks the power to proceed because its structure and procedure violate" both the Uniform Code of Military Justice, which governs the American military's legal system, and the Third Geneva Convention.The majority opinion rejected the administration's claims that the tribunals were justified both by President Bush's inherent powers as commander in chief and by the resolution passed by Congress authorizing the use of force after the Sept. 11. There is nothing in the resolution's legislative history "even hinting" that such an expansion of the president's powers was considered, he wrote.

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original post

The Supreme Court has ruled Bush's military tribunals at Guantanmo are illegal. The opinion is here (pdf).

The ruling, a strong rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court's liberal members in most of the ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan. Thursday's ruling overturned that decision.

Via Scotus Blog:

The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention. In addition, the Court concluded that the commissions were not authorized when Congress enacted the post-9/1l resolution authorizing a response to the terrorist attacks, and were not authorized by last year's Detainee Treatment Act. The vote against the commissions and on the Court's jurisdiction was 5-3, with the Chief Justice not taking part.

The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

Four Justices concluded that Salim Ahmed Hamdan could not be charged with conspiracy before a military commission, but that did not have majority support, so its binding effect is uncertain.

From Marty Lederman writing at Scotus Blog:

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). If I'm right about this, it's enormously significant.

< Katrina Looters Get 15 Year Sentences | Sen. Dick Durbin and Others on Hamdan Decision >

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    Supreme Court Bars Miltary Tribunals | 60 comments (60 topical)
    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#1)
    by desertswine on Thu Jun 29, 2006 at 08:31:46 AM EST
    At least 5 of the judges still occassionaly read the Constitution.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#2)
    by superskepticalman on Thu Jun 29, 2006 at 08:48:05 AM EST
    Caesar has not yet appointed himself consul-for-life. There may be hope for the Republic yet. Just not in the hands of Scalia, Alito, and Thomas.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#3)
    by Talkleft Visitor on Thu Jun 29, 2006 at 08:50:13 AM EST
    "Trial by military commission raises separation-of-powers concerns of the highest order," Kennedy wrote in his separate opinion. "Concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid."
    It is very scary that four justices disagreed with this.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#4)
    by scribe on Thu Jun 29, 2006 at 09:03:51 AM EST
    I'm reading through the opinion (it takes a while) but I note a couple things: Stevens reminds Congress and the Executive that the Supreme Court's appellate jurisdiction comes from the Constitution, and cannot be legislated away. In footnote 10, Stevens calls bullsh*t on the bogus post-hoc debate Graham-Kyl inserted into the Congressional Record in a transparent attempt to create some legislative history to bolster Bushco's arguments. Didn't work, boys. All in all, this is looking like a home run for the Rule of Law*, which phrase Stevens uses to some ironic effect in numerous places throughout the opinion. Nice twist of the knife, JPS. F'em. *Y'all remember James T. Baker intoning that phrase with deep gravity when declaring that the Bushco victory in Bush v. Gore was final.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#5)
    by james on Thu Jun 29, 2006 at 09:06:09 AM EST
    It is very scary that four justices disagreed with this.
    only three justices dissented as Roberts did not take part. The reason he had to recuse himself was his involvement in the same case when he was an appeals judge. Regardless, you're right, I guess, that Roberts disagreed in the case *in another ruling and another court* but there were only 3 dissenters today. Just a clarification, don't mean to offend at all.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#6)
    by Talkleft Visitor on Thu Jun 29, 2006 at 09:09:50 AM EST
    You're correct, of course, James. My point was that this decision overturned Roberts' previous ruling. Otherwise it would have been a 5 to 4.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#7)
    by cynicalgirl on Thu Jun 29, 2006 at 09:15:35 AM EST
    So then what's next? If Bush continues to believe that he is above the law, how can this be enforced?

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#8)
    by Talkleft Visitor on Thu Jun 29, 2006 at 09:27:38 AM EST
    Harris (a GITMO chief) said on ABC that 300 of 800 GITMO prisoners have already been released as part of administrative hearings. If these men were "prisoners of war" then they would be entitled to no tribunals at all and could be detained until the war ended, I suppose. I guess that these men no longer have the chance to appear before a military tribunal to try to secure release or determinate sentencing and will have to continue to wait for annual internal administrative reviews. What good this does them I don't know, although I suppose the ruling does help the Bush-Bashers.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#9)
    by rdandrea on Thu Jun 29, 2006 at 09:43:21 AM EST
    cynicalgirl, ignoring the law and the Supreme Court was why impeachment was written into the Constitution. It wasn't put there to cover stained dresses, but for Presidents who break the law. Since this Congress won't even hold oversight hearings, let alone impeach, it's important to win the midterm election and change Congress. That's where the enforcement comes from.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#10)
    by nolo on Thu Jun 29, 2006 at 09:49:40 AM EST
    rogan1313, you should read the opinion. The majority didn't say that there can be no military tribunals. What the majority said was that such tribunals must comply with the rule of law. The majority found that the procedures for the secret tribunals established by the Bush Administration violate the Uniform Code of Military Justice (which is a part of U.S. law) and the Geneva Convention (which is also a part of U.S. law). And with good reason. Among other things, the Bush tribunals involve secret proceedings in which detainees and their lawyers don't get to see the evidence. In other words, under the Bush Administration's procedures, detainees can be excluded from their own trials. Practically speaking, all the Court did was tell the Bush Administration that the procedures it uses in its Gitmo tribunals have to track those used in military courts-martial.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#11)
    by Talkleft Visitor on Thu Jun 29, 2006 at 10:00:29 AM EST
    Bush's §62.5. Looting of the Constitution: A. Looting is the intentional military tribunal by a person without authorization of anyone held any prison or other structure even if in another country. B. Whoever commits the crime of looting shall be fined not more than ten thousand dollars or imprisoned at hard labor for not more than fifteen years, or both. C. Whoever commits the crime of looting during the existence of a state of emergency, even if declared by the president, when the president knew or should have known that looting of the Constitution even in an emergency may be fined not less than five thousand dollars nor more than ten thousand dollars and shall be imprisoned at hard labor for not less than three years nor more than fifteen years without benefit of probation, parole, or suspension of sentence.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#12)
    by Richard Aubrey on Thu Jun 29, 2006 at 10:26:26 AM EST
    Justice Stevens says the case does not address the executive's power to hold these guys until the end of active hostilities. Is there any requirement in the decision that these guys must have trials? Or only that military tribunals are not where to have the trials? So if the exec doesn't want to try these guys at all, SCOTUS has said there is no reason not to hold them until the end of active hostilities. WHEN WILL THAT BE? HUH? WHEN WILL THIS BE OVER? CAN THEY BE HELD FOREVER? Sounds like a question to be addressed to Stevens.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#13)
    by nolo on Thu Jun 29, 2006 at 10:41:15 AM EST
    The opinion does not say that the detainees must have trials. The opinion says that if the detainees are tried for crimes, the tribunals must follow certain basic procedural rules, and that the current tribunals do not follow these rules and therefore are illegal.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#14)
    by Talkleft Visitor on Thu Jun 29, 2006 at 10:41:25 AM EST
    At last a sane ruling by the Supreme Court, and by the slimmest of majorities. All of the assaults on the rule of law -- renditions, secret trials, torture, illegal spying on citizens -- are a direct result of the election of right wing demagogues to Congress and the White House. Let's hope the voters remember this next November.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#15)
    by scribe on Thu Jun 29, 2006 at 10:52:05 AM EST
    This is a huge, possibly fatal, smackdown to the Admin. You got schooled, Georgie. I think this will be to the current Admin what U.S. v. Nixon was in 1974 - it's that huge. Stevens just plain eviscerates the admin and the dissents. Moreover, he manages to harmonize Quirin with the rest of the law and history in such a way that it actually makes sense; for a long time I felt Quirin was so outside the mainstream (to use a trite expression) that it deserved little respect. I still think it was a results-first, reasons later mess, but at least it fits in the puzzle. And, tonight, raise a beer to Colonel Winthrop. He did yeoman's service to his country, even decades after his passing. Moreso, Hamdan's lawyers. They deserve all the kudos we can give. I think it fair to say their work may have saved us from a military dictatorship. Kennedy, in his concurrence, comes right up to the edge of calling the conduct of these commissions war crimes, because they violate Common Article 3. Ouch. Stevens and Kennedy take repeated, huge slaps at the Unitary Executive theory and may have wounded it severely enough that we won't have to hear much of that atrocity any time soon again. A lot of emphasis on the common decency and civilized peoples language in the Geneva Conventions is a sure slap at CIA secret prisons and torturous conduct in them, as well as at the conduct of Gitmo itself. I speculate we should look for cases on behalf of people like KSM and others held in CIA captivity.... I took notes as I read the majority and concurrences; I'll deal with the dissents later. Like after Colonel Winthrop's beer. Does not decide application or constitutionality of Detainee Treatment Act of 2005 (the McCain bill), as to Hamdan, and does not consider prospective application of the DTA (i.e., as to those whose challenges were not pending as of the DTA's enactment) - sticks to the least intrusive method, ordinary rules of statutory construction. Footnote 10 calls bullsh*t on the Graham-Kyl post-hoc insertion of bogus debate into the Congressional Record to create some legislative history. (which I commented on earlier) pages 34-35 - a brutal back of the hand smackdown to the Unitary Executive theory and reaffirmance of Milligan, which I'd include because it's so good, but leave out because it's too long, save this:
    The interplay between these powers was described by Chief Justice Chase in the seminal case of Ex parte Milligan: "The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. . . . Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature." 4 Wall., at 139-140
    The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison) ("The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny"). footnote 34 is a nice smackdown of Scalia and Thomas Kennedy repudiates the Unitary Executive and reaffirms Youngstown Steel, moreover placing this case as a Category III, that this is a place where the preznit's power is at its lowest ebb. There's a wealth of material in here, and people will be mining it for years to come. I'd expect the Right-Wing-Noise-Machine to be howling within hours.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#16)
    by Richard Aubrey on Thu Jun 29, 2006 at 11:28:22 AM EST
    , Scribe, some of the right wing think this is a "gift" (one commentator's word) to Bush and the republicans. The dems would be well-advised to watch this play out quietly, rather than jumping aboard the cheering squad for terrorists. As Stevens said, they assume that Hamdan is dangerous and must be held until he is no longer dangerous. Whether Bush did wrong or not does not affect that fact. Hamdan is, by SCOTUS' word, a danger. Better for dems to let the admin and the courts duke this out. But they won't. They can't help themselves. They'll be gloating and, thus, openly sympathizing with terrorists.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#17)
    by Talkleft Visitor on Thu Jun 29, 2006 at 11:37:36 AM EST
    Scribe:You got that copy/paste function pretty well mastered. This is a huge, possibly fatal, smackdown to the Admin. You got schooled, Georgie. The first sentence, copied/pasted above, reveals your true leanings. I commend you for your strong sentiments, but...... this is a win-win for the conservative movement. If you think the majority of Americans are in lock-step with the Supremes on this ruling, you are sadly mistaken. There is no way in hell the electorate is going to vote for Democrats, therefore allowing them to appoint SCOTUS Justices, and allow them to protect terrorists instead of their families. Trust me on this. It may be a feel-good moment, but will come back to bite.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#18)
    by Talkleft Visitor on Thu Jun 29, 2006 at 11:41:14 AM EST
    Richard Aubrey; My sentiments exactly. Nancy Pelosi has already charged forth with a statement and this statement, rightly so, is being viewed as supporting the terrorists. Sigh!

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#20)
    by Talkleft Visitor on Thu Jun 29, 2006 at 11:51:02 AM EST
    is being viewed as supporting the terrorists.
    "is being viewed" by whom? Those who voted for Bush? The smaller and smaller percentage who would vote for him again? FoxNews loses more and more of its viewers every day because people are sick of this propaganda. Supporting the Constitution is NOT supporting terrorists, and if we sacrifice the Constitution to fight terrorism, the terrorists have won. So who really supports terrorists?

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#21)
    by Edger on Thu Jun 29, 2006 at 11:56:00 AM EST
    This almost certainly means that ... that many techniques the Administation has been using ... violate the War Crimes Act Lets hope that if and when bush and others in this administration are charged with war crimes, as they should be, that the rights they enjoy under the Constitution that they have denied to the people they have been abusing in Guantanamo will be upheld for them...

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#22)
    by Richard Aubrey on Thu Jun 29, 2006 at 12:04:22 PM EST
    Prozac. The constitution says no individual shall be elected to the office of president more than twice. Since Bush stole both elections, he can, according to the constitution, run twice more. However, should he decide to take a break, he won't be running in the next election. Thus my point about dems looking like they support terrorists when BDS makes them gloat stands. There will be another republican candidate, as well as other offices. And any gloating today will be in the republicans' ads. That's why I say it would be a good idea for the dems to watch this from the sidelines. But they won't.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#23)
    by nolo on Thu Jun 29, 2006 at 12:08:40 PM EST
    Luke, why would any principled conservative be opposed to, or disturbed by, the Court's ruling in this case? Why would a principled conservative approve of the Bush Administration's overexpansive notions of executive power, or its disdain for the principles of checks and balances?

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#24)
    by Talkleft Visitor on Thu Jun 29, 2006 at 12:11:16 PM EST
    Richard Aubrey:
    The dems would be well-advised to watch this play out quietly, rather than jumping aboard the cheering squad for terrorists.
    Luke:
    There is no way in hell the electorate is going to vote for Democrats, therefore allowing them to appoint SCOTUS Justices, and allow them to protect terrorists instead of their families.
    Nancy Pelosi has already charged forth with a statement and this statement, rightly so, is being viewed as supporting the terrorists.
    Well, we can see that you guys have now received the updated talking points memo for the day. Unless you are sitting next to each other somewhere, getting geared up for a day of blog posting for the neocon cause. What's next? How long before I hear that the Supreme Court ruling is unpatriotic (or worse) because it undermines the ability of the president to protect American citizens in a time of war? You guys make me sick.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#25)
    by scribe on Thu Jun 29, 2006 at 12:18:03 PM EST
    Ahhhh, you guys got it all wrong. Even the part about my [assumed or presumed] sentiments. Georgie got schooled because he was told he couldn't just go out and make it all up as he went along. He figures he's above all that law crap, he's the Preznit and what he says, goes. He got taken back to 8th grade civics. He and his can keen and whine, but the fact of the matter remains that Bush and his lackeys have been repeatedly violating the law and committing war crimes. Period. He came into office on the back of Jimmy Baker wrapping his tones around "the Rule of Law" and how the "Rule of Law" justified his installation. Well, kids, law is (or is supposed to be) neutral in that one cannot choose which to obey and which to not obey. N.B. - that Tricky Dick had to obey a subpoena (i.e., was subject to The Rule of Law) for his tapes was the gist of U.S. v. Nixon, so reaffirming that preznits are bound to follow the law as written by Congress and the Constitution, too, is just reiterated by today's opinion. Nothing, not even the [now moribund] Unitary Executive theory, has changed that. And, while I work the cut-and-paste, it's just as a useful tool and not the Rethugs' use of it, i.e., as a substitute for intelligent thought. I'm doing it from relevant sources, like the decision, and not from one of Rover's printouts of rant-of-the-day. And, in case you're tempted to squawk: the cut and paste of the Federalist quote? From the opinion, pages 38-39. Stevens put it in, while dissecting Thomas' rewrite of the pending "charge" against Hamdan of "conspiracy". And nothing makes it into an opinion unintentionally. But, the sounds I'm hearing from the White House and the noise machine sound like the sound of a lame duck quacking. And please don't tell me about Scalia. [I'd written on him, but I think it too offensive to include.]

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#26)
    by Patrick on Thu Jun 29, 2006 at 12:27:13 PM EST
    The smaller and smaller percentage who would vote for him again?
    I guess I'm part of the percentage that won't vote for Bush again. In fact I'd be willing to bet money that no one will vote for him to be president again, any takers? That said, a no vote for Bush is not a yes vote for whatever Dem candidate runs in 2008. Like many USSC decisions, I don't think this one clarifies a whole heck of a lot, or smacks anyone down.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#27)
    by scribe on Thu Jun 29, 2006 at 12:28:57 PM EST
    Funny, it seems Professor Balkin and I agree on most everything about today's ruling. (Save he's saying it with a little less sneer than I am.) And withMr. Lederman at SCOTUSBlog, too. I guess I'm going mainstream....

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#28)
    by nolo on Thu Jun 29, 2006 at 12:35:31 PM EST
    I wonder how "principled" conservatives would feel about the prospect of a Democratic president who claimed (s)he had inherent powers to interpret congress's laws as (s)he saw fit, independently of any judicial review?

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#29)
    by Patrick on Thu Jun 29, 2006 at 12:52:59 PM EST
    I'd feel like I'd have to work harder the next election.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#30)
    by Patrick on Thu Jun 29, 2006 at 12:54:10 PM EST
    The real question is how would democrats or liberals react?

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#31)
    by Edger on Thu Jun 29, 2006 at 01:00:42 PM EST
    The dems would be well-advised to watch this play out quietly, rather than jumping aboard the cheering squad for terrorists. Like the rethug commenters at Free Republic have been doing, you mean?

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#32)
    by nolo on Thu Jun 29, 2006 at 01:06:45 PM EST
    Patrick, the real question is why is this a partisan issue? I think principled conservatives and principled progressives can agree that there should be limits on executive power, and I for one will say that I oppose secret tribunals created by any party's president. What makes it even more egregious in this instance is that the Bush Administration has no excuse for not having gone to the Republican-controlled Congress to get the power to conduct whatever wildass tribunals he wants -- but he didn't. His administration decided by fiat that it did not need to abide by the terms of existing law, and the Supreme Court said he was wrong. It's a victory for the balance of powers, which I think all principled persons should be happy about. On another note, shame on cnn.com for claiming the opinion says the detainees now must all be released. It doesn't say that, and the folks at cnn.com are either stupid or craven to say otherwise.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#33)
    by nolo on Thu Jun 29, 2006 at 01:10:16 PM EST
    Put another way, Patrick, why do you want to treat the proper interpretation of the constitution as the spoils of a political victory, and nothing more?

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#34)
    by Talkleft Visitor on Thu Jun 29, 2006 at 01:17:08 PM EST
    Why are we fighting a war on terrorist? To protect our way of life. Th foundations of which are defined in the Constitution and Bill of Rights Bush has simplified it down to one thing: prevent another 9/11. He is willing to trash everything to further that goal. SCOTUS just helped us in the war. Because if Bush has his way the terrorists have won.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#35)
    by Patrick on Thu Jun 29, 2006 at 01:26:47 PM EST
    Nolo, I don't necessarily disagree with you. Your question framed it as a partisan issue. I personally think politics has gotten way to partisan, and both sides are to blame. We're getting nothing done at the expense of all of us.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#36)
    by Talkleft Visitor on Thu Jun 29, 2006 at 01:48:47 PM EST
    Message to Attorney General Gonzales: Evidently the Supreme Court doesn't believe the Geneva Conventions are quaint.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#37)
    by nolo on Thu Jun 29, 2006 at 02:02:21 PM EST
    Sorry if my question sounded partisan, Patrick. It was a rhetorical device intended to elicit a little reflection, that's all.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#38)
    by Jlvngstn on Thu Jun 29, 2006 at 02:11:14 PM EST
    The president wants to close gitmo. Which of course means he was for it before he was against it./

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#39)
    by Talkleft Visitor on Thu Jun 29, 2006 at 02:21:21 PM EST
    Bush has simplified it down to one thing: prevent another 9/11. He is willing to trash everything to further that goal.
    You only get to be the land of the free if you are willing to be the home of the brave. Trashing freedom in the interest of safety is cowardly. The American people (particularly those who have fought shown their bravery in the pursuit of freedom) deserve better.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#40)
    by Jlvngstn on Thu Jun 29, 2006 at 02:31:46 PM EST
    You want to prevent another 9-11? They can start by listening to the agents especially the ones that said "we think they are going to use an airplane to fly into a building" 'Course Condi says "we could never have predicted this" She means "we" in the sense of her, Rummy, Cheney and Bush. Not the collective intel agents that clearly stated this was a real threat. Funny, Condi, Rummy and Cheney are all highly intelligent, too bad their smarts were covered with arrogance dung.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#41)
    by Talkleft Visitor on Thu Jun 29, 2006 at 02:53:07 PM EST
    "we think they are going to use an airplane to fly into a building" That's great intel, real specific. Way to connect the dots. Maybe we should listen to Richard Clarke, the counter-intelligence guru at the time of the '93 WTC bombing; the USS Cole; the embassy bombing; and 911

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#42)
    by Patrick on Thu Jun 29, 2006 at 03:29:51 PM EST
    JL, I have to disagree. Without specifics, there's no way to defend any target with certainty. I'm sure we can find documents for just about every conceivable attack at some point, but securing every possible avenue for attack would ensure the loss of freedoms. The agent who made the comment you were referring to didn't know which buildings or which planes. There are something like 5000 flights in the air at any given time, there are valuable targets all over the U.S. Kinda hard to do anything with that prediction.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#43)
    by cpinva on Thu Jun 29, 2006 at 03:31:54 PM EST
    that it was a 5-3 decision comes as no surprise. that 3 voting justices sided with the gov't is stunning in its implications. in essence, the 5 said that the executive branch must follow all laws and treaties, just like the rest of us. the detainees not released, must have their status determined, by competent tribunal, per the GC. why any true conservative would not see this as vindication of their oft stated position, with respect to govt responsibility to abide by its own laws, is a mystery to me. that those saturated in, and dependent for their livlihoods on, bush, inc., would howl, is no mystery at all. this merely gives them more grist for their nutcase mill, and more money in their bank accts. perhaps rush needs it, for his most recent legal kerfuffle. it would be nice to think that there are some republican members of congress who still retain a backbone, and aren't permanently bent over in front of bush, taking it hard and fast. we'll see.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#44)
    by jimcee on Thu Jun 29, 2006 at 03:35:14 PM EST
    Sounds to me this is a cloudy decision and it leaves open a few questions. If the POTUS gets congressional approval of tribunals does that satisfy the ruling? Is the US even required to try them at all? I am a bit confused because the court ruled that the Geneva Accords are in effect for these detainees so does that mean that they can be held indefinately w/o trial? Until the WOT ends and who decides when it is over? How will this effect those who are held? If I were on the Left side of the dial I'd cool it with the hot rhetoric and see what happens next. It is kind of like the cartoon Peanuts where Lucy keeps pulling away the football just as Charlie Brown kicks. This has happened over and over again in the last few years. "Sometimes it is better to say nothing and be thought of as a fool than it is to open ones's mouth and remove all doubt." I doubt you'll see Bush 'frog-walked' out of the WH no matter how much you wish it.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#45)
    by Talkleft Visitor on Thu Jun 29, 2006 at 03:44:37 PM EST
    scribe - In your first post of the thread you say this:
    Stevens reminds Congress and the Executive that the Supreme Court's appellate jurisdiction comes from the Constitution, and cannot be legislated away.
    I'll admit I haven't read the decision yet (busy day) but I can only assume you have misstated this. Appellate jurisdiction, is entirely in the hands of Congress. Original jurisdiction is the only Constitutionally guaranteed jurisdiction of the Supreme Court. Anyway, minor, but important nonetheless. I happen to think this is probably a good decision. Again, having not read it yet I'm reluctant to plant my stake on either side. Nonetheless, the President, in establishing military tribunals without the explicit authorization of Congress surely puts him Category III of Jackson's Tripartite. I think you can count on Congress jumping to pass legislation authorizing tribunals with similar procedures as military courts martial. Very interesting day. And TL: no thread on the insanity defense decision? Come on! Thought this was primarily a defense blawg!

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#46)
    by Talkleft Visitor on Thu Jun 29, 2006 at 04:11:20 PM EST
    Hmmmmm, let me cut to tha chase. Yall aren't reading this correctly. What this apparently liberal decision does in fact say is......tha Cheney/Rumsford/Bush Cabal MUST include Congress in writing NEW TRIAL LAW into tha Constitution. Plain and simple, given tha recent history of "our Congress", I use tha terms loosely, we are still on tha precipice of Constitutional History. Who wants to give me odds, that this "Activist Conservative Court" ruling has given tha conservatives, in Congress, tha pathway to changing our Constitutional rights re: civil rights in trial. All it takes a conservative is a loosening in tha mortar that holds democracy together to garner to themselves more conservative rules of behavior for everybody other than them. There is a hidden lesson in that sentence re: Congress makes new rules as regards these prisoners, how long after till somebody born here ends up in these so-called Courts-of-Law. Yall know what, I can prove that CJ Rhenquist engineered tha widening of tha vehicle search laws, starting as an associate. Conservatives say that we need non-activist judges, yeah right! Have a nice day, yall.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#47)
    by Jlvngstn on Thu Jun 29, 2006 at 05:38:59 PM EST
    P - NO offense but the line of thinking that says, "there are just too many flights" to monitor is why we fell victim to this sort of attack. Comprehensive training and screening at airports would have lessened the likelihood of an actual attack being successful. Instead our leaders IGNORED the comment, not that it was too complex to consider, they IGNORED it. Airport security could have been increased to the level it is now pre 9-11 by simply saying to the public we have reason to believe hijackers have intent on taking control of a plane and crashing it into a building. It would have changed the the thought process of those on the planes as the standard protocol historically speaking for hijackings has been to cooperate. If some arsehole tried to hijack a plane today with a box cutter how many people on this site and every other site would sit back and wait for the cavalry? I for one would be more than willing to risk getting sliced to prevent being killed en masse. When we receive neighborhood alerts that there is a burglar in the hood, everyone keeps lights on, is especially watchful and reports strange activity at an increased pace. I know that is correct and you can verify being that you are LEO. Ignoring and not sharing so as not to alarm the public is piss poor crisis management and it started with clinton. And to say it will tip off the terrorists is a joke. LEO cannot catch everything, but everyone on those planes knowing what we know now, would not have been compliant at the beginning when it was so critical. Airlines would and should have taken greater precaution to prevent this sort of thing. Why is it that terrorists are more creative and brighter than us? Protocol killed 3600 americans just as much as the muslim extremists did.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#49)
    by Talkleft Visitor on Thu Jun 29, 2006 at 06:23:21 PM EST
    Protocol killed 3600 americans just as much as the muslim extremists did. At one level I agree. When I was a kid they were hijacking planes to Cuba. Little was done to secure our airports since the 1960's. Since that time, there have been too many hijackings to mention worldwide. Still, little was done. With such a vague PDB issued one month before 9/11, why would we expect 30 years of negligence to be resolved in one month? Our failures on 9/11 go back many administrations, and Congress with all of their committees and investigations have to shoulder much of the blame.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#50)
    by Repack Rider on Thu Jun 29, 2006 at 07:00:30 PM EST
    Without specifics, there's no way to defend any target with certainty. Of course, but unlike the Clinton administration that had regular meetings to assess threats, the Bush people didn't even discuss the threat to see whether specifics could be determined. If you have been warned of an event you may not be able to stop, any thinking person above the age of consent will at the very least start working on a plan to deal with it when it happens. For Mr. Bush, the response plan was to sit in stunned silence while second-graders read about a goat, then to stand outside the school and pose for a photo-op, then to fly aimlessly around the United States for a while without even contacting his military staff. What I found interesting was that the 9/11 Commission determined that in the first hour after the attack started, the president did not ask the JCS a single question, nor did he issue a single order. Not a single question. Not a single order. The country comes under attack, and the president can't think of a question to ask or an order to give. That's the guy you want next to you in the foxhole, isn't it, a decisive, alert, engaged commander? If he had a response planned, I guess it was to look really stupid. So tell me. Was the stunned look in the classroom part of the elaborate response Bush and his brain trust had determined was the best way to respond to a terror attack, the result of a plan they had nine months to work on before the attack?

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#51)
    by Talkleft Visitor on Thu Jun 29, 2006 at 07:02:15 PM EST
    "With such a vague PDB issued one month before 9/11, why would we expect 30 years of negligence to be resolved in one month?" It was the stifled reports of "odd" pilot training going on, government officials all of a sudden taking gov transport instead of commercial flights, yes, the PEB as well as the FBI person personally reporting to the moron at his daddy's ranch, and the moron, not wanting to pause playing his violin, telling the agent that he had CYA, and go away. It was the half statements and speeches full of inuendo and implications that would lead a careful listener to deduce that people in gov. knew something was going to happen. Yes, you can play 20-20 hindsight all you want, but, when you get down to it, BushCo failed. They were the last link and had they been even marginally adequate, 9-11 would never have happened. BTW, blaming 9-11 on previous administrations is like blaming Pearl Harbor on Teddy Roosevelt.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#52)
    by roger on Thu Jun 29, 2006 at 07:11:08 PM EST
    Narius, Much of what you say may be true, but all detainees must now be given Geneva protections.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#53)
    by Talkleft Visitor on Thu Jun 29, 2006 at 07:37:33 PM EST
    This site has some of the most amazing, intelligent people. Thanks for all of the insight... ...Scribe- I was one of the screaming outraged about this way back when and then it seemed to just disappear from the news. Footnote 10 calls bullsh*t on the Graham-Kyl post-hoc insertion of bogus debate into the Congressional Record to create some legislative history. (which I commented on earlier) Glad it received some worthy attention in the opinions.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#54)
    by Edger on Thu Jun 29, 2006 at 07:42:59 PM EST
    It appears that this decision by the court has opened some cans of worms that may have very far reaching political as well as legal implications for many aspects of bush's claims re inherent executive power, and may well have cut the feet out from under bush's justifications for NSA domestic spying. Glenn Greenwald today, in what he calls 'preliminary observations" on the decision notes that:
    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.
    ...
    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.
    ...
    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.
    So bushco is illegally treating prisoners in violation of the War Crimes Act and the Geneva Convention, and illegally monitoring domestic communications of US citizens, according to the Supreme Court of the United States. I'd hate to be a republican senator or representative going into the fall elections. I might just decide 'for personal and family reasons' not to run... or maybe just run as far away from any association with bush as possible.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#55)
    by Alan on Thu Jun 29, 2006 at 08:58:08 PM EST
    The splattering sound you hear from south of the equator is the sh*t hitting the fan in Canberra. The Australian government is the only US ally which has acquiesced to the Guantanamo process for its citizens. BTW, one of the unsung heroes of this thing is Major Michael Mori, the US military lawyer who has been fearless in criticising your government and ours for their treatment of his client.
    Hicks's lawyer, US Marine Corps Major Michael Mori, has hailed the ruling. "It's great news," he said. "It is what everybody else has been saying all along - that the military commission system does not provide the basic fundamental protection that is required. "Every legal organisation in the world has criticised the military commissions. "In fact, Australia is the only country that has accepted the military commissions for its citizens."
    Meanwhile, the Blair government has just got similar treatment from their High Court for violating the UK Human Rights Act.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#56)
    by Talkleft Visitor on Thu Jun 29, 2006 at 09:01:18 PM EST
    Chimpy sez: "oh...snap!" this looks like the sweet revenge of some very honorable, patient, and pissed-off justices. bless them.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#57)
    by dab on Thu Jun 29, 2006 at 09:24:22 PM EST
    Two comments, both a related, but a bit tangential to the dialogue. First, doesn't today's decision essentially mean that Bush's NSA wiretap program, to the extent it conflicts with federal surveilance law, is patently illegal? As I understand it, the Court said whatever powers a president might have as commander in chief in wartime, if Congress has explicitly prohibited certain conduct, the president must follow Congress's laws. Thus, because Congress has prohibited wiretapping American citizens without court approval, the president acts illegally by doing otherwise. Second, to TL: given your criminal defense background, I am rather surprised you have not commented on the Clark v. Arizona decision. While not a political hot potato like Hamdan, it is a decision that affects many criminal defendants, and in my opinion, perpetuates one of the greatest injustices in our legal system. If you do write a post, I will comment further, but I think the court has perpetuated a standard of insanity that reflects that we are less moral and compassionate and more "ignorant" than the English courts of 200 plus years ago, despite our vastly increased knowledge of mental illness. I am shocked that Souter! and Breyer! could sign their names to an opinion that says a citizen has no constitutional right to show s/he did not and could not have intended to kill a human being to defend him or herself. Justice Kennedy is far from progressive, yet he had no trouble recognizing that the Constitution affords every citizen the right to defend him/herself. Under the Arizona rule, like the Texas rule under which Andea yates (who thought a divine voice instructed to her to kill her children, but in a moment of clarity, common in psychotic episodes, called the police) was inexplicably found to be not insane, the insanity defense may as well not exist at all. What a sad society we are if we do not understand the principles of mercy and culpability that every civilized nation has acknowledged for hundreds, if not thousands of years!

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#58)
    by Talkleft Visitor on Thu Jun 29, 2006 at 10:55:13 PM EST
    Hooray. Hooray. Hooray. Can't read any comments because if someone has a problem with this wonderful decision, I just can't hear it tonight. The thought that Kennedy may side against the monarchist wing of the SCOTUS is just filling me with lovely, purifying, energizing hope.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#59)
    by Edger on Fri Jun 30, 2006 at 01:50:38 AM EST
    cynicalgirl:
    So then what's next? If Bush continues to believe that he is above the law, how can this be enforced?
    Great question to ask here. I wonder why no one else, including myself, asked this. I guess the expectation that SC rulings will be honoured and followed is such a deeply embedded part of our consensual reality that we never think that they wouldn't be. This prompted me to wonder if there ever were any SC decisions that presidents have refused to honor and abide by, and as it turns out there are some, and one famous one. SC Associate Justice Stephen Breyer, in his Commencement Remarks to Boston College Law School in 2003 referred to the somewhat famous case of President Andrew Jackson sending troops to Georgia to forcibly evict the Cherokee Band form land guaranteed them by treaty, after the Cherokees had dicovered gold on their land:
    Georgia tried to seize the land. The Cherokees sued. And eventually the Supreme Court, in Worcester v. Georgia, held in favor of the Cherokees. Georgia then refused to obey the Court. President Andrew Jackson reportedly said, "John Marshall has made his decision; now let him enforce it." And Jackson sent troops to evict the Cherokees, who traveled the Trail of Tears to Oklahoma, thousands dying along the way.
    It would take a Jacksonian... In reality "The Supreme Court cannot directly enforce its rulings; instead, it relies on respect for the Constitution and for the law for adherence to its judgments."** More recently, many feared that President Richard Nixon would refuse to comply with the Court's order in United States v. Nixon (1974) to surrender the Watergate tapes. Nixon, however, ultimately complied with the Supreme Court's ruling.** **Wikipedia Bush seems in many ways to be determined to outdo Nixon in his attempts to go down in history as the most hated president in the history of the US, so he just may use this opportunity to move closer to that goal. So, if Bush continues to believe that he is above the law, how can this be enforced? Well, it doesn't look like it can be enforced, other than by popular revolt or civil war...

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#60)
    by Talkleft Visitor on Fri Jun 30, 2006 at 07:05:44 AM EST
    I am amazed that so many learned folks still think that George Dubya Bush has tha intelligence and ability to have conceived and orchestrated all of tha moves by which tha Executive has agrandized to itself plenipotentiary powers in excess of constitutional mandate. Fearless Leader froze on 9/11, all day long, but remember who was issuing orders that day? He even ordered tha U.S. Air Force to "SHOOT DOWN" a civil airliner ,tha one that augered in in PA. Yup, yu guessed it, tha real power of tha Presidency, Slick Dick Cheney and his Mentor Dangerous Don Rumsford. These guys actually, really believe that what they are doing is a patriotic service to tha country, and if they have to bend tha rules and tha laws to achieve their goals, then so be it. Hey even Nixon thought he was being a true patriot when he sought to and succeeded in influencing his re-election. It is these kinds of "patriots" that are the most dangerous to Democracy, because it is their version of Democracy that they seek to establish. Oh and one other thing, Cheney may be in his 70's, but I'd bet he'd be willing to be President for a term or two, just to make sure that conservative rule of society was clearly established. Have a nice day yall. ;)

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#61)
    by jimakaPPJ on Fri Jun 30, 2006 at 07:25:23 AM EST
    Cyrmo writes:
    Well, we can see that you guys have now received the updated talking points memo for the day.
    You mean like this?
    ..... Let's starve it of oxygen. And without the "he said, she said" element to the story, you know political journalists are paralyzed into inaction.
    edger writes:
    I'd hate to be a republican senator or representative going into the fall elections. I might just decide 'for personal and family reasons' not to run... or maybe just run as far away from any association with bush as possible.
    That's funny. Catch a clue. The SC just re-elected them.

    Re: Supreme Court Bars Miltary Tribunals (none / 0) (#62)
    by Sailor on Fri Jun 30, 2006 at 07:46:41 AM EST
    the topic is about the supreme court barring the tribunals ... try to stay on topic.

    Supreme Court Bars Miltary Tribunals | 60 comments (60 topical)