ARC's 1st Law: As a "progressive" online discussion grows longer, the probability of a nefarious reference to Karl Rove approaches one

Friday, June 30, 2006

SCOTUS Tells Commander-In-Chief: "Shoot 'Em Dead"

At least, that's the message I get from our extra-jurisdictional, power-grabbing jurists on the Supreme Court. I just love the NYTime's excerpt from Thomas's opinion (although, as a black man, he embarrasses the hell out of some):

Justice Thomas's dissenting opinion addressed the substance of the court's legal conclusions. In a portion of his opinion that Justices Scalia and Alito also signed, he called the decision "untenable" and "dangerous." He observed that "those justices who today disregard the commander-in-chief's wartime decisions" had last week been willing to defer to the judgment of the Army Corps of Engineers in a Clean Water Act case. "It goes without saying that there is much more at stake here than storm drains," he said.

This decision has several implications....
  1. Terrorists found on the battlefield will no longer be captured, but killed outright. Our military, recognizing that they can either read Miranda rights to their enemies on the battlefield or be entirely justified in shooting them dead, will choose the latter for their own immediate and future safety.
  2. We will lose a great deal of intelligence from any terorists that were are unfortunate enough to capture, since the will be afforded rights which have never been extended to illegal combatants under the very Geneva Convention which this court purports to defend
  3. It is more likely that renditions will increase, as the US military recognizes that SCOTUS no longer recognizes the realities of war against illegal combatants.
Fortunately, Congress - which is still in control of the Reality-based Party - is moving to pass legislation which will provide the CIC with the authority to establish facilities such as Gitmo and will provide a legal procedure (greater than what is currently offered but not nearly as extensive as that prescribed by Stevens) that will give us some protection in this Global War on Terror.

It seems that Kerry's statement that the War on Terror is primarily a war of law enforcement is an opinion that is shared by many on the SCOTUS. This just tells me that there's more work to do in terms of nominating judges to the court. A

Ronald Cass has an excellent analysis at Real Clear Politics:
June 30, 2006
Hamdan v. Rumsfeld: Common Sense at War
By Ronald A. Cass

Liberty may have been the traditional casualty of war, but common sense is its new colleague. The Supreme Court, trying hard on the anniversary of last term's Kelo decision to find a suitable sequel, performed a rare triple loop in Hamdan v. Rumsfeld. It found jurisdiction in the face of a statute directly taking jurisdiction away from the Court. It second-guessed the President on the need for particular security features in trials of suspected al Qaeda terrorists. And it gave hope to One-World-ers by leaning on international common law to interpret U.S. federal law. If that weren't enough, the (left, lefter, and far left) turns were executed in the course of giving a court victory to Osama bin Laden's driver. What a perfect way to end the term!

The case challenged the Bush Administration's plan to use military tribunals to try Guantanamo detainees as enemy combatants who are neither within the criminal law and due process protections of the U.S. Constitution nor within the protections afforded prisoners of war by the Geneva Conventions. The Administration has been assiduously trying to prevent al Qaeda terrorists from learning what it knows and doesn't know about their operations - an effort opposed by The New York Times, the left side of the Democratic Party, and most of France. Its plans for trial by military commission and its detention at Guantanamo of al Qaeda suspects captured outside the United States are part and parcel of that effort.

The five-justice majority of the Supreme Court that decided the Hamdan case yesterday showed great interest in demonstrating their commitment to upholding constitutional protections and protecting international human rights, both admirable instincts in many settings. They showed less appreciation for the fact that Americans are threatened, and thousands of innocent Americans were killed by brutal thugs - the sort who behead civilians, film it as sport, and post the video on the Internet. And the justices showed no appreciation for the fact that Congress and the President might well know more than they do about the security needs of the United States.

Of course, the justices wrote a careful, precedent-laden, critically analyzed decision, well within the bounds of ordinary judicial craftsmanship - just as they did in Kelo. The proper criticism of their decision is not that it is politically inspired, not that it boldly ignores the law, and not that it is a decision that is utterly without support (though all these critiques may well come from the right). Instead, the proper criticism is that the decision is simply wrong, just as Kelo was, and will have consequences that no sensible American should applaud.

The first misstep was in finding jurisdiction at all. When Congress passed the Detainee Treatment Act of 2005, it included a provision saying that "no court, justice, or judge" has jurisdiction to hear applications for habeas corpus from any prisoner detained at Guantanamo. The Act also provides, in another provision, that pending challenges to decisions of military commissions on matters such as the detainee's status could not be heard except by the U.S. Court of Appeals for the D.C. Circuit.

The five-justice majority - taking a page from the two-plus-two-equals-five school of new math - read the two provisions together and concluded that it could hear a pending habeas petition. Small wonder Justice Scalia, in dissent, seemed almost apoplectic over the majority's reasoning. The only sad part is that his dissent didn't come complete with the appropriate gestures.

If only they had protected the rights of property-owners as much as they seek to protect the rights of terrorists... We truly are in Bizarro World.

Carry on... and check out:
MichelleMalkin, Wizbang
Allah at HotAir
Protein Wisdom
BlackFive appears to agree with my rendition statement?

Your Co-Conspirator,
ARC: St Wendeler

Comments (8)
Monterey John said...

You didn't let me down, Saint. Good and lucid post.

As for me, I'm still on my inhaler.

St Wendeler said...

Thanks, John... I aim to please.

What will really be interesting is the Moonbattery of the Left when some of the Dems in Congress actually vote to provide Bush with the required authority to keep Gitmo open.

I mean, the Dems aren't stupid, right?

Stupid Country said...

Well, if it's moonbattery you want here's a little:

This decision was inevitable, since it bears on a class of individuals denied any comprehensible rights as human beings by virtue of their identification as "unlawful combatants." The phrase "unlawful combatant" had no actual meaning in any legal system in the world before the Bush Administration seized on it for the purpose of permanently detaining these individuals. Even the current kangaroo SCOTUS couldn't bring itself to countenance the wholesale fabrication of an entire system of justice to try this small class of individuals, outside any other, legitimate jurisdiction.

Did the Supremes really have valid justification for claiming jurisdiction? The Roberts Court and the administration it serves have whimsically re-wired constitutional law at will. What difference does it make any more how they arrived at jurisdiction? The modus operandi for all three branches of government has, for years, been fiat now, ignore the dissent later. Well, thankfully, this cuts both ways.

A lot of people in Gitmo cells are enemies of the United States. Some, I would wager, are not, or weren't before they were shipped thousands of miles and thrown into barred dumpsters without charge, without representation and without any idea for how long. Tell me that's a naive view of those people -- then tell me who has any clue which are the terrorists or insurgents, and which are just scapegoats with beards and funny names with "q"s in them. I suspect there are people there whose names aren't even known, nor does anyone care to know them.

Humans have rights, including the right to some rational legal process to deal with their indefinite imprisonment, no matter how it is justified. SCOTUS apparently agrees that those rights, even for Gitmo detainees, include not being subjected to Star Chamber justice.

If this is the best we can do with these cases, then rather than risking acquittals that would embarrass the administration and force the release of prisoners, why indeed don't we just shoot them?

Does this decision really mean US soldiers are now required to apply the "Kill 'em all, let God sort 'em out" philosophy in Iraq and Afghanistan? If so, that'll amplify the voices criticizing the brutality of the American occupation and further polarize discussions about Haditha-like incidents and their resultant murder prosecutions. On the bright side, maybe it will increase consensus among Iraqis in the Maliki government that the time has come, civil war or no, for the Americans to get the hell out of their country. the way, yes, SW, you're probably right about the Democrats' next move. Sad, isn't it?

St Wendeler said...

STUPID!!! Hope things are going well and that you have a very happy and safe 4th of July.

Thanks for the comment... my point about shoot 'em all is that before we can even discuss any of these cases, it must be agreed upon that we are at war, and thus, lethal force can be applied.

If the Supremes dictate that someone captured on the battlefield in Iraq will be returned to the US and put through a trial similar to that which Massoui enjoyed, it is unlikely that our military will take extra steps (and extra risks) to capture enemies on the battlefield. Where they may have used restraint in the past, approaching enemies with small arms, our military might be more likely to simply apply stronger force - ie, tank rounds & bombs. I'm not saying that our military would walk up to injured or unarmed combatants and "take 'em out," because our military is professional and humane, despite the claims from the Left. However, I am just saying that the lengths to which our military goes to limit the force applied against our enemies during a fight will probably change.

And, with regard to the status of our enemies under the Geneva Conventions. It is important to note that protections are not extended to enemies who:
1) do not distinguish themselves as combatants through insignia or uniforms;
2) do not openly carry their arms;
3) hide amongst the civilian population.

Protocol I to the Geneva convention did seek to extend the rights of legal combatants to people described above, but it is important to note that this is still a Protocol and not a Convention... meaning, it has never been accepted by the US.

And let me ask you this... if there are rules and criteria which are used to describe what a legal combatant is, if a belligerent does not comply with those rules, then are they not therefore illegal?

In addition, even under the provisions of Protocol I, it would seem that members of Al Qaeda would not be provided with protections under the Geneva Conventions. From the Protocol:

3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly

AlQaeda does not carry their arms openly and thus, even under this Protocol which has never been accepted the US, we are not obligated to extend the protections afforded to POWs to AlQaeda terrorists.

Also, note the first sentence... the primary purpose of requiring belligerents to wear a uniform is to promote the protection of the civilian population from the effects of hostilities. I assume therefore that since you wish to grant additional protections to those that do not wear a uniform that you wish to impose harm on civilian populations during hostilities...

How progressive.

By the way, why aren't you blogging anymore? Should I remove you from my Moonbat Lefty Blogroll? Please advise!

Stupid Country said...

I did burn out on blogging. It was too much like talking to myself after a while -- a masturbatory exercise, my wife called it. I got comments, but almost solely from people who agreed with me. That all started to seem a little pointless.

So then there was this ABC special last night about the polarization of American society, which was mostly pretty lightweight stuff, but there was something worrisome in it. It seems research that looks intelligently composed provides evidence that when you put like-minded people together to discuss politics, they tend to drive one another to a consensus at the extreme end of their ideology. Strikes me that this is what blogs do when they only reach like-minded readers -- in fact, George Stephanopoulos made exactly this point about blogs. I don't need to be goaded to the fringe, I suppose, but it sounded like my Stupid Country experience. (Is it yours too?)

So, am I blogging any more? Well, one thing that does seem potentially productive is showing up at conservative blogs like this one and being a pain in the ass -- under the rules of engagement I've always used in the past: If you're civil to me, I'll be civil to you. It's worked out ok here, so keep me in your moonbat list if you're inclined to.

As for the Stupid Country blog, I believe I'll use it to contain links to any of these catfights that turn interesting. I've done that a couple times before.


You raise several points I'm inclined to argue, but it's late, so I'll just pick one:

"...before we can even discuss any of these cases, it must be agreed upon that we are at war..."

I don't agree, unless you're referring to our own aggression in Iraq and its ugly devolution, which I continue maintain has nothing to do with the so-called "War on Terror." I don't subscribe to the phrase "War on Terror," and here's why.

Terrorism is a part of our present and our future. It's a fact of life. To a lot of people, saying we're conducting a "war" against terrorists offers the feelgood connotation of the government's maintaining an active program of prevention against those who would launch new terrorist attacks. This includes intelligence-gathering, diplomacy, violent disruption when opportunities for this arise, and -- your obvious distaste for John Kerry's phraseology aside -- large-scale international police work.

I may oppose just about everything the Bush Administration says and advocates, but I have every confidence it is conducting a very aggressive anti-terrorism campaign.

Why do I object to the administration's reference to this as a war? Because "war" is also a legalism. Accept the characterization of our current conflict as a war, and our current state as wartime, and you authorize the President to assume various special wartime powers, overriding large chunks of the Constitution and curtailing freedoms I take for granted as an American.

I know a lot of people are fine with this. Yes, times are scary. My beef with the concept of wartime powers at a time like this is that this situation is basically permanent. This kind of "war" has no foreseeable end. I'm not content to accept the warping of our democracy into something less free and open than the society I grew up in, forever.

As I've said in earlier arguments here, other societies have dealt with the reality of terrorism without fundamentally changing their democratic norms. So can we if we have the will. If we don't have the will, and if we allow the (admittedly real) threat of car bombs and gas attacks to change us into an intolerant, fearful, authoritarian state, then maybe there has been a war on terror -- if so, it's already over, and we lost.

Here's a fair question: Would I be okay with the assertion of war powers if the President was one I agreed with ideologically?

I don't really know. The issue occurs to me, but I can't really imagine such a scenario. I suppose so.

More importantly, I'll allow that I have a specific problem with this particular President asserting war powers, because I see so many ulterior motives in the administration's every move. Dick Cheney has made it very clear that a key administration objective is to shift the balance of power among the three branches of government to enhance the authority of the President at the expense of Congress.

My moonbattery is that I dismiss the publicly-stated intentions of just about everything this administration does and interpret its programs in light of this clear objective, and its evil twin: The preservation of the Republican majority in Congress and the conservative majority in the courts.

Now you know my bias. But enough about me...

Okay, one other thing:

"...our military is professional and humane, despite the claims from the Left..."

(a) I'd appreciate being left out of any broad characterizations of amorphous groups of people casually written off as "the Left," and (b) this particular characterization has no factual basis. There are plenty of people who identify themselves as liberal (yes, some people still have the balls to accept that label) and would agree that the military are, by and large, humane and professional. Is it leftist to report the facts as they occur occasionally where military personnel lose some of their humanity? Is that what you're referring to?

St Wendeler said...

Well, sorry to hear about your slowdown on the blogging front. I'll commit that the conspirators here at Another Rovian Conspiracy will visit and pierce the echo chamber that you're getting on your blog if that'd help.


First, I recognize that the "War On Terror" is a misnomer. However, it is more palatable (and marketable?) than the War On Islamofascism. It could more accurately be called the war on the status quo in the Middle East. And to suggest that it is a problem for law enforcement is to return to the pre-9/11 world, where the attack on Khobar and our embassies in Africa were investigated by the FBI - to no success. It ultimately led to the horrors on that September morn. And if you think the powers of the President are imperial now, just imagine his powers if another attack of that magnitude were successful because he reverted to the pre-9/11 attitude.

As far as the perpetual nature of the war, yes it is likely that there will always be some kook in a shed in East Timbuktu that thinks his problems can only be resolved by killing the infidel and imposing sharia. However, the war itself is a two-pronged effort and we will, at some point, be able to declare victory. The first part of the war is killing those that have already gone off the deepend and joined Al Qaeda. The second part of the war is changing the status quo of the Middle East and bringing those countries into the 20th and preferably the 21st century.

Right after 9/11, much criticism was put onto the Bush and Clinton administrations for not "connecting the dots," with people from across the ideological divide selectively focusing their criticism on the other side. In retrospect, it would probably have been wise for the US government to have the tools they now possess (monitoring of international financial transactions, monitoring of international communications from suspected terrorist locations to the US and our allies, etc).

So, in that regard I would probably approve of these tools being used by most any administration.

I do share a concern for having a place such as Gitmo open indefinitely without proper oversight. However, I recognize that to date only those with the most direct connections to Al Qaeda and those posing the greatest threat to our safety & security have been detained there. Some have been released, never to be heard from again. Others have been released only to show up fighting US troops again. Others are still detained because they still pose a threat and their countries of citizenship do not want them returned - because they too recognize the threat that they pose. I appreciate that the Aministration put some formal review process in place, although it surely was not perfect. However, this was better than simply holding the detainees incommunicado which even Justice Stevens recognized as an option for the Bush administration in the Hamdan case.

Some day, Gitmo will not be needed... however, until that day, we need to make sure that it meets our requirements for this War On Terror (or whatever you want to call it).

I understand your distrust, given the echo chamber that you probably roam in. I seem to recall many folks on FreeRepublic back in the '90s throwing out black-helicopter conspiracy theories and promising the this or that scandal in the Clinton White House would surely bring him down. They were all laughable, but in that echo chamber many found them to be plausible and held out hope that they would ultimately be proven right.

Me personally, I try to visit the echochambers of the Left more than the echochambers of the Right... Since it provides me with insight into the workings and thoughts of the Left... and always a little humor.

And, I have to say that the echo chambers of the Left have been a rather caustic place to be for the past few years. Reading such angry thoughts day in and day out would surely drive me crazy - if I shared their fundamental assumptions about the world we live in. Fortunately, I can sit back and simply laugh.

Be sure to send me an email if you start to post more often.

Stupid Country said...

The black helicopter folks never had any genuine evidence to support their conspiracy theories. Thanks to outlets like The New York Times, the evidence of the Bush Administration's contempt for the Constitutional freedoms they swore to uphold, and to support my mistrust of Administration intentions, is available in black and white every damn day to anyone who cares to read it.

My problem with the phrase "war on terror" is not with the word "terror." It's with the word "war."

And when I use the phrase "police work," I'm talking about the nature of the work, not the organization doing it. And notice that I acknowledge and agree with the need to "violent disruption" too.

One more thing, and then I'll go back to my chores:

"...I recognize that to date only those with the most direct connections to Al Qaeda and those posing the greatest threat to our safety & security have been detained there."

I recognize no such thing. Who those people are and why they are being warehoused in Gitmo is one of the many secrets the Administration keeps, asking us all to just shut up about it and trust that it's for our own good. We have already established that trusting in this administration's intentions is beyond my credulity threshold, have we not?

St Wendeler said...

We have already established that trusting in this administration's intentions is beyond my credulity threshold, have we not?

Ummm, if you replaced "we" with "I", I would agree with the statement. Although your "credibility threshold" is probably non-existent when there's an "R" after someone's name.

And just because someone believes they're Napoleon Bonaparte does not make it so. Just because the New York Times was for increasing the tracking of internation financial transactions (a police tactic, eh?) before they were against it doesn't mean that the Bush administration is doing something nefarious.

pull the tinfoil off and have a happy and safe 4th!