Comments on: Commentary: An alternative to military tribunals?

By: ryang24

ryang24 — Fri, 16 Jun 2006 05:42:14 +0000

I think Barak’s comment is relevant here when he said (to an adverse decision reached by the court holding that violent interrogation of a suspect is illegal, even if doing so may save human life by preventing impending terrorist attacks),”We are aware that this decision does not make it easier to deal with [the reality of fighting terrorism]. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.” I’m quoting from an address by Hillary Heilbron, QC to the Civic Exchange, Hong Kong, delivered on the 21 October 2004.

By: oyez-fan

oyez-fan — Fri, 16 Jun 2006 05:11:49 +0000

And the Executive Branch is the least qualified to decide to what extent habeas is suspended in a so-called time of war, or to what extent the Geneva Conventions apply, or which American laws and constitutional rights reach detainees on a US military base like Guantanamo.

I recall eight German saboteurs having access to a US courtroom in Ex Parte Quirin. It ultimately didn't do six of them much good, but it was good to see that at least in a *real* time of war, American courts still attempted to dispense justice for more than just Americans.

If the Executive Branch has the ability to set aside any law it pleases, and effectively make its own rulings without the "interference" of the Judicial Branch, then where can it stick its nose?

Unfortunately, the answer to that is becoming increasingly clear: anywhere it wants. Private communications, Congressional offices, sovereign nations -- you name it.

By: ryang24

ryang24 — Fri, 16 Jun 2006 05:10:25 +0000

As to the original commentary. Do you think this may be a move by the Administration to soften the blow of a possible adverse decision against the government? It may be a political move, both to save face in the upcoming elections if attacked by the Dems, and to curry favor with the growing public sentiment against the war and the detentions. Bush does come off as more ‘cuddly’ now that he seems to be against the tribunals (may be a coincidence, but his language also appears more ‘Bush-like’ than normal when he spoke of these things). May be a sign he is trying to connect with his base, if one buys the idea that Bushisms are a way for him to appear more like a commoner–whatever that is.

By: federalist

federalist — Fri, 16 Jun 2006 05:05:37 +0000

“Broadly though, if you were caught up in the war on terror, wrongfully, what process would you want due?”

I’d want a ton of due process. I’d also want, if I lived in a war zone, to be free of bombs, snipers and all sorts of attendant evils. The reality is that innocent people in war get hurt. It is simply unavoidable. And if a couple of innocent guys get swept up at GTMO, that’s war. We killed a little girl when we killed Zarqawi. Is court intervention thereforejustified?

By: ryang24

ryang24 — Fri, 16 Jun 2006 04:57:50 +0000

Are there not considerations other than the Court’s lack of warfighting qualifications, such as construction of Congress’ intent to authorize the executive in this nature (i.e., valid violations of the law of war), and the founding fathers’ desire to protect against over-extended executive power (with no checks? In any event, in my opinion, Clement’s arguments concerning the need for the executive to properly wage a war (and thus should deserve broad deference) was prety thin. Additionally, the WWII case was fought heavily on Constitutional grounds (read the dissent, it is powerful). On it’s face, the Court taking the case alone gave rise to rights of enemy combatants in US courts (in the sense that habeas goes to the legaility of one’s detention by the executive. However, (abstractly)I think the strongest argument for the government (from an originalist perspective) is that the Constitution gives Congress the ability the define and punish violations of the laws of war and they have excercised that power in the UCMJ (save testimony of the retired general, forgot his name) and preserved the common law military tribunal to try violations of the laws of war. Of course, that inherently doesn’t diminish judicial review (through habeas) of the Conspiracy charge. This would fit with Yamashita and Quirin (to which a reference was made. Broadly though, if you were caught up in the war on terror, wrongfully, what process would you want due.

By: federalist

federalist — Fri, 16 Jun 2006 02:56:40 +0000

With respect to courts and warfighting, I make the following observations:

1) The Judicial Branch is the least qualified to make determinations with respect to fighting wars.

2) In WWII, the US military summarily executed German soldiers caught violating the rules of war. No one would have argued that such a practice was unconstitutional, nor would anyone have argued that those Germans would have had any rights to a US courtroom. What has changed since then to give terrorists access to our courts?

3) If the Court has the right to interfere in this area of warfighting, namely what we do with enemy (illegal) combatants, where else can it stick its nose? Can it make rules of engagement?

By: Commentator

Commentator — Thu, 15 Jun 2006 19:57:54 +0000

There was nothing nuanced about Kerry’s defeat.

By: upagainstthelaw

upagainstthelaw — Thu, 15 Jun 2006 15:21:38 +0000

I wouldn’t be so sure that Bush knows the difference between a commission/tribunal and ‘courts here in the United States.’ The man isn’t one to pick up on nuances.

By: r.friedman

r.friedman — Thu, 15 Jun 2006 12:08:59 +0000

Before Fed gets his salivary and sweat glands all cranked up, let’s remember that all the Hamdan petitioners are asking for is a tribunal that follows court-martial rules. And also the saying (I would say mot but that might be construed as citing foreign law) that military justice is to justice as military music is to music.

By: Commentator

Commentator — Thu, 15 Jun 2006 05:26:10 +0000

Federalist: The Supreme Court should tread very warily in the area of warfighting.

Wait…it can’t be Federalist asserting that the Supreme Court is an weather-vane of politics!! I thought it was supposed to act according to principles at all times!!!

By: federalist

federalist — Thu, 15 Jun 2006 03:01:56 +0000

If the Supreme Court decides that the tribunals are unconstitutional and for whatever reason one of these guys gets acquitted in a civilian trial or is unable to be tried due to other concerns and American soldiers die as a result, the Supreme Court cannot expect that politicians or the public will be silent about it.

The Supreme Court should tread very warily in the area of warfighting.