SCOTUS to the Shrub: STFU n00b

http://www.cnn.com/2006/LAW/06/29/sc...als/index.html

Main Outcomes:

1. Military Tribunals Cannot be Used Without Explicit Authorization From Congress

2. The 'Enemy Combatant' Circumlocution Cannot Be Used to Circumvent GC Protections

Kinda flies in the face of the all the nonsense we heard about court-packing, cronyism and extremist nominees when Alito and Roberts were interrogated by the Senate Judiciary Committee.

EDIT: and yes, before you say it, I know Roberts abstained, and who dissented, etc. Personally I think the dissenters make a pretty good point. The notion of these wartime powers as unprecedented or dangerous has little historical backing.

Roberts didn't participate in the case (because he had already ruled in favor of Bush when this case came before him at the appellate level), and Alito voted with the dissent, so yeah, Bush's cronies did, in fact, vote to uphold a power that was clearly extra-Constitutional.

There IS no historical precedent for nearly unlimited judicial power being granted to the executive branch without explicit Congressional approval. Even Lincoln's abuses were approved by Congress.

So "clearly" that the vote was 5-3, with one of these alleged "cronies" abstaining. Yes, a definitive rebuke, indeed.

We're talking about a blow in part to a facility the President is on record as wanting to close, and wartime powers that are not essential (nor are they without precedent). And this is supposed to be some sort of stinging defeat? I'm not buying it. It's a minor setback at worst, though not one I concur with.

Only the packing of the court with cronies kept this from being the 6 or 7 to 2 wipe out that it should have been.

The primary goal of the entire Bush presidency has been the unlimited expansion of Presidential power, so yeah, this is an ENORMOUS setback to the Shrub's overriding agenda.

Since when was the suspension of habeas corpus made with Congressional approval? Justice Roger Taney even ruled at the time that Lincoln could not suspend the writ, and that an act of Congress was necessary. Lincoln completely disregarded this. There's your precedent; far more egregious.

In other words, you generally can't use the Constitution as a means to tangibly defend those who are trying to destory it in some form or another. The Constitution exists for the people; not the other way around. Lincoln recognized this and, yes, broke the rules. Bush, meanwhile, is assuming a fraction of this level of jurisdiction, and everyone's screaming bloody murder. It's silly.

And yet his nominees keep getting stellar ratings. My God, the American Bar Association's in on it, too!

And they staged 9/11 just to get the ball rolling, right?

If you're set on assuming the worst and filling every gap in objective knowledge with those assumptions, then there's no argument to be had. I can't have a discussion with someone wearing s**t-tinted glasses.

Lincoln eventually forced his suspension of basic liberties through Congress, albeit ex post facto. That said, past lawbreaking just not justify current lawbreaking.

Beyond that, we've got a 135+ years of intervening decisions limiting the power of the executive to engage in unfettered abuses of power, and the Bush administration has basically set as its goal the rolling back of those limitations on Presidential authority. The reason people 'scream bloody murder' is because this is just a part of the President's larger policy of subverting Constitutional due process and civil liberties protections as well as limitations on the scope of his own personal power. This administration seems to believe that it can just mouth the right incantations (viz: 'national security') and all Constitutional impediments to Presidential power vanish. What, there's no Congressional or court approval of our actions? So what? We're in a 'War on Terror,' and that means the President can govern by decree.

Of course not, but they certainly used it as a pretext for trying to circumvent longstanding limitations on executive power.

Am I the only one who's aghast that the prototypical Anglo-American liberal democracies are increasingly reliant on the judiciary to safeguard habeas corpus (or a shred of it, at least) from the executive?

I mean, Christ. Have things really got this bad? Is parliamentry democracy now so hollow and toothless that the citizenry has to rely on the branch of government with the least democratic accountabilityto defend their rights?

No, it doesn't, but it does indicate to me that the law, in both instances, is far from ideal, if more than one President (Lincoln and Bush, in this instance) has seen the need to work around is to often in times of conflict; with the overwhelming approval of historical opinion in the case of the former (and, I suspect, the latter, albeit not for a couple of decades).


Yeah, you already said this, and I said before, there's no way to argue with someone who's going to assume the worst. I see no reason to believe that there's any secret agenda here; there's definitely an attempt to expand power, though it's still being done primarily through Congress, and most of it is temporary in nature. If you desire to believe that this is Bush's only real goal, there's no way for me to prove otherwise, though I would ask to what end he's acquiring executive power. What, do you think he's going to try to stay past the end of his term? Because if so, you're on. I use PayPal.

No, they don't think that, nor do they indicate that they do by their, you know, constant lobbying of Congress for the approval of many such executive powers.

Oh, and for what it's worth, the last guy seems to agree with him:

My God, first the ABA, now Clinton. Who else is secretly a part of the Bush junta?

It makes sense, really, and it's one of the reasons the judiciary is independent. While the executive and congressional branches may be seperate, they still have a great deal of influence on one another, so I think it's somewhat natural to turn to the more independent branch to act as an objective observer here, especially when the other two branches are sometimes at odds.

So, pleased? No. But I'm not aghast, either. I think it's temporary. People don't have faith in Congress at the moment, and I can't much say I blame them. It's an entity specifically designed to move slowly (which is good sometimes, no doubt) operating in a time where rapid response is becoming a (perceived or otherwise) daily need.

I think it has far more to do with the nature of power and of those who seek after it as a career than with any inadequacy in the law.

In fact, most contemporary historians would argue that there probably was no compelling need to suspend habeus corpus during the US Civil War, and, if it had any benefit at all, was in establishing the primacy of the Lincoln military dictatorship over the authority of Congress, which was somewhat factional and rather dysfunctional as a deliberative body.

In matters of freedom, it is foolish not to assume the worst and maintain a posture of vigilence. The worst that happens whe we assume the worst is that we might impugn the motives of an honest man, which, all in all, isn't a terribly serious problem.

Assuming the best, however, could land us right in the middle of entrenched tyranny.

Bull****. The most sweeping expansions of Presidential power have not only been made without the assent of Congress, but many of them have been made without Congress even being made aware of them (i.e. the NSA call monitoring scheme).

What lobbying of Congress? The consistent position of this adminsitration has been that they don't need Congressional authority to indefinitely deny detainees their rights under the Geneva Conventions, to hold military tribunals to try 'enemy combatants' (even when they are US citizens captured IN THE UNITED STATES), or to broadly monitor the phone calls of Americans without seeking FISA warrants. That's why these court cases keep coming up, because the President completely bypassed the normal channels and organs set up to deal with precisely these issues.

The story of every post-Eisenhower presidency has been the attempted expansion of Presidential power at the expense of the legislative branch. Bush II has just been a more extreme continuation of that trend.

And, again, "Clinton did it" is no more an excuse than "Lincoln did it." Illegal is illegal, regardless of what Presidents have done in the past.

Yeah, these guys are all innocent, oh the injustice.

__________________

“The gladdest moment in human life, methinks, is a departure into unknown lands.” – Sir Richard Burton

I'm aware of the workings of government. I'm also aware that the Judiciary is, aside from the people themselves, the last line of defence against tyranny. Historically the government has only found true opposition to its agenda from the third branch during times of incredible corruption in the executive, or outright abolition of the legislature. It's a symptom of a deep sickness in Anglo-American democracies that the directly elected estate has failed so completely in its duty to scrutinise the executive that the onus is now on the judiciary. After all, the judges of the realm, even at the highest level, are only supposed to decide how to interpret legislation. Refusing to enforce it outright is a mesure of final resort. The Law Lords of Britain have overturned more legislation since 2000 than they did in the century and a half beforehand. It's not that the executive's become significantly more draconian, more that the legislature has been weakened to the point it can no longer perform its functions. Voter apathy and the rise of the career politician have played their parts and the nature of two-party politics hasn't helped either, but it seems more there just isn't the will to oppose the government anymore. Few democratically elected politicians actually have a sense of their duty as lawmakers, most simply see it as a job, a title or a gateway onto better things.

I suppose my point is that, far from being temporary, this is something that's been a longtime fermenting and doesn't show any signs of being rectified anytime soon. One of the benefits of parliamentary democracy is supposed to be that it's relatively flexible and fast acting compared to other democratic systems, but it seems moribund if not DoA. The people are right not to have faith in it anymore. It's a failed institution that'll take a significant shift in society and politics as we know it to make fit for purpose again.

I think we're getting off-point. Why Lincoln did it is not the important thing; the fact that he did it, and the Republic survived, is what I'm getting at.

Personally, I have no proble with what Lincoln did, but it's not necessary that we agree on that matter for me to make my point, which is this: the system has been treated flexibly during times of extreme conflict, and survived all the same. Exceptions have been made in times that the American public deemed exceptional.

Now, if the American public did not differentiate between these exceptional times and other times, or if they did not seem to have any interest in making sure these exceptions did not become the rule, we would have a problem on our hands, but I don't think that's happening.


C.S. Lewis once wrote in The Last Battle that a character had "mixed a little truth into their lie, making it much stronger." I think this is what's happening here (though without any "lying"). You're absolutely right about the need for vigilence in the face of even the potential of tyranny. But there are two caveats that I think are relevant here:

First, you're not just being vigilant. You're being militant. You're not speaking of this as a vague possibility; you're talking of it as if it's a reality. Your response in the quote above is considerably more measured and reasonable (kudos for that), but I don't think it accurately represents the kind of accusations you've been throwing around up to this point.

Second, by pouncing all over any expansion of executive power, you ultimately hurt that vigilance. Sensationalizing these expansions is only going to help deafen others to the more reasonable point underneath all the anger and noise. It's The Donkey Who Cried Wolf.


Most critics consider the Patriot Act to be the "most sweeping expansion." I would agree. And as we know, Congress has had a great effect on that particular matter. Whether you concur with this or not, it still makes my point, as I was not suggesting that Congress has been in on every decision (frankly, you can make the case that they shouldn't be under some circumstances)...just that they've been in on some, and that some of those have been quite significant. I don't find this consistent with your hyperbolic claims of executive dominance.

But, as before, if you wish to play fill-in-the-motives, I'm sure you can find a nice, malicious, unverifiable chain of claims to explain it all.

Well, first of all, I'm not saying "Clinton did it." In the bit I quoted, Clinton claims that "any other President" would have done it, which surely isn't the same thing.

But regardless, my point is that there's very broad support, crossing both generations and party lines, for the idea that the standard channels are largely unsuited for extreme levels of conflict. This was true during the Civil War, and it's even more true today, wherein we have any number of extremely spread-out, insidious enemies, some of which openly seek to destroy the system. It's hard enough dealing with this kind of threat without operating under a system that they can often hide behind.

We need to be mindful of this balancing act, but I think it should be obvious that changes need to be made to meet threats like the ones we face today.

Stable systems collapse from the accretion of factors that undermine their foundations, rarely is a single, isolated incident enough to unravel everything.

More to the point, Lincoln's excesses were jettisoned after the war as Congress reasserted its authority (witness the impeachment of Andrew Johnson). The arrogation of power to the Presidency that began with FDR has continued pretty much unabated, with just a handful of minor setbacks here and there. I think it's worth noting that the United States has fought four major wars since WWII, every single one on the authority of the President alone (that is, without a declaration of war by the United States Congress, as called for in the Constitution). The Bush administration is merely the most radical expounder of unlimited Presidential authority in areas of 'national security', and it is important that they be called up short.

The "American Public" had nothing to do with it in either case. It was done by fiat of the President.

What's this 'American public' crap still doing here? The American public didn't deny Geneva Conventions rights to the Club Gitmo prisoners, the President did. The American public didn't order warrantless domestic eavesdropping, the President did. The American public didn't attempt to have American citizens captured on American soil tried by military tribunals without access to the basic due process rights guaranteed by the Constitution, the President did. The American public didn't sign off on interrogation guidelines that cross over into torture, the President did. This American public bilge is the 'little lie' you refer to below.

Significantly, the Bush administration's 'crisis' is entirely open-ended. It's not a declared war with an enemy whose defeat can be seen and known. It's a 'War on Terror' that, like Reagan's 'War on Drugs,' can effectively be made endless. It will only end if the President says it ends, and, having arrogated to himself sweeping powers 'for the duration', he has absolutely no incentive to declare an end to that war.

With good reason. The current administration has deliberately and with malice trampled all over the Constitution for no reason other than the accumulation of power. The steps this President has taken have demonstratably had no positive effect on the War on Terror, though their negative effects are legion. And yet, the Whitehouse has stubbornly defended each and every one of these policies, sometimes even AFTER legislative or judicial setbacks (witness the Presidential signing notice on McCain's torture bill).

BECAUSE IT IS A REALITY! The President of the United States has been busy arrogating to himself powers that he cannot legally possess. Full stop.

I have every right to accuse him of being a power mad usurper of the liberties of the American people and the authority of both the courts and Congress, because he HAS BEEN.

What have I "sensationalized"? I have merely stated facts. This administration HAS tried to circumvent the normal judicial process and the protections the accused are supposed to be granted under the Constitution. This administration HAS engaged in behavior that the courts have long deemed to be unreasonable with regard to search and seizure, and which is in violation of written statute (and vowed to continue to do so). This administration HAS signed off on interrogation techniques defined as 'torture' under international law. This administration HAS denied to its foreign captives the rights and protections they are accorded under the Geneva Conventions.

If these sound "sensational," it's because this President and his administration have violated the tenets of the Constitutional and international law in a flagrant and sensational manner.

Most critics consider the Patriot Act a part of the sweeping expansion of Presidential power undertaken by this administration. Most, however, would point to the expansions undertaken without Congressional approval as being even more sweeping and worrisome.

Congress has been in on virtually NONE of the major expansions of Presidential power under this administration, and, when Congress has tried to place limits on Presidential power, Bush has made known his intention to ignore them (as with wiretaps and torture).

"Bill Clinton claims..." is not a good argument for the truth of a premise.

1. The support is not nearly as broad as you seem to imply.

2. There's a difference between abstract support and support in a particular instance. There's no widespread support for the particular arrogations of the Bush administration (as polls have consistently shown).

Some of this may appear half-assed. My apologies; the alternative is not to reply at all. This should, at the very least, narrow the arguments down to the essential points of disagreement.

First thing's first: if we're going to have any kind of reasonable discussion about this, you'll have to recognize the glaringly obvious fact that the nature of our conflicts today are such that precedents of war and national security are subject to being potentially thrown out the window.

It is important that we avoid the false sense of security that procedure gives us. War is right or wrong regardless of Congressional approval. It is good that we seek it, and even require it, but it would be naive and silly to pretend that this requirement, and others like it, do not have their downsides.

For example: any situation wherein we deliberately make it significantly harder for ourselves to avoid harm and destruction to fulfill technicalities. Lincoln came to the conclusion that you cannot let the Constitutional system collapse in the name of the Constitution, and he was right. While we may not face a threat of the same level, today, we certainly face threats that beg us to revisit the issue. So talking about technical legality ad nauseam isn't going to get us anywhere when part of the debate is whether or not those technicalities are outdated.


Bush's expansions of executive power would not be feasible if there were not broad public support for the idea that we live in an exceptional time. He wouldn't have stood any chance of being reelected, for one, and there'd have been no cover for those in Congress who either supported him (via the Patriot Act) or have seeked to give him any kind of pass on wiretapping and the like. Why do you think that support is eroding as his approval ratings do? Even when the President acts alone, the idea that public and/or Congressional opinion has no bearing on the decision is absurd on its face.


Um, no. Look at the polls; most of the electorate is not half as outraged as you are at these perceived offenses. The domestic eavesdropping program is a perfect example of this; even when phrased in the most leading way possible, the country is somewhat split as to whether or not it's justified. When phrased neutrally, they're downright for it.

As for tribunals: this area is a hell of a lot fuzzier than Bush's critics would ever admit. The Fifth Amendment has a glaring qualifier: "except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger." This sort of thing gets in the way of unambiguous criticism, however, and nuance has a way of deflating complaints, so most seem to simply ignore the potential exceptions.


This may be true. But it appears to me that the conflict is open-ended. This isn't Bush's doing; it's reality. It's the nature of the conflict, and it's one of the reasons we need to reexamine many of the ways in which we think about war.


How on earth have you come to the conclusion that it has had "no positive effect on the War on Terror"? Whatever you think of the administration's judgement, it's a tad silly to accuse them of accumulating power for its own sake, and not because they believe it to be useful in engaging the enemy. As I asked before (without answer): to what end would they do so? Are they going to suspend the 22nd amendment and attempt to say in office?


Again, you state emphatically what is, at best, hazy. FISA, for example, has provisions for electronic surveillance sans court order. It hinges on the caveat that it's only for foreign intelligence gathering, which raises the question of what to do when one such party is foreign, and another is domestic. It's seems to be a rather ambiguous bit of Federal Law, and -- surprise surprise -- the President came down on the side that allows for more, rather than less, intelligence-gathering. Cause for any concern? Absolutely. Terrifyingly blatant breach of our rights? Not remotely.


Your repeated claims relating to motive and bizarre accusations of accumulation of power for its own sake, as well as your repeated warnings of inevitable tyranny certainly all qualify as "sensationalizing." You're not merely stating facts; you're stating some facts, exaggerating others, and reaching rather paranoid conclusions as a result of both. See question two blocks up.


First off, I'm sick and tired of people who seemingly don't know crap about the Geneva Conventions hiding behind them. Have you read them? Because, if they're followed to the letter, most of the people we've detained don't even remotely qualify for the kinds of privileges you're implying we should afford them.

The following things (among others) disqualify you for traditional rights and POW status:

1. The "Taking of hostages."
2. Lack of a "fixed distinctive sign recognizable at a distance."
3. Those who are not "conducting their operations in accordance with the laws and customs of war."

Sounds like our current enemies to me.

Also, while I think somewhat highly of the Geneva Conventions, they are not infallible. One could make a very good case, for some of the reasons mentioned above, that they are out of date and do not adequately take into account the possibility (which is now a distinct reailty) of wars involving fractured terrorist groups. Citing the Geneva Conventions as a paragon of wartime behavior is no different than citing Lincoln as a paragon of Presidential discretion.


I don't know how you've determined what "most" would point to. This hasn't been my experience and I certainly don't agree. Regardless, the mere fact that Congress has had such a dramatic effect (and has even curtailed portions of) the Patriot Act certainly shows that there are limits to the administration's expansion of power, if not to your claims about it.


Har-de-har-har.


How do you figure this? Seems to me the opposite is true; Bush's approval numbers are lower than the approval most of the electorate holds for particular decisions, like the wiretapping program.