Friday, June 30, 2006

Hamdan ruling, continued

The Washington Post has a good analysis of the Hamdan ruling, reflecting several points I brought up yesterday. The military commissions aspect got all the headlines, but the ruling is really a repudiation of the notion that Bush has near limitless "inherent authority" in times of war.
For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.

Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush's military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate.

For many in Washington, the decision echoed not simply as a matter of law but as a rebuke of a governing philosophy of a leader who at repeated turns has operated on the principle that it is better to act than to ask permission.

Which ought to worry everyone, including conservatives. Asking permission is at the core of our balance of powers.

"There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role," Sen. Lindsey O. Graham (R-S.C.), who has resisted the administration's philosophy, said in an interview. "It's sincere, it's heartfelt, but after today, it's wrong."


And what is the source of that legal reasoning? Here's one answer, from the New Yorker via Donklephant. The name is David Addington, Scooter Libby's replacement as Cheney's chief of staff. And he co-authored (with Alberto Gonzales) not only the infamous torture memo, but a legal strategy dubbed the "New Paradigm."

This strategy rests on a reading of the Constitution that few legal scholars share -- namely that the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it. Under this framework, statutes prohibiting torture, secret detention, and warrantless surveillance have been set aside. A former high-ranking Administration lawyer who worked extensively on national-security issues said that the Administration’s legal positions were, to a remarkable degree, "all Addington." Another lawyer, Richard L. Shiffrin, who until 2003 was the Pentagon’s deputy general counsel for intelligence, said that Addington was “an unopposable force.”

This view of unbridled executive power is what was disemboweled by the Hamdan ruling. But will the administration adjust its behavior? Somehow, I doubt it. Look for them to continue seeking forgiveness rather than permission, and force each and every action to be challenged by lawsuits before they conform to the narrow ruling in each case.

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Anonymous Anonymous said...

The Hamdan ruling is complex and legal scholars will have to decipher the whole meaning of it. But to a layman like me , the question that arises is
"What if tommorow Congress passes legislation specifically towards consituting military tribunals with exactly the same protections (and lack thereof) for the gitmo detainees?"
Then would it not put the process being pursued by the president on a sound legal footing ?
To go back to my question, can Congress pass such legislation when the country is a signatory to the Geneva Convention?
I think the whole gitmo thing goes against the very principle the president is supposedly preaching, that democracy is an anwser to all the problems of the world. why cant they send the detainees back to the countries where they come from, share evidence with them, and force the governments there to provide a fair trial? isnt that supporting democracy or democratic institutions ? or is it more complex, the evidence collected is "classified" because it came from coercion and torture?

Another interesting term that I have read in these debates is "extra- legal" , the position taken by the president .(for example "Congress' passing of AUMF immediately following the 9/11 terrorist attacks has been claimed by members of the Bush administration as the main justification for extra-legal tactics in the war on terrorism")
Can someone explain me the real meaning of extra-legal, ?
I am familiar with legal and illegal , what is extra-legal?

7/01/2006 9:20 AM  
Blogger Sean Aqui said...

"What if tommorow Congress passes legislation specifically towards constituting military tribunals with exactly the same protections (and lack thereof) for the gitmo detainees?" Then would it not put the process being pursued by the president on a sound legal footing ?

Yes, as I understand it. The problem is not the military tribunals; the problem is the executive branch setting them up without Congressional authorization.

Although the bit about treaties being binding could complicate efforts if the court finds that a tribunal system violates such treaties.

As for extra-legal, it basically means "outside the law." That could be something illegal, or it could merely be something not explicitly covered by law.

7/01/2006 10:16 AM  
Anonymous Anonymous said...

The problem is not the military tribunals; the problem is the executive branch setting them up without Congressional authorization.......

I thought the problem was the legal blackhole the gitmo detainees were in, and what rights(if any) they had. But this debate is turning out to be a question of whether the congress or executive had power to set up the tribunals. and as I understand it if congress does go about passing laws to set up the tribunals. I am inclined to think that the conservative majority on the court will deem it legal. we will then have a new definition of detainees outside the geneva convention. Will it not set a precedence for many bad governments to follow?. what happens if china uses this new definitions and creates a similar camp for all Uighurs or or all tibetans.
As I understand it, the internment of ethnic japanese was deemed legal by the courts of the day. But history has a different verdict on it. A verdict that is a blot on the collective conscience of this country.
Are we not similarly missing the big picture here ?
The creation of a fair "due process" should be the strongest tactic in fighting terrorism, and setting an example for undemocratic nations and creating the winds of change for their people

7/03/2006 10:14 AM  
Blogger Sean Aqui said...

Oh, agreed. But the Supreme Court likely will, indeed, deem the tribunals legal if Congress authorizes them. I think that would be a big mistake, both ethically and practically; but law and justice don't always coincide.

7/03/2006 11:14 AM  

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