A university is just a group of buildings gathered around a library. ~Shelby Foote

Thursday, June 29, 2006

Checks and Balances

UPDATE: Andrew Sullivan sums up my thinking on this pretty well. I don't agree fully with his denunciation of the president, but I think his analysis of the balance of power issues and the dangers of perpetual war are DOBA (it's an industry term).

Our Founding Fathers built a multi-layered system of those suckers into our Constitutional framework, and it has been a remarkably foresighted and successful setup. Indeed, I recall talking with my mother this past winter about her worries that Bush was circumventing due process at Guantonimo. I said I had similar worries, but also that I had confidence in the checks and balances in our system-- they sometimes take a while to catch up to current events, but they are tremendously resilient and self-correcting.

The Supreme Court proved me right with its ruling on the Hamden v. Rumsfeld case, dealing a major rebuff to the President's attempts to sidestep legal strictures with ill-defined "war time" powers. It is sad and unfortunate that the self-corrections lag behind the efforts to circumvent or distort the balance, as that lag time frequently causes individuals to lost between the gears-- but on the whole, the system works remarkably well.


Bush was not circumventing due process. Due process is generally defined as the administration of justice according to established rules and principles; based on the principle that a person cannot be deprived of life, liberty, or property without appropriate legal procedures and safeguards. The military commissions that the administration had ordered were believed by the administration to be appropriate legal procedures, complete with safeguards, intended to administer justice according to established rules and principles.

This is not without precedent. In the current Hamdan decision, the majority stated:

Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions "without the sanction of Congress” in cases of "controlling necessity" is a question this Court has not answered definitively, and need not answer today. For we held in Quirin that Congress had, through Article of War 15, sanctioned the use of military commissions in such circumstances. 317 U.S., at 28 ("By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases").

Also, I don't believe that the President was attempting to sidestep legal strictures with ill-defined "war time" powers. If you read the decision (185 pages of legal findings), you will see that the administration made several very well cited legal arguments.

In fact, if you read the decision, you will find that it was more of a case of Congress poorly defining how detainees should be dealt with; a deficiency that forced the administration to have its lawyers take a look at precedent in order to craft policies that Congress never bothered to expound upon.

The biggie on Hamdan's part was that the military commissions, for the sake of security, were to keep classified certain information that charges against him were based upon. The Supreme Court found that this was in violation of the UCMJ and the Geneva Conventions, not having any rules for the commissions defined by Congress.

Bad news for Hamdan: The decision leaves open the possibility that Congress could define the rules for military commissions, that he may possibly be tried under the UCMJ rules for courts-martial, or that he may be held until the end of hostilities without any hearings as provided under the Geneva Conventions. Since the decision primarily found that the military commissions couldn't take place because they weren't defined by Congress and, as they stood, would be in violation of the UCMJ and/or the Geneva Conventions, Hamdan may still come out on the short end of the stick.

Not that any of this matters. I'm certain that this will be spun negatively in the press, and since the leadership in Congress seems to lack a spine (neither the House nor the Senate could name the New York Times specifically in their resolutions wagging a disapproving finger at "certain media" for publishing aspects of classified programs), the media will be able to make this into whatever it wants. The general public will never actually read the Supreme Court's decision, and the perception created by the MSM will become what many Americans believe to be the truth.

I'm going to go grab a beer and then hit the rack, hoping that my family isn't amongst the victims of a future attack. With all this infighting, we're exposing the playbook to the enemy and/or forgetting to focus on the enemy while jockeying for political position. It's this crap that's going to let the bad guys sneak one past us and kill Americans; some of whom may possibly be you or yours.

You are still there, Mojo. You never write any more. sniff Glad you are still reading.

We've had this discussion before, and I know that there are justifications for all of what Bush did-- but the Administration is virtually the definition of the Slippery Slope. Keep nibbling here, keep pushing the envelope there. So, I'm okay with one of the other branches of government saying, "Take it back a notch, pal."
Nah, Mojo is right. The administration did everything by the book.

This SC decision was simply wrong. They do that, you know; all the time.

And, just for the record, terrorists don't qualify for Geneva Convention protections.
You agree with Mojo, John? I'm shocked. Truly, deeply shocked.

Here's my problem with "intense interrogation" techniques the Bush administration has no real problem with-- they assume guilt. If you are detained, you must have been doing something wrong or suspicious, and that is the baseline from which everything else emerges.

Would I have a problem with us torturing Zarqawi or bin Laden to get information? A little bit, on general principle, but that situation might warrant tainting your soul for the potential gain involved. But guys like Hamden? No. And while there are likely guys in Gitmo that have valuable information, and may even deserve to be held without recourse indefinitely-- or even tortured-- I'm unwilling to say that most or all of them do.

This is the way it is supposed to work-- the executive branch pushes the envelope to see what it can accomplish, and when it oversteps its bounds, one of the other branches steps in to limit or reverse the over-reach. The fact that there is precedent for what the President wanted to do hardly qualifies as sufficient refutation of the Court's decision.

By John Yoo Fri Jun 30, 6:58 AM ET

"By putting on hold military commissions to try terrorists for war crimes, five Supreme Court justices have made the legal system part of the problem, rather than part of the solution to the challenges of the war on terrorism. They tossed aside centuries of American history, judicial decisions of long standing, and a December 2005 law ordering them not to interfere with the military trials."

A stiff price to pay, just to give all those Bush-haters a hard-on, don’t you think?
Yep, I'm still around.

Fourteen detainees are affected by the decision; ten of them were charged with violating the laws of war and were pending a commission, and four were awaiting arraignment on charges of violating the laws of war. That's 3% of the detainees at Gitmo. Keep in mind that the Supreme Court has basically said in this ruling that, absent specific legislation from Congress, the administration cannot order that military commissions be convened for violations of the laws of war. Since means to prosecute these terrorists still exist, and seeing that the commissions applied to only fourteen detainees, I don't really see the slippery slope on this one.

Consider these statements from the majority opinions:

Chief among his particular objections are that he may, under the Commission Order, be convicted based on evidence he has not seen or heard, and that any evidence admitted against him need not comply with the admissibility or relevance rules typically applicable in criminal trials and court-martial proceedings. ...

It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But 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.
- Opinion of the Court

Nothing prevents the President from returning to Congress to seek the authority he believes necessary. - Justice Breyer

In light of the conclusion that the military commissions at issue are unauthorized, Congress may choose to provide further guidance in this area. Congress, not the Court, is the branch in the better position to undertake the "sensitive task of establishing a principle not inconsistent with the national interest or international justice." - Justice Kennedy

Further, keep in mind the type of individuals who are the peers of the 3% who have been charged with violating the laws of war (as opposed to just being terrorist enemy combatants):


A detainee who has assaulted GTMO guards on numerous occasions and crafted a weapon in his cell, stated that he can either go back home and kill as many Americans as he possibly can, or he can leave here in a box; either way it's the same to him.

A detainee with ties to UBL, the Taliban, and Chechen mujahideen leadership figures told another detainee, "Their day is coming. One day I will enjoy sucking their blood, although their blood is bitter, undrinkable…"

During an interview with U.S. military interrogators this same detainee then stated that he would lead his tribe in exacting revenge against the Saudi Arabian and U.S. governments. "I will arrange for the kidnapping and execution of US citizens living in Saudi Arabia. Small groups of four or five U.S. citizens will be kidnapped, held, and executed. They will have their heads cut off."

After being informed of the Tribunal process, the detainee replied, "Not only am I thinking about threatening the American public, but the whole world."

A detainee who has been identified as a UBL bodyguard, stated, "It would be okay for UBL to kill Jewish persons. There is no need to ask for forgiveness for killing a Jew. The Jewish people kill Muslims in Palestine so it's okay to kill Jews. Israel should not exist and be removed from Palestine."

A detainee who has been identified as UBL’s "spiritual advisor" and a relative of a fighter who attacked U.S. Marines on Failaka Island, Kuwait on October 8, 2002, stated, "I pray everyday against the United States." This detainee repeatedly stated, "The United States government is criminals."

A detainee and self-confessed al Qaida member who produced an al Qaida recruitment video stated, "...the people who died on 9/11/2001 were not innocent because they paid taxes and participated in the government that fosters repression of Palestinians." He also stated, "...his group will shake up the U.S. and countries who follow the U.S." and that, "it is not the quantity of power, but the quality of power, that will win in the end."

A detainee who has assaulted GTMO guards on over 30 occasions, has made gestures of killing a guard and threatened to break a guard’s arm.

A detainee, captured by Pakistani authorities and who, while being transported, was involved in a riot during which several Pakistani guards were killed, stated that acts of terrorism are a legitimate way for a Muslim to wage jihad against the United States, even if innocent women and children are killed. He also said that he believes that Muslim jihadists will wipe out the government of the United States within the next 20 years.

A detainee described how he was sought to assist an extremist in the purchasing of possible biological weapons-related medical equipment through humanitarian organizational channels. The detainee has also assaulted GTMO guards on various occasions and incited riots in the holding areas.

A detainee who admits to being one of UBL’s primary drivers and bodyguards had in his possession surface to air missiles when captured. This detainee identified eight bodyguards currently held at GTMO.

A detainee, who fought as a Taliban soldier at Konduz, stated to the MPs that all Americans should die because these are the rules of Allah. The detainee also told the MPs that he would come to their homes and cut their throats like sheep. The detainee went on to say that upon his release from GTMO, he would use the Internet to search for the names and faces of MPs so that he could kill them.

I don't know that the Supreme Court ruled incorrectly here. The big issue really comes down to the fact that we are fighting a unique enemy in a unique war. Many of the rules that would have normally applied, did not completely or accurately apply to the detainees.

Because of this, and lacking any legislation by Congress to define courses of action in these instances, the administration needed to craft a policy based upon existing law and precedent. This was, naturally, challenged by the defense, and the Court needed to make a determination on the policy absent legislation.

Note that Court didn't say that military commissions were illegal, or that the commissions couldn't be legitimate; the decision, rather, was that the necessity for such hearings wasn't evident and that, barring legislation to establish military commissions, the administration would need to use other means at their disposal.
Where did the torture issue enter into this? The Hamdan case regarded the legitimacy of military commissions as opposed to courts-martial or other more established legal avenues for the prosecution of those who have been charged with violations of the laws of war.
Basic Overview of Powers

The executive branch commands the military, signs or vetoes legislation from the legislature, and enforces the laws of the nation.

The legislative branch creates and maintains our currency, finances the military, declares war, regulates interstate and foreign commerce, controls federal taxation, creates spending policies, and drafts bills for any laws deemed necessary.

The judicial branch hears arguments regarding the meaning, application, and constitutionality of established law. The judicial branch also employs an implied power, known as judicial review, to provide limits on the power of the legislative and executive branches. The Constitution does not explicitly provide the power of such oversight to the judicial branch, but, rather, the Supreme Court defined the power for itself in Marbury vs. Madison.

Hamdan v. Rumsfeld

In an attempt to deal with prisoners who fall into a legal gray area, being that they are not subject to the civil and criminal laws of the U.S., and also were not seen as subject to the Geneva Conventions (which a district court had upheld prior to this week's Hamdan decision, and which I'm sure will be revisited), the administration allowed for military commissions to try prisoners from the war on terror who had been charged with violations of the laws of war. The executive branch backed up its decision for the military commissions with references to existing law and precedent.

The legislative branch drafted a bill known as the Detainee Treatment Act of 2005 (DTA), which was signed into law by the executive branch on 30 December 2005. The DTA provided that "no court, justice, or judge shall have jurisdiction to hear or consider (1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or (2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who (A) is currently in military custody; or (B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant."

In short, the legislative branch passed a bill, which was later signed into law, that limited jurisdiction in regards to alien prisoners at Guantanamo who were found to be properly detained as an enemy combatant. Further, the legislation included a provision which stated that section 1005 shall take effect on the date of the enactment of the DTA.

In the recent Hamdan case, the judicial branch found that the DTA's limits on jurisdiction did not apply because some parts of section 1005 do not contain the wording regarding limits on jurisdiction, and also due to more restrictive wording regarding jurisdiction that was included in earlier versions of the DTA was not included in the version that was eventually passed. The Supreme Court, for all intents and purposes, granted themselves jurisdiction in this case by using their own interpretation of the intentions of Congress in regards to a law that the legislature passed that, in part, limited or revoked jurisdiction.

When the Supreme Court ruled, they found that the military commissions could be considered valid if procedural, oversight, and evidentiary rules similar to those of courts-martial were adopted; if the administration offers evidence that the procedures of courts-martial would not be practical; or if Congress were to approve the procedures of the commissions.


Following this week's ruling, the military commissions can still proceed, provided that the administration satisfactorily changes the rules of the commissions to be more in line with those of courts-martial; the administration offers satisfactory evidence that the procedures of courts-martial would not be practical; or Congress passes legislation which defines the existing procedures of the commissions as valid.

Those detainees who have be charged with violations of the rule of law still fall under the purview of the UCMJ, and could be tried by a court-martial.

If the jurisdiction restriction aspects of the DTA are challenged further, the Act itself could be overturned. I didn't see any severability clauses when reading the DTA, so the entire Act may be thrown out if parts of it are found to be invalid. The big issue with that outcome is that section 1002 of the DTA covers the Uniform Standards for the Interrogation of Persons Under the Detention of the Department of Defense, and section 1003 covers the Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government. Basically, the much heralded "anti-torture" rules could be thrown out on a technicality because of issues with other parts of the same legislation (I wouldn't bet on that happening, though).

Since the Court has found that Common Article 3 of the Geneva Conventions is applicable to al-Qaida, then al-Qaida terrorists who have violated parts of Common Article 3, and leadership within al-Qaida which had ordered such violations, can be tried for war crimes. Only the military commissions were thrown out with Hamdan, so it is quite feasible that any terrorist held by the U.S. could be tried for war crimes by courts-martial for any instance in which the terrorist targeted any individual or individuals who were taking no active part in the hostilities (including uniformed combatants who had laid down their arms or been incapacitated by their injuries). I'm pretty sure that capital punishment is allowed under the UCMJ if the war crime(s) committed resulted in death.

So, with all of that, I would pose these questions:

Where were the balance of power issues?

What actions on the part of the President constituted a sidestepping of legal strictures?

How was Hamdan a rebuff to those sidestepping actions?

What policies, orders, or statutes can be cited which show a denial or circumvention of due process rights to those who are afforded such rights?

Sullivan also cited a post from the Cato-at-Liberty website in an attempt to suggest that President Bush could be charged for war crimes for any violations of Geneva Conventions Common Article 3 per 18 U.S.C. § 2241. The Cato site originally stated that, "Even so, it's difficult to imagine circumstances in which charges under Section 2241 might actually be prosecuted." Sullivan followed that up with his own addition of, "Difficult but not impossible."

The problem here is, in Sullivan's rush to see President Bush as culpable for war crimes, he didn't even bother checking the bit of law originally referenced in the Cato piece. You see, 18 U.S.C. § 2241 addresses aggravated sexual abuse; 18 U.S.C. § 2441 was what was actually cited in Hamdan. The Cato post has noted the mistake and made a correction, but Sullivan hasn't bothered to do so yet.

Now, I don't know if I would bother to check statute citations from Cato on a regular basis (because they are usually correct on those), but I know that I would do so if I was attempting to suggest that the President of the United States was a war criminal and could be prosecuted for war crimes under a given statute. I'd say that Sullivan was actually dead on balls inaccurate on that little tidbit.

You have cited the personal thoughts of an individual who played a small but recurring role on the legal team for the Petitioner in Hamdan, and Sullivan, who isn't (I think that it would be fair to say) anywhere near objective when it comes to commenting on President Bush. These appear to be the basis, more the former than the latter, for your position in this post.

Please read Hamdan, and then answer these questions which I posed last week:

Where were the balance of power issues?

What actions on the part of the President constituted a sidestepping of legal strictures?

How was Hamdan a rebuff to those sidestepping actions?

What policies, orders, or statutes can be cited which show a denial or circumvention of due process rights to those who are afforded such rights?
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