Civil Liberties

The Limits of Power

Why the Supreme Court is right on Guantanamo

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One of the ancient axioms of chemistry is, "The dose makes the poison." What may be beneficial in small doses can be harmful in large ones. A couple of aspirin can cure a headache, but a couple of hundred will kill the patient.

That insight applies in other areas, too. In wartime, you don't want the sort of president we had in, say, James Buchanan—who thought that while the South had no right to secede, he had no right to stop it, either. You want a president willing to act, quickly and forcefully.

But those qualities can be taken too far. If a powerful, assertive executive were an unmixed blessing, the United States would never have revolted against King George III.

From the beginning of the war on terror, the Bush administration has had two central objectives. The first is protecting the nation against its enemies. The second is asserting the president's near-absolute authority to wage this war. That approach involved a crucial error: It couldn't advance the second goal without undermining the first.

That's because ours is not a system designed to unleash the power of the government. It's a system designed to control it. By conceiving the president as a virtual monarch in national security matters, George W. Bush and his subordinates have provoked active resistance from both Congress and the courts—which might have been avoided with a more cooperative and pragmatic approach.

The latest illustration came Thursday, when the Supreme Court ruled by a 5-4 vote that the administration overstepped lawful bounds in its treatment of the detainees at Guantanamo. For the first time, the justices said foreign enemy combatants held outside our borders may appeal to the federal courts.

This is a welcome development because it upholds certain basic rights and safeguards that are due even to suspected terrorists. It's a worrisome development, on the other hand, because it requires the judiciary to assume grave responsibilities in a realm where it has no special competence.

The ideal is not for the courts to step into these matters. The ideal is for the elected branches to act with enough respect for constitutional values that the courts would see no need to step in.

But that happy optimum was not to be. The administration asserted that in time of war, even an unconventional war against a shadowy foe, the executive branch has the power to capture a foreigner abroad and hold him for the rest of his life, without any independent review by the courts.

Short of claiming the right to do that to an American citizen arrested on U.S. soil—a claim the administration had also made, only to see it repudiated by the courts—that's about as vast and dangerous a power as you could find. So it is not surprising that the Supreme Court balked.

The justices insisted that the constitutional guarantee of habeas corpus, which lets prisoners challenge their confinement, must be respected. Except when Congress formally suspends that right, wrote Justice Anthony Kennedy, it assures that "the judiciary will have a time-tested device…to maintain the 'delicate balance of governance' that is itself the surest safeguard of liberty."

The response among the administration's allies on Capitol Hill was predictably angry. Republican Sen. Kit Bond of Missouri said the court "chose to give foreign terrorists the constitutional rights and privileges of U.S. citizens."

But the Constitution is very clear in extending protections to non-citizens present on sovereign U.S. territory or the functional equivalent, which Guantanamo clearly is. And how does Bond know the inmates are terrorists? The Court's chief objection was that the existing review process gives detainees no plausible means to demonstrate their innocence.

Such measures may be unnecessary if you're fighting the Wehrmacht or the Imperial Japanese Navy, whose members are easy to identify. But against an adversary like al-Qaida, mistakes are far more likely—and, given the open-ended nature of the conflict, far more harmful.

So if Congress and the president refuse to provide the checks needed to guard against error and abuse, they should not be surprised to find them imposed by the courts. Whatever the Supreme Court may not know about fighting a war, it knows something the elected branches should have kept in mind: In America, the only legitimate power is a limited power.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

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  1. In wartime, you don’t want the sort of president we had in, say, James Buchanan-who thought that while the South had no right to secede, he had no right to stop it, either. You want a president willing to act, quickly and forcefully.

    Ooh… the paleos are gonna have a field day with this one. But their meows eventually come down to this:

    ‘The North Replaced the Evil of Forced Union with the Evil of Forced Oblivion!!!’

    Riiiiiiiiiiiight. It’s good to know that most of us fellow Unionists (oops, I mean Americans) don’t frequent a funny farm.

  2. Such measures may be unnecessary if you’re fighting the Wehrmacht or the Imperial Japanese Navy, whose members are easy to identify. But against an adversary like al-Qaida, mistakes are far more likely-and, given the open-ended nature of the conflict, far more harmful.

    The point is fairly persuasive that it’s easy to make mistakes about who is actually a terrorist member, particularly when some of the prisoners are captured by other groups. Two things do occur to me, though:

    1) Arguably, with the Wehrmacht or Imperial Japanese Navy, you are more likely to find people who were conscripted or otherwise pressed into service against their will than with a terrorist group. Is it really so much better to hold them guilty on the basis on their citizenship and lack of avoiding conscription? Was the average German or Japanese soldier really as willing a participant as the average terrorist member?

    2) It still seems odd in a way that terrorist groups are essentially treated with more leniency than groups that wore uniforms and didn’t try to blend in with the native population, and treated with more leniency for precisely that reason. At the very least, I think that we have to admit that this policy would still require overturning ex parte Quirin and really Johnson v. Eisentrager as well. (How well can one distinguish between the American sector of occupied Germany and Guantanemo?) I think we’d also have to concede that the trial at Nuremberg were hardly fair trials either, unless we’re willing to make exceptions for well-known terrorists and deny them rights because they obviously are guilty, without the questions involved with the average prisoners.

  3. Isn’t it the case that all federal elected officials swear an oath to the Constitution? Don’t oaths have legal power?

    In either case, the whole thing boils down to whether Habeas Corpus is a *Human* right or merely a *Civil* right. Personally I think the notion that a person holding you against your will has a duty to present arguments for that detention to a neutral arbiter is about as basic a right as one gets, but perhaps that’s just me.

    p.s. FYI the lethal dose for Aspirin is much, much lower than “a couple hundred pills”. It’s closer to a few dozen.

  4. The ideal is not for the courts to step into these matters. The ideal is for the elected branches to act with enough respect for constitutional values that the courts would see no need to step in.

    Is this a joke? He thinks the solution is for power-crazed scumbag politicians to voluntarily control themselves?

    Does Chapman have pictures of Welch cavorting with an aroused donkey or on all fours painted like a cow? I’m trying to understand why he is printed–a lot–by reason.

  5. Episiarch —

    It’s not so crazy. Back in the founding days, responsibility to the Constitution was widely thought of as a distributed responsibility, and not concentrated only in the hands of the Judiciary. It didn’t always work (Alien & Sedition Acts?!) but the attitude was better, i.e. not “pass whatever laws you want and let the courts sort it out later.”

    But we are not in those hallowed days, to be sure.

    Any system of government requires some basic and minimal level of responsibility for those who execute it; even the most delicately balanced power structure can be upended by an average asshole on a mission of self-aggrandizement or ideological crusade.

    re: ex parte Quirin

    This gem was brought to you by the same fuckers who produced Korematsu, so to say they had a perverse and destructive view of Executive authority in wartime is almost unnecessary due to its obviousness.

  6. It still seems odd in a way that terrorist groups are essentially treated with more leniency than groups that wore uniforms and didn’t try to blend in with the native population, and treated with more leniency for precisely that reason.

    Terrorist groups aren’t treated with more leniency. That’s just Republican propaganda. If the government can prove that a person was a member of a terror cell or provided support to one, they can still hold him forever. This ruling just makes them have to prove it, an important fact for two reasons; first, in the case of a foreign soldier, he is guilty on the basis of being an agent of a hostile power. He was wearing the uniform, so he’s guilty. Members of terror cells can’t be identified so easily, which is why it’s important to determine who is or isn’t one through the use of other information. Second, enemy soldiers have rights under the Geneva Convention, rights to decent treatment and access to neutral groups who oversee their treatment to ensure no abuses are being committed. “Enemy combatants” don’t, at least according to the line taken by the present administration. This fact has led to some heinous abuses of people who likely did nothing wrong. One can argue whether it’s moral to do this sort of thing to terrorists (I’m certainly disgusted by anyone who does, but it’s possible), but one can’t argue that innocents deserve this sort of treatment. And the only way to keep that from happening is to allow them to demand to see the evidence against them.

  7. Any system of government requires some basic and minimal level of responsibility for those who execute it; even the most delicately balanced power structure can be upended by an average asshole on a mission of self-aggrandizement or ideological crusade.

    Except that basic level of responsibility will always be ignored eventually. Always. So trusting in it is impossible.

  8. “So if Congress and the president refuse to provide the checks needed to guard against error and abuse, they should not be surprised to find them imposed by the courts.”

    Congress provided some checks, but the Court said these checks were inadequate. Specifically, Congress provided that a suspected enemy combatant should have a hearing in a military tribunal, with an appeal to a federal appeals court – the appeals court would be able to decide whether the military hearing conformed with the Constitution, statutes, or the applicable rules of procedure.

    Substantively, such a procedure might still be ruled by the courts to be enough to satisfy due process. The Supremes have said it’s sufficient for *citizens* captured abroad and held as enemy combatants.

  9. you don’t want the sort of president we had in, say, James Buchanan-who thought that while the South had no right to secede, he had no right to stop it, either. You want a president willing to act, quickly and forcefully.

    Oh Reginald? I disagree.

  10. Except that basic level of responsibility will always be ignored eventually. Always. So trusting in it is impossible.

    And yet, it is necessary, as a government is only *ever* as good as the people of which it is composed, regardless of its structural form.

    It is a bitch.

    Sometimes I am driven to wonder whether elections are any more capable of selecting better leaders than either of the preceding systems (monarchy, meritocracy, and/or a mixture thereof). After all, in a democratic election, the candidates must *persuade* and *convince* people to support them, which is not as much of a requirement in the other systems.

    Does this not simply produce leaders who are more adept liars?

  11. “Enemy combatants” don’t, at least according to the line taken by the present administration.

    No, enemy combatants don’t according to the Geneva Conventions. You, as a combatant, are protected under the conventions if you are abiding by them. There’s 4 conditions that must be met before a combatant is entitled to protection under Geneva. Most, if not all, terrorist organization fail some or all of the conditions.

  12. Now a few words about Chapman’s article (well, kinda). Chapman and many others often claim that suspension of habeas corpus rights by this or future administrations cannot be justified because of “the open-ended nature” of the war on terror. First, can anyone say exactly what “the war on terror” means? Terror–or terrorism, for that matter–is an abstract enemy, one that will always be with us however much and often we fight it. To successfully wage a war against such a foe, we must be prepared to believe that our social and economic resources will be endless, which even optimists like me will admit is overoptimistic. (I’ll stop here ’cause this is a subject for another discussion.)

    So let’s narrow down our enemy list to supporters of al-Qaida or the Taliban, as the Bush administration has done. But, as John Thacker noted above, members of the Wehrmacht or the Imperial Japanese Navy were “legitimate” enemies who were nevertheless no more deserving of our habeas corpus rights than any of the al-Qaida/Taliban supporters, which of course doesn’t make much sense. And suppose we could identify our enemies by their association. What about those Sunni “former” insurgents–some of whom must have been “supporters” of al-Qaida–we’re currently paying to fight the terrorist organization? When we stop the cash disbursements and they turn against us (again), are we to identify them as “enemy combatants” at time of capture? And again why should they be treated equally as members of the Wehrmacht or the Imperial Japanese Navy whose participation in combat was more due to coercion than to choice?

    Given these conundrums I say that we apply our habeas corpus rights equally across the board. Yes, give the government the right to temporarily detain “legitimate” enemy combatants, but also the combatants should have their say in court before they can be detained for the long term. Start drawing distinctions, and however well-conceived and -intentioned they will eventually turn out to be flawed.

  13. In wartime…You want a president willing to act, quickly and forcefully.

    No…I don’t.

  14. After all, in a democratic election, the candidates must *persuade* and *convince* people to support them, which is not as much of a requirement in the other systems.

    Does this not simply produce leaders who are more adept liars?

    “Persuade” and “convince” are actually more like “bribe” and “buy off”, and yes, it produces leaders who are better liars.

    (BSG SPOILER)

    Oh noes Earth is destroyed! Nuclear war? What do you think?

  15. Oh noes Earth is destroyed! Nuclear war? What do you think?

    LOL, yes, the look on D’Anna’s face in particular was fairly priceless. Awww, not the promised land you were imagining, huh? Too bad!

    Someone on a thread below had the interesting theory that all the skinjobs were designed by a disgruntled Earth human who, following the war, nursed his/her misanthropy and focused his/her efforts on designing a replacement species that would be better.

    And I am fairly glad that Gaius Baltar didn’t end up (99% likely, anyway) being the 5th. That would have irritated me. I also really enjoyed the Roslyn/Baltar moment: “Yeah, maybe he should go. He’s really good at that stuff [convincing people to do things].”

  16. [“So if Congress and the president refuse to provide the checks needed to guard against error and abuse, they should not be surprised to find them imposed by the courts.”]

    Such “courts” have historically proven to be a VERY unreliable check upon Congressional/Presidential abuses.

    The Constitution is virtually a dead-letter… thanks to SCOTUS.

    The black-costumed ‘Supremes’ are on exactly the same government team as their colleagues across the street in Congress… and the team captain down the street on Pennsylvania Ave.

    That government team has a little friendly infighting periodically, as they dispute minor internal turf battles. Such is current issue with Habeas Corpus.

    SCOTUS has often demonstrated major disregard for Constitutional rights & due process… but such flagrant Executive abuse of the centuries-old Anglo-Saxon legal bedrock of Habeus Corpus — was viewed as a personal insult to their SCOTUS judicial ‘dignity’.

    The Gitmo end-run around fundamental American law was just not subtle enough for SCOTUS to politely overlook.

    That internal Federal spat will all blow over, of course. But American Habeus Corpus rights will also soon be complete dust in the wind

  17. Someone should tell SCOTUS that they should defend the Constitution if for no other reason than if it does become dead-letter law, they are reduced to being nine old farts in silly black dresses.

    And nobody wants to go to an old-people party with silly dresses. That is a recipe for mayhem.

  18. When you catch someone in Wehrmacht uniform, armed and on the battlefield, you do not need to do a court session to prove that he is, actually, a German soldier, so there is no necessity of giving them habeas corpus (and even if you gave them that, it would change nothing except for some paper being pushed).

    But nobody wears ‘Al-Qaida uniform’, so you need some kind of procedure to distinguish its members from unlucky people who just happened to be at the wrong place in the wrong time (or happened to be disliked by someone in power or whatever).

    And that’s practically all: it’s not some imaginary ‘leniency for terrorists’ but a most basic checking whether you have got the right guy. Even if the American Constitution never existed, it still would be done by every thinking administration: how stupid one must be to pay money and resources and bad publicity for keeping under arrest someone who isn’t his enemy at all?

  19. And I am fairly glad that Gaius Baltar didn’t end up (99% likely, anyway) being the 5th. That would have irritated me.

    Absolutely, but they still jerked us around and didn’t expose the 5th.

    I also really enjoyed the Roslyn/Baltar moment: “Yeah, maybe he should go. He’s really good at that stuff [convincing people to do things].”

    And Gaius saying “I always knew in my subconscious that Tory was a cylon”.

  20. Oh noes Earth is destroyed! Nuclear war? What do you think?

    Predictable…except that anything else would have been a cop-out. Sometimes, the predictable outcome is the right one.

  21. Lesson learned: the next president will keep his extra-judicial prisoners in Egypt, Columbia, on the high seas, or — most likely — places unknown. Then the unknown prisoners will truly have no rights whatsoever.

    I wish I could suggest a solution.

  22. For the most part, I agree, except with the wording. The suspect should not have to “demonstrate innocence”. The onus should be on the government to conclusively demonstrate the suspect’s guilt.

  23. Elemenope,
    I would assert that the judiciary lost all of its real power when FDR threatened them with a court-packing plan. That’s why Korematsu v. U.S. turned out the way it did. If Bush didn’t have to deal with a Congress that opposed him, he could just have them create 10 seats on the SCOTUS that he could fill with his cronies.

  24. Predictable…except that anything else would have been a cop-out.

    It was really the only possible choice. What are they going to do, have it be like in the original series where they hide their identity and can jump 100 feet in the air because “their gravity was higher”? Trying to figure out where Earth was in its development, and then joining it, would be a nightmare for the writers and would suck no matter what.

    At least we now have the mystery of what happened and what both the humans and cylons will do about it.

  25. So the 5th has to be someone who was a hostage on the Basestar. It almost certainly has to be a major character, so that leaves Baltar, Roslin, Adama, and Helo. I call Roslin.

  26. Absolutely, but they still jerked us around and didn’t expose the 5th.

    Yeah, I called that one.

  27. On an unrelated note, WWII is the closest this country has ever come to utter collectivism.

  28. So the 5th has to be someone who was a hostage on the Basestar. It almost certainly has to be a major character, so that leaves Baltar, Roslin, Adama, and Helo. I call Roslin.

    If we go on the theory that the “not in your fleet” was a loophole jumping exercise and not in earnest. I personally think, much as they introduced the Ones at the conclusion of Season 2, that it will be a new character entirely.

    If I *had* to pick amongst the captives, I’d go with Helo. After all, we know from the Six/Tigh “romance” that the Sig Seven and Final Five can have kiddies, so Hera does not disqualify him.

    Adama could be, I suppose, but then Tigh’s “shooting the old man in the eye” vision wouldn’t make much sense. It is also too neat; it explains why Adama has memories of Tigh as a young man, since those memories could be implanted. But from where, then, did Adama’s kids come from?

    Roslyn as Cylon would just suck, dramatically speaking. Ditto Baltar; both have committed acts which inform their characters that are really only meaningful if they are human.

  29. So the 5th has to be someone who was a hostage on the Basestar.

    Why?

    It almost certainly has to be a major character, so that leaves Baltar, Roslin, Adama, and Helo. I call Roslin.

    Maybe. I have a feeling that they are going to want to do something big, like “you’re all cyclons! There are no ‘humans’!”

  30. economist —

    An interesting point, though by that time I think SCOTUS had much less “fear” of POTUS as they did when FDR was frustrated by their striking down his *economic* regulations. I doubt seriously that either Quirin or Korematsu represented an issue that the President felt (or the American people outside of fucking California felt) was important enough to go to the mat for. I mean, even fucking J. Edgar Hoover thought that Korematsu was stupid, wrongly decided, and contrary to the Constitution, said so aloud on many occasions, and still kept his job.

  31. In other words, the 5th and final is “everyone”.

  32. Maybe they’ll rip off Asimov, and the final cylon will be a super-robot who lives on the moon and has been subconciously manipulating everyone the whole time.

  33. A few observations:

    (1) The Supremes have created a series of hard cases for themselves, where they have to define exactly what conditions trigger Consitutuional protections for a foreign national not in the US but in the custody of US troops.

    I still haven’t read the decision, but my sense is that it will be very difficult to limit in any principled way only to Guantanamo, in large part because:

    (2) Constitutional rights cannot be abrogated by treaty. To the extent this ruling is inconsistent with the Geneva Conventions or treaties with host countries, the GC and those treaties are overridden.

    For example, if being held by US troops in a permanent overseas base triggers Constitutional protection, then any prisoner of war who makes it to a base or US-operated POW facility will have Constitutional rights, regardless of how the GC says that the POW may be treated, or regardless of what the treaty with the host country may say about how prisoners may be handled.

    Of course, some of this overbreadth may be addressed by Congress, provided it can meet the Constitutional standard for emergencies allowing it to limit habeas. The danger here is that the Supremes may have backed themselves into a corner of having to allow Congress to define such an emergency very broadly in order to cut back on an overbroad Supreme Court decision. That couldn’t possibly backfire, could it?

  34. Maybe they’ll rip off Asimov, and the final cylon will be a super-robot who lives on the moon and has been subconciously manipulating everyone the whole time.

    Not for nothing, but that’s approximately when I stopped liking the Foundation series. The first trilogy was superb, the second…um, not so much.

  35. Predictable…except that anything else would have been a cop-out.

    Pfffft post-apocalypse earth is THE cop-out. Pre-historic, earth, post singularity earth, earth next year, anything but post-apocalypse done to death earth.

    Oh and this is a close as Steve Chapman has come to writing a good article for Reason. I still say we stomp him! Then we tattoo him! Then we hang him! And then we kill him! Either that, or let him go.

  36. Pfffft post-apocalypse earth is THE cop-out.

    No, it is the only logical course. Now we have a situation where these people don’t have their magic solution anymore: “as soon as we get to Earth everything will be OK!” So they are going to have to sit down and do the hard job of starting over (or destroying each other) instead of chasing pipe dreams.

  37. For the literally minded:

    If we are fighting a *War* on Terror, wouldn’t that by definition make terrorists “Prisoners of *War*”?

    Rhetoric always has that sort of precarious relationship with reality. I do occasionally love seeing really obnoxious pieces of rhetoric shoved up their utterer’s asses like a reality enema.

  38. Epi,
    If you think that’s the only logical course, you are without imagination. There’s a hundred thousand different ways the colony could be challenged.

    Example: Post-singularity earth. The earth is paved over and covered with one mega city decaying after a millennium of neglect.

    Seriously there’s a bazzillion ways they could have gone that would have been original and interesting.

    Off the top of my head I can think of the following post apocalypse movies:
    Planet of the Apes (sequels)
    Mad Max (sequels)
    Logan’s Run
    I am legend (premakes)
    The Matrix

    There’s got to be a thousand others. It’s been done. Besides, this whole season has been one big exorcise in trite melodrama, convenient plot twists, and dangling plot lines.

  39. Since we are fighting the bad guys from turning the world into Guantanamo, this ruling seems to be consistent.

  40. The movie version of “I am Legend” sucked ass.

  41. Example: Post-singularity earth. The earth is paved over and covered with one mega city decaying after a millennium of neglect.

    Seriously there’s a bazzillion ways they could have gone that would have been original and interesting.

    Not with 10 episodes left. Taking away the thing they have been pursuing for so long forces them to come to a real solution and not a fantasy one.

    With so few episodes left it was the best choice.

  42. The justices insisted that the constitutional guarantee of habeas corpus, which lets prisoners challenge their confinement, must be respected. Except when Congress formally suspends that right, wrote Justice Anthony Kennedy, it assures that “the judiciary will have a time-tested device…to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.”

    To be precise, Congress did try to formally suspend the right; what the majority held is that the language of the MCA failed to meet the ‘rebellion or invasion’ suspension standard.

  43. If you think that’s the only logical course, you are without imagination. There’s a hundred thousand different ways the colony could be challenged.

    Just be glad it wasn’t some half-baked, “Star Trek IV”, save-the-polar-bears-from-global-warming shit.

  44. First of all, we’re not at war. War can only be declared by an act of Congress. Secondly, if you have to torture people to get your evidence, it’s because you don’t have any legitimate evidence in the first place. Thirdly, these people are being held and tried by “secret” evidence held by this administration (i.e. nothing). What would make anybody believe anything that comes out of this administration, including that of 9-11? Watch 9-11 Mysteries and Loose Change. It’ll help open your eyes.

  45. If Bush followed the existing legal avenue, a military tribunal, America wouldn’t be in this legal pickle. But Bush needs a court that will assume guilt first. It’s important to Bush to be right when he says nothing but terrorist at Gitmo. Anything that may produce a different answer will be met with great hostility from the President’s men and supporting TV mouthpieces.

  46. I think we’d also have to concede that the trial at Nuremberg were hardly fair trials either, unless we’re willing to make exceptions for well-known terrorists and deny them rights because they obviously are guilty, without the questions involved with the average prisoners.

    Good point.

    The Nazi war criminals who were in custody in the American sector of occupied Germany should have been brought to the U.S. and tried in a U.S. district court before a civilian jury.

    Their wrongdoing does not excuse our predecessor’s wrongdoing.

  47. Oh noes Earth is destroyed! Nuclear war? What do you think?
    It’s great.

  48. Is this a joke? He thinks the solution is for power-crazed scumbag politicians to voluntarily control themselves?

    No, read the part you quoted again. It is the ideal, as in, not really going to happen…at least not for long.

    Does this not simply produce leaders who are more adept liars?

    And adept at pandering. He who lies the most and panders the most gets the most votes?

  49. If Bush followed the existing legal avenue, a military tribunal, America wouldn’t be in this legal pickle.

    I think it would, because I’m not sure that a hearing before a military tribunal would constitute a Constitutional “habeas corpus” hearing. The only reason I say that is because the Court just threw out hearings before military tribunals as not being Constitutional habeas corpus hearings.

    The Nazi war criminals who were in custody in the American sector of occupied Germany should have been brought to the U.S. and tried in a U.S. district court before a civilian jury.

    I don’t know how the US would have gotten jurisdiction over the Nazis – they weren’t US citizens, and hadn’t committed crimes on US soil.

  50. @ MR | June 16, 2008, 9:46am |

    Well said.

  51. “””The only reason I say that is because the Court just threw out hearings before military tribunals as not being Constitutional habeas corpus hearings.”””

    I don’t think so, they have never attempted to put them before a tribunal under previously established rules. SCOTUS has recognized that Bush tribunals offer less of a substitute for habeas than previous military tribunals. I believe SCOTUS has already said an acceptable substitue for habeas would be acceptable. Bush refuses to create a remotely fair substitue.

    I think everyone involved knows that many, if not most in Gitmo, would be found not guilty if a fair substitue was established, so they are trying to do everything to prevent it.

  52. Someone correct me if I’m wrong but I believe SCOTUS has already said that military tribunals are a reasonable substitute for habeas. The current problem is Bush is trying to rewrite the rules.

  53. I don’t know how the US would have gotten jurisdiction over the Nazis – they weren’t US citizens, and hadn’t committed crimes on US soil.

    Neither were the detainees in Guantanamo Bay.

  54. Part of this decision includes the Court’s finding that, while a military tribunal system can be designed so that it provides sufficient protections to obviate the need for habeas corpus petitions in civilian courts for the accused, this particular military tribunal system does not include enough safeguards.

  55. Quite a few posters deride the politicians and judges as untrustworthy; perhaps rightly so. That’s the reason our Founding Fathers designed the government as a democratic Republic under the rule of Constitutional Law with checks and balances not because people were good but because despite the good people were fallen. Therefore they would guard their own prerogatives jealously. Unfortunately, around the Civil War Period the Executive Branch under Lincoln upset the balance and we’re still struggling with the consequences and the socialist FDR administration hastened the consolidation of power in the Executive Branch. Bush and the neoconservative are just the latest example of FDR’s trend. When socialist Pres. Obama and the liberal left Democrats take power with a 60 seat majority in the Senate we’ll see the end of a democratic Republic. Perhaps then the people will dust off the Declaration of Independence and take it to heart with a vengeance, keeping in mind the reason Thomas Jefferson said the 2nd Amendment was written.

    In the meantime, while unexpected, the SCOTUS’ decision is a welcome one for this conservative Republican veteran. It’s in tough times when we find out just who and how many really support the idea of a Constitutional Republic. It should come as no surprise that most Americans either are ignorant of their form of government or don’t really support it when the chips are down. What some posters should do is take a long read of both Article 1 Section 8 and the first Ten Amendments with its Preamble of the Constitution. Any honest reading would prove that much of what our Federal government does is unconstitutional even if well intended. As Karl Marx said, the road to hell is paved with the best of intention. And a socialist welfare nanny state is not going to be the nirvana the left says it will be.

  56. So, you like the decision so much that…you’re more worried about the candidate who has applauded it than the candidate who called the “the worst decision in American history?”

  57. Just be glad it wasn’t some half-baked, “Star Trek IV”, save-the-polar-bears-from-global-warming shit.

    Better than Star Trek V’s let’s-give-God a-photon-torpedo-enema shit.

  58. Elemenope:

    Sometimes I am driven to wonder whether elections are any more capable of selecting better leaders than either of the preceding systems (monarchy, meritocracy, and/or a mixture thereof). After all, in a democratic election, the candidates must *persuade* and *convince* people to support them, which is not as much of a requirement in the other systems.

    Does this not simply produce leaders who are more adept liars?

    I agree with your perception of this as a weak spot of democracy. It does reward the best liars, not necessarily a quality one would want to reward. However, this may miss the point of the true problem that democracies have. Democracy ensures that any who gain power must have first sought it. Those who seek power should find it forever denied them.

    This is not to say that I think it is worse than the other two examples you give above. Democracy does have a fairly strong redeeming quality. Even though I am at most weakly in favor of democracy, it is clear that it has a distinct advantage over most other forms of government: a quick, regularly available, bloodless way to remove those in power. Any replacement to democracy needs to keep this feature while improving on the flaws.

    Retaining elections to decide winners might be OK – the vote seems to be as good a way as any to regularly remove those in office. I think, however, that replacing the “throwing one’s hat into the ring” stage with some other method of initially choosing candidates might produce better results. This method could involve some sort of meritocracy but I think this would again run the risk of encouraging those who seek power to try to game the system to gain it. Perhaps a random draft (or a draft with some level of meritocratic adjustments – though I’d prefer that these be pretty minor adjustments) to choose candidates would be best.

  59. I would actually favor constitutional monarchy and hereditary nobility (kind of like the British monarch and house of lords) IF the only power they had was to block legislation from our two current chambers of Congress. As in our current system, the two houses of Congress could override this veto by a two-thirds majority in each house.

  60. Democracy is deeply flawed because the majority of the “the people” will vote for the candidate who promises them the most in government benefits.

  61. Can some on please explain to me at what point the Constitution of the UNITED STATES OF AMERICA became the Constitution of the WORLD? That seems to be what the Supreme Court thinks since they are giving the American rights to non-Americans.

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