Comments: See? Checks and balances work

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I think his signing statements say that he does not have to listen to the court.

Posted by jason at June 29, 2006 03:44 PM

Did it occur to you that Bush didn't WANT to go through with those trials as planned? Because if he did, he'd be in serious violation of international and US law himself.

The Gitmo boys are either POWs or they are not. If they are POWs they get the Geneva Convention. If they aren't POWs they get civilian trials.

I suspect one of Bush's lawyers finally pointed this out to Bush, and the SCOTUS decision gives Bush cover to back down. Heck, now Bush can even let the prisoners go and blame it on liberal justices.

Either way the torture stories are eventually coming out, and Bush is trying to delay that moment as long as possible.

Posted by not_me at June 29, 2006 04:02 PM

The Gitmo boys are either POWs or they are not. If they are POWs they get the Geneva Convention. If they aren't POWs they get civilian trials.

Why do they get civilian trials if they're deemed illegal combatants? Ex Parte Quirin doesn't establish any such precedent:

... the case that upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States. Quirin has been used as a precedent for the execution of any non-legitimate combatant against the U.S..

Posted by Hube at June 29, 2006 04:34 PM

The Quirin decision appears to rely heavily on the fact that the German saboteurs were unlawful combatants because not in uniform... I suppose if they had stepped on the beaches in full uniform and had promptly been machine-gunned down, the survivors would be legit POWs.

But now it's a new ball game, and Quirin needs to be updated. No uniformed army is ever going to go to war with the US again. The tactics of asymmetrical warfare dictate the use of irregular troops against the US.

What exactly does a Taliban uniform look like, anyway?

Furthermore, the Afghan/Iraq prisoners situation differs from Quirin because we were in *their* country.

Qurin is based on the premise of "time of war and of grave public danger." Well, the wussy GOP Congress refused to declare war, because they didn't want to live up to the international obligations that would entail. And in the context of the capture of the Gitmo detainees, there was no "grave public danger" - only danger to our expeditionary forces.

Posted by not_me at June 29, 2006 05:39 PM

not_me: Your first two paragraphs make my point precisely. But it doesn't matter that you say Quirin needs to be updated. It's precedent. That, and the Geneva Convention spells out what an "illegal combatant" is.

Still, I agree that a formal declaration of war would have been prudent, and may have not led to many of the legal tussles we now see. I do not believe that such a declaration, however, would automatically grant folks like al Qaeda and the Taliban POW status as opposed to illegal combatant status.

But this SCOTUS ruling sort of makes my opinion moot.

Posted by Hube at June 29, 2006 07:38 PM

Quirin is precedent only if you catch infiltrators in the US in a time of war. Lacking either of those facts, Quirin is tangential at best to the Gitmo prisoners. I realize Bush would like to stretch Quirin to cover the current situation. But administration lawyers are just blowing smoke - Bush is making all the moves to prevent any cases that challenge Quirin from ever being heard, because they knows Quirin would probably not cover the current detainees.

Invoking Quirin on foreign soil with no war declared amounts to an abandonment of Geneva. And our troops are reaping the whirlwind.

Anyway, Frist is out front with the legislation mentioned by the Supremes:

Bill Frist said Thursday he would push legislation allowing President Bush to use military tribunals to prosecute terrorism suspects at Guantanamo Bay. "To keep America safe in the war on terror, I believe we should try terrorists only before military commissions, not in our civilian courts," said Frist, R-Tenn.

Yes, Sen. Frist... Can't have them speaking to Red Cross reps, or testifying in a civilian court. Gotta keep it in military session, or they might spill the beans on the torture, and on the groundless imprisonment of (some) of them.

Posted by not_me at June 29, 2006 09:32 PM

"Abandonment of Geneva"? Are you serious? Our own SCOTUS and the Int'l community at large want Geneva to mean what it precisely says it doesn't mean when it comes to illegal combatants! Why go through all the trouble to craft a document like Geneva so that we can just say "Even though it says that, it doesn't mean that?"

And no, Congress will give Bush the permission he wants to use tribunals b/c of national security issues, the circus civilian trials that will result, retribution against witnesses (if they can even get them to testify in civilian courts), and the like. But as I agreed, much could be legally streamlined if they formally declared war. Maybe.

Posted by Hube at June 29, 2006 09:42 PM

one more thing...

I'm certainly not qualified to evaluate Quirin. But even if the courts conclude 100% that we have the right to try these guys in secret military courts, what a powerful statement it would make to our enemies if we gave them full civilian trials. With all the rights America affords to the accused, on glorious display for the world to see.

Or, if we treated them as real POWs and kept them in quite comfortable conditions in the continental US, with visits and inspections and privileges. What an example that would provide to the troops in the field! And to their enemies. It's a lot harder to behead someone who, if had the advantage over you, would treat you with decency.

See, the whole point of the Geneva Conventions is "Do unto others..."

Posted by not_me at June 29, 2006 09:43 PM

Here I though *I* was your whipping boy, Hube. Turns out it's the integrity of the United States on the international theater and any semblance of due process and/or shred of deference to international law.

Sheesh.

p.s.-
Please feel free to stop by DWA now that I'm sitting in while Mikey rests. I'd love to have your evenhanded opinion grace the site. Really.


Posted by Jaime Anne at June 30, 2006 02:47 AM

Well-crafted "argument" there, James. Not.

Posted by Hube at June 30, 2006 08:42 AM

I prefer returning to an older precedent -- that which dates to the time of the Civil War.

Combattants not in military uniform are considered to be spies and saboteurs, receive a drum-head court martial before the senior officer present, and receive the customary punishment for said offense without benefit of appeal upon conviction.

Total time from capture to imposition of sentence? Less than 3 hours.

Posted by Rhymes With Right at June 30, 2006 09:44 AM

Why not just skip the drum-head court martial and shoot them on sight?

Posted by not_me at June 30, 2006 12:24 PM

So, you realy mean to tell me, all smarmy crap aside, that the massive expansion of the executive under this administration isn't a problem, and doesn't interfere with these checks and balances? And further that a trifle like SCOTUS even COMPARES to creaing an ENTIRELY NEW EXECUTIVE DEPARTMENT? The federal government was RESTRUCTURED under Bush. There are no checks on this man, and there hasn't been balance in quite some time. C'mon, Hube.

Posted by Jaime Anne at June 30, 2006 01:23 PM

You "c'mon," James. All you offer is the same tired leftist "Bush did this" and "Bush did that." WAAAHH. You want to talk about an exec. restructuring the federal government, try liberal icon FDR. Talk about no "checks and balances."

If I really thought unchecked exec. power "wasn't a problem," I wouldn't have titled this post like I did. I don't have a hassle with the SCOTUS ruling against Bush; I do have a hassle with lousy reasoning. Personally, I'd make more of an issue with there being no formal declaration of war against al Qaeda (or whoever).

Posted by Hube at June 30, 2006 03:24 PM

Why not just skip the drum-head court martial and shoot them on sight?

With the SCOTUS granting terrorists Geneva Convention protections (despite there being specific provisions in the G.C. disallowing such) unfortunately you may seeing more of exactly that.

Posted by Hube at June 30, 2006 03:26 PM

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