Thanks for posting this, and good luck on getting your work done. (And don't tell Labs, but you're actually my favorite Unfogged blogger evar).
M/tch M/lls' m/ddle name /s f/ckle.
Hmph. What will happen is that (a) the President will ask Congress for legislative changes to make the tribunals legal; (b) the President will ask Congress for legislative changes to make the his treatment of detainees legal; (c) the President will ask Congress to make these changes retroactive to at least the date of the Supreme Court decision, if not 9/11/01.
Congress will rubber-stamp all these changes without a peep, any Democrat who tries a filibuster will immediately be accused of obstructing the ability of the President to conduct the War on Whatever, and likely will be accused of getting in the way of the detainees' rights (and won't that be rich) as the spin going on now is that "the Supreme Court has said we can't use military tribunals, so Congress needs to act." (even though that's not what the Supreme Court said).
This will all be done by next Friday.
I said this at TAPPED yesterday, but while it may not be insurmountable, Bush is going to have a serious problem asking Congress to pass this: he has to, at least implicitly, acknowledge that Congress has the power to stop him from doing it. Such an acknowledgement gives up many of his other Article II power claims, unless they can explain why military tribunals are less of a core Presidential power than unreviewable domestic surveillance.
3: I thought it was just '/'. And now FL and I have to rumble for 'most popular Unfogged blogger' (in the all important 'M/tch' demographic). I think I'm going to need a slingshot.
This has not exactly restored my faith, but is heartening.
I'll be gone for the day and tomorrow. My son and I will be visiting a friend's cabin. It's my yearly opportunity at a tragic boating accident. Will I see William Colby as I slip under? What might he say to me, just in case I'm rescued? What should I say to him? If we have an opportunity for an extended conversation, IYKWIM.
Slingshot? No, get you one of these!
So it's now the citizenry's job to make sure that Congress doesn't roll over without a peep.
(Hillary, my Senatrix, get ready for my letters because you had best not roll over this time.)
IDP, are you going sailing? God, I miss sailing.
LB was in my dream last night. I told my wife that it was at some sort of retreat, and she was having trouble with her suit — when I saw her, she was wearing a suit. As if that's what was worn at retreats, but you don't expect things to make sense.
Such an acknowledgement gives up many of his other Article II power claims
Maybe, wouldn't congress be giving up this power? It admitts that Bush was right; we just had to fix this minor technicality in the law, etc. I think that's what most people will see.
14: No, the same grey one she was wearing in April. Retreat was in some dramatic landscape, maybe in New Zealand.
The problem with 5 I see is that it depends on Bush, or at least his Solictor General and other top lawyers, being unwilling to violate the most basic rule of logic.
Sam K, I don't understand how this sequence: President asserts power to do x, SCOTUS says you can't, Congress asserts power to do x, SCOTUS is silent; communicates anything but the power of Congress to regulate area x.
the same grey one she was wearing in April
Ah I see, the raccoon suit.
No, that's the stripy brown one. I was wearing the 'possum suit at the meetup.
President asserts power to do x, SCOTUS says you can't, Congress asserts power to do x,
Correct me if I'm wrong, but you're a law student, right? That means not many people will see this the same way you do.
For most people (including me perhaps), the sequence runs:
*President asserts power to do x
*SCOTUS says x violates a law
*No matter, congress fixes problem with law so that the President can continue prosecuting Terrorists.
What I didn't say, and think must be left over from those busy threads a couple of days ago, is that I was having trouble with her suit: clumsiness, embarassment, failure. That's all I remember.
I am in fact a law student. So you're saying we need to have law students going house to house to get our version of the story out?
Also, I haven't read the opinion, but my understanding is that the issue isn't "x violates a law," but "x wasn't authorized by law and such authorization is required," hence, Congress.
22: I'm not surprised. I really can't see that suit fitting you.
So you're saying we need to have law students going house to house to get our version of the story out?
That's a funny name for a law student's schlong.
Exactly what I meant. Until Sunday then.
I was wearing the 'possum suit at the meetup.
I don't mean to judge anybody, but man I am SO not into that necrophilia thing.
Also, I haven't read the opinion, but my understanding is that the issue isn't "x violates a law," but "x wasn't authorized by law and such authorization is required," hence, Congress.
See, this for me makes it seem even more like a big game of Mother, May I. As if to say Congress simply hadn't anticipated Bush's need for such powers, which of course plays right into the "new kind of enemy" bullshit.
I am really distressed by the recurring unfogged dreams I keep having. It's not right.
It would be better though, if I were dreaming about LB.
But these issues are all about which branch has what powers. For instance, the domestic surveillance controversy isn't between two groups, one of whom opposes domestic surveillance. It's between two groups, one of whom thinks the executive can run domestic surveillance while ignoring a duly enacted law of Congress, which law involves getting the approval of members of the Federal judiciary for their domestic surveillance, and another group who wants them to follow that law. That's also what people are complaining about when they talk about signing statements. What would separation of powers be but a "game" where branches need the other branches consent to take particular actions?
29: "LB" s/b "apo's oiled and naked body"
29: "LB" s/b "apo's oiled and naked body"
+ "roasting slowly on a spit."
I don't really think your sexiness would be enhanced by oil, apo. But I'll give it some thought.
28: (A) w/d is right in 30. (B) the point of playing 'mother may I' is that you have to do it in public -- if the executive needs permission to do things, permissions have limits. Congress isn't going to grant permission to pull out fingernails, etc. Simply having to get the parameters of what can happen on record makes us safer than putting everything under the Article II "The President may do absolutely anything he can conceive of if it is, in his judgment, necessary for national security," theory.
Now, 32 I can get on board with.
I went to a pig roast about a month ago. They took chorizo, and stuffed it inside chickens. Then they took those chickens, and put them inside the pig. Then they roasted the pig. It was truly a thing of unparalleled beauty.
And there was bluegrass.
I don't really think your sexiness would be enhanced by oil, apo.
Makes the hair lay down.
Thanks 34. I should say, still without reading the opinions, that I take it that the procedures for how the military tribunals would conduct their adjudications, the ones that were struck down, do violate a law. They violate Article I, Section 1. But I don't think that's what people normally mean by "violate a law."
Laws of Congress, Laws of Nature, this thread is all about violating laws.
Yeah, except with THREE LAYERS of goodness, instead of two.
Which of the three layers of turducken is not good?
Offtopic: Lizardbreath makes the national news today
Jack Balkin, "the tribunals also violated both applicable military law and the Geneva Conventions." My "don't violate a law" statement may therefore have been rash.
Wait, Turducken is
1. A chicken, stuffed inside
2. A duck, stuffed inside
3. A turkey.
Isn't that three layers?
The Chorporken is pork inside chickens inside a pig, so if you're counting species it only counts as a twofer.
pork+pork+poultry > poultry+poultry+poultry
Oh, I guess I am ig'nant. I thought a turducken was just a duck inside a turkey, but looking at the word, it makes no sense that way.
I have never had the pleasure of having one. Although I did get to have some Cajun deep-fried Turkey, when I worked at Popeye's.
29 - So, if not LB, who are you dreaming about?
(PleaseSayBenPleaseSayBenPleaseSayBen...)
[Weiner's gone. Someone's gotta pick up the slack.]
49: I can't lie, but I can't tell the truth either.
if you're counting species
Could be beef chorizo, though that seems like slumming.
Hey, what's up with this "bruce" thing?
47: But they're all either white meat or the other white meat.
Pork is not the other white meat. That's bullshit.
Hey, what's up with this "bruce" thing?
Stop trying to piss Fontana off.
Offtopic: Lizardbreath makes the national news today
*blink* *blink*
Yeeeeeee.
57: You left of "Haaaawww!!!!" on the end of that last sentence.
Pork is not the other white meat. That's bullshit.
Bullshit is the other white meat?
5, as I mentioned, was an improved version of a comment I left on TAPPED yesterday. I also want to copy my other one from that thread: "John Paul Stevens should have a team of doctors following him 24 hours a day to make sure he does not get so much as a splinter. Liberal doctors living in the D.C. area should set up a cooperative to do this. I am only half-kidding."
Bullshit is the other white meat?
And everything comes full circle.
60: I've said it before, but dammit it pisses me off that I'm nostalgic for the days when SDO'C was on the court.
But these issues are all about which branch has what powers.
I don't disagree with you w/d. But for the average non-jurist, Hamdan isn't about these things. It's about who is right on tribunals, and so I don't think 5 is a real concern for the adminstration.
It's about who is right on tribunals
I'd like to see polling data on this question then: are there people who, after they are under control and can be kept under control indefinitely, should nevertheless be put on trial for their life without a chance to know what charge they are purported to be defending against?
Also, if the question is who is right on the tribunals, the possible responses are what, The President or a group of NGOs? Were there Democrats in Congress denouncing the procedures (as they should have)?
30: "But these issues are all about which branch has what powers"
Nah. The issues are all about the Geneva and Hague conventions, Nuremberg and the reasons those conventions were enacted, and the post-Holocaust/Nanking consensus on human rights and trans-national law.
But hey, what do I know?
Congress has the authority to pass a statue abrogating those conventions; the President can't do so by fiat; Congress has not yet done so. I don't think we disagree.
66:Congress may have the power but neither they nor the President in my opinion has the "authority."
Legitimacy became international in the ovens.
Apparently we do disagree.
Apparently we do disagree.
My mistake.
John Yoo. Repeatedly failing to make anything that even looks like a legal point, saying things he must knwo to be false, and generally making a fool of himself. As a strong believer in the value of academic freedom, I don't believe Berkeley should fire him for writing that Op-Ed. But I can't imagine the thought process of a student who voluntarily takes a class with him nor one who attends a class they were required to take with him. Nor can I imagine any member of the Boalt Hall faculty acknowledging he exists. Though now I'll be inconsistent and say that if we recieved an article submission from him, while I certainly couldn't evaluate it on the merits, I would want someone to do so.
Okay, a naive question from a non-lawyer.
One of the aspects of the Hamdan decision sort of troubles me. The majority opinion reminded everyone that under the GC the President has the right to detain prisoners for the "duration of armed conflict," if I recall the phrasing correctly. That their interpretation of the statutory language doesn't abrogate the war powers of the President.
Okay, now seriously, isn't the next question to address the definition of "armed conflict" and "war"?
The snarky, leftist position is that the President never intends this "war" to end while he's in office. But surely there's a better answer than this. If the president's declaration that "major combat operations are over" doesn't count, does it take a congressional declaration of some sort?
The snarky, leftist position is that the President never intends this "war" to end while he's in office. But surely there's a better answer than this.
What would make you think that? I've heard apparently reasonable people take the position that this 'war' dates from some time in the 90's when bin Laden started attempting to attack the US. Under that standard, we will be at 'war' literally forever -- how could we ever be sure we weren't?
Because if being "at war" causes special extra-legal Executive powers to kick in, then there surely must be some definition of "war" to limit those powers. Or there SHOULD BE.
Is this only self-evident to frothing leftists?
70: Is this the "war" Idealist was referring to?
71: Yes, and apparently. If having a bunch of cave-dwelling zealots plotting to commit crimes in the US is a state of war, then we are probably always going to be at war. Talking about the Executive's War Powers is talking about the powers you want the executive to have all the time, forever.
"special extra-legal Executive powers"
This isn't phrased right, I know. Um, if anyone could point me towards something to read about this stuff, I'd be really grateful. I've got to run for now but will be back in later.
we are probably always going to be at war
Not probably. Definitely. And by design.
I'm with Bob on this one. I want this entire administration to be unable to travel outside of the US for the rest of their lives, for fear they will be arrested, tried, and hanged.
74 cross-posted.
But...but...doesn't only Congress have the power to declare war? Oh, never mind.
I don't allow myself to think about this sort of thing very often. The Hamdan decision, however, for all of its clarity on some matters, threw that "duration of the conflict" business back into relevance for me. There's no chance the court would next consider the definition of war, is there?
("We find the declaration of war against abstract nouns to be consitutionally prohibited...")
Sigh.
But...but...doesn't only Congress have the power to declare war? Oh, never mind.
Declaring war means nozzink! See, Congress's powers are limited to 'declaring' war, which has no legal relation to whether the executive may blow shit up -- it's just in the Constitution for ceremonial purposes, like Congress's specifically enumerated power to designate state muffins. But once the executive is blowing shit up, or retroactively decides that it would have been a good idea to blow shit up at some point in the past, then that is 'a time of war' for the purpose of all these cool emergency powers. It's all very simple.
IIRC, the point of Mother, May I (like Simon Says and the others) was paying attention, and had nothing to do with minding authority. That's what I was getting at with my comparison.
Bush's mistake, then, was forgetting to mind his p's and q's, and not so much on the illegal power grab. That's how this will play unless congress just says hell no.
78:"That's how this will play unless congress just says hell no."
I hope my point is understood, and I worry, because I see so many lawyers in the blogosphere playing around who just don't seem to get it.
The Hague, Geneva, and Torture conventions are not just like other treaties, to be withdrawn from with the proper procedures. They involve a profound surrender of sovereignty, and a committment to that surrender as a principle, as the necessary grounds for sovereignty and legitimacy. One may not drop out for a week to torture bin Laden, and then drop back in. And I don't give a flying if the proper protocols are followed.
The John Yoo memos, the de facto withdrawal and actions taken disregarding the treaties, and the discussions of how we can really this time legally torture, mistreat prisoners, or abuse civilian populations I am seeing today are in my opinion worse than My Lai and Haditha. They are atrocities as public intention rather than incidents of war.
My country cannot ignore or withdraw from the Hague, Geneva, or Torture conventions. Should it imagine it can, it not only ceases to be my country, it ceases to be a sovereign nation. It is a regime to be overthrown by any means necessary.
Forgetting to ask Congess (mind your p's and q's) is an illegal power grab. JM, CharleyCarp's comments here and here are elucidating on the questions in your 69 and 76, if you haven't already read them (them the linked comments, not them your 69 and 76).
Heh, 69.
Heh, 69.
Standpipe already made that pun.
In case you think there's a typo in "Forgetting to ask Congess," you should know that Congess is a word meaning "those members of Congress who are too dumb to spell the name of their own institution correctly on a regular basis." If you think it's a typo, you're aliterate.
Bob, I don't have particularly strong feelings about this, but did the people at the time of the signing of the Geneva Convention who were in favor of said signing think that the signing constituted an irrevocable partial loss of sovereignty?
Forgetting to ask Congess (mind your p's and q's) is an illegal power grab
If congress passes legislation that supports Bush's actions, it will play in the media and with the public as a hoop that the adminstration had to jump through, though tribunals were largely right as a matter of policy.
I guess I'm not being clear. Of course it's an illegal power grab. But that doesn't make 5 remotely comforting.
I had John Yoo for Con Law at Berkeley, not once did he mention this POTUS-as-King theory of constiutional law (and the class covered separation of powers). So either he was committing academic malpractice or he made it up (it's the latter).
Or the theory of constitutional law either.
82:By me. Don't care.
However, both Hague and Geneva have intra-national provisions that strongly imply it.
Why are you doing this? Why are we even talking about a Republican congress finding a way to get around these conventions? Is this what lawyers do:"If we do x, y, and z then torture will be legal"?
Tribunals and commissions and properly constituted courts should not even be a topic of conversation. Once you move into "enemy combatant" land at all you have left terra firma.
They are POW's. They can be tried for war crimes in previously created forums. I suggest we sign the ICC which would be useful for that purpose.
Or they are civilian criminals.
Opposing perspective here.
[Link provided for educational purposes only and not meant as an endorsement of the views contained therein.]
87:Wow, that's an incredibly dishonest use of selective quoting by John Eastman, conveniently skipping over the "Except as provided in section 1005" language that precedes the "no court, justice, or judge shall have jurisdiction to hear or consider...."
86: What the fuck, did I launch a personal attack on your recently that I've forgotten about? What is this about, "is this what lawyers do?" This is what curious people do, they try to figure things out. Is my asking about contemporaneous views going to cause Congress to pull out? No. What have I done wrong in this thread? Expressed my view that going to Congress and asking for the pre-Hamdan status quo would require Bush to admit that the NSA program is illegal? I apologize if I've offended you by not automatically agreeing that the government loses any remaining legitimacy if the unmentionable event happens.
Huh, I was really rather angry about 86, but now that I've responded I feel fine. "your" s/b "you" in the first sentence.
wd- not to put words in McManus' blog comments but I think he's generally saying that we lawyers are so caught up in the process, arguments and precedents that we need to take a step back (and maybe grab a gun or two) and realize that that the President, a majority of congress and 3 (if not 4) justices of the supreme court think it is fine and dandy that we could withdraw from the geneva conventions, even partially; that the idea itself is completely batshit insane; and the fact that we may actually do so removes us from the category of responsible nations and puts us on par with rogue states, eligible for invasion by others.
The fact that the Supreme Court said "you have to go through Congress before you start torturing people you suspect of being bad" doesn't make him feel any better.
I have just posted on Obsidian Wings attacking Brad Delong and Scott Lemieux. hilzoy, Katherine, and charleycarp barely tolerate me. Farber thinks I hate him if he disagrees with me.
Don't take anything too personal.
I ban myself for the rest of the day.
w/d, maybe I misunderstood #5 before. Are you saying that there's a good chance if congress acts in this situation then the [insert appropriate legal agency here] may reconsider many of Bush's prior illegal activities and, in turn, stop them? If so, sweet. But if you're just saying that asking congress for such legislation is, implicitly, an admission of guilt that willhurt Bush politically, then, for all of the reasons above, I think you're wrong.
W/d, thanks for the links, but I'm not entirely sure how CC's comments clarify my question about the nature of the conflict and the definition of war.
What's kinda interesting is that most of the prisoners at GTMO are POWs of the Afghan campaign that was more similar to an actual war than is the much more amorphous war on terra. Maybe the Supremes were able to limit their ruling to the cases pending from the earlier conflict; I hope that some clarification about the vaguer "war" will be forthcoming. From someone.
As I understand the opinion, it's very clear that Hamdan is a 'war on people being mean' captives, not 'war against Afghanistan which is a real country' captives. So, any clarification you're expecting is due now, not in relation to some later case.
I'm not expecting it. My 70, 73, and 77 are flippant, but I think they describe the state of play.
91: If it hadn't be for the well known law professor blogger by the initials Orin Kerr who was an ex-Kennedy clerk and predicted Hamdan a long time, I would have thought they were going to uphold the tribunals. I'm surprised how well things turned out, and somewhat surprised that they waited till the last day of the term given what it said.
Let me steal a page from SCMT: we imprisoned an American citizen on a naval brig for a good chunk of time, with the only process being a 4th circuit opinion saying that if the President thinks throwing him on a brig without letting him contest the facts is needed, there's nothing to do about it. When it looked like facts were going to come out, he was transferred.
Assuming that people who currently oppose Bush to return to running a chunk of our government, it's going to take a long time of them retaining that chunk for things to get right.
93: I think it will make arguing the NSA program's legality in court move from difficult to impossible, if they ever have to. I do not predict that the NSA will stop by itself, and almost never predict what will and won't cause someone's political ratings to move.
94: If anyone knows anything about the indefiniteness of war problem, they aren't telling me. I decided to answer the question I've heard things about, what's the process by which current Guantanamo residents will or won't receive some real process in determining their future status, which might, as to them, obviate the indefiniteness problem. Though I guess it won't, since some likely be found to be people who should remain imprisoned for the duration of hostilities.
"be" s/b "been"; "time" s/b "time ago"; "to return" s/b "do return"; "I pulled an all nighter (minus 45 min. between 3:30 and 4:30 AM) into today and then didn't have time to stop" s/b "I need to reconsider my organizational tactics vel non and not hang out here until after I do lose consciousness for a real number of hours"
95, 96.
Ok. I guess I understand, not that I like the answer.
22: "suit" s/b "bra hooks"
Clownesthitist: You got my drift, but I honestly didn't get that far. I was defeated by that tie-thing women wear, that looks like crossed ribbons. Stupid dream, about anxiety like most of mine I remember.