Congress to courts: Get out of the war on terror

[Tigermike 3,039]

AT LAW

Sending a Message

Congress to courts: Get out of the war on terror.

BY JOHN YOO

Thursday, October 19, 2006 12:01 a.m.

During the bitter controversy over the military commission bill, which President Bush signed into law on Tuesday, most of the press and the professional punditry missed the big story. In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost.

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts.

Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis). Even after hostilities ended, the justices turned away lawsuits by enemy prisoners seeking to challenge their detention. In Johnson v. Eisentrager, the court held that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and refused to interpret the Geneva Conventions to give new rights in civilian court against the government. In the case of Gen. Tomoyuki Yamashita, the court refrained from reviewing the operations of military commissions.

In Hamdan, the court moved to sweep aside decades of law and practice so as to forge a grand new role for the courts to open their doors to enemy war prisoners. Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court's World War II precedents. The approach catered to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations, rather than hewing to wise but boring precedents.

Thoughtful critics point out that because the enemy fights covertly, the risk of detaining the innocent is greater. But so is the risk of releasing the dangerous. That's why enemy combatants who fight out of uniform, such as wartime spies, have always been considered illegals under the law of war, not entitled to the same protections given to soldiers on the battlefield or ordinary POWs. Disguised suicide- bombers in an age of WMD proliferation and virulent America-hatred are more immediately dangerous than the furtive information-carriers of our Cold War past. We now know that more than a dozen detainees released from Guantanamo have rejoined the jihad. The real question is how much time, energy and money should be diverted from winning the fight toward establishing multiple layers of review for terrorists. Until Hamdan, nothing in the law of war ever suggested that enemy status was anything but a military judgment.

While there may be different ways to strike a balance, this is a decision for the president and Congress, not the courts. The Constitution gives Congress the authority to determine the jurisdiction of federal courts in peacetime, and also declares that habeas corpus can be suspended "in Cases of Rebellion or Invasion" when "the public Safety may require it." Congress's power is even greater when it is correcting the justices' errors. Courts are ill-equipped to decide whether vast resources should be devoted to reviewing military detentions. Or whether military personnel's time should be consumed traveling back to the U.S. for detainee hearings. Or whether we risk revealing information in these hearings that might compromise the intelligence sources and methods that may allow us to win the war.

This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court's habeas powers in wartime because it disagreed with its decisions.

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

All this went overlooked during the fight over the bill by the media, which focused on Sens. McCain, Graham and Warner's opposition to the administration's proposals for the use of classified evidence at terrorist trials and permissible interrogation methods. In its eagerness to magnify an intra-GOP squabble, the media mostly ignored the substance of the bill, which gave current and future administrations, whether Democrat or Republican, the powers needed to win this war.

Mr. Yoo, professor of law at Berkeley and visiting scholar at the American Enterprise Institute, served in the Bush Justice Department from 2001-03. He is the author of "War By Other Means" (Grove/Atlantic 2006).

http://www.opinionjournal.com/editorial/fe...ml?id=110009113

[Tiger in Spain 0]

Congress needs to butt out as well. Keep the money coming, but STFU and let the military handle it.

[quietfan 233]

Coming soon:

Courts to Congress:

If you want to eliminate habeas corpus, then amend the Constitution, getting three fourths of the states to agree. Otherwise neither you nor the Executive has authority to touch it!

[Captain Liger 0]

The Constitution and habeas corpus pertain to American citizens. Islamic terrorists are not American citizens. That settles that. But if you're dying to protect them then go right ahead.

[quietfan 233]

The Constitution and habeas corpus pertain to American citizens. Islamic terrorists are not American citizens. That settles that. But if you're dying to protect them then go right ahead.

Actually, no. Most of the rights described in the constitution are reserved for "persons/people", not "citizens". Citizenship is not a pre-requisite....and reprehensible though they may be, terrorists are "persons".

[CCTAU 3,328]

The Constitution and habeas corpus pertain to American citizens. Islamic terrorists are not American citizens. That settles that. But if you're dying to protect them then go right ahead.

Actually, no. Most of the rights described in the constitution are reserved for "persons/people", not "citizens". Citizenship is not a pre-requisite....and reprehensible though they may be, terrorists are "persons".

I guess we just need to adopt a policy of shoot t kill. That way a good spy is a dead spy.

I didn't think that any rights were or could be granted to non-citizens on foreign soil. Seems that all liberals want to be the worlds police until comes time to actually enforce anything. We cannot extend our laws or rewrite the Geneva convention just so libruls can feel better about themselves.

[Captain Liger 0]

The Constitution and habeas corpus pertain to American citizens. Islamic terrorists are not American citizens. That settles that. But if you're dying to protect them then go right ahead.

Actually, no. Most of the rights described in the constitution are reserved for "persons/people", not "citizens". Citizenship is not a pre-requisite....and reprehensible though they may be, terrorists are "persons".

See, now we're just playing Bill Clinton's "What is your definition of" and I completely disagree with your interpretation. You're partially right though. The Constitution does, in fact, refer to "people."

"We the People of the United States...."

Right there in the opening sentence we see that the Constitution pertains to the people OF the United States. Not people IN the United States. Not people being detained and held BY the United States. People OF the United States or, rather, her citizens. Of course, you and I will not agree on this whatsoever and that's OK. We'll just have to agree to disagree.

And terrorists are not "persons." They're not people or even human beings. They are the scum of the Earth and the only right I want to preserve for them is their right to a sucking chest wound.

[quietfan 233]

The Constitution and habeas corpus pertain to American citizens. Islamic terrorists are not American citizens. That settles that. But if you're dying to protect them then go right ahead.

Actually, no. Most of the rights described in the constitution are reserved for "persons/people", not "citizens". Citizenship is not a pre-requisite....and reprehensible though they may be, terrorists are "persons".

See, now we're just playing Bill Clinton's "What is your definition of" and I completely disagree with your interpretation. You're partially right though. The Constitution does, in fact, refer to "people."

"We the People of the United States...."

Right there in the opening sentence we see that the Constitution pertains to the people OF the United States. Not people IN the United States. Not people being detained and held BY the United States. People OF the United States or, rather, her citizens. Of course, you and I will not agree on this whatsoever and that's OK. We'll just have to agree to disagree.

And terrorists are not "persons." They're not people or even human beings. They are the scum of the Earth and the only right I want to preserve for them is their right to a sucking chest wound.

Strange though it may seem, I actually respect your opinion that terrorists should simply be shot on sight. I don't agree with it, but as a direct statement of belief on your part, I have no problem with your right to feel that way. I'm not quite sure how one determines that a person is a terrorist without a trial, unless you catch that person in the act of trying to kill you. But in that case, one could shoot in self-defense without concern for the attacker's citizenship, politics, or psychotic state so it's pretty much a moot point.

But constitutionally, there remains a difference between rights specifically designated as belonging to citizens vs. rights belong to persons. The Constitution, of course, doesn't use the term "inalienable", but I believe the intent of specifying "person" rather than "citizen" is a reflection of the belief that there are certain "inalienable" rights that all human being have due to their species, not their citizenship, place of birth or place of residence.

Just a few cases (exact quotes from Constitution in italics):

Article I, Section 3.c [Qualifications of Senators] "No person shall be a Senator who has not...been nine years a citizen of the United States..." Clearly a difference between "person" and "citizen". Qualifications for Representative and and President have similar distinctions between "person" and "citizen", with the Presidency even limited to natural born citizens.

Article 1, Section 2.c: "Representatives and direct taxes shall be apportioned among the several States...according to their respective numbers, which shall be determined by adding to the whole number of free persons. including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made...every..ten years..." (The 3/5's clause, of course, is a relic from slavery.) In other words, don't count citizens, count persons. And in counting persons, it's necessary to clearly specify those persons you wish to exclude or else all persons would count. To this day, the Census Bureau counts persons, not citizens, including legal and illegal foreign nationals.

Article 4, Section 2a: "The citizens of each state shall be entitled to all privileges and immunites of citizens of the several states" Clearly "citizens" was intended here, because just two sentences later:

Article 4, Sec 2c: "No person held to service or labor in one State...escaping to another...shall be discharged from such service or labor, but shall be delivered up..." This was to protect the southern states from losing runaway slaves, and thankful is no longer applicable. But it does show the Constitution does not use the terms "person" and "citizen" carelessly or interchangably. At the time, slaves were not citizens.

Amendment 2: "...the right of the people to keep and bear arms, shall not be infringed."

Amendment 4:"The right of the people to be secure in their persons...against unreasonable searches and seizures, shall not be violated..."

Amendment 5: "No person shall be held to answer for a capital or other infamous crime unless on ...indictment of a grand jury; ...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;...nor be deprived of life, liberty, or property, without due process..."

Finally, of course, the big one:

Amendment 14, Section 1: "No state shall make or enforce any law that shall abridge the privileges or immunites of citizens of the United States; Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction the equal protection of the laws." If all citizens are protected by the first clause, then why is there any need for the second and third clauses unless the intent was to protect the rights of non-citizens as well? Heck, the courts have even interpreted this to mean corporations have the rights of "persons" in protecting their property. A corporation is a "person" in the eyes of the law. If a corporation had these basic rights, surely another human being does.

As for "We the People of the United States" in the preamble: The Preamble doesn't actual bestow any rights or define any legal procedures. It's just a statement of intent. We the People of the United States could give dogs and cats civil rights if that was our intent, by clearly stating so elsewhere in the Constitution as we did when we gave "persons" rights.

But back to habeas corpus:

Article 1, Section 9b: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Convince me that we are in a state of rebellion or invasion, and I'll reconsider that portion of the military commision bill. 9/11 was an attack, but not an invasion (there was no attempt to occupy U.S. soil).

I honestly believe that as soon as someone appeals the habeas corpus ban in this bill, the courts will say it's unconstitutional.

And my main concern with terrorists' rights is not out of any sympathy for them, but that I want to make sure that all of these "inalienable" rights are preserved for all "people". Letting Congress and/or the Executive run rough shod over the Constitution sets a dangerous precedent that threatens the rights of us "citizens", too. Today, Congress takes habeas corpus away from enemy combatants. Tomorrow they could try to take the right of habeas corpus away from me or you if we don't hold them accountable to the Constitution.

Of course, I don't expect you to agree with me. We each have our own opinion and the right to express it, thanks to another wonderful Constitutional guarantee in the First Amendment.

[Captain Liger 0]

Of course, I don't expect you to agree with me. We each have our own opinion and the right to express it, thanks to another wonderful Constitutional guarantee in the First Amendment.

At least on this point, I completely agree. I've always wondered what it is inside of us, as people, that make us disagree. You'd think everything would be so simple that everyone would agree on everything. But then, that wouldn't be nearly as much fun...now would it?

For the sake of space I won't copy all your quotes from the Constitution. I see the points you're trying to make and I'll admit they are all good points and you argue them well. Having said that, we have to remember that at the time when the Constitution was framed this country was deeply involved, as we all well know, in slavery. The framers knew full well this as most owned slaves themselves. The question was, how to frame a constitution that builds itself on life, liberty, and the pursuit of happiness but, oh hey by the way, keep slavery legal. Quite a quagmire, yes? I guess the Constitution could be categorized, at least until the Civil War, as a catch 22. I believe the framers made distinctions, as you pointed out, between citizens and persons based solely on the issue of slavery. But then that's where the catch 22 comes in. Slaves and persons, and I think we can agree, were regarded probably as being the same thing. The second amendment says a person can own a firearm. How come slaves weren't armed? It's a ridiculous question. I dunno, I don't claim to be a Constitutional expert but I don't feel that in the late 1700's the framers of the Constitution could have foreseen or even imagine the kind of debate we're having right now. A generation that just whooped the British and started a country....having gone through all that and risked EVERYTHING....I think they'd find the notion of extending some sort of Constitutional protection to people who want nothing more than the utter death and destruction of the very thing they created quite silly. But that's just my opinion.

Convince me that we are in a state of rebellion or invasion, and I'll reconsider that portion of the military commision bill. 9/11 was an attack, but not an invasion (there was no attempt to occupy U.S. soil).

A couple of different definitions for invasion. One is the entry of a foreign army to conquer and/or plunder. The other is the entry or spread of something hurtful. I don't know about you but 9/11 was certainly hurtful to me. If we get caught sleeping on the job and try to play nice with the terrorists then you can take it to the bank that one day we will have a bonafide invasion on our hands. They will stop at nothing to destroy you, me and everybody we care about. Why let it get to that point? Why not crush them where they stand at this very moment? There hasn't been an attack on our country since 9/11. That's a simple fact and it's not because terrorists are getting lazy or are out of fresh ideas. Not neccessarily Bush per se, but the people working for him are apparently doing something right. You have to admit at least that. This new law that was passed will continue to ensure that we get the information we need to keep this country safe. What methods will be used to get said information? I really don't want to know to be honest. As long I can sleep through the night without the fear of being kidnapped or blown apart then I'm happy.

Today, Congress takes habeas corpus away from enemy combatants. Tomorrow they could try to take the right of habeas corpus away from me or you if we don't hold them accountable to the Constitution.

That's assuming enemy combatants have the right of habeas corpus to begin with. Of course, this is the meat and potatoes of our disagreement. You think they do and I happen to think they don't. So where do we go from here?

I don't honestly believe that Congress or any president will ever make a blatant attempt to take away any of our Constitutional rights. You might scoff, for whatever reason, but I don't think it will ever happen. There would be such a revolt in this country the likes of which we've never seen. Not to mention a potential military coup as members of the Armed Forces swear an oath to protect the Constitution...not a president or congress.

[quietfan 233]

Of course, I don't expect you to agree with me. We each have our own opinion and the right to express it, thanks to another wonderful Constitutional guarantee in the First Amendment.

At least on this point, I completely agree. I've always wondered what it is inside of us, as people, that make us disagree. You'd think everything would be so simple that everyone would agree on everything. But then, that wouldn't be nearly as much fun...now would it?

Let's go with what we can agree on.

I think it makes us a richer society for having wealth of ideas, even if they differ, so I'm glad we don't all agree. But it makes us a more noble society for having found a system of government that allows us to disagree without one side declaring a fatwa (sp?) on the other, or feeling the need to crush or kill the other!

[quietfan 233]

I don't honestly believe that Congress or any president will ever make a blatant attempt to take away any of our Constitutional rights. You might scoff, for whatever reason, but I don't think it will ever happen. There would be such a revolt in this country the likes of which we've never seen. Not to mention a potential military coup as members of the Armed Forces swear an oath to protect the Constitution...not a president or congress.

Another thought:

I certainly hope and pray you're right about us being immune to totalitarianism. I agree that an attempt at an overnight coup on the part of one man, or Congress, to immediately install a dictatorship would be met by revolt. If the US ever falls into totalitarianism, I believe it will be through a gradual erosion of individual freedom until we suddenly find that we don't have any remaining rights to defend--that we won't wake up from such a gradual decline before its too late and we don't have the power to resist.

After all, Germany was and is one of the most educated nations in Europe, a world leader in science and technology and they voluntarily elected Hitler to power in a free election. And then let him take away whatever rights remained out of fear for safety and security. He basically got control by preying on the people's fear of the twin terrors of economic collapse and anarchy in the streets.

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[Of course, to be fair, Germans were used to order and to taking orders. They had just emerged from a series of monarchies over centuries, and were comfortable with the idea of a strong central authority. They had also just emerged from the ruins of the most devastating war known to them; were suffering a depression/inflation cycle much worse than the Depression in the U.S.; and had the growing threat of Bolshevism next door and in their own streets. They had a lot to fear. Hopefully, America will never fall into those straits.]

Edit: Just wanted to add that any refernces to Hitler or Bolsheviks in my diatribe were purely in the abstract and were not intended to imply anything about any present politician on either side of the spectrum.

[Bottomfeeder 244]

[Of course, to be fair, Germans were used to order and to taking orders. They had just emerged from a series of monarchies over centuries, and were comfortable with the idea of a strong central authority. They had also just emerged from the ruins of the most devastating war known to them; were suffering a depression/inflation cycle much worse than the Depression in the U.S.; and had the growing threat of Bolshevism next door and in their own streets. They had a lot to fear. Hopefully, America will never fall into those straits.]

Edit: Just wanted to add that any refernces to Hitler or Bolsheviks in my diatribe were purely in the abstract and were not intended to imply anything about any present politician on either side of the spectrum.

In the mid to late 1800's, within the United States of America, depressions occured about every other year.

Pensacola group successfully forms first pizza drivers union

The union could open doors for other fast food workers, said Kate Bronfenbrenner, director of labor education research at Cornell University’s School of Industrial and Labor Relations.

She pointed to recent organizing efforts by Starbucks employees in New York and Chicago. The Industrial Workers of the World has members at seven Starbucks Corp. stores.

Food service workers are different from the government, auto, steel and blue-collar workers that represented the bedrock of union membership in decades past but whose union numbers are dwindling, she said. “Employers can fight very hard” with food workers because they are easily replaceable, she said.

Mark Damron, spokesman for Industrial Workers of the World, said that is changing because older workers are taking service industry jobs that were traditionally held by younger workers.

“As these people move into those jobs, they have higher expectations. You are going to see more agitation and expectations among middle-aged men who have been downsized and are now working as baristas or short-order cooks,” he said.