Friday, June 13, 2008

Go for it, John!

I'm glad you argued against this ridiculous Supreme Court decision on the prisoners at Guantanamo Bay. But you need to go further than that. You need to make this election a referendum on the Supreme Court by issuing a statement along the following lines:

"Like many Americans, I've long held the view that the courts in this country have become an unelected legislature, accountable to no one save the editorial boards of the Washington Post and the New York Times. This latest decision - that non-US citizens held by our military on foreign soil - have rights in U.S. courts, and cannot be held against the will of some unelected federal judge, is offensive to the plain sense of the people.

Consequently, when I am President, when an enemy combatant is captured and held on foreign soil, I will ignore any U.S. court rulings on their disposition, and will handle them in accord with policies enacted by the Congress, and Congress alone. Were we to capture Osama Bin Laden, it would be irresponsible of me to risk his release by a Federal court system which has, unfortunately, demonstrated that it cares more about the rights of foreign combatants than the safety of U. S. citizens."

This issue, and this issue alone, is all McCain needs to win. Obama would have to engage, because the left would see any challenge to Supreme Court preeminence as a threat too vital to ignore. We'd get to see Obama try and use his fancy Harvard Law education to convince NYC firemen how important it is that Osama Bin Laden and his lawyers get a crack at the Federal courts. Good luck with that, Barak!

McCain could use this issue to beat Obama like a rented mule.


Z said...

OH, would I love to see that statement! Send it to the McCain camp! We can dream....!!

Thanks for coming by geeeeZ! I'll be checking in here regularly and hope you do the same. Good to find you!

JMK said...

I think the SC overstepped its bounds this time.

There's NOTHING in the Constitution that guarantees our Constitutional rights to non-citizens, let alone "illegal combatants."

That being said, the Republicans are currently "victims of their own success."

Sad but true, the American people have grown complacent and the Left has long been agitating against even the Patriot Act and the NSA wiretapping of call To and FROM "suspect foreign portals as "privacy rights violations."

It's working.

Moreover, this election MAY see unprecedented numbers of naive young people who think Barack Obama is "more than a mere politician."

We are indeed in a quandry here. As I noted in another entry, last month, Illinois political columnist Russ Stewart argued that the 2008 winner, regardless of Party, will face such intractable problems that he’ll almost certainly be a one-termer, damaging his own Party over the next four years and very possibly turning Congress over to the opposition in 2010 and probably surrendering the White House in 2012.

I think Russ Stewart is largely right and he's a dyed in the wool Liberal who portends the death of the GOP. I don't see that.

I do see intractable problems made worse, much worse by the Democratic Congress letting the Bush tax cuts sunset in 2010, along with other tax hikes and more redistributive wealth-transfer programs.

I KNOW a McCain might veto SOME of this, and he MAY appoint better judges (then again, he might just appoint more David Souters)...

I think the next President is already doomed by some economic problems, most of which won't be of his making and can't be fixed, ONLY buffeted by Congressional policy...and with the Dems controlling Congress those kinds of fiscally responsible policies aren't going to be coming.

I think we need to batten down the hatches and seek to weather the coming storm and hope it's not a "perfect storm."

In many ways, I believe the coming economic malaise is going to be so bad that the Party in power will be Carterized for yet ANOTHER quarter century. The Dems already have Congress, maybe it's best if they get to bear ALL the blame.

Not sure about that yet, but I'm beginning to lean that way.

Tina R.F.H. said...

Smart and savvy - I too, would love to see McCain come out gunning - on this issue as well as the current fuel crisis. He can own both of them - Obama is not the savvy campaigner, he's just a front man - look at his basic free ride into the Senate in the first place - (incumbant out due to semi-scandel - no one to take place on ballet till last minute when they imported a republican from MD = free ride)
On this decision, it is a political decision - and it was brought by the Bay State - it has far reaching implications and it without a doubt the most dubious interpreation of the Constitution that has come out of that court.

oneopinion said...

It's become too ugly out there for well-reasoned rhetoric; any President who says he will ignore that ruling will be impeached.

DBB said...

I think there is a fundamental misapprehension about what this decision is about and about what our Constitution protects.

The right at issue here, habeus corpus, is only at issue where the government has already imprisoned you. And all it is is a requirement that the government justify the imprisonment to a neutral tribunal. That's it. So saying we should give this right to only SOME of the people we lock up, that just doesn't make any sense at all. It is not about citzenship or non-citzenship - it is about what power the government has to imprison individuals.

I somehow doubt we would have kind words for any nation that would lock people up with no recourse or proof with the only reason offered is that they are not citizens - I'd sure not call such a country a free one. If you go visit a country and you know you have no rights because you are not a citizen, that's a pretty scary visit.

And JMK - I think you'd flunk out of law school if you tried to add as a preamble to the bill of rights the question of citizenship. If you aren't a citizen and you are accused of a crime, guess what? The bill of rights still applies - there is no "citizenship test" to the fourth amendment.

Sweating Through fog said...

Z - thanks for stopping by, and I'll check in on you as well.

Sweating Through fog said...


I don't have any faith in McCain either. I don;t see him as any sort of a true conservative, and I won;t vote for him.

I do think he can win the election with the GitMo issue, but I know he won't do it. He'd rather lose than upset the liberals.

As a small government conservative, I'd rather see Omama try and deal with the mess. I have the same hope that you do - that time in the wilderness will help the Republicans return to their roots.

Sweating Through fog said...


I think this is a far-reaching decision. People suppose it is ant-Bush, but it is both anti-Bush and anti-Congress. I see it as an act of hubris by the court, claiming jurisdiction outside the US, which is why most people would agree - if the issue is put clearly before them - that the oourt is way off base.

Sweating Through fog said...


I understand that all the court said was that detainees have a right to a hearing in federal court. But I challenge he principle that the court has any jurisdiction in overseas military matters regarding the treatment of non-citizens. Especially when the administration is adhering to procedures established by Congress.

I don't think the court can extend jurisdiction overseas, just on their say so. Now I'm in no position to argue constitutional law with you, but I will note this:

All I've proposed is that McCain say, before the election that he will ignore the court because only he and the Congress have any say on the overseas treatment of non-citizens. It is a limited and very narrowly defined refusal to implement one and only one ruling.

... and leftists go absolutely nuts! And the reason is this - people have come to suppose that the SC is not a co-equal branch of government, but one free to order the other branches around. Just because the court, an only the court, says what is constitutional.

I cannot subscribe to the notion that the court, and only the court has final say on what Congress and the President do overseas. It flies in the face of plan sense. So the court can say who we can hire as contractors in Iraq? Or that is unlawful to place a bounty on Bin Laden's head? Maybe say we need a warrant to search a house in Iraq? Now you might argue that the court would never, ever do that? But why not? Are they a different order of being, somehow more moral than the rest if us? More trustworthy?

So if you say that the court must be obeyed in each and every instance, suppose the court were to start issuing rulings not just on matters that worked their way through the lower courts, but to arbitrary matters that they find ... troubling? Maybe they decide the electoral college is unconstitutional? Or they decide that the Senate filibuster rules are unconstitutional? Or they decide that the Senate, when voting on the next Supreme Court nominee, acted in an unconstitutional manner?

To me this Gitmo decision is a case where the checks and balances have failed utterly, which is why, if McCain has the guts to say he'll defy the court on this one, single matter, he would get elected.

I see an analogy here with FDR. Once he started trying to pack the court, the court suddenly decided to be a little more accommodating to the President and Congress.

I also want to point out that I don't agree with the war, or the way we've treated detainees. But those are problems that elections should fix, not court decisions.

DBB said...

Perhaps it is best to take a step back, to first principles. The first day of Con Law in Law School, you learn this basic fact: Our federal government is a limited government - in other words, any powers not specifically granted to it in the Constitution do not exist and it cannot do. Further, just to make things especially clear, there are provisions that make clear what the government cannot do (because some people, perhaps, are a little slow on the uptake of what a "limited government" means).

One of the things our government cannot do is lock people up without justification or recourse. That simply is a power our government does not have and has never had. (There is a limited exception for situations of invasion or insurrection, basically, to allow for when the courthouse is burning and the judges are on the run, when it would be impractical to hold a hearing).

Looked at it from that perspective, the ruling seems rather banal - it isn't about citizenship or non-citizenship - it isn't about where the prisoners are being held - it is about the jailors - the government. The government just plain lacks the power to lock people up without giving them a hearing. And that comes from our limited government constitution. As the opinion rightly pointed out, you can't turn on or off the constitution based on geography or citizenship - because the constitution ALWAYS applies to the government, it ALWAYS applies to the jailors.

Look at it this way - for the geography, do you really think the president could simply take someone to Canada, then put a gun to his head and blow his brains out and it would somehow not violate anything in the Constitution because hey, while it was the government doing it, it wasn't in the US, so its perfectly legal? There is nothing in the constitution that says the constitution only restricts our government's behavior when they are standing in the right place. It ALWAYS restricts it.

And as far as citizenship goes, as I already said, there are very few parts of the constitution that are limited to just citizens - like qualifications for office and the right to vote. The rest just applies to people, generally. And no, there are not any exceptions for "enemy combatants" - a term you will, in fact, find nowhere in the constitution, and was just made up out of whole cloth to justify the illegal actions of the administration (sort of like torture was turned into "enhanced interrogation techniques"). You can't write a memo and suddenly be absolved from following the constitution. (Sorry John Yoo).

If you are really concerned about checks and balances, you should be considered about the massive executive power grab of the past seven years - done while Congress had sat idly by and while court review was dodged left and right by playing all sorts of games, like pulling or transferring prisoners right before they get their court dates and then calling the issue moot.

As I said before, I believe in the 10th Amendment. I'd have thought that anyone else who did so would hail this ruling as properly limiting government power to what is allowed in the Constution.

Sweating Through fog said...


I'm not sure why you are making the point that the Constitution applies to both non-citizens as as citizens. I never claimed otherwise. I just claimed that the court has no jurisdiction on the treatment of overseas non-citizens.

I believe that government power in matters of foreign relations and war is solely the province of Congress and the President, and that the court has no constitutional role whatsoever. I claim that once the court is granted any jurisdiction in the matter of overseas prisoners, there is no principle - none - that prevents the court interfering in other matters that it finds troubling. Perhaps ordering the release of not just one prisoner after a hearing, but the release of all prisoners worldwide - after no hearing. You mention limited government, but you fail to place any limits on the court at all, granting the court an effective veto over all foreign activity by either branch. For example, could the court have ordered, 5 years ago, Bush and the Congress not to invade Iraq, perhaps saying there wasn't a properly worded authorization? No doubt you'd think that would be wonderful, but consider other cases. Could we attempt hostage rescues, or would the President have to check with the Court first to get their legal opinion? Would we have needed to check with the court to see if, given the conflicting legal structures of Nato, the EU, and the UN, we had the "right" to intervene in Kosovo? Can the court, citing the fundamental Constitutional right to life, order the President to use the military for an overseas humanitarian mission?

Your hypothetical - could Bush seize someone, take them to Canada and kill them, assumes that I'm suggesting that the President has the right to do anything, anywhere, not expressly forbidden by the Court. I suggest no such thing. The President has no right to seize anyone on US soil and deport them unless he is following a law enacted by Congress, and presumably OK'd by the courts. After all, the person would be seized on US soil.

Near as I can tell, your argument is not a legal or a constitutional one, but a moral one, arguing that the abuses of the Bush administration make this the right thing to do. I don't quibble with that. I'm no supporter of the war, the "war on terror" or Iraq or the Patriot act. But gratifying as it might be to see the court "rebuke" Bush, it may be at the cost of creating another power whose "no" is always and everywhere final.

We might suppose that the introduction of the court into the mix of foreign policy would weaken the President, but this is supposing that branches that are at odds now will always be at odds. Perhaps in the future, the court would not be an adversary, but rather the loyal ally of some even more adventurous executive, serving as an authoritative rubber-stamp for worse abuses then we have now.

DBB said...

My argument is a legal one, not a moral one. Again, you talk about jurisdiction to hear based on where the people are and their citizenship - but the point is it applies to the jailors, our government, and so it applies wherever our government is. Because Habeas is about asking your jailor to justify holding you. Our government doesn't suddenly get extra powers just because they step overseas. What grants jurisdiction is the fact that the jailors work for our government. Our government simply does not have the power to detain ANYONE without being able to justify it legally. It doesn't matter who is detained or where it is.

And Habeas is built right into the constitution. So all the concerns about interjecting courts into foreign policy are bogus and are red herrings. Habeas Corpus has existed for centuries. Court-ordred military actions have not and are not even at issue.

My argument is a purely legal one - it is the arguments about slippery slopes that are not - those are appeals to emotion.

And the simple fact is most of the people we have held were not captured on any battlefield - many were actually captured going about their daily lives. Many were just bounties collected by Afghan warlords. Some were even taken within the US. So even to frame this as about non-citzens on foreign soil is to basically lie about the overall situation (something John Yoo does with regularity). (Not that I'm saying you have done this).

The Constitution matters. Following it matters. It is only as good as our willingness to actually follow it. And the Supreme Court followed it in this case. Our government lacks the power to hold people without justification. It always has. This decision is just a reminder of that - a reminder that apparently people don't want to hear.