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Saturday, June 14, 2008

Boumediene isn't a rebuke to Bush, but a judicial grab of power over war from the Executive and Legislative Branches

Some people seem to think the current question about the detainees at Gitmo is whether Dubya can simply lock them up and throw away the key without ever giving any of them any sort of trial.

For example, in comments to my post from Thursday deploring the Supreme Court's decision in Boumediene v. Bush, one reader wrote:

The Supreme Court has simply said that we have to demonstrate that there is some legitimate reason for continuing to hold them now and you call that the worst Supreme Court decision ever??

Similarly, another reader commented:

One of the most conservative courts in history has simply said that Bush&Co. cannot abrogate the most fundamental part of the rule of law, the right to be charged with crimes instead of being held indefinitely, in presidential frat boi pique.

These comments are not just wrong, they are spectacularly wrong.  No one could possibly hold these views unless he or she is badly confused by a highly advanced stage of Bush Derangement Syndrome, or else he or she has been asleep for the last five years (and didn't bother to get even remotely up to speed on the prior Supreme Court decisions on Guantanamo Bay detainees).

These commenters seem to be unaware that, in direct response to earlier suggestions from the Supreme Court, a bipartisan majority of Congress carefully crafted a system that balanced national security concerns against the need to provide fair, just hearings for these detainees.  By no means did Congress rubber-stamp what the Bush-43 Administration suggested.

The resulting system closely resembled, and explicitly drew heavily from, the legal system already in place via the Uniform Code of Military Justice for our own servicemen and -women who are accused of crimes. The resulting statutes thus represented the will of the people as expressed through both of the elected branches of government, which — not coincidentally — are also the two branches of government given substantial responsibility by the Constitution with the declaring and conduct of war.

Nobody was going to be "held indefinitely" under this system. To the contrary, under the statutory provisions swept away as "unconstitutional" by the Court this week, the government most emphatically did have to prove a formal case to establish reasons why each detainee should continue to be held.

This is not a subject on which reasonable minds can differ. Anyone who refuses to acknowledge that Congress created, and the president signed, laws creating an elaborate system for trying these detainees is, to be very blunt about it, stuck on stupid.  Please, please, please quit mindlessly repeating the anti-Bush screed of the Hard Left from 2004 — get with the program and at least update your screed to the current version being preached by Bush-haters in 2008. Even then, you'd need to include in your screed the dozens of Democrats in both the House and the Senate who voted for the legislation declared unconstitutional this week.

Look, folks, this wasn't really about George W. Bush. He'll head back to Crawford in January, but this problem won't be remotely close to being resolved by then. Rather, this case is about whether, and to what extent, the federal courts can fly-speck and then overturn both the Executive and Legislative Branches on matters that are absolutely central to the prosecution of war by our military forces. If you can only see this through anti-Bush goggles, you're blinding yourself to what's important.


UPDATE (Mon Jun 16 @ 1:10pm): As to the two commenters whom I've blasted for misstating the fundamental issues in Boumediene, I'm not sure whether the following quote mitigates their offense or not. But it certainly proves that the Democratic nominee for president is at least equally clueless:

Taking audience questions in Pennsylvania, Obama praised Thursday's Supreme Court decision to allow detainees at Guantanamo Bay to challenge their imprisonment in federal courts. Enforcing habeas corpus rights, he said, is "the essence of who we are."

"Even when Nazis' atrocities became known in the 1940s, he said, "we still gave them a day in court" at the Nuremberg trials. "That taught the entire world about who we are," he said.

Obama has no excuse for failing to know that the Military Commissions Act of 2006 in fact provides procedural and substantive protections to the Guantanamo detainees which meet or exceed those which were provided the Nuremberg defendants in their trials by the four-powers military commissions (in which the defendants were most emphatically not guaranteed any rights under the U.S. Constitution, either by habeas corpus petitions or otherwise). Obama voted against that legislation, but one can reasonably presume that he knew what was in it.

Thus, Obama's argument that the detainees would be denied "a day in court" under the MCA is shockingly stupid or shockingly disingenuous. My bet is on the latter: He wants people to be misled over the issues in this decision; he wants to dupe people into the same shallow, entirely erroneous point of view from which my commenters suffered. And the carefully considered statement on Obama's website supports my inference as to his intentions: "The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo — yet another failed policy supported by John McCain." If you cannot trust this man to even state the issues accurately, can you trust anything about him?

Posted by Beldar at 11:24 PM in Global War on Terror, Law (2008), SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to Boumediene isn't a rebuke to Bush, but a judicial grab of power over war from the Executive and Legislative Branches and sent a trackback ping are listed here:

» Lest you think there might possibly be prior precedent to support Boumediene, consider Justice Kennedy's admission: There isn't any! from BeldarBlog

Tracked on Jun 15, 2008 11:28:50 AM

» More Boumediene Bothers and Bewilderments... from Big Lizards

Tracked on Jun 15, 2008 10:53:59 PM

» Beldar on Yoo on Boumediene; and related thoughts on Obama's preference to rely on criminal prosecutions to fight international terrorists from BeldarBlog

Tracked on Jun 17, 2008 4:16:15 AM

» The important point that Kennedy v. Louisiana proves about Boumediene v. Bush from BeldarBlog

Tracked on Jul 6, 2008 6:12:53 PM


(1) nk made the following comment | Jun 15, 2008 12:22:57 AM | Permalink

I'm sorry Beldar but I don't believe the Supreme Court said that "I will tell you where to send your troops or whom they may shoot at". It just said, "We say how judicial proceedings are conducted in this country".

(2) Beldar made the following comment | Jun 15, 2008 12:42:23 AM | Permalink

They weren't supposed to be "judicial proceedings," nk, and they weren't to take place in this country. They were military proceedings to take place abroad.

It's a huge difference.

(3) DRJ made the following comment | Jun 15, 2008 1:30:02 AM | Permalink

I agree with Beldar and I'll let Cassandra at Villainous Company explain why in this excerpt from a post entitled "We're All Americans Now":

"What SCOTUS has done here, if I understand it (and I may not) is stunning.

They have done two things:

1. They have arrogantly bypassed the legislature without even ruling on the adequacy of the statute passed by Congress or requiring the plaintiffs to resort to it; and

2. They have given non-U.S. citizens greater rights under the U.S. Constitution than what they decided U.S. citizens have under Hamdi. And what was the justification for this?

Not law, not precedent, but an end-justifies the means argument. In other words, they manufactured a legal argument to satisfy a predetermined outcome because they were impatient. Essentially, they gave in to fear. I suppose when you are the highest court in the land you don't have to worry about being overturned."

(4) stan made the following comment | Jun 15, 2008 8:39:24 AM | Permalink


Do not be surprised when lefties are spectacularly wrong on the facts. Look at all the other crazy things lefties believe:

that women and blacks do the same work as white men for less pay; that Bill Clinton only lied about sex; that Reagan was stupid; that there are 3-10 million homeless in America; that the US govt created AIDS to kill blacks; that the US govt blew up the WTC; that Bush lied about WMD; that Fidel, Che, Ho, Mao and Stalin were wonderful people; that govt can force businesses to pay higher wages without decreasing the supply of jobs; that tax increases boost economic growth; that price controls on drugs won't reduce the development of new medicines; that the war in Iraq was about making oil companies rich; that severe environmental regulation will boost the economy (broken window fallacy); that free trade causes unemployment; that W stole the 2000 election; that Vietnam was an anti-colonial revolution and Iraq is a civil war; that the world loved the US until W was president; that the UN is a serious body focused on insuring world peace; that CO2 is a pollutant; that black children are better off in dysfunctional inner city public schools than in a charter school; that millions of the world's poor are better off dying of malaria than having a safe level of DDT sprayed around their homes; that Jeremiah Wright is a typical black preacher; and that Bill Ayers and Bernadine Dohrn are just regular folks living in the neighborhood.

The list goes on and on and on. No one should ever be surprised that lefties are spectacularly wrong. It's what they do.

(5) nk made the following comment | Jun 15, 2008 9:14:23 AM | Permalink

Ok. The opposing views, in the Court's decision and in these discussions, are not reconcilable because the political question -- the conduct of the GWOT -- looms too large and they depend less on legal analysis and more on the deference to be given to Congress and the President.

But it has been a fun discussion and I thank our host and my fellow commenters. You too, hunter. ~_^

(6) nk made the following comment | Jun 15, 2008 9:20:17 AM | Permalink

And ... Happy Father's Day, Beldar and all daddies everywhere

(7) cboldt made the following comment | Jun 15, 2008 9:29:11 AM | Permalink

A better window into the underlying issues, and I think a better venue for SCOTUS to have asserted a ruling on the adequacy of the CSRT/MCA process, is found in the Bismullah case. The administration is/was losing its arguments there too, but in the DC Circuit.

As for the opinion that Congress carefully crafting the MCA, I differ. First, Congress is in general incapable of acting with care or principle. Second, the MCA language was drafted largely by the administration. Compare the Military Commission/Trial regulations imposed by the Pentagon acting alone, with the MCA
as proposed in S.3929/S.3930
. The Warner, McCain, Graham "compromise" with the administration was on the subject of detainee treatment, not on the military trial process or the CSRT/MCA route that is used to justify detention per se. Third, the Senate debate over the MCA took all of two days. About half of that was focused on interrogation techniques and detainee treatment rather than on the process used to justify continued detention. A study of the legislative debate (Sept 27, 2006 and Sept 28, 2006) discloses little more than conclusory assertions and arguments on the side of the proponents; a focus on form rather than substance. The same assertions are being recycled in the aftermath of the Boumedien decision.

Ken Starr's letter, entered into the Congressional Record on Sept 27, opens, "DEAR CHAIRMAN SPECTER: I write to express my concerns about the limitations on the writ of habeas corpus contained in the compromise military commissions bill, The Military Commissions Act of 2006 (S. 3930)" He goes on to explain why he concludes that SCOTUS is apt to reject the habeas-stripping proposal that was eventually passed into law.

I'm indifferent as to whether or not you believe this, but I am basically opposite the typical liberal lefty. The subject of how our government prosecutes the WOT ought to transcend politics - not that the seriousness or complexity of any subject slows down the party hacks.

(8) cboldt made the following comment | Jun 15, 2008 9:39:21 AM | Permalink

Just in case it isn't abundantly obvious from what I've posted here at Beldar's place, I emphatically feel that if one accepts the decision of SCOTUS (and clearly, very few on the right side of the political spectrum accept the decision) the shortcoming here is NOT attributable to President Bush. What was struck down was a Congressional enactment, not a presidential edict.

(9) cboldt made the following comment | Jun 15, 2008 9:51:28 AM | Permalink

The House debate was conducted in one day. on Sept. 29, 2006

Adding a link in case anybody is inclined to see "all the care" that Congress put into public debate on the MCA. I didn't follow the action in the House as it transpired. I did watch the Senate. The bill was a rush job, considered just before a recess.

(10) cboldt made the following comment | Jun 15, 2008 10:41:17 AM | Permalink

I was reviewing my contemporaneous notes on the passage of the MCA, and it's worth reiterating a couple of basic points.

What was eventually passed was not run through the Congressional Committee process. The Committee-proposed bill, S.3901, was voted down (by it's proponents Warner, Graham and McCain no less) when it was handled as a substitute amendment to the administration's S.3930.

On Sept 14, Senator Frist had this to say about a slightly earlier detainee "trial" bill, S.3861:

So those two issues, the surveillance issue and the military commissions and tribunals, are issues we are addressing, again, in committee. The President has placed a bill before this body. I introduced it about a week and a half ago [Sept 6, 2006]. That language is available, and I encourage my colleagues to study that.

I haven't done a cluase by clause comparison of S.3861 and S.3930 (and the Senate Committee bill, S.3901) in the area of trials -- but my general point here is only that what Congress passed came more from the administration than it did from Congress.

Another oft' overlooked fact is that Congress had perceived its role to pass a Military Commissions law, in order to avoid what SCOTUS did in Hamdan, with roughly 10 Military Commission laws being proposed by DEM and GOP alike, in the time period from 2001 to Hamdan. None of them was ever taken up.

(11) cboldt made the following comment | Jun 15, 2008 10:52:59 AM | Permalink

I don't have House votes at my fingertips, but these are the mot "on point" votes in the Senate.

On Levin's S.Amdt.5086, which basically would have adopted the Committee's S.3901 over the administration's proposed S.3930, the Senate rejected the amendment on a pure party line vote, except for Senators Chafee (for the Committee bill, amendment) and Nelson of Nebraska voting with the majority of Republicans.

On Specter's S.Amdt.5087, to strike what SCOTUS just struck down in Boumediene, the margin for rejection was much closer.
GOP Senators Specter, Chafee, Smith and Sununu voted to pass the amendment; Nelson of Nebraska voted with the majority of Republicans.

In contrast, there were MANY crossovers on final passage. Carper, Johnson, Landrieu, Lautenberg, Lieberman, Menendez, Nelson (FL), Nelson (NE), Pryor, Rockefeller, Salazar and Stabenow voted to pass the administration's bill. Republican Senator Chaffee voted the other way.

(12) Beldar made the following comment | Jun 15, 2008 11:11:13 AM | Permalink

cboldt, you measure "careful consideration" by length of time various bills were considered. I measure it by how carefully the bills were considered, for which time spent is not a proxy.

Among other issues, Congress considered and debated, for example, the nature and type of counsel that the detainees would be provided; the precise burden of proof the prosecution had to meet; how many members of each jury have to agree on the verdict; the extent to which the detainees had a right to confront their accusers; the degree to which they would have compulsory process to effectuate that confrontation right; the means for balancing opens courts against national security; and the degree to which normal rules of evidence for criminal cases (including the hearsay rules) ought to be strictly enforced or relaxed. Balancing all these factors is exactly the sort of thing that legislative branches are supposed to do.

These were topics that had, in fact, been considered in prior sessions of Congress as well. They were simultaneously debated in the press. As you concede, the resulting legislation had bipartisan support.

Could Congress have done a better job? The answer to that question is almost always "Yes." Here, they did what they did. But I'm not sure why you're bothering to engage in these nitpicks, when — as you and I seem to agree, and as was the topic of this post — what the Court overturned this week wasn't just a unilateral decision by the Bush-43 Administration, but a statute enacted by Congress and signed into law by the President.

(13) cboldt made the following comment | Jun 15, 2008 11:26:22 AM | Permalink

I don't think my comments were nitpicks, but since you do, I suggest you delete them in their entirety. I'll bail.

(14) Beldar made the following comment | Jun 15, 2008 11:32:29 AM | Permalink

I don't want you to bail. I'm just missing your point. Enlighten me!

(15) cboldt made the following comment | Jun 15, 2008 2:39:47 PM | Permalink

My point is that I disagree with your conclusion that Congress didn't "rubberstamp" the administration's proposed MCA.

At the same time, I'm not letting Congress off the hook. It passed what it passed.

And on the habeas point, there is a bipartisan Senate that feared the outcome that we now refer to as Boumediene.

(16) hunter made the following comment | Jun 15, 2008 3:23:33 PM | Permalink

This Congress has not rubber stamped anything this President has ever proposed. And especially in the last 18 months or so, nothing the Administration has asked for has been 'runner stamped'.
But even if it was, does that empower the SCOTUS to simply ignore the law of the land without comment and to fabricate out of whole cloth new legal privileges?

(17) Mike Thomas made the following comment | Jun 16, 2008 1:28:39 PM | Permalink

Wow. A whole post dedicated to telling me (among others) how “spectacularly wrong” I am. I’m quite flattered.
Let’s see, after wading through the comments about how I’m “badly confused” and suffering from “a highly advanced stage” of BDS, the first substantive comment I come to is the argument that Congress had already satisfied the Supreme Court’s concerns by crafting “a system that balanced national security concerns against the need to provide fair, just hearings for these detainees.”
The problem with this, of course, is that a majority of the Supreme Court disagrees with that assessment of the Military Commissions Act. That is why they struck it down as being unconstitutional. That also makes the next point that the act “represented the will of the people as expressed through both of the elected branches of government” kind of superfluous, doesn’t it? I mean, you can say that about ANY statute that the court strikes down as unconstitutional.
And then going on to rant that “this is not a subject on which reasonable minds can differ” and “anyone who refuses to acknowledge (this) is stuck on stupid” seems to be directed at the majority members of the Supreme Court as much as at myself.
Is Justice Kennedy’s majority opinion in the case due to his suffering from an advanced case of BDS?
I do not believe for an instant that the denial of habeas corpus to the detainees at Gitmo is “absolutely central to the prosecution of war by our military forces”. But I do believe that allowing habeas corpus is central to maintaining our core values of liberty and justice in this great nation.

(18) Beldar made the following comment | Jun 16, 2008 8:24:34 PM | Permalink

Mike: Please read carefully. What I said that reasonable minds can't differ on is whether there was some sort of procedure by which the government had to demonstrate that there were good reasons to hold the detainees.

Since you didn't repeat that erroneous statement, I'm assuming you implicitly concede that your initial comment was, indeed, off target.

A five-Justice majority of the Supreme Court has ruled the procedure inadequate (with no substantive analysis of any of the procedure's details), but that's not remotely the same thing as saying no procedure exists — which is what you said. The specific point of this post was to point out this very common misrepresentation — I heard at least four liberal pundits repeat it on the Sunday morning talk shows, but none of them have stopped by to comment on my blog, so that's why you (and one other commenter) became the target of my rant. (I will concede it's a rant, and that my reaction to this sort of nonsense is extreme frustration, when I ought to shoot for restrained bemusement.)

So when will Sen. Obama concede that he was likewise mistaken when he described the statutory set-up as a "black hole" and said the detainees were to get no "day in court"? When will this distinguished former senior instructor in constitutional law stop lying to the American people about what the issue was before the Court?

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