Tuesday, November 08, 2005

SCOTUS to rule on military tribunals

No wonder Bush wants a more conservative SCOTUS, especially when it comes to executive power. The Times reports:

The Supreme Court announced today that it would decide the validity of the military commissions that President Bush wants to use to bring detainees charged with terrorist offenses to trial.

The case, to be argued in March, places the court back at the center of the national debate over the limits of presidential authority in conducting the war on terror. Last year, the Supreme Court rejected the administration's position that the federal courts have no jurisdiction over people held as enemy combatants at the United States naval base at Guantánamo Bay, Cuba.

This time, once again, the justices acted over the vigorous opposition of the administration, which urged the court to stay its hand and defer any review until after a detainee had been tried by a military commission and convicted.

Note: "the vigorous opposition of the administration". It's enabling torture -- why not injustice generally? Hey, I wonder what Cheney thinks about this!

And I wonder how the Roberts Court will rule...

Andrew Sullivan has it right: "The president, in my view, should have lee-way to exercise executive power in wartime as he sees fit, in emergencies when the legislature cannot be expected to act with sufficient speed or secrecy. But broad detention policies in a war that is now defined as permanent should not be in the hands of one man outside of legal, judicial or legislative review."

See also TalkLeft and Firedoglake.

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  • One problem lies in defining this as a war. Rhetorically and ideologically, it might make sense to talk about the "war on terror." But to treat such a nebulous concept as entailing a legal definition of war is crazy and essentially gives the president unlimited power to do whatever he wants. This is not a war in any legal sense and talking about the president's "powers in wartime" is crazy. You might as well say the "war on drugs" is a war that enables the DEA to ignore the 4th Amendment.

    It amazes me that conservatives, who ostensibly are concerned with overweening federal power actually support this broad expansion of presidential power. Of course, to a lot of people, "due process" is just a "legal technicality" anyway.

    What is the most disturbing, in my view, is not necessarily that the administration espouses an expansion of executive powers, but that such an expansion is apparently in theory limitless. They seem not to even concede that there are any limits to the presidents war powers (accepting for moment that it is legitimate to talk about war powers in the current situation).

    But liberals have, IMO, helped facilitate this by going to the other extreme and refusing to acknowledge any legitimate concern with security. People have a valid concern about terrorists slipping over the border; there should be some way to balance due process and security in a way that doesn't eviscerate civil liberties and doesn't leave us a sitting target. It's not enough to quote the old saw (from Ben Franklin, I believe) that "people who would give up their freedoms for security will have neither." That's a nice bromide, but it doesn't address reality. If the ACLU opposes Bush's plans, give us an alternative; don't say that we can't take account of the state of the world. That's not helpful and does not advance respect for civil liberties.

    By Anonymous Anonymous, at 2:07 PM  

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