June 30, 2006

Further Thoughts on Hamdan

From a comment left on this post:

Without law to govern our actions, we are no better than the terrorist who's objective is to destroy our way of life.

And therein lies a key thought of many American liberals. He—and others like him—truly believe that courts protect our liberties and our lives.

He will never understand that the Supreme Court did not have the legal authority to rule on Hamdan (Congress passed DCA '05, legally stripping them of jurisdiction, which SCOTUS then illegally usurped back from Congress). He will never understand that the Constitutionally defined Commander in Chief powers outweigh those powers the Court unilaterally gives itself.

He will not bother to understand the Court trampled on the Constitution in Hamdan with a murky application of international law, nor will he admit that they ignored the plain meaning of the Geneva Convention, which all but specifically exempts terrorists from Geneva protections under Article 4.1.2. To people like him, the Supreme Court, an un-elected body of political appointees, is the ultimate and unquestioned law of the land.

This is not how this nation was set up. The Court is but one of three co-equal branches of government, and it does not rule over the others. But my, oh my, it tries.

The Court in this decision pulls a trifecta. It ignores Congress, overreaches into the President's executive powers as Commander in Chief, and not content to stop there, decided a case based upon international law instead of following the U.S. Constitution.

And yet, people view the court to be infallible with an almost religious fervor, and actually think that the court protects our lives and liberties.

It doesn"t.

Tens of millions of men have protected our lives and liberties by putting on a uniform and picking up a rifle to stop the barbarians crashing the gates, while judges simply sat.

Don't tell me who guards my liberty. Is isn't a sleepy Ginsberg, or a decrepit Stevens, or a gesturing Scalia, or any other Supreme Court judge through the history of a Court that misunderstood for nearly 200 years the simple phrase, "that all men are created equal."

The people protecting my liberties are 20-year-olds with guts and guns.

In the end, the law is just a piece of paper, reflecting the ideas of a culture, and those ideas are not always just or fair or true. Often, despite the veneer of precedent and legalese, court decisions are arbitrary, capricious, dangerous and cruel.

The Hamdan decision is one such poor example, and highly why the Supreme Court is anything but infallible.

Posted by Confederate Yankee at June 30, 2006 10:09 AM | TrackBack


another point:

the geneva convention is a friggin TREATY, and is NOT INTERNATIONAL LAW!

the scotus treats it as if it is LAW and not merely a mutual benefit treaty among signatories.

and according to the GENEVA TREATY, it DON'T APPLY TO AL QAEDA!

Posted by: reliapundit at June 30, 2006 11:48 AM

whatr happened here was the LEFTIES of the court had made up their minds YEARS AGO, and kennedy went with them - his leftie buddies, instead of making a stand with the right which would have made him UNPOPULAR wi9th the left. his home has been on the left for a decade.

Posted by: reliapundit at June 30, 2006 11:50 AM


So now you're a constitutional scholar? Jeez, grow up. The Supreme Court finally decided that the other branches of government are not irrelevant after all. Even during a "war". Now, if only we can convince Congress that they have a role to play too.

Also, if you have a problem with the Supreme Court being the "ultimate and unquestioned law of the land", you have a problem with the constitution, not Nancy Pelosi. I wonder if you'
re willing to give say, Al Gore or Hillary Clinton the same executive supremacy you're giving George W.

Posted by: jordan at June 30, 2006 12:06 PM

Regarding the Supreme Court's jurisdiction, Scalia's dissent makes some good points, but is far from a winning argument. When a statute takes away jurisdiction in one section (1005(e)(1)), and only applies retroactivity for pending cases to *other* sections of that statute (retroactivity explicitly applied to sections 1005 (e)(2) and (e)(3) but did not mention (e)(1)), then it isn't unreasonable to believe they meant to exclude (e)(1). This is not radical interpretation. Arguable, yes. Clearly wrong, no.

On the Geneva Convention, the opinion says it only applies to Hamdan because he was not a combatant when they got him. The GC has provisions for treatment of noncombatants by signatories. The opinion is pretty clear on this, and so is Art. 3 of the GC. I also point to the fact that no judge dissented from this holding. Their dissents were basically (Scalia) that the Court didn't have jurisdiction; (Thomas) that the Court should have deferred to executive authority on whether the tribunals were necessary; and (Alito) that the tribunals were "properly constituted" under the UCMJ. *None of the judges questioned the majority's holding that Article 3 of the GC applies to Hamdan.*

Finally, your comments about the court not protecting your liberties--in a way it is right. Ultimately, guns protect our liberties. But guns can just as easily take them away. Dictatorships have men with guns. But they don't have an independent court system. Guns do not make us different. Our independent courts do.

Posted by: pcrh at June 30, 2006 12:33 PM

a clarification: "the Supreme Court... is the ultimate and unquestioned law of the land"... but only so long as they rule in ways liberals like. When they do something like Bush-v-Gore, liberals want them thrown off the bench.

which segues into a recurring theme of mine: us on the right are no different than those on the left: when we like the decision (for the right, the earlier decision on the texas redistricting, and, for the left, Hamdan), we're fine. when we don't like the decision, the court is a bunch of idiots.

Posted by: steve sturm at June 30, 2006 12:39 PM

pcrh - When a president exceeds his Constitutional authority, congress, the courts, and the electorate have recourse into correcting that behaviour.

When Congress exceeds their Constitutional authority, the courts have an opportunity to reign them in and the electorate can also have a shot at them.

When the courts exceed their Constitutional authority - who controls them and how?

As you said, "This is not radical interpretation. Arguable, yes. Clearly wrong, no."

Who gets to argue it? To whom? If the President or Congress disagrees and thinks that SCOTUS exceeded their authority, how do they perform their "checks and balances"?

Posted by: SouthernRoots at June 30, 2006 01:11 PM

That comment you quote is priceless. Typical lefty reasoning: it doesn't matter if our cities are laid waste, our soldiers killed and thousands of civilians dead, as long as we are "legally" and "morally" not to mention "politically" correct in a manner pleasing to the New York Times editorial board. Even if we're dead, we'd be "better" in some mystical way.

I mean, it'd be better for the Lefties that we lost the war rather than "win" it in some way that made us "more like them."

Posted by: El Jefe Maximo at June 30, 2006 01:21 PM

SouthernRoots: Congress can, and almost surely will, revise the statute in question to pass muster. They would have to explicitly authorize the president to convene the tribunals (the prez asserted the authority under the law and under constitutional warmaking powers, and the Court disagreed--but would have consented if the statute had been clearer). The other problem the court had was that the tribunals did not conform to courts martial or civil courts rules--for example, they repeatedly pointed to the fact that defendants had no right to be present at their own tribunals. Such differences, they argued, meant the tribunals were not "properly constituted" according to the UCMJ and the GC. But again, this can be fixed by legislation--pass a law explicitly authorizing tribunals to try the detainees, and require that the tribunals adhere to courts martial (or similar) procedures.

On your larger question--who watches the watchmen? I agree, the Court does have highest authority in one sphere--interpretation of our laws and Constitution. But this power is not absolute. Congress can rewrite the statute, and more importantly they can amend the constitution itself--probably the biggest power held by any part of government. This is what the recent flag burning issue was about--the Court has ruled that banning flag burning is counter to rights guaranteed in the Constitution. Congress wanted to amend the Constitution--the only way they could get around the Court's ruling. That is the check on the Supreme Court. Also, the president has indirect influence on the court--he appoints its members. And the Senate has some influence--they can veto the president's appointees. So though they can't contradict the Court's rulings, the do have influence, and Congress can ultimately override them with a constitutional amendment.

It's the worst system of government except for all the other ones.

Posted by: pcrh at June 30, 2006 01:33 PM

"...why the Supreme Court is anything but infallible." --CY

"We are not final because we are infallible, but we are infallible only because we are final."

--Justice Jackson

Posted by: pcrh at June 30, 2006 01:52 PM

Who watches the watchmen? The answer--we do. Extensive research suggests that the Supremes do indeed respond to the court of public opinion. Furthermore, a weak congress fails to overturn the decisions of this court the public has the ability to fire those people and hire new ones that are more in line with what they believe. Unfortunately, conservatives and liberals alike have perverted the system such that issues have been compartmentalized to fit neatly within one or the other category, making sound reasonable judgements on issues more susceptible to knee-jerk positions, or, in other words, to the ideology not their own powers of reason. In fact, those of us who choose to be realists, rather than ideologues are marginalized, even looked down upon for not picking sides. Ideological dogma,--opposite of the pragmatism that has so characterized American fortunes and governments over the past 200 years-- is far more dangerous than the courts, an inept Congress or even and over-reaching executive.

Posted by: melruk at June 30, 2006 01:57 PM

So what someone previously stated, that the SCOTUS decided, extra constitutionally, other branches of government are relevant in a war? Seems the honored men and woman in black think we can fight a war by committee. Funny, the founders didn't.

Posted by: Zelsdorf Ragshaft III at June 30, 2006 02:33 PM

CY - Nice. Typical, but nice. Taken out of context but at least you had the guts to link to my original comment.

I do understand how the Supreme Court works. I believe what Congress passed will be at some point determined unconstitutional as it has the right to determine what is legal and what is not, it does not have the right to undermine the constitution by striping the SCOTUS from being the final word in judicial review. (marbury vs Madison: You may not agree with that but that has been the standard for quite some time. Longer than the "herald" interpretation of GC treaty.

Artice 3 Section 1 and 2 of the Constitution reads:
The judicial Power of the United States, shall be vested in one supreme Court,and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of
another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

I'm not a law scholar but reading those two sections would say to me the SCOTUS has authority over any court the Congress ordains and power of any case between the US and any foreign citizens or subjects.

So rather blithering on to your make-Bush-emperor base, why don't you try and provide a rationale for how they over-reached. To illustrate, look at the ruling. There was NO DISENT from any SCJ that Al-queda was protected under GC3. None. The 3 conservative judges dissented (seperately and not on the same subject so taken as a whole, only 1 discented from other the othe 8 judges in other aspects of the ruling) about other aspects of the ruling but not on that. So whining about how this is liberal issue is pure rhetoric.

Just the mere statement that the "Commander in Chief powers outweigh those powers the Court unilaterally gives itself" demonstrates that it is you that will never uderstand the concept of checks and balances put into place by our founders. The SCOTUS does not rule over the others. It simply does not bend to the whim of chest-thumping and the political scenario playing out in Congress today. Would this Congress had given Gore the same authority as it tried to give Bush. I think not. SCOTUS was designed to be governed by unelected appointees, it was almost like the founders could see the day when politicians would put special interest groups ahead of their constituents...

I never said the court was infalliable but the SCOTUS was designed to step in (see: Brown vs. Brd of Education, when Congress didn't have the guts or the fortitude to correct injustices.

The court decision is basically restating that its authority is not defined by Congress but by the Constitution and that the president has the power to faithfully execute the Laws and make treaties, not ignore laws and treaties.

"who guards you liberties" statement is simply wrapping a "support the troops" bumper sticker slogan around ignorance. That 20 yr old if ordered to by his superiors, would gun you down in a moment. He doesn't guard your liberties, he guards your life. Ask a black man or a woman who gave them the right to vote. It wasn't a 20 year old with a gun. Ask a Japanese-American from the WWII era who took away their liberties, it still wasn't a 20 year old with a gun.

Your final argument is simply not worth responding too. If the law is just paper, go try anarchy instead...

Posted by: matt a at June 30, 2006 02:48 PM

Matt a - You missed a portion of Article III Section 2: [2] In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

[3] The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The Constitution clearly sets up SCOTUS, but Congress defines the boundries.

Posted by: SouthernRoots at June 30, 2006 06:23 PM

The Military trials were only a proposed procedure to get rid of some of the nasties at Gitmo. It was never used so what beef does the left wing have? None. As soon as we're attacked again we'll have a beef with the lefties and they'll pay dearly for every death and injury. The silent majority (republicans) will stand up and be heard, if it requires extreme violence, so be it.
The simple solution to to the SCOTUS and Gitmo problem is to transfer 100 bad a** terrorist to each of their (five traitors) home towns for imprisonment and trial. Let their local population handle it, the locals provide the security, judges, and they serve on the juries. Not one of the five members that made this ruling would ever dare return home, that is if they had a town to return to after the terrorists from CAIR got done with them.

Posted by: Scrapiron at June 30, 2006 07:02 PM

Southern Root - Thanks for the addedum. I was rushing out the door and didn't have time to research original vs appellate jurisdiction but here's a definition:

APPELLATE JURISDICTION. The jurisdiction which a superior court has to bear appeals of causes which have been tried in inferior courts. It differs from original jurisdiction, which is the power to entertain suits instituted in the first instance.

So what does exceptions and regulations mean? Per Wiki ( it means that Congress can refine the process by which the appeals can raise through the inferior courts but it does not have the power to undermine the original jurisdiction responsibility of SCOTUS. Pretty cut and clear that Congress can't "cut out" (without a constitutional amendment) the Supreme Court from seeing any appeal such as this case.

If anything, that section alone makes the law past by congress more likely to be overturned at some point.

The other part of section 2 highlighted, where trials take place, I'm not aware of anyone challenging. Congress can pass a law saying that that all terrorist trials will be held at Gitmo, makes sense to me.

Posted by: matt a at June 30, 2006 10:58 PM

If the law is just paper, go try anarchy instead...

Anyone who has won a judgment in court knows the law is indeed just paper. All the court does is give you the right to TRY to collect what you're owed. Getting it may take years or it may never actually happen.

Posted by: Purple Avenger at July 1, 2006 04:35 AM

Good post. I've linked to you here:

Posted by: Consul-At-Arms at July 1, 2006 06:48 PM

The statement by pcrh that it was unquestioned by the dissenters that the Geneva Convention applies to al-Qaeda is wrong. Given the grounds of the dissents by Justices Thomas, Scalia and Alito, those justicesa did not decide the specific question, which is really no question at all.

The Supreme Court majority was just dead wrong to resort to the fiction of so-called international customary law to interpret the Geneva Convention in accordance with a proposed Protocol to the Geneva Convention that in 1987 then President Ronald Reagan recommended to the Senate not be adopted by the United States (there is no answer to the Gipper's explanation on this one) and that the Senate did not adopt, not then and not since. The democratically elected branches of the U.S. Government thus had made a decision as to the Geneva Convention that the Supreme Court had no business ignoring, just as the Supreme Court had no business ignoring the act of Congress stripping the Supreme Court of jurisdiction in the Hamden case.

The Supreme Court majority decision in Hamden really is an illicit, ill-conceived and illegitimate power grab that should be denounced as such. Sorry, Jordan, but the response should not be and cannot be well, the Supreme Court tells us what the law is. I recommend to you all a book by the Dean of Stanford Law School Larry Kramer, "The People Themselves." The original view of the matter, one espoused by none other than Thomas Jefferson, Abraham Lincoln and Teddy Roosevelt, is that the Congress and the President have a co-equal responsibility of constitutional interpretation because the people are sovereign, not the justices of the Supreme Court.

The Supreme Court has made some bad mistakes in its history. Certainly, Dredd Scott and Plessy v. Ferguson are examples. What the Supreme Court majority did in Hamden was badly mistaken. At every turn, the Supreme Court's Hamden decision should be so treated.

Posted by: Phil Byler at July 2, 2006 09:53 PM

Purple - Criminal law and civil law are 2 different beasts. Winning a judgement and being convicted of something are 2 different things.

I agree that Congress and the Executive branch are both co-equal interpreters of the constitution.

IMO, SCOTUS did not make a power move here. Congress did by trying to take away judicial power from SCOTUS. The President did by establishing his own trial procedure. As per all the talk shows this Sunday has suggested, if the President comes to Congress and asks for the tribunals, Congress will set them up. SCOTUS can and will be the final appeal on the tribunals will apply law. That is how the constitution works.

Posted by: matt a at July 2, 2006 10:39 PM

>>The statement by pcrh that it was unquestioned by the dissenters that the Geneva Convention applies to al-Qaeda is wrong. Given the grounds of the dissents by Justices Thomas, Scalia and Alito, those justicesa did not decide the specific question, which is really no question at all.

Not sure what Mr. Byler means here. The justices are free to dissent on any issue they see fit. None of the dissenters brought up the majority's statements that Art. 3 of the GC applied to Hamdan. That's a fairly important part of the case, and if they disagreed, one would think they would have mentioned it in their dissents. To assume that their silence on the issue indicates *disagreement* is hard for me to accept.

Posted by: pcrh at July 3, 2006 09:37 AM