A Supreme Court Hamdan Guide

[Pindar]

Quick Summery:

This was a bad decision.

A quick how to tell:

Justice Ginsburg was in the majority and Justice Scalia was in the minority.

The crux of the decision:

The Military commision regimen is unauthorized as it currently stands.

Important but perhaps missed facts:

-There were actually two major elements to the ruling. The first concerned whether the Court could even hear the case. This was because in Dec. 2005 the Congress passed the Detainee Treatment Act that removed from Court jurisdiction hearing appeals from Guantanamo prisoners. Here is part of the language for the Act:

"[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."

The majority opinion argued the language of the statue was too vague so they could in fact rule on Hamdan's case. Justice Scalia's scathing dissent was contrary this view. The second element concerned the commission system which the Court ruled is presently unauthorized. The main points as presented by Justice Steven's majority opinion were: the present commision format is not consistent with the Uniform Code of Military Justice,* and violates the relevant Geneva Conventions**: notably Article 3 which is found in each Convention. This is what most commentary has focused on, but it is not the key element of ruling.

-Justice Kennedy wrote a concurring opinion. A concurring opinion is where a Justice, has sided with the majority, but the rationale that led to his siding is distinct. Justice Kennedy's opinion is the narrower opinion and as such is where the teeth of the ruling are found. Why? Because on practical grounds when a new challenge is brought, the Government merely has to met the standards set by Kennedy to pull him, by his own opinion, to their side and thus effectively overturn the Hamdan ruling. Recall, four Justices (including Chief Justice Roberts in the D.C. Circuit) have already affirm the Administration's position. Justice Kennedy's opinion turns on the notion of procedural fairness specifically in regards to the military commissions and courts martial as dictated by Congress and that the commissions lacked Congressional oversight. To whit he wrote:

"In sum, as presently structured Hamdan's military commission exceeds the bounds Congress has placed on the President's authority in...the UCMJ. Because Congress has placed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws."

Legal Fall Out:

In this ruling the Judiciary has stepped into an area where both the Congress and the Executive have already staked out ground. By side stepping the will of the Congress in its 2005 Detainee Treatment Act. Congress is likely to pass a 2006 Detainee Treatment Act with even more explicit language thereby stripping the Court completely of jurisdiction. The other possibility is based on Kennedy's opinion, the Congress simply has to pass a statute whereby UCMJ rules on military commissions apply to Guantanamo detainees.

Political Fall Out:

This is the silver lining in the ruling. The GOP can use this ruling as an illustration why constructionist judges are needed on the bench as opposed to judges whose political agenda determines their ruling on the law. This is a hot issue in GOP circles as noted by the coup that brought Justice Alito to being a nominee. An impassioned use of this poor ruling could incite enough base support to insure Congressional control through to 08.

Conclusion:

If court rulings paralleled the weather this is a tropical storm, but not a hurricane: bad but not devastating.


*Regarding the Uniform Code of Military Justice

Spoiler Alert, click show to read: 

This is a key extract from Justice Stevens opinion and the response from Justice Thomas:

Jusitce Stevens:

"Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial."

Justice Thomas' dissent:

"Nothing in the text of Article 36(b) supports the Court’s sweeping conclusion that it represents an unprecedented congressional effort to change the nature of military commissions from common-law war courts to tribunals that must presumptively function like courts-martial. And such an interpretation would be strange indeed. The vision of uniformity that motivated the adoption of the UCMJ, embodied specifically in Article 36(b), is nothing more than uniformity across the separate branches of the armed services. See ch. 169, 64 Stat. 107 (preamble to the UCMJ explaining that the UCMJ is an act “[t]o unify, consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard”). There is no indication that the UCMJ was intended to require uniformity in procedure between courts-martial and military commissions, tribunals that the UCMJ itself recognizes are different. To the contrary, the UCMJ expressly recognizes that different tribunals will be constituted in different manners and employ different procedures. See 10 U. S. C. §866 (providing for three different types of courts-martial— general, special, and summary—constituted in different manners and employing different procedures). Thus, Article 36(b) is best understood as establishing that, so far as practicable, the rules and regulations governing tribunals convened by the Navy must be uniform with the rules and regulations governing tribunals convened by the Army. But, consistent with this Court’s prior interpretations of Article 21 and over a century of historical practice, it cannot be understood to require the President to conform the procedures employed by military commissions to those employed by courts-martial.

Even if Article 36(b) could be construed to require procedural uniformity among the various tribunals contemplated by the UCMJ, Hamdan would not be entitled to relief. Under the Court’s reading, the President is entitled to prescribe different rules for military commissions than for courts-martial when he determines that it is not “practicable” to prescribe uniform rules. The Court does not resolve the level of deference such determinations would be owed, however, because, in its view, “[t]he President has not . . . [determined] that it is impracticable to apply the rules for courts-martial.” Ante, at 60. This is simply not the case. On the same day that the President issued Military Commission Order No. 1, the Secretary of Defense explained that “the president decided to establish military commissions because he wanted the option of a process that is different from those processes which we already have, namely the federal court system . . . and the military court system,” Dept. of Defense News Briefing on Military Commissions (Mar. 21, 2002) (remarks of Donald Rumsfeld), . . . and that “[t]he commissions are intended to be different . . . because the [P]resident recognized that there had to be differences to deal with the unusual situation we face and that a different approach was needed.” Ibid. The President reached this conclusion because “we’re in the middle of a war, and . . . had to design a procedure that would allow us to pursue justice for these individuals while at the same time prosecuting the war most effectively. And that means setting rules that would allow us to preserve our intelligence secrets, develop more information about terrorist activities that might be planned for the future so that we can take action to prevent terrorist attacks against the United States. . . . * * * ” Ibid. (remarks of Douglas J. Feith, Under Secretary of Defense for Policy (emphasis added)).

The Court provides no explanation why the President’s determination that employing court-martial procedures in the military commissions established pursuant to Military Commission Order No. 1 would hamper our war effort is in any way inadequate to satisfy its newly minted “practicability” requirement."

**Regarding the Geneva Conventions:

Spoiler Alert, click show to read: 

Justice Stevens:

"While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”);64 see also Yamashita, 327 U. S., at 44 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”).

The Government offers only a cursory defense of Hamdan’s military commission in light of Common Article 3. See Brief for Respondents 49–50. As Justice Kennedy explains, that defense fails because “[t]he regular military courts in our system are the courts-martial established by congressional statutes.” Post, at 8 (opinion concurring in part). At a minimum, a military commission “can be ‘regularly constituted’ by the standards of our military justice system only if some practical need explains deviations from court-martial practice.” Post, at 10. As we have explained, . .. . no such need has been demonstrated here."

Justice Alito's dissent:

"I see no basis for the Court’s holding that a military commission cannot be regarded as “a regularly constituted court” unless it is similar in structure and composition to a regular military court or unless there is an “evident practical need” for the divergence. There is no reason why a court that differs in structure or composition from an ordinary military court must be viewed as having been improperly constituted. Tribunals that vary significantly in structure, composition, and procedures may all be “regularly” or “properly” constituted. Consider, for example, a municipal court, a state trial court of general jurisdiction, an Article I federal trial court, a federal district court, and an international court, such as the International Criminal Tribunal for the Former Yugoslavia. Although these courts are “differently constituted” and differ substantially in many other respects, they are all “regularly constituted.”

If Common Article 3 had been meant to require trial before a country’s military courts or courts that are similar in structure and composition, the drafters almost certainly would have used language that expresses that thought more directly."

[Pindar]

.....

[Aenlic]

Except, of course, Pindar, that you completely ignored some of the facts in the case which directly led to the decision. Such as the fact that prior to this decision the military tribunals were going to try the detainees without even being in the presence of the detainees. This directly violates the UCMJ. That is the crux of the decision. To follow the law, the courts must either be constituted with regard to international law, civil law or military law (in the precise form of the UCMJ). The militray tribunals, as previously set up, followed none of those three. The decision makes it very clear that insufficient reason was given to ignore the UCMJ. Thomas tries to toss out a red herring about there being different ways in which military courts are "constituted" for the different branches and the different types of militray courts. And yet, he completely ignores the central issue which is that all of those courts, varied as they are, must still abide by certain standards in regards to the rights of the defendant and certain basic procedures, such as relevance and admissability.

But, nice try, Pindar. I'll give you an E for effort.

To reword it for you in a much simpler form:

Scalia, Thomas and scAlito dissented. It must, therefore, be a reasonable conclusion for the court to make.

Edit: and see, GC? We don't disagree on everything.

[Xiahou]

Interesting stuff Pindar. The decision has recieved scant little analysis from what I've seen that goes beyond the headlines.

Im still not totally sure how I feel about the "rightness" of the ruling. But in the real sense, I think it's probably going to work out for the best since Congress will spell out in no certain terms what it's intentions were.

[Crazed Rabbit]

Such as the fact that prior to this decision the military tribunals were going to try the detainees without even being in the presence of the detainees.

Gee, could that be so they wouldn't be able to use government evidence for nefarious puposes? And their lawyers were allowed to be present at all times. It's happened before in racketeering cases.

Crazed Rabbit

[Aenlic]

Gee, could that be so they wouldn't be able to use government evidence for nefarious puposes? And their lawyers were allowed to be present at all times. It's happened before in racketeering cases.

Crazed Rabbit

Uniform Code of Military Justice
Title 10, Subtitle A, Part II, Chapter 47
Subchapter VII, § 839 (b)

"(b) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and, in cases in which a military judge has been detailed to the court, the military judge."

The SCOTUS made it very clear that the Bush administration did not show reasonable cause for not using the UCMJ for the creation of a military court. And above is the applicable section on military court proceedings, specifying that all proceedings other than the deliberations or vote must be conducted in the presence of the accused. End of story.

As for the bit about racketeering cases in which the accused weren't allowed to be present at their own trial, I'm going to need to see some proof. The SCOTUS has ruled time and again that a defendant has the right to be present at his or her own trial and may only be absent under a very limited set of conditions, such as voluntarily waiving that right, or being removed for being disruptive. That's it. The possibility that the defendant may hear some secret bit of evidence against him or her is not among those exceptions.

U.S. CodeTitle 18, Appendix - Federal Rules of Criminal Procedure, Rule 43. Not that the SCOTUS rulings with which this rule applies are listed at the bottom.

Sorry, Crazed Rabbit, not going to fly unless you show me proof that I'm mistaken. If so, I'll withdraw my statement about racketeering cases you've claimed. However, the recent SCOTUS ruling and the UCMJ still stand.

[Crazed Rabbit]

The SCOTUS made it very clear that the Bush administration did not show reasonable cause for not using the UCMJ for the creation of a military court.

No, they made it clear that they- who have no experience in such matters, or when the situation warranted such measures- thought that the situation did not warrant military commissions. In short, they exerted authority to determine what they have no knowledge to determine. There is a very clear reason - we are fighting terrorists who seek to destroy and kill us. Thus, it is important to protect national secrets and security.

Crazed Rabbit

[Aenlic]

Burn the U.S. Constitution! The terrorists might use it against us!

Let's hear the opinions of some real conservatives on the issue, shall we, CR?

Former Rep. Dick Armey, when he was House Majority Leader and Chair of the House Select Committee on Homeland Security, (from "Armey: Justice 'Out of Control'" USA TODAY, 10/16/2002)

"I told the President I thought his Justice Department was out of control. Are we going to save ourselves from international terrorism in order to deny the fundamental liberties we protect to ourselves?? It doesn't make sense to me."

Dick Armey later joined with the ACLU in a media campaign to prevent passage of the Patriot Act II.

Or better yet how about, David Keene, Chairman of the American Conservative Union (from "Ashcroft: Good Intentions on a Bad Road" The Hill, 7/31/2002)

"The Bush administration argues convincingly that roving wiretaps, reading people's e-mail, putting video cameras on every corner and perusing their library habits will make it easier to catch terrorists before they act. The problem is that once all this is in place, we will no longer be living in the same country we lived in prior to Sept. 11."

How about that terrible liberal, Bob Barr, former Republican member of Congress (from "Patriot Act divides Bush loyalists," Washington Times, 4/5/2004)

"The Fourth Amendment is a nuisance to the administration, but the amendment protects citizens and legal immigrants from the government's monitoring them whenever it wants, without good cause -- and if that happens, it's the end of personal liberty."

"I don't care if there were no examples so far. We can't say we'll let government have these unconstitutional powers in the Patriot Act because they will never use them. Besides, who knows how many times the government has used them? They're secret searches."

And there's, Larry Pratt, Executive Director, Gun Owners of America (from Coalition for Constitutional Liberties Weekly Update, Free Congress Foundations, 2/27/2004)

"Anytime the government is in a conflict, they see it as an opportunity to aggrandize themselves and run roughshod over the Constitution"

"More laws are being made making things illegal. All of us stand to be in violation of some law."

"Farmers [including some who were wielding guns] participated in civil disobedience at the site of the main water valve. [Under the PATRIOT Act,] The Klamath farmers would have been a terrorist organization."

Maybe that darn liberal Newt Gingrich has something to say about the issue of giving up our freedoms to be safe? Let's see!

Newt Gingrich, the former speaker of the House ( from "The Policies of War: Refocus the mission," San Francisco Chronicle, 11/11/03)

"Recent reports, including one from the General Accounting Office, however indicate that the Patriot Act has been employed in investigations unconnected to terrorism or national security.

In our battle against those that detest our free and prosperous society, we cannot sacrifice any of the pillars our nation stands upon, namely respect for the Constitution and the rule of law. Our enemies in the war against terrorism abuse the Islamic law known as the Sharia that they claim to value. It is perversely used as justification for their horrific and wanton acts of violence.

We must demonstrate to the world that America is the best example of what a solid Constitution with properly enforced laws can bring to those who desire freedom and safety. If we become hypocrites about our own legal system, how can we sell it abroad or question legal systems different than our own?"

I wonder if all of these eminent real conservatives would consider your arguments to be conservative-based?

[Pindar]

The job of the Supreme Court is to step in when the Legislature and the Executive over-step their bounds.

Clears throat...says who?

[Pindar]

Except, of course, Pindar, that you completely ignored some of the facts in the case which directly led to the decision.

Hello,

You have confused a part for the whole. What I put forward is the basic rationale for the poor decision which includes your reference.

But, nice try, Pindar. I'll give you an E for effort.

Thanks, does it come in blue?

[A.Saturnus]

Well, I certainly know little about the jurisdical details. But what strikes me is this:

This was because in Dec. 2005 the Congress passed the Detainee Treatment Act that removed from Court jurisdiction hearing appeals from Guantanamo prisoners.

How can the legislative make an act that excludes people from judicative authority? Doesn't that refute the whole seperation of powers thing? In any case, I know that any German politician who would suggest such a ridiculous, immoral and illegal act could immediately look for a new job. I would assume that the same is true for any democracy.

[Aenlic]

Very nice, GC.

Sadly, the only Congressman I know of who keeps a copy of (or can even be proven as having read) the Constitution is Senator Robert Byrd of West Virginia; and he appears to use his mostly to protect his ability to bring massive amounts of pork home to his constituents. And we aren't talking canned Spam here.

[Crazed Rabbit]

If you're so damned sure they're guilty (and granted, I'm sure most of them are), you should have faith in the system to deal with them properly.

They were going to be tried. I have faith in the system, but not in what the terrorists would do with info the prosecution presented.

And Cube, here's the part of the Constitution that comes right after that:
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.

The job of the Supreme Court is to step in when the Legislature and the Executive over-step their bounds. This was one such time.

I seem to remember a quote from one of the Founders that the Judiciary was the weakest branch, because they were not given such authority to decide the constitutionality of laws.

How can the legislative make an act that excludes people from judicative authority? Doesn't that refute the whole seperation of powers thing?

I believe they established a seperate court for such procedings- they did not remove people from judicative authority.

Crazed Rabbit

[Hurin_Rules]

Quick Summery:

This was a bad decision.

A quick how to tell:

Justice Ginsburg was in the majority and Justice Scalia was in the minority.

Sorry, but the fact that Scalito and Thomas voted against the decision pretty much ensures it was the right one. Just a few of Scalia's 'greatest hits':

On religious pluralism and the separation of Church and State:
"With respect to public acknowledgment of religious belief," Scalia wrote, "it is entirely clear from our nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."

On displaying the Ten Commandments and government endorsing religion:
"You know, I think probably 90 percent of the American people believe in the Ten Commandments, and I'll bet you that 85 percent of them couldn't tell you what the ten are. And when somebody goes by that monument, I don't think they're studying each one of the commandments. It's a symbol of the fact that government comes -- derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds."

If the thought of America becoming a theocracy appeals to you, then Scalia is certainly your man. If not, you're very glad he only gets one vote. I'm just a little worried that only five of his fellow justices disagreed with him.

[Papewaio]

Aren't the detainees:
a) Persons.
b) Being held for a major crime.

Add to that the Declaration of Independance:
For depriving us in many cases, of the benefits of Trial by Jury:

Surely juries for starters and a fair hearing are a basic part of what is justice in the US?

[Crazed Rabbit]

They are not citizens of the US. We most certianly are not going to give Osama a 12 person jury in New York when we catch him.

If the thought of America becoming a theocracy appeals to you, then Scalia is certainly your man. If not, you're very glad he only gets one vote. I'm just a little worried that only five of his fellow justices disagreed with him.

Those are not relevant, unless you want to get into a match of which judge is less constitutional. I don't think you'd want to do that.

And you saying that bending US law and twisting the meaning of international law is what justices are supposed to do?

Crazed Rabbit

[Papewaio]

Why not give him a jury?

[Aenlic]

It's an American thing, Papewaio. Goes back to the Wild West and vigilante justice. It has large dollops of Yeehaw and a generous portion of "Badges? We don't need no stinking badges!" combined with that lovable effect most clearly demonstrated in the fearful look on the faces of the local bowlegged sheep.

[Pindar]

How can the legislative make an act that excludes people from judicative authority? Doesn't that refute the whole seperation of powers thing? In any case, I know that any German politician who would suggest such a ridiculous, immoral and illegal act could immediately look for a new job. I would assume that the same is true for any democracy.

The Supreme Court is unelected. The Congress is elected. Under the U.S. Constitution the Congress can determine Court jurisdiction. The trifold separation of powers does not mean each component is equal. Rather, it is tiered: the Legislative Branch is number one as simply demonstrated by the above noted power and the power to impeach the Executive. The Executive is number two in being Commander in Chief of the military. The Judiciary is three in interpreting the law.

[Pindar]

The job of the Supreme Court is to step in when the Legislature and the Executive over-step their bounds.

says who?

I knew that copy of the constitution in the back of "The Federalist Papers" would come in handy one of these days...

The United States Constitution, Article III, 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.

This doesn't answer my question. Again, what authority does the Supreme Court have to "step in when the Legislature and the Executive over-step their bounds"?

[Pindar]

Aren't the detainees:
a) Persons.
b) Being held for a major crime.

b) is incorrect.

Detainees are not criminals. They are enemies of the U.S. They are not necessarily charged with a crime. Military Commissions are not under the Judiciary. They are under the Executive. They are an instrument in war at the discretion of the Executive. There is no necessity ever. Commissions are typically used to sift the captured. For example, I believe some 6000 were originally captured in Afghanistan. Of those, around 600 were initially sent to Gitmo. There is no requirement that any detained be tried. They can be held until the end of hostilities, which could be a lifetime.

[Pindar]

Alright, so I generalized. My quote nevertheless shows that the Judiciary was in the right in this instance.

No, your comment was/is incorrect.
The quote does not say the Judiciary was in the right.
The quote doesn't relate to the topic. It does not speak to the Judiciary having oversight over the Legislature or the Executive.

In regards to the 2005 Detainee Detention Act, the argument the Majority Opinion put forward to justify their being able to even speak to the case was not that they couldn't be bound by the Congress (they of course recognized they could) but that the 2005 Act's language was too vague in that it didn't specify pending cases. Hamdan was a pending case, so they held it was permissible. This is of course contorted reasoning as the act is clear in its language and was passed with the Congressional Record showing Congressmen were well aware of the pending cases and that they were included.

The stupidity of the opinion may very well mean the Congress will pass a 06 version which would constitute a SCOTUS b*tch slap. My comments on the potential political fallout via-a-vis the Fall Elections are also apt.

[Hurin_Rules]

Detainees are not criminals. They are enemies of the U.S. They are not necessarily charged with a crime. Military Commissions are not under the Judiciary. They are under the Executive. They are an instrument in war at the discretion of the Executive. There is no necessity ever. Commissions are typically used to sift the captured. For example, I believe some 6000 were originally captured in Afghanistan. Of those, around 600 were initially sent to Gitmo. There is no requirement that any detained be tried. They can be held until the end of hostilities, which could be a lifetime.

Not according to the Geneva Conventions, which the US has signed. And not, moreover, according to your own Supreme Court.

[Pindar]

Feh. Well, I don't pretend to be a law expert. Suffice it to say that the sweeping powers that the Executive has for this indefinately long "War" are over-the-top. Everything is too vague, and too open to interpretation. We need swift and decisive legislation defining everything in a clear-cut fashion--and it needs to be leaning towards curbing the executive, not empowering it.

A marked contrast: things then are reduced to private sentiments.

[Pindar]

Not according to the Geneva Conventions, which the US has signed. And not, moreover, according to your own Supreme Court.

This is incorrect. The Geneva Conventions do not say detainees are criminals or charged with a crime, neither has SCOTUS.

[Hurin_Rules]

This is incorrect. The Geneva Conventions do not say detainees are criminals or charged with a crime, neither has SCOTUS.

You're misunderstanding my statement. You said tribunals/commissions are completely at the whim of the executive and there is no necessity for them. In fact, the Geneva Conventions state tribunals are a necessity, and SCOTUS has ruled that the executive alone cannot make up its own rules for them.

[Pindar]

You're misunderstanding my statement. You said tribunals/commissions are completely at the whim of the executive and there is no necessity for them. In fact, the Geneva Conventions state tribunals are a necessity, and SCOTUS has ruled that the executive alone cannot make up its own rules for them.

I see. You should be clearer in your points then. Where do the Geneva Conventions say state tribunals are a necessity? I did not say the Executive alone can make up its own rules. No one argued that idea.

[Pindar]

A private sentiment that any historian worth his salt would tell you is within the bounds of the fundamentals of the constitution. No Branch should have a blank check like the Executive is getting out of this "War on Terror."

Any historian worth his salt would say: "Suffice it to say that the sweeping powers that the Executive has for this indefinately long "War" are over-the-top. Everything is too vague, and too open to interpretation"? Is that a legal opinion? If its not, and we assume all salt worthy historians would say this, why should we care?

Other than salt worthy Hurin of course.

[Pindar]

You're a lawyer, aren't you?

Yes, and I surf.

What's your legal opinion on the power that the Executive has been able to gather towards itself during this War on Terror?

What are you referring to? Be specific.

Are not the ramifications of these open-ended policies dangerous for Americans?

What open-ended policies are you thinking of?

[Papewaio]

It's an American thing, Papewaio. Goes back to the Wild West and vigilante justice. It has large dollops of Yeehaw and a generous portion of "Badges? We don't need no stinking badges!" combined with that lovable effect most clearly demonstrated in the fearful look on the faces of the local bowlegged sheep.

Ahh thats why I had an instinctive dislike of the attitude, being a Kiwi I support the sheep.