A Supreme Court Hamdan Guide

[A.Saturnus]

Does this mean you think an unelected Branch of the Government should be equal in power with elected Branches?

Yes. If there is a hierarchy of powers, that is not really a seperation. Balance and control between the branches requires that one is not more powerful than others. The responsibility of some may be broader than that of others, as such that the elected branch has more functions than the unelected which needs to be specific in function. But the ability of one branch to control the other may not be infringed.

[Pindar]

Yes. If there is a hierarchy of powers, that is not really a seperation. Balance and control between the branches requires that one is not more powerful than others. The responsibility of some may be broader than that of others, as such that the elected branch has more functions than the unelected which needs to be specific in function. But the ability of one branch to control the other may not be infringed.

Interesting, your view is distinct from the U.S. model whose 230 year history indicates balance and control does not require parity. Personally, I don't think a unelected Branch can justify parity.

Under the U.S. Constitution each Branch has its own purview with inherent powers. For the Judiciary it is the following, from Article III:

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.

SCOTUS' appellate jurisdiction is subject to Congressional regulation.

The Legislative Branch is considered primary because it is elected and is not reducible to a single individual.

[A.Saturnus]

Interesting, your view is distinct from the U.S. model whose 230 year history indicates balance and control does not require parity. Personally, I don't think a unelected Branch can justify parity.

The Roman Empire existed much longer than 230, yet I would argue that it's system was flawed. The US isn't a instable country, no doubt. Only one civil war in 230 years has to mean something. But that doesn't imply the system is optimal. The primary flaw that turned the Weimar Republic into the Third Reich was that the Constitution allowed elected branches too much power.

[Pindar]

The Roman Empire existed much longer than 230, yet I would argue that it's system was flawed. The US isn't a instable country, no doubt.

So you agree this statement: "Balance and control between the branches requires that one is not more powerful than others." was incorrect?

Only one civil war in 230 years has to mean something. But that doesn't imply the system is optimal.

If the system was optimal we wouldn't have Judicial Tyranny or Hilary Clinton the Senator of NY.

[Papewaio]

Pindar-san,

What would be your stance on the following scenarios:

Question 1.
Another nation did not recognise the USA and had captured US citizens. They put them in prison, but did not charge them with any crime. When a trial did come the prisoners were not allowed either a trial by jury or to be present while all evidence against them was put before the court.

Question 2.
Using the above scenario would you deem it okay as long as the rule of law was followed as established by that nation.

Question 3.
Using the above scenarios. Would you still see it as okay if the law was changed after the capture of those prisoners.

[Pindar]

Pindar-san,

What would be your stance on the following scenarios:

Question 1.
Another nation did not recognise the USA and had captured US citizens. They put them in prison, but did not charge them with any crime. When a trial did come the prisoners were not allowed either a trial by jury or to be present while all evidence against them was put before the court.

Question 2.
Using the above scenario would you deem it okay as long as the rule of law was followed as established by that nation.

Question 3.
Using the above scenarios. Would you still see it as okay if the law was changed after the capture of those prisoners.

Hello,

Is this a scenario of a Pindar Presidency where the land is then marked by fluffy clouds, fuzzy bunnies and merriment abounds? And yet (queue ominous music) in some far locale darkness and oppression remains: perhaps due to a plague of Leftism? Whether evil doer nation X recognizes the U.S. or not is not my concern. What I would need to know to more properly answer would be why were U.S. citizens captured? Is this because they were fighting in a war zone? If so, then the consequences of their actions are upon them. For example, if there were a Johnny Walker Lindh taken by his opponents: so be it, such is the life of the mercenary.

Regarding questions 2 & 3: law is fluid and subject to the polity that is its source. Some nations are more lawful, others not. To quote Bilbo Baggins: "It's a dangerous business going out your door. You step onto the road and if you don't keep your feet, there's no knowing where you might be swept off to" One should avoid lands whose legality they question.

[Pindar]

Again, incorrect. Afghanistan was and remains a sovereign nation, regardless of whether the US decides to extend diplomatic relations to it or not.

Not so, If a state is not recognized by another state then said state has no legal standing. This impacts any notion of sovereignty which is tied to authority. So goes the law.

You didn't respond to how the Taliban were the legally constituted militia, so I will assume we can dismiss that idea.

A request: Please don't sidetrack this thread by making your usual argument that only democracies are sovereign nations again. It is a radical position shared only by very few and will completely strangle the thread. The writers and signatories of the Geneva Conventions do not share your position, and I think we can have a good discussion on this issue without that red herring thrown into the mix. I'll obviate the need for such sterile excursions by removing the word 'sovereign' from my claim that 'Afghanistan was a sovereign nation'. I think we can all agree that 'Afghanistan was a nation'.

Actually my position is only governments that are amenable to the people are legitimate. Something that is illegitimate has no authority. This would impact any claimed sovereignty. We could put it this way if you like: only popular sovereignty is sovereign. Now if you claim a Taliban regime is sovereign, which I then dismantle for the absurdity it is, that is not a red herring, but a standard element of rational discourse. You have used red herring incorrectly. Further, whether others share my view is irrelevant to the veracity of the view. To assume a contrary majority opinion is somehow determinative because of its contrariness or majority is to commit a fallacy: argumentum ad populum, to then apply it to the Geneva Conventions signatories is to commit: argumentum ad verecundiam. The proper course for defending the claimed legitimacy, sovereignty etc. of autocrats or Islamo-fascist groups would be to show the error of my argument. This of course, you would fail to do, which would then leave a simple opposition of passion: such is the fate of so many Leftists, alas.

Afghanistan was a nation, but the Taliban were not the lawful government of that nation: they were an Islamo-fascist insurgency.

And yes, Afghanistan was and remains a party to the Geneva Conventions.

Afghanistan was, but not the Taliban.

The Taliban clearly fall under Article 4 of the Geneva Convention as 'members of the armed forces of a Party to the Conflict...

Did the Taliban have uniforms distinguishing them as combatants?

[Papewaio]

Hi Pindar,

The reason I asked was because your stance interests me. For the first question your answer summed up in this nugget:

Is this because they were fighting in a war zone? If so, then the consequences of their actions are upon them.

That at least hints that you see the law applies to both equally, 'whats good for the goose is good for the gander'. Tough but fair.

Questions 2 & 3. Given the topic of 3

Using the above scenarios. Would you still see it as okay if the law was changed after the capture of those prisoners.

Your answer

One should avoid lands whose legality they question.

What is your backpackers guide to avoiding countries if the law changes and is backdated?

[A.Saturnus]

So you agree this statement: "Balance and control between the branches requires that one is not more powerful than others." was incorrect?

Define balance.

[Pindar]

Define balance.

Ahh, that's your word, not mine. I assume you mean and meant balance as a product of function.

[Pindar]

Yes, precisely for the fact that they are unelected.

Why does unelected status warrant equal standing with an elected branch of government?

As to the Geneva Convention ... I cannot tell you what to do, but call upon the moral obligations inherent in a free world. You claim moral high ground. What ground is that when you do not even allow the basic inalienable human rights to those taken prisoner in a war without international consent.

What inalienable right are you referring to?

A "moral high ground" argument would not require international consent. It would require moral high ground.

[A.Saturnus]

Ahh, that's your word, not mine. I assume you mean and meant balance as a product of function.

I asked because you seemed to implicitely equal balance with stability. Function or stability do not necessarily imply balance. Some things require imbalance to function.

Regarding questions 2 & 3: law is fluid and subject to the polity that is its source. Some nations are more lawful, others not. To quote Bilbo Baggins: "It's a dangerous business going out your door. You step onto the road and if you don't keep your feet, there's no knowing where you might be swept off to" One should avoid lands whose legality they question.

Hmm, I don't really want to interfere with that part of the discussion, but you sound like what some people here call a "moral relativist".