The Rule of Law Prevailed
I’m just getting off a conference call with the Center for Constitutional Rights, one of the organizations that has been pushing for Habeas at Gitmo for years. Gita Gutierrez, one of the CCR lawyers that’s been fighting this fight the longest, said of the ruling that "unambiguously, the rule of law prevailed."
Here’s some of what they believe the opinion to mean:
- The 40 to 60 people who have already been determined not to be enemy combatants will now have court assistance in finding a way and a place to be released. One of the key issues for these men is that they often come from countries like Syria where, if they were to return, they would be tortured. A number of them have petitioned to be released to third countries, in some cases where they have family. DOD has refused to consider this up until now. This ruling gives courts the ability to provide for relief to those being held even after they were determined not to be enemy combatants.
- There are roughly 260 people at Gitmo who have not received a Combat Status Review. Over a hundred have already petitioned for Habeas, and a number of those have been stayed awaiting this ruling. Some of those stays require the petitioners to restart their petition within 10 days of the ruling, so you’re going to see them move into a Habeas process within the next two weeks.
- Michael Ratner, the head of CCR, stated that he believes in many of these cases, the government will be unable to prove it has reason to detain these people–either because the evidence is tainted or because there is no evidence. So the government may be forced to release many of these men as well.
- It’s unclear where and how these Habeas petitions will be heard–so it’s an open question whether detainees will be able to come to DC to present their case.
- Carol Rosenberg, my favorite journalist covering the show trials, asked if the government will rush to charge detainees under the Military Commissions Act. Gutierrez responded that they’re really limited by whom they can charge; she put the number at around 60-80 people who they have enough evidence to charge.
Finally I asked (with McCaffrey the MilleniaLab barking in the background–oops) about whether this ruling applied to the prison at Bagram, or the floating prisons. Gutierrez stated that it’s not clear. The deciding issues for Gitmo are that the US has control over the territory of the Gitmo base, as well as complete control of the detainees. The ruling, Gutierrez said, left open that Habeas would apply to detainees held elsewhere, but does not do that explicitly. The CCR attorneys on the call did say that the ruling prevented the government from creating "law-free zones" in which they rule, but without the rule of law.
So, for 260 people rotting away at Gitmo, this is a very important ruling. And it pretty much eliminates the reason for Gitmo–the government’s attempt to create a space that was US territory not subject to US law.
We gots to get those new post is up thingys back….
Yup. I agree, I was pretty reliant on those.
They did seem to break frequently, though.
Ditto. But I repeat myself.
I’m concerned about this bit from Munaf:
Petitioners’ allegations that their transfer to Iraqi custody
is likely to result in torture are a matter of serious concern but those
allegations generally must be addressed by the political branches, not
the judiciary. The recognition that it is for the democratically elected
branches to assess practices in foreign countries and to determine national
policy in light of those assessments is nothing new. As Chief
Justice Marshall explained in the Schooner Exchange, “exemptions
from territorial jurisdiction . . . must be derived from the consent of
the sovereign of the territory” and are “rather questions of policy
than of law, . . . they are for diplomatic, rather than legal discussion.”
7 Cranch, at 143, 146. In the present cases, the Government explains
that it is the policy of the United States not to transfer an individual
in circumstances where torture is likely to result and that the State
Department has determined that the Justice Ministry—the department
which has authority over Munaf and Omar—as well as its
prison and detention facilities, have generally met internationally accepted
standards for basic prisoner needs. The judiciary is not suited
to second-guess such determinations.
Yeah. It seems to suggest against what CCR was saying about the non-enemy combatants getting help to go to a third country.
Any doubt that all branches are political were removed on December 12, 2000.
scribe posted something that warmed my heart and I sure hope we can take what he posted with this ruleing;
man I hope we can take this from the scotus decision
Any time the courts pull out Marbury v. Madison is a good day for the rule of law.
It’s in fact a day short for rule of law.
The Court sidestepped whether the current absurd military comission trials replete with taping the defense lawyer meetings with their clients, witholding discovery, using the fruit of torture questioning, and the ridiculous posture of allowing heresay evidence against these military combatants so called many of whom are held without charges is legal. They only said they can challenge the conditions of their trials and incarceration and these challenges could take years in fact.
Try thinking about it when you’re locked in your walk-in closet with no newspaper, or other reading material, and get someone who lives with you or a friend to scream 24 X7 as if they were delusional and schizophrenic or pushed into that state of mind by conditions of confinement at Gitmo or long administrative seg courtesy of your friendly US Attorneys, DOJ, and BOP that is going on in thousands of cells at 59 degrees of temperature in the DOJ/BOP in the US today. And the food you would eat is bug infested rot gut shit.
I’ve got no walk-in closet, Pete, and as a pastor I’ve met and dealt with several victims of torture.
Get off your high horse, please, and dial it back a bit.
I’m certainly not on a high horse, but like pastors doctors have to deal with the ugly results of these conditions and I’m just making it vivid for people who don’t have a clue that they are present, they happen every day, and former assistant attorneys who claim that they are against torture looked the other way when it happened to defendants in their cases, and in their collegue’s cases and sometimes litigated to promote these conditions when they had to assist the non-lawyers BOP put up to deal with those habeases, both 2255s and 2241s.
My point is that for nearly all the American public, these conditions that go on every day, including rephrehensible medical neglect in INS detention centers outsourced to profit grubbing prison companies and they go on right in the middle of Manhatten, and New Jersey within miles of a empicenter of so-called legal sophisticates.
And as to the immigration detainees, some of them are US citizens that the bumbling Chertoff DHS who has spent over one hundred thousand bucks on escort services and lengerie among other luxury items, has wrongly rounded up.
Prison conditions at Gitmo are being replicated and have been replicated for over 50 years in every state in the United States by the federal prison system, aka DOJ with full knowledge of every single Assistant USA (AUSA) that works in these systems and every single Article III judge and much of the defense bar (and all of the federal defense bar).
The AUSA’s routinely oppose and thwart the defense bar’s efforts to change these conditions, and Congress only gets engaged in it when one of their members is incarcerated and gets to do this research first hand.
Get Siegelman’s reaction to prison conditions now versus when he was governor.
I think it very unlikely that there are any CIA or DOD operated detention facilities other than GTMO that would be affected by the habeas ruling. A close reading of the history of habeas Kennedy relied upon shows that in order to be affected by this ruling, the place of detention must be:
1) outside the sovereign territory of the United States
2) under the complete control of the United States
3) under the jurisdiction of NO OTHER LAW.
Guantanamo Bay is simply the only place on earth that qualifies. The black sites run by the CIA are all inside the jurisdiction of the laws of the countries in which they reside, even if that law does not reach them as a practical matter. If prisoners are detained on the High Seas, there is a body of law that has jurisdiction, even if, again, as a practical matter that law cannot reach them.
I think that’s it, lizard, with the only way to challenge habeas for people in black sites to make the argument that the person is under complete control of the US.
Ships, though, might be an interesting question, don’t you think?
Would have to ask Captain Jack, He of the Law of the Sea, but maritime poses unique issues because there is no ascertainable “place”. I would hope you are right, and that would be the logical reason process, but…. who knows. and the second the issue got close to a head, I would envision the entire operation being shifted to a contractor vessel under a foreign flag registry.
Now that is a good question. Under US flagged vessels, or US naval vessels, there is clear law. But a detainee transported in a third-nation flaggged vessel? Just as a matter of fallible memory, I know of no precedent governing that. But today’s ruling is clear on one relevant point: If that third nation observes laws that could extend jurisdiction to the high seas, the vessel would indeed be under a jurisdiction other than US, therefor, this ruling would not (as a matter of logic, not law) apply.
Turn them over to a bunch of pirates?
I was going to comment regarding “Contractors” earlier, but work imposed its onerous burdens.
IA certainly NAL, but it would seem to me, having some experience recognizing how the Repug lizardbrain functions, that Black Site operations would be high on this Administration’s list for “privatization” via Contractors. No muss, no fuss.
Particularly useful tactics would be detainee rendition/transfer to other countries who, wink-wink, nod-nod, would themselves hire non-US based global intel/security trans-national corporations to deliver the desired “product”. No muss, no fuss.
I’m sure that many of the “No muss, No fuss” shells-for-sale countries such as reside in the Caribbean would gladly update their incorporation policies to give these corporate citizens a helping hand for a small gratuity.
Is it still the case that the Captain of a ship is essentially a law unto himself regarding matters of discipline, etc. in the ship? If so, it would be essentially impossible to cork that bottle. We might be able to close GITMO, but now that we have ships as big as half the towns in the U.S., with thousands of inhabitants, what need do we have of GITMO?
Bob in HI
Kennedy cited I believe the case of Ross a British sailor who sued over habeas and the Court found that he had been afforded an appropriate process in accordance with long accepted (maritime) law. The key here again is that the Executive can not pick a venue for the purpose of avoiding habeas. Putting detainees captured elsewhere on US ships would be the same as putting them on floating Gitmos because the US exercises full sovereignty on them. So habeas IMO would still apply.
Thanks.
So what about a place like Diego Garcia?
Bob in HI
Lots of cracks and crevices in the world. To be honest, it would depend on whether the US exercised de facto sovereignty over it and if detainees were held there to avoid the legal purview of US courts. Going back to Eisentrager, Kennedy wrote that an argument of US sovereignty over a large chunk of Germany with a population of millions just after the war when things were not at their stablest is a lot different than control by the US military of some God forsaken spect somewhere no matter who owns it, which is to say that any sovereignty claims we had in Germany were extremely conditioned and limited whereas those on what amounts to a US military base where we exercise effective and complete control are essentially the same as those in the US proper so the Constitution and its guarantees should apply IMO.
If anyone were to tell the Captain of a US Navy vessel that he was not in total control of that vessel, that person would surely find himself being used as a loofah to get the barnacles off the bottom of the boat.
Since, as I understand it, the floating prisons have been on US Navy vessels, that pretty much ends the discussion. The only reason we haven’t been able to get a court hearing on it, is the detainees are so thoroughly controlled – and hidden – on the prison ships that they can’t get near a lawyer.
All true, which makes me wonder how the interrogation of the detainees on these ships are being handled. If the CIA has a role, that’s got to make for some very awkward conversations. “You own the ship, but we own the prisoners” says the CIA, to which the Captain says “OK, get your GD prisoners off my vessel.”
And as I hear things from today’s rulings, SCOTUS is saying to them both “And we decide what the law is.”
Well, I guess that takes care of that then; we are all done here eh?
Well said. US Navy vessels, ipso facto, would be under the sovereign control of the United States Government. Foreign flag vessels are different. The lines through which jurisdiction would extend, no doubt, have been analyzed by John Yoo clones. Such vessels, if used, would be contracted for via the route least likely to convey jurisdiction.
If chartered by the USG or an entity acting on its behalf, then jurisdiction would easily follow. The charter, there are various kinds, usally puts the charterer in command of the vessel, sometimes distinguishing between such things as maneuvering at sea from where the vessel goes and what it does, eg, research, transport, etc.
If the USG or its contractors merely arranges for “services” to be performed by third parties, it creates the same gaps intentionally created by CheneyBush in using mercenaries in Iraq. The contracts for their services, to my knowledge, are still classified. They almost certainly, by design, do not impose on the contractor the limitations the law imposes on the US Government. That places those who encounter the mercenary in legal limbo. The intent would appear to be expressly to avoid liability for the mercenary and for the Government to evade lawful restrictions on its conduct.
Congress has abjectly failed to address the legal and moral chaso generated by this kind of outsourcing. These mercenaries – or prison boat operators (one thinks of the many prisons now owned or operated “privately” here in the US – the world’s record holder in prison population) – are acting as government agents. They act by and for the government, performing a governmental function. Congress ought to require that they be explicitly subject to the same limitations as if the government were acting directly. Otherwise, it’s a “OO” license to kill, maim and torture in the name of the good people of the United States. But without telling them about it. Like Junya hoping that if he closes the garage door, mom won’t notice he totaled the car again.
That reading is the same one I take away from the other decision handed down today: 2 US citizens in Iraq don’t seem to get the US to stick up for them because Iraq is only partially under our control. I take that to mean that goes for Afghanistan as well. NAL. I hope our foreign aid workers like Sarah Chayers in country will be made aware of this ruling
Today is a good day, Marcy.
I did not mean to say that people in the black sites were lawfully detained, just that they are unlawfully held on the face of the matter, habeas notwithstanding. Habeas wouldn’t even be reached (if only we knew who, where and when) because they are clearly being held unlawfully and without ANY process at all. Hopefully, in some post-election world, there will be long prison sentences for those who ordered, carried out and concealed such detentions.
Admiralty Law covers detention on the high seas, and habeas, without a doubt, applies.
Have you scanned Munaf v. Geren? I have to start work on something I have to get out this morning, so no time to read it and Boumediene in depth, but per @10 above, there are ways around that. Probably a lot more too if the loosey goosey view of Munaf is going to be the way it is.
I don’t know if any of them would like to, but they should be able to live in the USA-with help for education/training/job searches-if they choose to.
For those inclined to scoff, remember George Washington’s treatment of Hessian prisoners after Trenton (and other times) – they were treated well, paroled and many of them became exemplary citizens.
The MCA trials are still vibrant and alive after Boumediene and the conference call may not have emphasized that.
Boumediene simply extended habeas writs to these enemy combatants and of course their lawyers will use Article I Section 9 and challenge the ex post facto ramnifications of the egregious conduct of this administration at Gitmo (and possibly other venues although many of them are rendered sites and hidden). Cheney and Addington and their puppy dog Bush, have long subscribed to the fact that if you hide the activity, and lawyers don’t have access to potential clients, it’s hard to challenge conduct and conditions.
It depends on whether the Congress does anything about them who may well not because there is habeas extended, and as they have done twice in the past the Congress could just leapfrog this opinion and pass another MCA, although the MCA was passed along party lines last time.
No, the conference call addressed that. There are some options opened up with this, though not as many, particularly in the case of KSM and friends who are anxious to be martyrs.
This is the Cinco de Mayo for Bush.
He lost the war with Boumediene, but KSM and 2 others are in the bag without lawyers.
Their conviction will be the parting Gift to the GOP, afer fucking up pretty much everything else for 8 years.
So now another blow-back/unknown consequences scenario develops: Released prisoners become recruiting poster boys for Al Qaeda and/or are so personally affronted by the treatment received from US, they turn to radical groups to attack US as revenge. Our Regime, the gift that keeps giving!
One interesting thing about Kennedy’s opinion is a rather obvious (to me, anyway) attempt to placate Scalia, possibly in a vain attempt to get his concurrence. In oral argument, Scalia was quite combative in his declarations that there was no case in US or English history in which the Writ has issued under analogous circumstances. His argument was obviously flawed, in that to make it, he had to ignore several relevant cases, as was pointed out in argument, for which he had no reply. Kennedy spent a huge portion of this opinion saying that Scalia was, in fact, correct. This is interesting because it MIGHT indicate that at some point, Scalia’s vote was in play. If that is true, Bush’s dictatorial policies are in serious trouble. Ego plays a large part in Scalia’s jurisprudence, and he couldnt back down in this case, but perhaps he is beginning to feel some outrage at Bush’s plainly tyrannical policies. Or perhaps I am just looking for reasons to rejoice.
The best way to put Bush’s policies in trouble is to get black voters registered period. There are a half million of them not registered in a number of southern states with less than a week to go.
Amen to that.
via CNN, a quick blurb I’m not sure I heard correctly- bush just said (not moving his frozen upper lip) that he’d entertain new legislation on gitmo
Would it kill the guy to entertain existing law??? Jeebus, just because he doesn’t like our current laws doesn’t mean he can demand new ones to suit his Little Emperor Tantrums.
If he entertains existing law, he is going to go to jail after he is out of office (barring self-pardons)
The one person Bush can’t pardon is himself.
Of course, he could pardon Cheney, then resign on Jan 19th, and have Cheney pardon him before noon on the 20th . . .
You are incorrect as a matter of law. Bush can indeed pardon himself for any criminal transgression. The only restriction placed on his ability to pardon himself is in the case of an impeachment proceeding.
The pardon power is in all other respects an absolute and unreviewable power.
If the House were to bring impeachment charges against Bush and Cheney simultaneously and soon such that all pardons were off-the-table (so to speak), then maybe some people who are currently “would-be” whistleblowers would be scared into becoming “full-blown” whistleblowers. (You know, notice that their asses were on fire.)
That would certainly prevent the use of the pardon power, but only with regard to himself and Cheney. he could still, until convicted in the senate, pardon anybody else he chose to.
Archibald Cox, while prosecuting Nixon, commissioned a study asking this very question. It was the unanimous opinion of the scholars queried that a president can pardon himself until impeached, and pardon anyone else until convicted and removed.
scratch that. It was Leon Jaworski, not archibald cox. Sorry.
I thought Jaworski considered and rejected the idea of challenging Ford’s pardon of Nixon, not the idea of whether Nixon could pardon Nixon.
From “Pardon me, America – question of President Bill Clinton obtaining a pardon” in Insight on the News, Oct 26, 1998 by John Elvin:
That said, IANAL, and you may be right about whether a president can pardon him/herself.
Politically speaking, though, I can think of no faster way to get an amendment to the constitution passed that would restrict or eliminate the power to pardon than for Bush to give himself a pardon on the way out the door.
The Jaworski study I mentioned came far before the Ford pardon, and was instigated by the debate over whether it was possible to indict a sitting president. That question remained unresolved, and Jaworski determined that it would be pointless, because a self-pardon would inevitably result should he indict absent an impeachment. He solved his dilemma by naming Nixon an unindicted co-conspirator.
Got a link for that?
All I’m coming up with is that Jaworski saw potential problems in indicting a sitting president (as opposed to having the House pursue impeachment) and thus pushed for having Nixon named as an “unindicted co-conspirator” rather than asking for Nixon’s indictment.
Not at present, but I am trying to remember where I read it. I should have said I am doing this from fallible memory and don’t have it in front of me, but I am looking.
Don’t have time to read through everything to see if this has been found, but, here’s Clinton’s OLC version which relied in part on Robert Bork
http://www.usdoj.gov/olc/sitting_president.htm
Here, Mark Levin (Rush Limbaugh’s legal adviser) argued that a sitting President could be indicted
http://www.geocities.com/Capit…../Rush.html [scroll down]
And btw the Grand Jury was chomping at the bit to indict Nixon and yes, it was Jaworski who held back on it
Levin may be the Limp one’s “legal advisor”, but it says all you need to know about his skills that the Limp one went running at full speed to Roy Black when there were chips on the table. Nuff said.
Thanks for that link, I hadn’t read that one. My expertise is pretty much limited to Nixon. It certainly expands on the problems with indicting a sitting prez.
What? You think Starr wouldn’t have indicted Clinton if there was any way in hell he could??
It should be noted, however, that an impeachment is NOT a criminal proceeding. A sitting president could pardon himself, and STILL be impeached later for the conduct for which he had previously pardoned himself. An impeachable offense need not be criminal, and a pardon cannot immunize against civil proceedings.
Right back at ya; I think that is exactly right. I would like to make clear to one and all that there is scant clear and on point authority on this, it all comes mostly from extrapolations of general opinions (most quite old), position papers and legislative history from the founders and others such as the Federalist Papers, Publius, etc.
Since I’m just a fuzzy thinker, NAL, I’m sort of relying on the cumulative effect of all the legal setbacks and scandals over GTMO (and we’ve had a building succession of them just the last few months). I’m hoping that some people are starting to feel a little nervous at the thought of being boy or girl defendants at a war-crimes trial. The violations of international law are pretty clear, but when American judges start slapping hands, I’d think that more and more people would be realizing that collaboration or rationalization had become maybe not such a good idea.
man, I can’t stand that word, “whistleblower” is a perjurative, it has the same negative conjecture as “rat fink”
I want to change the “whistleblower law” to “watchdog protection”
bing
I disagree. Whistleblower conjures up images of grade school crossing guards that keep kids and drivers alert to each other or referees letting players and spectators alike know about infractions. It is an honorable term as far as I am concerned. Someone who is blowing a whistle does so to get my attention and almost always for my benefit. That suits me fine.
While one opinion may be as valuable as another, I think that the idea of a Presidential self-pardon is merely untested theory with no precedent to support it.
And secondly, I suspect that should such a Presidential self-pardon ever arise, it would face likely bi-partisan opposition from not only the Congressional branch of our Government, but unassailable opposition from the Judical branch.
Simply put, there ain’t no way we’ll ever allow criminals to pardon themselves for their crimes.
Feel free to disagree, but I foresee no circumstances under a rational US politcal system that could ever countenance such dishonor.
As a matter of politics, I think in the next seven months you will be proven wrong. But that is, of course, opinion. Bush is already so unpopular that he cannot possibly be worried that he would be badly thouoght-of for doing it. All he has to do is DARE to do it, and can you doubt that he dares to do anything after the last seven years?
As a matter of law, once done, a self pardon is unreviewable. Nobody has standing to challenge it, and no law or precedent exists as a basis for negating it.
It would take a constitutional amendment to alter, in any way, this power.
I regret that that’s probably right. The President’s power to pardon, unlike many other powers the President claims he can infer from Article II, is express and unlimited. This Supreme Court is unlikely to challenge him on it, though Kennedy’s vote is less assured than Roberts’ or Alito’s.
The British SAS force’s motto is Who Dares, Wins. CheneyBush seemed to have adopted life-or-death, country-in-the-balance, battlefield chutzpah into routine “governing”. Taxing the rich, regulating big business and declaring that science and religion are sovereign, but only in their respective spheres, and that government should promote the one and be scrupulously neutral about the other, are about the only things these two dare not do.
I am not sure the Supreme Court COULD challenge him on it, even if they were unanimous in their desire to do so.
I disagree in that I think the S.Ct. would have jurisdiction to hear a dispute over whether a siting president could pardon his own criminal conduct. The dispute would be about the meaning of express language in the Constitution, about which they have the last word. They interpret other constitutional language all the time.
Other seemingly clear and unrestricted rights, eg the right to competent counsel and a speedy trial, rights to free speech, to assemble and petition the government, are qualified all the time. Having your lawyer asleep during trial isn’t necessarily a basis for appeal. You need a permit for many assemblies. Your right falsely to yell “Fire!” in a crowded auditorium does not mean you can do it without legal liability to the government or those injured in the resulting melee.
But you’re right, one tactic this Court might choose is to avoid hearing the case as an indirect, gutless way to affirm a presidential self-pardon.
If they were to take the case, Kennedy is not a sure vote in favor of self-pardon. The idea would certainly offend the Founding Fathers and there would be angry citations to the Federalist Papers. There’s a deep-seated abhorrence at allowing one to profit from one’s own criminal conduct. A surviving spouse normally inherits from his or her dead partner, but the law prohibits it where the survivor murdered their partner. I can only hope that this Court never has a chance to decide the issue.
My problem with your scenario is that I can’t see a path to the Supreme court. Who would bring the case? Under what theory would anybody have standing? I think that certainly, if it ever got there, the court would decide the merits, but I can’t imagine it getting there.
It is possible for the court to act on it’s own without petition, but it happens VERY rarely.
A presidential self-pardon would easily be a suitably rare case for the Court to assert jurisdiction. More likely, Congress would bring an action, or a later President’s AG, in the context of attempting to investigate or prosecute.
Practically, I agree that the odds of taking this to the S.Ct. are low. The Democrats seem to have lost their heart and their way. The Goopers have gone over to the dark side; they are too dependent on unity and self-dealing to acknowledge that the good of the people or their government could ever trump their self-interest, or their need to stay out of jail or avoid working for a living.
By which I also mean that I don’t think George W. Bush, via his Whisperer in Chief, would hesitate for a moment to pardon himself for everything. He already thinks history is on his side (conveniently, since he reads none of it). He is determined to write it in his favor and would understand his self-pardon as a “passive” acknowledgment of “history’s” judgment (conveniently removing himself as an actor).
Bush thinks that any S.Ct. decision that disobeys with him or restricts his conduct is wrongly decided. See today’s comments on Boumediene. Likewise, he thinks that Congress has no power to restrict his behavior, at least during “wartime”, which to him is everywhere, all the time.
Most daringly, a presidential self-pardon would be a great red herring, taking attention away from his possible pardons to others such as Cheney, Addington, Rove, Libby, et al. They more likely took more direct parts in his administration’s serial criminal wrongdoing; pardoning them would hide more wrongs than pardoning himself.
We strongly disagree. *g*
On what basis do you disagree?
I am not saying that this is the way things SHOULD be, I am only saying that this is the way things ARE.
If there were any sense at all in this, the pardon power would not exist at all. It’s very presence makes a mockery of the idea that nobody is above the law.
Common sense would suffice.
Common sense tells me that the pardon power is a disgrace that should not exist.
Unfortunately, the law does not recognize common sense as a basis to challenge it’s precepts.
Of this too I disagree.
I believe that the pardon power should exist. It has a long and powerful history. I do however believe that it should have at least one very explicit caveat such as:
No one who is employed by the Federal government can be pardoned for any Federal crime unless a Super-Majority of both houses of Congress agree.
I would certainly agree with that. The power MUST be limited and reviewable, in order to be even slightly rational.
It will take a constitutional amendment to achieve that. If Bush pardons himself or Cheney, it just might happen. Not in time to nullify the offending pardon, but at least to make sure it never happens again.
But I am old. I remember thinking exactly the same thing after Ford pardoned Nixon.
I believe you just needed a few minutes to rant, and that is something I myself and many others have partaken of here.
I don’t believe you are willing to surrender. If you were, you wouldn’t get out of bed in the morning, and you certainly wouldn’t bother to come here.
So my friend, take heart from a curious fact that even that lying crook himself, Tricky Dick dared not to test the legal envelope by pardoning himself. And he had to know that he was particularly vulnerable to prosecution.
Will Junya try? Part of me would love him to try, but I don’t think he will.
I think he and Deadeye will ride off into the sunset because they believe (with good reason) no one will have the cojones to come after them.
I hope they’re wrong, but I suspect they’re not. I would personally love to see the next Administration’s posse round these two criminals up and ride ‘em back into town hogtied and draped over their saddles.
In my dreams I suppose. *g*
There are literally hundreds of crimes they can be prosecuted for, and under a new administration, will be prosecuted for. Absent pardons, I believe they are both penitentiary-bound, and I believe they know it. I hope they are counting on pardons, because their only other possible escape is a coup, or a stolen election, neither of which is beyond them.
Read the tapes transcripts. Nixon went to his grave believing himself to be innocent of any serious crime. Further, when prosecution was discussed with him, his response was that a lot of good writing was done in jail.
Ego was the only thing that prevented Nixon from a self-pardon. Fear of consequences had nothing to do with it.
I am sorry I gave you the impression that I was ranting. I was not advocating a position at all, but trying to clarify the state of the law regarding impeachment.
My rants are usually filled with expletives that are better deleted.
Couldn’t resist the free association with Conrad Black, who is apparently doing well in jail. He’s teaching a seminar in American history that has drawn so many inmates and staff that it was moved to a larger venue. By the time he’s finished his sentence, he’ll probably own the place. Sociopathology is interesting.
Oh, that’s just swell.
A Shock Doctrinaire indoctrinating the weak-minded into the precepts of disaster capitalism, framed in American history.
This guy should be kept in something shy of isolation.
Call it “Texas justice” or “small town justice”; either is enough to make clear why the pardon power exists at the state and federal level. Ironically, it rests on the belief that good always has the potential to undo a past bad act. But it’s an aspiration, not a fact.
At the state level, it makes some sense. Even at the federal level, if suitably encumbered by conditions.
What should not exist, in my opinion, is the ABSOLUTE power.
“Feel free to disagree, but I foresee no circumstances under a rational US politcal system that could ever countenance such dishonor.”
Why on earth would you think the U.S. Political system is RATIONAL?
Nobody needs to countenance it. Nobody needs to ratify it, nobody needs to agree with it. It is an unrestricted power. He doesn’t need any approval, no court needs to pass on it. he can do it alone, by himself, with no input from anybody else. he can do it regardless of whether ANY other power says yea or nay.
Hmmm…perhaps I agree with the EW’s title of this very post: “The Rule of Law Prevailed”.
Perhaps I believe that reason has not vanished from the citizenry of this country.
Perhaps I believe.
Why is that? And why not change that law? All powerful pardon abilities = kingdom not a Democracy. Is this the way it is in Canada?
Art. II Sec. 2 of the Constitution states, in part, that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
He can even pardon himself for crimes that he has not yet been accused of. And I suspect he will do just that before he leaves office, because if he does not, he will certainly go to jail.
Well, no, because international war crimes don’t kill people as punishment. But he does have big disincentives to actually abiding by rule of law, seeing as how he’s broken it so much.
LOL — good point : ) Bush should be relieved that the rest of the civilized world is not so fond of capital punishment as he is.
Perhaps trying to forestall the habeas hearings?
Please gawd, don’t let Reid and Pelosi bite on that.
Given their knack for snatching defeat from the jaws of victory, I wouldn’t hold my breath on that front. I’m sure Steny is already hard at work looking for a “compromise” with SCOTUS that involves retroactively removing habeus from the Magna Carta and all subsequent legislation ; )
My guess is they have seen this coming and have some more asinine BS legislation of their desire prepped and ready to roll.
How about new legislation closing GITMO in 30 days?
Heh.
Bob in HI
What is the difference between a political prisoner and an enemy combatant? If the US bribed an Iraci to disclose the names of known Al Quida opperatives and they turned out to be just basic Sunni rebels with no Alqueda connection, how would you catagorize them? Political prisoner or enemy combatant.
I have run across more than a few people on the blogs who believe that if Obama get’s behind impeachment it will cost him the election. I have had several of these folks tell me that Obama is against impeachment. Have any of you seen any such evidence of this?? And is do any of you who are big supporters of Obama share this concern?
Just wondering…and wanting to see an impeachment process for bush/cheney with Obama’s support. For some reason, I have been assuming this was part of the ‘change’ to come.
Many people are terrified that trying to impeach Bush will have the same disastrous blowback that the Clinton impeachment attempt had. I haven’t heard Obama say anything either way, but his silence pretty much puts him in that camp as far as I am concerned.
I think this fear is completely unfounded, but getting dedicated pols to unlearn erroneous lessons is tilting at windmills. They are all risk-averse.
I think you folks are making a very common mistake as to the relation of impeachment power with that of the pardon power. A president such as Bush could not stop, nor obviate, an impeachment through the use of a pardon; whether the subject was himself or another governmental officer. However, the initiation, indeed likely the conviction upon, of impeachment proceedings doesn’t necessarily obviate the ability to utilize the full power of pardon as to traditional crimes and offenses (and the attendant incarceration therefore). As far as I have ever been able to ascertain, what I just described is the case; i.e. the impeachment action itself cannot be pardoned away, but everything else can be as it would otherwise be.
That is exactly correct, I think. There is a view (a distinctly minority view) that the restriction on the pardon power relates ONLY to a self-pardon, and that a sitting president could pardon another officer after that officer has been impeached. This view is based on english law from whence the power ultimately derives. But it has never happened in the U.S.
As noted above, Bush intends to try to write new legislation. Or, in other words, stall some more and ignore the decision for now.
Says Bush…
Dover coffins don’t even protect a body from decay. 42,000 or so people who lost limbs or are quads from this country and a few hundred thousand Iraqis dead and a couple hundred thousand who have lost limbs or quads don’t look like protection.
The cascade of obstacles for them to get care is further Bush management chaos in action.
Hey, that’s what I said about another 5-4 decision.
There you go, again, trying to be consistent. Bush is feeding raw meat to the Base. S. Ct. decisions by a bare “liberal” majority are morally invalid, acts of judicial legislation and activism, and can be “safely ignored” by the faithful who serve the king. Similar decisions by the “correct” majority are wholly valid and should be venerated as acts of judicial restraint.
Hypocrisy, not unknown to Democratic “leaders”, is still the GOP’s defining characteristic.
“A conservative government is organized hypocrisy.” Benjamin Disraeli
Rezko claims Fitz pressured him to falsely implicate Obama:
http://www.dailykos.com/story/…..188/534772
Rezko is obviously not a reliable source for anything, but I’ve had a deep mistrust for Fitz (his sainthood notwithstanding) every since that black day in December when the grinch stole Fitzmas.
Here is what our glorious
leaderpimple has to say about Boumediene:Bush is an ignorant freaking tool. If he believes that four Supreme Court Justices are basing their decisions on national security instead of the Constitution and law, he should be demanding their impeachment and removal on the spot. The jackass really does think the constitution is “just a piece of paper”.
I think it is worse than that, Bush really doesn’t believe he is accountable to anyone, not even SCOTUS. So, since they didn’t let him have his way, he’s going to pretend demanding new legislation means he doesn’t have to obey the court’s ruling.
““We’ll do this with this in mind — to determine whether or not additional legislation might be appropriate so we can safely say to the American people, ‘We’re doing everything we can to protect you.’”
“We’ll look at it and make something up to cover our butts.” or…
We’ll look at it and make up some pixie dust, and then we’ll tell the American people we took care of SCOTUS’s stupid ruling….
Bush is a bonehead.
This is a silly discussion. If there is not enough fortitude to impeach the clowns, what makes you think there will ever be criminal charges prosecuted in the United States? I see no reason for him to fear any such thing; and if it ever did happen, the craven complicity of the Congress in enacting the various love poem bits of legislation to Bush that they have is more than enough to cause reasonable doubt. Just my opinion, but it is impeachment (whether while Bush and Cheney are in office or after they leave) or nothing.
Has anybody seen this excellent new tool? A veritable one-stop shop…!
Hadn’t seen that particular SCOTUS Wiki entry before, so many thanks!
One thing that has yet to be mentioned here: Conditions of detention can be relevant to a habeas inquiry. What that means is that we are likely to get a LOT of info about interrogations and torture in federal court, or see a lot of prisoners ordered released because the gov. refuses to answer relevant questions. We may even see the gov. held in contempt for refusing to answer questins relating to conditions of detention. Brownback was just fired for insisting on this very thing in the Commissions. This is a blow to the secrecy of the conditions under which these prisoners have been kept.
me likey your post big time
You would think so; of course, they could all get assigned en masse to Bates and Leon, so who knows what standards will maintain.
Excellent point. One would think being repeatedly tortured might lead to a court to conclude that continued detention would be unlawful. It would also lead straight back to the White House, which admits, at least for certain detainees, determining specific torture techniques. They would deny that any of them constituted “torture”, but then they don’t want to go to prison, they deny that any military base could be called “permanent” and contend that “history” will conclude that Bush was right.
What to do with all of Bush’s tortured prisoners? Bush claims no answer for that, though he seems to be looking as hard as he did for who leaked Valerie Plame’s identity, and uses it to avoid releasing his detainees. That has the benefit for Bush of reducing the clamor in the press against him. Or so he thinks.
Taking months or years more to determine where prisoners should be allowed to go, is still no excuse for keeping them imprisoned and in some cases probably, continuing to torture them. Gitmo is big enough for self-governing hostels, etc., a first step toward repatriating most of these prisoners to civil life, “normal” or otherwise.
Those very issues are why the government will back down and release these prisoners whenever they are about to enter federal court. I seriously doubt any of these torture victims will ever be allowed to testify in federal court on a habeas inquiry. They will just be released.
I continue reading the Glenn Fine report. It is interesting to study the ad hoc committees developed to make torture policy, and examine the interactions among those ephemeral entities. Thinking about the various research directions that have drawn me farther into Fine’s excellent assemblage of data, I found the following cursory presentation from the viewpoint of Jesselyn Radack, who describes (at Orange) Gonzales’ declaration that defense counsel would be barred from viewing evidence against a battlefield capture who was a US citizen. Learning that what Radack in 2002 considered torture was the adhesive taping of a militant to a plank stored days in a dark container seems mild compared to the testimony Fine gave at Feinstein’s hearing June 10, 2008, before Senator Cochran, like the audio system monitor at Gitmo, flipped the soundtrack off and declared her hearing aborted. Beginning to peruse the Munaf decision, there seemed to be a glimmer of hope Radack’s ethics complaints could receive more evaluation. But in the process of aggregating archived materials to accomplish some of my objectives in these efforts, I happened upon a fascinating history of frontier TX, as well as a congressional link to the townhall library which is the continental congress’ extant papers. I guess it is time to ask the dog to take some responsibility for this homework, so I can bring it to school intact someday, but it seems like a lot of topics now.
Off-Topic, but, FOLKS:
Activist conservative chief judge of 9th Circuit Ct of Apps Kozinski suspends obscenity trial he’s personally judging cuz He Had Porn on his own website!!!:
LA Times via tinyurl: http://tinyurl.com/6qdm7a
What’s wrong with a little porn? Kosinski is a hell of a lot better than most of CCA judges out there. Take Bybee for instance. Please.
It’s the hypocrisy that I think is just a scream. Again, right-wingers…
Kosinski has no hypocrisy on the subject though. He is pretty clearly on the record against internet/computer censorship. Has a very clear record on first amendment protection and breadth issues
You make a good point that Kozinski has been good on internet/computer censorship, and might be expected to be open and fair over-seeing a pornography trial.
I’m not so sure I would extend such compliments to him to encompass the whole 1st Amend.
I’ve read maybe 60+ of his opinions over the years, and I think he’s had some pretty high-handed rulings favoring organized religion rights vis-a-vis individuals in those sorts of cases where govt gets mixed up. But, I’m not going off to do research to support that point, or my main point, as follows.
The thing that puts a smile on my face so readily seeing Kozinski suspending a trial he’s handling because he may have conflicts is that it’s so like the rest of the intellectual dishonesty that permeates the American right wing. I call Koz an activist conservative judge because a not insignificant number of his opinions have simply not been works of conservatism or libertarianism, as he has sometimes tried to represent.
Instead, they have been typical American right-wing ends-justifies-the-means crap. The hell with precedent and legal reasoning. He gets angry, vindictive and practically tells the party whose interests he’s about to pummel that he’s got the power and he’s going to do it.
I don’t know enough to disagree with any of that, and, frankly, believe it generally correct. There are people i know, respect and trust inherently, that could not be more progressive and astute legal minds, that think Kosinski is very bright and an extremely worth judge (although that was back in the 90s, I think yesterday’s news would be frowned on, but not probably as a disqualifier). I had no problem with the few decisions of his that I had to consider for what I was doing, but they would have all been straight up crim process cases. Clearly a boneheaded move by him as to his little side interests though. I don’t know the particulars on the mechanism for the suspension of the ongoing trial, but if I were the defense, I sure as hell would not be carping and would be indicating how we trusted his judgment, fairness and impartiality and were ready to proceed. If the government moves for a mistrial, I think they have a problem (as in they are done with prejudice) because jeopardy has attached (from what I can discern anyway). I dunno, all I know is that I wouldn’t consent to any mistrial for any purpose nor to judicial substitution; at least from what I can tell.
Most of those images were from one of his sons and I get the idea he was being protective and taking the heat. Kozinski is quite a competent computer buff regularly building computers and putting servers together and he hacked computers in the Ninth Circuit before to show how easy it is.
If I’m the defense in that trial he is the last judge I want recused from my case which involves movies, because although he does lean conservatively, he is a fervent First Amendment champion.
Just came here. If it hasn’t been said before re whether this covers Bagram, Kennedy’s opinion makes clear that where habeas runs has to be decided on a case by case basis. That said, its discussion of Eisentrager pointed out that there the US did not have full sovereignty, was acting not in its own right but as one of the Four Powers, a conviction had already been reached in a recognized tribunal where the defendants had been accorded means and opportunity to contest the charges against them. So some things are like Bagram and some are not. Overarching is the idea that some kind of review and process is necessary for detainees wherever they are.
This photo is just chilling:
http://i2.cdn.turner.com/cnn/2…..afp.gi.jpg
I did not know that the gitmo prison is actually called “Camp Justice”.. the irony.
Haunting, yes? Rather like the gates into the German concentration camps that read, “Arbeit mach frei.”
New York Review of Books’ latest edition tackles Standard Operating Procedure, both the movie and book by Errol Morris (book with Phillip Gourevitch). I wonder whether we cannot begin to prosecute now, finding some venue by which we can try the beasts, so that evidence can be produced that can eventually be used to prosecute higher up the food chain while truly obtaining buy-in on impeachment. Rumsfeld, for example, is no longer an official part of the administration; why can we not look for a venue in which to tackle this motherf*cker who actually asked why it couldn’t detainees could not be forced to stand 8 hours, asking in such a way that it became standard operating procedure.
Occasionally there is some mention of the Law of Admiralty. I had wondered if part of Goldsmith’s personal utility was design of the flotilla element, possibly the Gitmo idea. In the Esquire unedited transcript, Yoo clearly had some fascination with the repositories of unilateral autocracy in seams between international laws. And beside boats, there continue to be articles about whether an accurate census of who even is at Gitmo has been published. AP has piloted thru that haze. Consider this report from May 2008 wherein AP is protagonist seeking a full list of prisoners at gitmo; it turns out to be a nuanced tale. Part of the story for some prisoners has been UK citizenship, consider this fable from Leigh Day, also May 2008. HumanRightsFirst has a 180pp global whitepaper with some interesting pages on US terra detainees, published May2008.
I was so disgusted by the Clinton impeachment I stayed away. Didn’t follow it, didn’t read about it, avoided it on the tube, and tried as hard as I could to deny it was even happening.
Fast drive by – the slimmest of threads, but a thread nonetheless. Thanks to the serendipity of Bismullah (sp?) and the courage of Davis on the fact front.
I haven’t read opinion or much else, but I did catch a McClatchey short story on Graham. He thinks he’ll introduce a Constitutional amendment. Maybe he can tack it on to Hillary’s flagburning amendment.
Oh, and he’s been telling people for a year that his crowning glory as a legislator is his MCA drafting. His crowning glory – drafting an unconstitutional and “inadequate” Act. Boo-yah.
Non-sequitor but not –
http://www.nytimes.com/2008/06…..ref=slogin
This was an interesting piece from a couple of days back and if you look at it in connection with things like the Penquin revolt in Pakistan, one thing you do see is a commonality of a desire for a rule of law – something Scalia, Bush et al think a government should be bound by ONLY with respect to its own citizenry and even then, not much.
From the article:
If only there was a video that captured the non-sequitur nature of the Roberts-Scalia torture view. Oh wait, there might be: The Epitome Of Non-Sequiturism by two original masters of surreality.
Not only that, there’s this too
Venezuela’s Hugo Chavez to revoke spying law
http://www.latimes.com/news/na…..?track=rss
Screwed those quotes – sorry.
On jurisdictions – olde time outlawry involved someone who deliberately defied a court’s jurisdiction over themselves and their crimes and who removed themselves from the court’s reach and juriscition to avoid process issued for their bad acts.
A deliberate act to place themselves where they would not have to be amenable to the court’s jurisdiction – and the court’s had a response. The courts stuck with their very definite ideas of jurisdiction, but declared that the persons who deliberately sought to evade their reach was now an “outlaw.
The effect of that writ was that the law could not be used to protect them in any way and those who helped them in any way were guilty of a crime. Once someone was declared by the courts to be an outlaw, then no one could be held liable or responsible at law for anything they did to the outlaw.
I’m not saying that the whole of the Bush administration and Bush DOJ that have sought to evade the application of law should be deemed to be outlaws, or that discussions and memos and plans on how to commit crimes while putting themselves outside the reach of the courts should be deemed acts of outlawry, or that it would be appropriate to endorse a response that would be equivalent to requiring that they “suffer a form of civil or social death“
OTOH, I’m not saying it’s not. Normally I don’t look with fondness on a failure of law, but I have to admit that when you have a cartel who have so subverted and perverted the institutions they took oaths to defend as to set up torture chambers with deliberate forethought into how to make a claim that they were not subject to legal process, I’m not sure I disagree with the older rationale.
Loved Scalia’s dissent: “It will almost certainly cause more Americans to be killed.”
Can these people do ANYTHING that isn’t ironic? The last big Supreme Court decision that certainly caused Americans to be killed was Bush v Gore.
Yikes bmaz, I didn’t get past the eyeball thing. But there’s the Roberts/Scalia view for sure.
I just now pulled up the opinion and started from the end as I do sometimes (so I had Scalia) and I just have to, again, reiterate how thin the thread was. Scalia goes back to Breyer’s opinion in Hamdan and quotes it:
then adds his real professional snark:
Thank God for they weren’t as jokey about the fate of human trafficking victims purchased to indulbe a frat boy’s human experimentation whims, then hidden away.
Congress really did (with Graham getting some drafting credits) everything it could to aid and abett outlawry. Stevens, Souter, Ginsburg, Kennedy, Breyer – they really earned places in history with this effort.
Have you not seen Un Chien Andalou before? It is one of the most seminal bits of early film ever. It is a collaboration of Luis Bunuel and Salvador Dali. It is known among students of film as the ultimate non-sequitur film. That clip is, as far as I can tell, the first eight minutes of the 16 minute whole; I cannot find part 2. The first time I ever saw it, I was in high school and it was played in it’s entirety as the opening of a David Bowie concert when he was in the Ziggy Stardust and the Spiders From Mars phase. It is very creepy, but exquisitely captivating.
You didn’t get the strobe lights and the Clockwork Orange moog version of Beethoven’s 9th, the strip away Japanese Christmas tree ornament coat and then a stirring rendition of “Hang on to Yourself?” Sounds like there was more than one stunning beginning the repertoire.
“In the repertorie”, even.
What a wake-up present! As always, everyone else is ahead of my reading, but look at this non-headline quote from the opinion:
The key phrase here is the use of the term “nation states”. It may suggest that the idea of indefinite detainment without hearings is up for reconsideration.
What a great decision.
Do you take that to imply that any person detained subsequent to the establishment of the Karzai government and/or Coalition Provisional Authority would not be during “wars with other nation states”?
This relates to the attempts to challenge FISA spying which have been rebuffed since it’s impossible to show you’re individually a victim.
We need law which says any American citizen can challenge any behavior of THEIR government.
Whoo boy, that sounds good in principle, but the reality of such a policy might be overwhelming and disabling to the function of government
Can you preemptively pardon?
Can a president carry a pardon in his pocket for the rest of his life and be entirely free to do anything, knowing he’s already pardoned himself?
Does a pardon have to specify WHAT is being pardoned?
Would Bush be able to pardon himself, but ONLY if he specifies his illegal actions (to be pardoned)?
I can’t imagine the idea of our political system is to let someone write their own ‘get out of jail’ card.
Late, but just to confirm, yes, the President can pardon someone for federal crimes for which they have not been investigated or prosecuted or convicted. That’s pretty much what Ford did for Nixon, pre-empting the House impeachment vote, which Nixon would have lost. Odds are high he would have lost his trial in the Senate, too, and been ejected from office to face separate criminal prosecution.
Nixon’s resignation pre-empted the house impeachment vote, not Ford’s pardon. a pardon cannot be used to pre-empt an impeachment proceeding, that is, in fact, the only limit on it.
Ford’s pardon preempted the indictment of Nixon, and that is what I fear Bush will do for himself.
The moment his presidency ends, so does his pardoning power. He cannot pardon conduct that has not yet occurred. Yes, I am irony-impaired.
Right. And this isn’t quite the full and complete answer/definition either, but the conduct at least has to be known and identifiable. Sort of…
I am not sure about this, but I think it is even possible, and there is English law precedent for, a blanket pardon for offenses, known or unknown, committed by a certain person up to the present time. I hope I am wrong about that, but I think that is the way it goes.
All one really need to know about the Spiders from Mars is that “They move like tigers on Vaseline.”
Let’s not forget that many of the prisioners at Gitmo were sold to the forces that put them there.
Some may have been combatants and some may have just had the bad luck to have offended someone that wanted retribution.
The Rule of Law staggered actually despite the limited victory won by Gitanjali Gutierrez and her hardworking team at CRC.
Here is why there was a limited victory as well as here.
The only clear victory yesterday was the Celtics kicking theLaker’s ass after being down 24 points in LA.
And now the Lakers are back in Boston with the 3-1 Sisyphian task to overcome. The task of the Gitmo prisoners and CRC have about the same odds.
I love the handily recurring bu$hlerCo BS, “Do this and Americans are gonna die!”
NO Americans have died as a result of any of the reversals.
Fat Tony is a low-rent, lowbrow disgrace.
Two of the most destructive individuals to be on the Court are Nino Scalia and Renquist and I have a lot of constitutional scholarship that shares this opinion.
Testing