Judge Orders Five Detainees Freed From Guantánamo

Judge Orders Five Detainees Freed From Guantánamo
By WILLIAM GLABERSON
Published: November 20, 2008

In the first hearing on the government’s evidence for holding detainees at the Guantánamo Bay detention camp for nearly seven years, a federal judge ruled on Thursday that five prisoners were being held an unlawfully and ordered their release.

The case, involving six Algerians detained in Bosnia in 2001, was an important test of the Bush administration’s detention policies, which critics have long argued swept up innocent men and low-level foot soldiers along with high-level and hardened terrorists.

The hearings for the Algerian men, in which all evidence was heard in proceedings closed to the public, were the first in which the Justice Department presented its full justification for holding specific detainees since the Supreme Court ruled in June that the prisoners have a constitutional right to contest their imprisonment in habeas corpus suits.

Ruling from the bench, Judge Richard J. Leon of Federal District Court in Washington said that the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough in court.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” he said. He directed that the five men be released “forthwith” and urged the government not to appeal.

Judge Leon, who was appointed by President Bush, had been expected to be sympathetic to the government. In 2005, he ruled that the men had no habeas corpus rights.

The decision, lawyers said, is likely to be seen as a major judicial repudiation of the Bush administration’s effort to use the detention center at the American naval base at Guantánamo Bay, Cuba, as a way to avoid scrutiny by American judges. President-elect Barack Obama has said he will close the prison.

Lawyers for the detainees said the ruling was a vindication of their arguments for years. “The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based — slim evidence of dubious quality,” said Zachary Katznelson, legal director at Reprieve, a British legal group that represents many Guantánamo detainees. “This is a tough, no-nonsense judge.”

Because of the Bush administration’s claims that most of the evidence against the men was classified, Judge Leon ordered the entire case was to be heard in a closed courtroom after brief opening statements on Nov. 5.

The government argued that the six Algerians, who were residents of Bosnia when they were first detained in 2001, were planning to go to Afghanistan to fight the United States and that one of them was a member of Al Qaeda.

The five men who the judge ordered freed included Lakhdar Boumediene, for whom the landmark Supreme Court ruling in June was named.

It was not immediately clear whether the government would appeal, but some lawyers said they considered an appeal likely.

The one detainee Judge Leon found to be lawfully held was Bensayah Belkacem, who has been described by intelligence agencies as a leading Al Qaeda operative in Bosnia.

The case has become an example of the Bush administration’s pattern of changing legal strategy in its long legal war over Guantánamo, as the courts have scrutinized its justifications for its detention policies in general and its reasons for holding individual detainees.

In 2002, President Bush made the government’s allegations against the men a showcase of his administration’s anti-terrorism approach. He said in his state of the union address that the six men had been planning a bomb attack on the United States Embassy in Sarajevo, Bosnia. Last month, though, Department of Justice lawyers said they were no longer relying on those accusations to justify the men’s detention.

The habeas corpus cases have moved slowly despite the Supreme Court’s decision in June that directed federal judges in Washington to act quickly on the cases, after nearly seven years of detention for many of the 250 men still held in Guantánamo.

Another district court judge in Washington, Ricardo M. Urbina, ordered the release of 17 other detainees last month, all ethnic Uighurs from western China. But in that case, he did not hold a hearing on the evidence, because the government conceded that the men were not enemy combatants.

The Justice Department won a stay of Judge Urbina’s release order and is appealing it. Arguments in that case are scheduled for Monday in the United States Courts of Appeals in Washington.

Separately, this week the Justice Department filed legal motions seeking to stop more than 100 of the other Guantánamo habeas corpus cases from proceeding now, in a move that detainees lawyers said was a government effort to avoid further court scrutiny.

Department of Justice lawyers argued in motions filed Tuesday that there were flaws in the ground rules of other judges for the Guantánamo cases that would require the government, among other things, to reveal classified evidence.

Detainees’ lawyers said the ruling on Thursday by Judge Leon would indicate to other judges that they should be skeptical of the government’s efforts to delay hearings.

P. Sabin Willett, a lawyer for the Uighurs, said that Judge Leon’s decision “sends a powerful message to all the other judges to get these cases moving.”

J. Wells Dixon, a detainees’ lawyer at the Center for Constitutional Rights, said the ruling made clear that Guantánamo Bay had failed. But, he said, “Justice comes too late for these five men.”

LINK

About damn time. The human rights abuses of the Bush administration are just so....bold!

Activism!!

Bush appointee!!

I say we leave it open and throw the Bush junta in there...

I bet you'd volunteer to "guard" them, wouldn't you?

I truly believe a Gore Administration would have pursued very similar strategies regarding enemy combatants and Guantanamo. The Constitution is designed to "let" the President assume illegal powers in the areas of foreign policy and national security, at least temporarily. The Bush Administration will likely be repudiated in due course by the courts, but in the final analysis, they were able to be overly cautious and imprison several young Muslim men for 7 years. It's the president's job to do what he can to protect the American people--whether that president is Bush, or Gore, or Obama, or McCain, or Kerry, or Clinton, or whoever. The courts sort everyhthing out later, hopefully when the threat has passed or at least subsided.

Lincoln's suspension of habeas corpus comes to mind--though, in that case, Lincoln ignored the courts altogether. At least Bush honors the decisions of the courts. Also, FDR's internment of the Japanese--he was ultimately and controversially vindicated, but his justification was anything but a slam dunk; he acted anyway.

oops

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Originally Posted by doobs

I truly believe a Gore Administration would have pursued very similar strategies regarding enemy combatants and Guantanamo. The Constitution is designed to "let" the President assume illegal powers in the areas of foreign policy and national security, at least temporarily. The Bush Administration will likely be repudiated in due course by the courts, but in the final analysis, they were able to be overly cautious and imprison several young Muslim men for 7 years. It's the president's job to do what he can to protect the American people--whether that president is Bush, or Gore, or Obama, or McCain, or Kerry, or Clinton, or whoever. The courts sort everyhthing out later, hopefully when the threat has passed or at least subsided.

Lincoln's suspension of habeas corpus comes to mind--though, in that case, Lincoln ignored the courts altogether. At least Bush honors the decisions of the courts. Also, FDR's internment of the Japanese--he was ultimately and controversially vindicated, but his justification was anything but a slam dunk; he acted anyway.

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1. We are not in anything resembling the Civil War or WW II. What has BushCo asked of the American people besides spend our tax cuts?

2. It is not the President's job to do anything he can, rather to do what he can while he obeys the constitution and the laws of this country.

3. FDR's Japanese internment was vindicated? That's news to me. Do you have a link for that?

4. BushCo was right because you can fantasize Gore and Kerry doing the same thing? Justifying one's action by "everyone else is doing it" was weak to begin with, but justifying by "everyone else would have done it" is fantasy.

"I truly believe a Gore Administration would have pursued very similar strategies regarding enemy combatants and Guantanamo"

typical right-wing position, like Aggie, to smear non-right-wingers as being as bad as right-wingers.

The huge problem with the prisoners is that after 7 years, dubya still hasn't prosecuted them, lack of evidence.

It's pretty silly that these few prisoners present any threat to USA, with our kick-ass military and CIA/FBI/NSA/DHS aces on the job every second of the day (after they let the 9/11 horses out of the barn)

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Originally Posted by spurster

1. We are not in anything resembling the Civil War or WW II. What has BushCo asked of the American people besides spend our tax cuts?

2. It is not the President's job to do anything he can, rather to do what he can while he obeys the constitution and the laws of this country.

3. FDR's Japanese internment was vindicated? That's news to me. Do you have a link for that?

4. BushCo was right because you can fantasize Gore and Kerry doing the same thing? Justifying one's action by "everyone else is doing it" was weak to begin with, but justifying by "everyone else would have done it" is fantasy.

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(1) I don't understand your question. I was merely pointing out examples of presidents taking actions of questionable constitutionality to protect the American people.
(2) Not quite. If that were the case, Abraham Lincoln would not have suspended habeas corpus. In times of national emergency, surely, the president can disregard the Constitution and do what he thinks necessary to protect the country. "The Constitution is not a suicide pact."
(3) As a matter of constitutional law, FDR's actions were vindicated in Korematsu: http://en.wikipedia.org/wiki/Korematsu_v._United_States. Basically, the Court held that the government met the strict scrutiny standard for discriminating on the basis of race.
(4) I never said Bush was "right." Some executive overreach is to be expected in times of crisis, no matter who is president. I think what Bush has done is understandable given the circumstances, and I do think Gore would have acted very similarly. It's in the nature of the presidency to assert expansive powers during wartime--history bears this out. In times of relative peace and prosperity, the president can afford to be more restrained.

Using that court ruling to say FDR's use of those camps has been vindicated is pretty laughable and I'm sure since you're a lawyer you know that.

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Originally Posted by MannyIsGod

Using that court ruling to say FDR's use of those camps has been vindicated is pretty laughable and I'm sure since you're a lawyer you know that.

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You need to understand the difference between policy and law. I said "ultimately and controversially vindicated"; I was discussing the fact that presidents will do things of questionable constitutionality--or obvious unconstitutionality--in times of crisis. I never said I agreed with FDR's internment. I never said I agreed with Lincoln's suspension of habeas corpus. I never said I agreed with Bush's detention policy.

This is my point: all those actions were understandable under the circumstances, and the Constitution effectively creates a space for the President to take those actions without judicial interference. The internment of the Japanese was vindicated, as a matter of constitutional law, by the Supreme Court--even though, in my opinion, it was probbably an unconstitutional action. Even if the Court had decided that FDR's actions were unconstitutional, it's clear that the Constitution takes a VERY deferential view of presidential power and actions in times of crisis; after all, he would have already achieved his objective while the matter was being litigated.

What Bush has done over the last 7 years--regardless of whether or not it's good policy--is but one example of many in the history of our country where the President has asserted expansive powers to protect the American people. Basically, the President can do what he wants until the courts tell him not to. (bear in mind, though, he is constrained by congressional elections and the thought of re-election) And, rarely, the President tells the courts to shove it and does what he wants anyway.

While distractions like Gitmo were in progress, the US financial sector sodomized the $13T US economy.

Let's see the Gitmo prisoners and all of AQ create that kind of damage.

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Originally Posted by doobs

In times of national emergency, surely, the president can disregard the Constitution and do what he thinks necessary to protect the country. "The Constitution is not a suicide pact."

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Not quite.

US Constitution,Article I, Section 9: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Also, from Ex Parte Milligan:

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The discipline necessary to the efficiency of the army and navy required other and swifter modes of trial than are furnished by the common law courts, and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Everyone connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, {124} there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion — if the passions of men are aroused and the restraints of law weakened, if not disregarded — these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.

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Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.

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Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction.

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The suspension of the privilege of the {131} writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course, and, on the return made to it, the court decides whether the party applying is denied the right of proceeding any further with it.

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The Constitution goes no further. It does not say, after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy, by the use of direct words, to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.

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But we shall be answered that the judgment under consideration was pronounced in time of war, and it is, therefore, at least, morally excusable. There may, or there may not, be something in that. I admit that the merits or demerits of any particular act, whether it involve a violation of the Constitution or not, depend upon the motives that prompted it, the time, the occasion, and all the attending circumstances. When the people of this country come to decide upon the acts of their rulers, they will take all these things into consideration. But that presents the political aspect of the case, with which we have nothing to do here. I would only say, in order to prevent misapprehension, that I think it is precisely in a time of war and civil commotion that we should double the guards upon the Constitution. In peaceable and quiet times, our legal rights are in little danger of being overborne; but when the wave of power [71 U.S. 2, 76] lashes itself into violence and rage, and goes surging up against the barriers which were made to confine it, then we need the whole strength of an unbroken Constitution to save us from destruction.

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Originally Posted by Winehole23

Not quite.

US Constitution,Article I, Section 9: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Also, from Ex Parte Milligan:

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I think maybe I should clarify. At law, sure, the President is bound by the Constitution. No argument from me on that. The Constitution, after all, is the law of the land. I'm making a practical argument about the exercise of presidential power. In times of national emergency, a president should not agonize over constitutional niceties. That is for the courts to decide, in due course. Does anyone really doubt the extent to which our government would flout the Constitution in the event of a nuclear attack on New York and Washington?

Do you really think FDR sincerely believed that establishing the Japanese internment camps was constitutional? Or that Lincoln sincerely believed that he had the authority to suspend habeas corpus--even though the Suspension Clause is in Article I rather than Article II? Of course not. They surely had their doubts. But they persisted because they thought it was the right thing to do for the country, no matter what the Constitution said.

In a time of national emergency--given the choice between (1) not acting due to constitutional concerns, and (2) acting knowing full well that the courts may repudiate your actions--any responsible president should consider taking option (2) if he thought it was the right thing to do. In that instance, a responsible president should also honor the decisions of the courts regarding his actions.

It's better to ask forgiveness than permission, sometimes.

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Originally Posted by doobs

What Bush has done over the last 7 years--regardless of whether or not it's good policy--is but one example of many in the history of our country where the President has asserted expansive powers to protect the American people. Basically, the President can do what he wants until the courts tell him not to. (bear in mind, though, he is constrained by congressional elections and the thought of re-election) And, rarely, the President tells the courts to shove it and does what he wants anyway.

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An interesting spin on that notion with this Administration, however, has been the effort to undertake programs that would appear to infringe Constitutional rights while leaving its targets without any clear means of proving violations or establishing standing. In all of the FISA litigation, the recurrent theme is that the plaintiffs have been unable (by and large) to establish specific standing to assert claims for violations of Constitutional rights and, unlike (say) Establishment Clause claims, courts have been reluctant or unwilling to recognize broad concepts like taxpayer standing to fill the gap. In part, that's because of the sensitive information that the wiretap program is intended to collect. But it seems as though the program was developed, to some extent at least, to avoid constitutional scrutiny rather than to survive it.

I've frequently argued -- and still maintain -- that the combination of Cheney, Addington, and Yoo worked extremely hard in and around 2001 to find structural means to expand the power of the Executive beyond the Constitutional limits of that power. I still firmly believe that to be the case and find it unconscionable, no matter what the situation faced by the nation.

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Originally Posted by doobs

I think maybe I should clarify. At law, sure, the President is bound by the Constitution. No argument from me on that. The Constitution, after all, is the law of the land. I'm making a practical argument about the exercise of presidential power. In times of national emergency, a president should not agonize over constitutional niceties.

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We're only talking about one such nicety here: habeas corpus. Without it there is no effective check against arbitrary or abusive detention. The president should agonize over this, especially if the courts are open and functioning, and there is no actual threat to the civil authority.

In times of war and rebellion the president is generally given a free hand to do whatever is necessary and I have no problem with that. I do have a problem, however, to extending this deference to ill-defined emergencies, such as localized or episodic terrorist attacks which are not tantamount to war or rebellion and which do not threaten the civil power.

The broad definition of "emergency" you seem to support is contained in the 2006 Defense Authorization rewrite of Sections 333 and 334 of Insurrection Act of 1807, but was repealed in the succeeding Defense Authorization bill.

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Originally Posted by doobs

That is for the courts to decide, in due course. Does anyone really doubt the extent to which our government would flout the Constitution in the event of a nuclear attack on New York and Washington?

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No. But 9/11 and the ensuing GWOT aren't comparable to this hypthetical by a long shot.

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Originally Posted by doobs

In a time of national emergency--given the choice between (1) not acting due to constitutional concerns, and (2) acting knowing full well that the courts may repudiate your actions--any responsible president should consider taking option (2) if he thought it was the right thing to do. In that instance, a responsible president should also honor the decisions of the courts regarding his actions.

It's better to ask forgiveness than permission, sometimes.

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GWB did not honor the decisions of the Judicial Branch the other three times they slapped him down, and he probably won't this time either.

If the President is allowed to set the Constitution aside because it seems like the right thing to do, our form of government can be set aside to satisfy to meet the whim or expedience of the executive, so long as some putative emergency is claimed.

Recent history and the conservative view of human nature show it is unwise to presume the bona fides of officials, or to leave our most essential liberties at their discretion, unchecked.

Look, I think I made my point. Presidents reach, and the courts define the boundaries through the normal course of litigation and judicial review. That's just the nature of the business. Gore would have done much the same as Bush after 9/11.

And . . .

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Originally Posted by Winehole23

GWB did not honor the decisions of the Judicial Branch the other three times they slapped him down, and he probably won't this time either.

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What are you talking about?

i feel like i just went through a deposition.

Oops.

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Originally Posted by doobs

Look, I think I made my point. Presidents reach, and the courts define the boundaries through the normal course of litigation and judicial review. That's just the nature of the business. Gore would have done much the same as Bush after 9/11.

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This seems plausible, but is purely speculative. At any rate, it doesn't justify Bush.

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Originally Posted by doobs

What are you talking about?

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Hamdi, Hamdan and Boumediene. Oh, and the Uighur case too.

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Originally Posted by doobs

Look, I think I made my point. Presidents reach, and the courts define the boundaries through the normal course of litigation and judicial review. That's just the nature of the business. Gore would have done much the same as Bush after 9/11.

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Agree, but this leaves unaddressed the legal black holes created by the Patriot Act, the Terrorist Surveillance Program and the Military Commissions Act of 2006. FromWayDowntown refers to the "shadow government" below.

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Originally Posted by FromWayDowntown

An interesting spin on that notion with this Administration, however, has been the effort to undertake programs that would appear to infringe Constitutional rights while leaving its targets without any clear means of proving violations or establishing standing....I've frequently argued -- and still maintain -- that the combination of Cheney, Addington, and Yoo worked extremely hard in and around 2001 to find structural means to expand the power of the Executive beyond the Constitutional limits of that power.

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Any thoughts on this, doobs? The executive overreaching in the last two terms discloses an abiding contempt for the law of the land, not respect or adherence.

If the President does not respect the law, but flauts and skirts it instead, he does not deserve any deference from the other branches.

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Originally Posted by doobs

Look, I think I made my point. Presidents reach, and the courts define the boundaries through the normal course of litigation and judicial review. That's just the nature of the business. Gore would have done much the same as Bush after 9/11.

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Even if that might be somehow proveable, I think the ultimate point is that: (1) what has gone on is clearly beyond the scope of Presidential power; and (2) there is an extraordinarily reasonable argument that the circumstances that might have justified that excess have long ago expired.

Even if the immediate aftermath of 9/11 somehow clothed the President with some inherent power to act extra-constitutionally, the emergencies created by that event have long since ended in any meaningful sense. Government was up and running in an orderly fashion shortly thereafter and no exigency appears to have existed to sustain 7 years of conduct that finds absolutely no constitutional authorization.

As I've noted with my concerns with Cheney, Addington, and Yoo -- the latter of whom is now out of government -- there seems to have been, all along, a desire to expand Presidential power beyond its recognized constitutional limits and 9/11 has proven to be some sort of panacea for those needing a basis to argue for those extensions.

It seems to me doobs knows the case is lost, and so has fallen back on hypotheticals and broad abstractions to make what is unreasonable and excessive, appear prudent and normal.

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Originally Posted by Winehole23

It seems to me doobs knows the case is lost, and so has fallen back on hypotheticals and broad abstractions to make what is unreasonable and excessive, appear prudent and normal.

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No. You mistake me for someone who supports the Bush detention policy. I do think what Bush has done is a reasonable response to 9/11. I do think that Bush and his advisors thought long and hard about "constitutional niceties" in crafting their anti-terrorism strategies. But I also think Bush discounted the questionable constitutionality to the extent that he thought his policies were necessary. And I believe that that is what a good president should do. This is not to say that I think Bush's policies were the right ones to address the problem; I just don't think we need Hamlet to be our president.

And you're dead wrong about Bush disregarding the courts. Disregarding the courts is what Lincoln did in Ex Parte Merryman.

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Originally Posted by FromWayDowntown

Even if that might be somehow proveable, I think the ultimate point is that: (1) what has gone on is clearly beyond the scope of Presidential power; and (2) there is an extraordinarily reasonable argument that the circumstances that might have justified that excess have long ago expired.

Even if the immediate aftermath of 9/11 somehow clothed the President with some inherent power to act extra-constitutionally, the emergencies created by that event have long since ended in any meaningful sense. Government was up and running in an orderly fashion shortly thereafter and no exigency appears to have existed to sustain 7 years of conduct that finds absolutely no constitutional authorization.

As I've noted with my concerns with Cheney, Addington, and Yoo -- the latter of whom is now out of government -- there seems to have been, all along, a desire to expand Presidential power beyond its recognized constitutional limits and 9/11 has proven to be some sort of panacea for those needing a basis to argue for those extensions.

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I agree that Yoo wanted to legitimize or codify a substantial expansion of presidential power through the whole unitary executive theory. Just to be clear, that is not the argument I have made. I have been discussing the practical exercise of presidential powers outside of the constitutional framework--that is, powers informally ceded to the president without any constitutional authority.

We live in a democracy that cares about the rule of law . . . but there is no independent authority of the Constitution, it really is just a piece of paper. The Constitution--and judicial review--matters because the parties agree to acknowledge its authority. In times of crisis, or if the president has enough domestic support from the people and Congress, the Constitution is no real impediment to enacting pretty much any law.

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Originally Posted by doobs

I agree that Yoo wanted to legitimize or codify a substantial expansion of presidential power through the whole unitary executive theory. Just to be clear, that is not the argument I have made. I have been discussing the practical exercise of presidential powers outside of the constitutional framework--that is, powers informally ceded to the president without any constitutional authority.

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I think I'm starting to get you, doobs. This sounds very much like Carl Schmitt. The sovereign decides the state of the exception (to normal constitutional order). Whoever rules in the emergency has the real power.

Constitutionalism is no doubt a form of political romanticism. But I would argue the clear-eyed cynicism that seeks to debunk it leads to even worse results.

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Originally Posted by doobs

We live in a democracy that cares about the rule of law . . . but there is no independent authority of the Constitution, it really is just a piece of paper.

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This is internally contradictory, and it is contradicted by what you write below. Do the people have power or not?

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Originally Posted by doobs

The Constitution--and judicial review--matters because the parties agree to acknowledge its authority. In times of crisis, or if the president has enough domestic support from the people and Congress, the Constitution is no real impediment to enacting pretty much any law.

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If the people and the Congress support the President, that is real political legitmacy, even if the Constitution is cast aside and with it, possibly, republican government.

Of course, all of our so-called natural rights are not natural at all, but are granted to us and protected by the state. I suppose the Constitution is no real impediment to their being revoked at any time. But shouldn't it be?

I guess what I'm trying to get at is, granted that political necessity or expediency may from time to time overtake the constitution, doesn't that make it all the more important that we care about it? That the constitution is incapable of defending itself is no reason to cede to raw power.

In my mind, the political will behind our form of government is not just one contingency among others, but is a moral and political sine qua non. If we still care about our traditional rights and liberties, we can't really do without it.

Force may defeat republican will, but in that case force is its own legitimacy -- which is to say, totally illegitimate.

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Originally Posted by doobs

And you're dead wrong about Bush disregarding the courts. Disregarding the courts is what Lincoln did in Ex Parte Merryman.

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What Lincoln did is tangential. Did Bush conform to the law after Hamdan? No. Instead, the MCA of 2006 was drafted to make the law conform to the Bush policies of indefinite detention and torture, enforceability for Geneva Common Article 3 was gutted, and detainees were denied habeas to prevent discovery. If that's not contempt for the law I don't know what is.

Anyway, characterizing Bush's contemptuous refusal to abide the four judgments I cited as respect for the rule of law strains credulity. Are you familiar with the cases or their aftermath? Your fiat denial cuts no ice with me, and your Prince of Denmark strawman is merely absurd.

Your posts do not disclose much in the way of factual detail, and in the thread you seem more at pains to avoid questions that are put to you than to answer them. This hurts your persuasiveness, despite your considerable rhetorical facility.

Anyway, thanks for your reply, doobs. I look forward to the next time.

WH23

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Originally Posted by Winehole23

What Lincoln did is tangential. Did Bush conform to the law after Hamdan? No. Instead, the MCA of 2006 was drafted to make the law conform to the Bush policies of indefinite detention and torture, and detainees were denied habeas to prevent discovery. If that's not contempt for the law I don't know what is.

Anyway, characterizing Bush's contemptuous refusal to abide the four judgments I cited as respect for the rule of law strains credulity. Are you familiar with the cases or their aftermath? Your fiat denial cuts no ice with me, and your Prince of Denmark strawman is merely absurd.

Your posts do not disclose much in the way of factual detail, and in the thread you seem more at pains to avoid questions that are put to you than to answer them. This hurts your persuasiveness, despite your considerable rhetorical facility.

Anyway, thanks for your reply, doobs. I look forward to the next time.

WH23

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Nice try.

This administration has had a complete disregard for the law and the Constitution. It took the NY Times disclosing the NSA wiretap program for this administration to have it run by Congress under FISA once again. Their complete blocking of any investigation on the DA firings is another gem. Then you have Gonzalez trying to explain with a straight face that the Habeas Corpus right is not intrinsically afforded by the Constitution. You have an absolute misuse of National Security Letters by the FBI, as reported by the GAO. You have Gitmo and the suspension of Habeas for over 5 years, for a bunch of people there that should not been there at all once a court of law reviewed the evidence, yet the government keeps on appealing these cases.
I certainly don't remember more somber times for our Constitution while the Judicial was working fully. There's no justification for so much opaqueness and secrecy that this administration pursued.
I'll certainly remember them for shitting on the Constitution when they're gone. And they can't be gone soon enough.

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Originally Posted by doobs

I agree that Yoo wanted to legitimize or codify a substantial expansion of presidential power through the whole unitary executive theory.

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Frankly, I don't think that was Yoo's idea at all. I think the idea was concocted by Addington (as a proxy for Cheney) and Yoo was their man on the inside at OLC to make things happen without direct White House involvment. Yoo's a pawn in the unitary executive push -- a willing one, but a pawn nonetheless.

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Originally Posted by doobs

Just to be clear, that is not the argument I have made. I have been discussing the practical exercise of presidential powers outside of the constitutional framework--that is, powers informally ceded to the president without any constitutional authority.

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I understand the distinction you make, but I think that the practical credibility of that specific argument is undone by the notion that some emergency persists 7 years after 9/11 that warrants extra-constitutional actions by the Executive. I suppose, in the end, that while I don't agree with your basic premise as a matter of constitutional virtue, I can see it's application in certain moments as a matter of constitutional pragmatism. But the moment for that approach to the Constitution has passed -- long ago -- for this President; at bottom, his policies vis-a-vis the GWOT are downright disdainful of the constitutional limits on his office and the policies that emanate therefrom. You and I, I suppose, have a fundamental disagreement about that point.

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Originally Posted by doobs

We live in a democracy that cares about the rule of law . . . but there is no independent authority of the Constitution, it really is just a piece of paper. The Constitution--and judicial review--matters because the parties agree to acknowledge its authority. In times of crisis, or if the president has enough domestic support from the people and Congress, the Constitution is no real impediment to enacting pretty much any law.

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To the extent that you're saying that we exist as a Constitutional republic at the whim of our leaders -- who are responsive at some level to the electorate -- I can't disagree with you. But I fundamentally believe that our society continues to function because we choose, at all times, to be bound by the Constitution. You're right in citing to the platitude that our Constitution is not a suicide pact; but with that said, the Constitution also cannot function if it is easily disregarded as "just a piece of paper." What primarily threatens the latter is the choice of elected officials to cite exigency, whether one exists or not, as a basis to ignore the fundamental rights that the Constution protects.

Here, there's nothing to suggest to me that any exigency still exists to support disregard of fundamental constitutional principles. Given that, I'm left with a President whose administration has simply chosen to act extra-constitutionally under the guise of an emergency that no longer exists -- i.e., an administration that chooses to see the Constitution as a non-limiting document instead of a clear guideline to constrain its conduct and policies.

That view, I think, is corroborated by the two other things that I've noted in this thread: (1) the efforts by Addington and Cheney (through Yoo, in some circumstances) to vastly expand Presidential power; and (2) the careful crafting of policies and orders to deprive those affected by them of any means to establish standing to challenge those efforts.