GOP Nominee
Former Candidates
By Mike DeVine, Legal Editor for The Minority Report and The HinzSight Report
_________________________________________________________________________________
Today’s infamous 5-4 decision by the U.S. Supreme Court granting terrorists the right to an O.J. trial in U.S. civilian courts cries out for the present Chief Executive to so paraphrase Old Hickory’s similar defiance of John Marshall 176 years ago with respect to removal of the Cherokee from Georgia.
“John Marshall has made his decision; now let him enforce it.”
The nation survived President Andrew Jackson’s defense of his constitutional executive powers against the first Judicial Oligarch. Should President Bush succumb to Justice Kennedy’s attempted coup to assume the role of Commander in Chief, it will be much harder for our nation to survive, much less thrive, as it has since 1832.
The ruling granting illegal enemy combatants held at the U.S. military base at Guantanamo Bay, Cuba stands millenia of war law, America military history from George Washington forward, the Geneva Convention, and, common sense on their heads.
The people being held at Gitmo are illegal enemy combatants as opposed to legal POWs. The court waxes ad nauseum about the irrelevance of the fact that the base is not on America soil. I agree. We held hundreds of thousands of legal Japanese and German POWs in the Lower Forty-Eight during WWII, and none were allowed access to U.S. courts.
The court speaks of the length of the “open-ended” detentions. But no one knew in 1944 that WWII would not last as long as the Thirty Years War or the even longer Peloponnesian Wars in Europe in earlier centuries. Thucydides, the author of the acclaimed history of the latter was himself a prisoner of war for much longer than the first terrorist admitted to Gitmo.
Captured combatants are held until the end of the conflict so as to prevent them from returning to the battlefield (see New York, Afghanistan or Iraq). Additionally, they may be charged with war crimes and serve a prison term or be executed. Even in the latter case, such trials have always been held by military tribunals, beginning under General Washington in 1776.
General Washington also not infrequently applied the war law that has always allowed illegal enemy combatants operating among civilian populations to be shot on site or summarily executed.
One of the main purposes of the Geneva Conventions was to discourage operations among civilians by granting rights to legal POWs, specifically denying same to terrorists.
The fact is that when a nation wages war, the Commander in Chief gathers intel on and directs operations against the enemy. He does not ask a court’s permission to target and kill particular combatants.
The Constitution was a compromise weighing rights of personal freedom and security between the police and the citizenry. Its application to enemies of the State is an abomination, and one that President Bush is duty bound to defy in order to uphold his Oath.
Supreme Court justices are not the only ones to take oaths to uphold the Constitution and they are not the final arbiters of same. We the People are.
President Bush, be one man with courage and you will make a majority. Lay down the gauntlet for the Dem Congress to impeach you so Osama bin Laden’s chauffeur can be tried in front of Judge Ito like a former Avis commercial and Buffalo Bills star turned murderer.
I have no doubt they will blink on that, just as they have on owning defeat since the November 2006 election. They won Congress but haven’t had the guts to de-fund the troops. Think they want people that would cut off their heads with machetes to be released by their liberal judges?
I don’t. They refuse to own defeat. You must not surrender to five lawyers.
For complete majority and dissenting opinion texts go here.
Scalia said the nation is “at war with radical Islamists” and that the court’s decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”
Heed Scalia’s words President Bush and follow Andy Jackson’s lead.
More later on other issues addressed in the Court’s opinions. But the main issue at hand is not the dicta of would be General Kennedy. Rather, it is the resolve of one man, i.e. the guy we elected twice to defend us, which he has done magnificently since 911, no thanks to five lawyers in robes.
_______________________________________________________________________________
Mike DeVine’s Charlotte Observer columns
The Minority Report and The HinzSight Report
Race 4 2008
“One man with courage makes a majority.” - Andrew Jackson
*In addition to his corporate work in Atlanta, from 2001-2006, he was the Legal Editor and “conservative voice” of The Champion (Decatur, GA) newspaper, (legal organ for DeKalb County in Metro-Atlanta), where he was the one of first columnists in the nation, soon after September 11, 2001, to comment on the likelihood that captured terrorists in Afghanistan would be deemed to be illegal enemy combatants not entitled to Prisoner of War status under the laws of war.
June 12th, 2008 at 12:02 pm
Amen, Gamecock. I’d rather stand with Scalia, Alito, Roberts, and Thomas any day of the week over JPS, RBG, Souter, and Kennedy.
I’m glad to see your reaction was similar to mine this morning.
June 12th, 2008 at 12:19 pm
No. I’m pretty damn hardline, but this sets a horrible, horrible precedent.
June 12th, 2008 at 12:20 pm
#1 This issue was what launched my writing career in 2001.
June 12th, 2008 at 12:30 pm
Gamecock,
The court speaks of the length of the “open-ended” detentions. But no one knew in 1944 that WWII would not last as long as the Thirty Years War
What in the world? The Nazis were broken by 1943 at Stalingrad. After that, everyone knew that it was only a matter of time that Hitler’s empire would be destroyed. And plus, the Germans that were captured in the US in 1944 were classified by FDR to be prisoners of war and were allowed to pick their own defense lawyers, cross examine witnesses and see the evidence that the US government was using to detain them. Those are all things that none of the Guantanamo detainees have been afforded. In addition, the Nazis did not deny that they were engaged in hostilities against the US, whereas the Guantanamo detainees do. They haven’t even been charged with a single crime, for god’s sakes. If the US has evidence of the Gitmo detainees having been members of al Qaeda, then the US should charge them with a crime and have a fair hearing.
June 12th, 2008 at 12:37 pm
‘Captive 220′
May 9, 2008; Page A16
Wall Street Journal
It’s a fair bet that no high-powered American law firm will lend a caring hand to the relatives of the seven Iraqis murdered last month by a suicide bomber named Abdullah Salih Al Ajmi and two accomplices. That’s too bad, seeing as how Ajmi was himself a beneficiary of some of that high-powered legal help.
Ajmi is a Kuwaiti who was 29 when he blew himself up in the northern city of Mosul in April. But before that he had spent more than three years as an enemy combatant at Guantanamo, where he was known as “Captive 220.” He was taken prisoner at Tora Bora, Afghanistan, after the fall of the Taliban, in whose service he had reportedly spent eight months. While in detention, he told interrogators that his intention was “to kill as many Americans” as he possibly could.
In April 2002, a group of Kuwaiti families retained the law firm of Shearman & Sterling to represent the Kuwaitis held at Guantanamo, including Ajmi. (An attorney at Shearman tells us the firm donated its fees to charity.) Ajmi was one of 12 Kuwaiti petitioners in whose favor the U.S. Supreme Court ruled in 2004 in Rasul v. Bush, which held that the detainees were entitled to a habeas corpus hearing.
At the time, we wrote1 that Rasul had “opened the door to a flood of litigation. . . . This pretty much guarantees that the 600 or so Guantanamo detainees will bring 600 or so habeas corpus cases – perhaps in 600 or so different courtrooms, with 600 or so different judges demanding 600 or so different standards of what evidence constitutes a threat to the United States.”
The Pentagon seems to have understood this point only too well, because in November 2005 it released Ajmi into Kuwaiti custody before he could have his hearing. A Kuwaiti court later acquitted Ajmi of terrorism charges, and last month the Kuwaiti government issued Ajmi and his accomplices with passports, which they used to travel to Mosul via Syria.
Ajmi’s story is hardly unique. Some 500 detainees have been released from Guantanamo over the years, mostly into foreign custody. Another 65 of the remaining 270 detainees are also slated to go. Yet of all the prisoners released, the Pentagon is confident that only 38 pose no security threat. So much for the notion that the Gitmo detainees consist mostly of wrong-time, wrong-place innocents caught up in an American maw.
The Defense Intelligence Agency reported on May 1 that at least 36 former Guantanamo inmates have “returned to the fight.” They include Maulavi Abdul Ghaffar, who was released after eight months in Gitmo and later became the Taliban’s regional commander in Uruzgan and Helmand provinces. He was killed by Afghan security forces in September 2004.
Another former detainee, Abdullah Mahsud, was released from Guantanamo in March 2004. He later kidnapped two Chinese engineers in Pakistan (one of whom was shot during a rescue operation). In July 2007 he blew himself up as Pakistani police sought to apprehend him.
Ajmi’s case now brings the DIA number to 37. It’s worth noting that these are only the known cases. It is worth noting, too, that people like Ajmi were among those the Defense Department thought it would be relatively safe to free, or at least not worth the hassle and expense of the litigation brought about by cases like Rasul.
All this should give some pause to those – John McCain, Barack Obama and Hillary Clinton among them – calling for closing Guantanamo. The prison is helping to save lives by keeping dangerous men from returning to the fight against our soldiers.
Stranger still are those who argue that people like Ajmi were somehow a creation of Guantanamo. They might want to have a chat with a detainee named Mohammed Ismail, who told the press after his release from Gitmo that his American captors “were very nice to me, giving me English lessons.” Ismail was recaptured four months later while attacking an American military position in Kandahar.
Our liberal friends argue that the detention facilities at Guantanamo Bay have hurt America’s image in the world, and that’s true. Then again, Ajmi and others show that there are also lethal consequences to the legal war that liberals are waging on the war on terror. Liberals claim they are only fighting for “due process,” but they are doing so for foreign enemies who want to kill innocents and don’t deserve such protections. Mosul is one result.
—————————————————————————————————
I would rather President Bush respond to this decision by sending all of the illegal enemy combatants at Guantanamo out onto their soccer field this afternoon to be summarily executed than to see them granted access to U.S. civilian courts.
This dangerous precedent could well force our military to forego the practice of capturing terrorists for the sake of acquiring intelligence, and instead implement a shoot-to-kill policy on all suspected terrorists on foreign soil.
June 12th, 2008 at 12:51 pm
Here’s the link to the post in which I addressed this issue last year:
http://www.race42008.com/2007/06/07/habeas-corpus-a-fundamental-right-for-terrorists/
It’s utterly astounding that the Court today disregarded all of the following precedents:
Ex Parte Quirin (1942): A case involving eight German saboteurs who came to America during World War II. The Supreme Court ruled that the president may establish military tribunals to try foreigners and even U.S. citizens accused of war crimes against the U.S.
In re Territo (1946): This case involved an American-born Italian who was captured by U.S. troops while he was in Benito Mussolini’s army. He later sued to get out of a POW camp in California and to have his case heard by a U.S. court. A U.S. appeals court ruled that Territo’s status as a prisoner of war, not his U.S. citizenship, determined his legal path. Territo’s request for release was denied; he eventually was deported.
In re Yamashita (1946): The case involved the Japanese commanding general in the Philippines, who was tried for atrocities committed by his troops. The Supreme Court ruled that a foreign enemy can be held and tried by a U.S. military tribunal convened abroad. Yamashita was hanged as a war criminal.
Johnson vs. Eisentrager (1950): Between May 1945, when Germany surrendered, and August 1945, when Japan fell, 21 Germans working in China were caught passing information to the Japanese military about U.S. troop movements and other activities. The Germans were convicted by a U.S. military commission and sent to an American military prison in Landsberg, Germany.
The Germans sued, arguing that their trial and detention violated the U.S. Constitution and the Geneva Convention on the treatment of POWs. Lower federal courts agreed, but in 1950 the Supreme Court ruled against the Germans. The high court’s reasoning: Constitutional rights don’t extend to enemy foreigners captured and imprisoned outside the U.S.
The Supreme Court held that the U.S. Constitution does not confer a right of personal security or immunity from military trial and punishment on alien enemies engaged in war with the United States. The Court stated that the military authorities have a jurisdiction, during or following “hostilities” to punish those guilty of offenses against the laws of war, and the German Nationals did not have the right to a writ of habeas corpus.
Colepaugh vs. Looney (1956): A Connecticut-born spy for Germany claimed that his 1945 trial was unlawful because it was held before a military tribunal and not a federal court. A U.S. appeals court rejected his claim.
June 12th, 2008 at 12:51 pm
#4 You refer to a war crimes trial not mere detainees.
June 12th, 2008 at 12:52 pm
Nos. 5 and 6
GREAT WORK ARON.
June 12th, 2008 at 1:26 pm
Aron,
If you read today’s ruling, you’d know that the Supreme Court did not invalidate the right of Congress to convene military commissions. It attempted to bring future commissions in line with those that were convened in the cases you cite.
Quirin: As I have explained in this thread and in Matt’s thread below, the Guantanamo situation is very different than what happened to the German saboteurs. First and foremost, the Nazis were classified as POWs and thus bound by the Articles of War. They were afforded all sorts of procedural defenses during their trial. The Guantanamo detainees have been classified as enemy combatants and the President has held that they are not going to be afforded the Geneva Conventions protections. They have no been charged with a single crime, no evidence has been presented to prove their guilt, and in the case of the Boumediene petitioners, they were arrested in Bosnia and even the US government doesn’t claim that they are al Qaeda.
In re Territo: Again, the Gitmo detainees have not be classified as POWs. This case doesn’t apply here.
In re Yamashita: Yes, and the SCOTUS’s decision today does nothing to overturn this. The Guantanamo military commissions can go forward with revised procedures.
Johnson vs. Eisentrager: Yes, but the Germans had already been afforded an extensive military tribunal in China. Their conviction was lawful under the fact that Congress has the ability to create military commissions. The Boumediene petitioners have yet to have a single hearing. And remember, that’s really all today’s ruling was about. Granting them the right to have a hearing in order to determine their ultimate guilt or innocence in a fair trial.
If that was good enough for the Nazis, why isn’t it good enough for the Guantanamo detainees?
June 12th, 2008 at 2:11 pm
Well, we know that Bush has the cajones to stand up to liberals, but I doubt he would do this.
I would love it since there is no better way to control activist judges than to disregard them.
The interesting thing is that it probably would cause an impeachment if it were not an election year.
June 12th, 2008 at 2:34 pm
#9 wrong
this is not about guilt or innocence
this is about status
Presidents determine status to kill or detain
June 14th, 2008 at 12:18 pm
As I wrote on my blog, McCain could win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision. He can use this issue, and the spectre of OBL and his lawyers in Federal courts, to beat Obama like a rented mule.