Random political venting/rambling thread:

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I just read and heard Justice Scalia saying that actions by US troops, under US orders on a US base are not under Jurisdiction of the supreme court because, applying his eminent, razor sharp textualist and originalist skills, he can't find ... Guantanamo mentioned anywhere in the US constitution or so.

His actual argument is quite a frivolous and brazen one. A little bit like the arguments that Nazi lawyers would cook up - two fictious ones: Like that Auschwitz doesn't fall under German jurisdiction because it is after all in Poland, or that human rights logically don't legally apply to Jews because they are subhuman. All logical, all royally sleazy or monstrous.

Liberal activist judges? What about the conservative activist judges? Scalia's application of textualism and originalism in defense of torture or to refuse legal protection to detainees suggests that is indeed an activist judge arguing for a politically desired result. He's just hiding his politics behind his legal theory.
America is in deep trouble with judges and lawyers like that in positions of power - and as a supreme court judge Scalia is going to stay until he dies of old age. Another guy who gives me the creeps is Mukasey. Bush has appointed a guild of lawyers into legal and government positions who approach the law from an adversarial, hostile standpoint. That is bad.

 

Well, if you are that concerned about it, I recommend toning down the anti-U.S. rhetoric so you don't call down the wrath of the black helicopters and wake up one morning in Cuba

Seriously though, I can understand people not liking the concept of a Guantanomo, but I do applaud the appointment of non-activist judges. For too many years we have had judges at all levels that have violated the constitution and spent their time "legislating" law instead of ruling on the law. The classic case is here in Massachusetts in which the courts decided that the state had to allow and recognize "gay marriage" by intrepreting civil rights laws in a twisted way.

The creation of laws is a power of the legislative branch with approval by the executive branch. While I can understand people not being happy with Scalia being very hardline on this, hopefully his influence will trickle down and influence other judges to "judge" and not "create" laws.

 

What is clear to me is this: The prison camp was set up in Guantanamo Bay for the sole point of allowing the US government to circumvent US law and to evade US courts. As I said, it is US troops operating under US orders in the US chain of command on a US base where the US flag flies, paid for by US tax payer dollars - but it is outside juristdiction because it is on Cuba. Right-oh!

Would Saddam be any less responsible had he off-shored his rape-rooms to a ship under Panaman flag? Imagine him in his defense: Sorry Mr.-Prosecutor-At-My-War-Crimes-Tribunal, but you don't understand the law! This didn't happen under Iraqi jurisdiction, and Iraqi law didn't apply, in fact, it all happened in Panama! Of course not. It is an utterly transparent ploy.

And Scalia is too smart to not know it is a ploy. It is very clear that Scalia is making his remark with a political goal in mind. When you assume Scalia is not activist only because he is not liberal you're kidding yourself.

 

The problem once again is power. It seems there aren't really any checks on the power of the judiciary branch except their own, and it just took them a while to realize it. The only 'check' I can think of is the ability of Congress to ammend the constitution, and if you want to do that for every stupid time a judge decides to make law, you'd better be ready for a constitution more complex than current US tax codes. Maybe they can make it simple: any ruling by the supreme court can be overturned by a 4/5 majority of both the House and the Senate. That certainly seems like it would require a serious wrong for it to work, but at least it would keep out the most aggregious acts.

 

I think that the perceived politicisation of the judiciary by liberals is probably quite overrated. It clearly is a standard theme of the US right, right with 'frivolous lawsuits' by sleazy trial lawyers and 'tort reform'. Still, I don't know too much about that issue myself, and for the sake of argument I'll just say that there have probably been judges who have issued landmark decisions the US right resented and continues to resent and resist and roll back. But then, what did liberal activism bring - Abolition of segregation? Laissez fair in the private life? Gay marriage? Government regulation of enterprises? Oh the horrors!

Where the US right has their blind spot is that the counter-politisation from the right and the political ideas it embraces that led to such folks like Scalia in order to 'fight back' are dangerous as well. I don not expect Scalia to sanction any of the extra-legal activities by the Bush administration because I think he likes them. He is very much a partisan animal.

The severe impact of the sort of government acts (a little torture and whacking around, domestic surveillance, detention, secrecy, right of the gvt to search your house without a warrant and in secret, secret evidence etc.) that Scalia is sympathetic to is something of an entirely different quality than the not-pressing problem of whether to allow gay 'marriage', or 'civil unions' or neither.

 

A very nice idea for a thread this one. I've been thinking about starting it for a while but thought that the risks of getting stuck with one subject was too great of a risk. Now it will be tested I suppose.

 

I may be incorrect, but I believe that anything a soldier does, that soldier is subject to military justice and courts. Is your argument that a civilian court isn't involved? I'm not a lawyer so I'm not up on all of the legal niceities, but I don't remember prisoners of war being tried in civilian courts. Is that the way it worked in WW2 and beyond? I admit, I'm basing my knowledge on movies and television, but to me it seems like POWs were sent to camps run by the military and not the court system. Last time I checked I believe Congress declared war on Iraq and possibly Afghanistan so therefore anyone captured as an enemy combatant is a POW.

 

TGS,
the detainees at Gitmo are at least according to the administration famously not POW, but 'Enemy combatants', whatever that means (it certainly reminds me of a flag of convenience on a merchant vessel, but I digress). Thus the rules for POW don't apply to them sais the administration. And there are good reasons not to see them as POW by the way, following the letter of the Article 4 of the Third Convention. But then, Art. 4.1.6 even gives POW status to inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. Now if that was all, the post would be over here, alas, it is not

Well, it isn't as if 9/11 invented guerilla warfare, and the post-WW-II Geneva conventions addressed the issue. The 1958 ICRC commentary on the Fourth Geneva Convention states that every person in enemy hands must be either a prisoner of war - and thus covered by the Third Convention - or a civilian covered by the Fourth. There is no intermediate status; there never was an intent to have such a status because the sole point of the entire convention was that nobody in enemy hands can be outside the law - the conventions were meant to be all encompassing. And that is why the words 'enemy combatant' and 'unlawful combatant' only exist in the American legal sphere, and only since 2001, and was before the US invented it conspicuous in the international legal arena by it's utter absence.
The Administration's point behind not seeing those captured in their 'Global War on Terror' as POWs was obviously to have a justification to treat them harsher and outside the Geneva conventions, because it was felt they didn't 'deserve it'. Apparently the view was that POW status was 'too good for them', the status of a civilian even more so. Now what to do? Proper application of the conventions would mean those picked up in arms on the battlefield probably would have to at least initially be treated as POW. Unacceptable ruled the Bush crowd, and born was the 'enemy combatant' or 'unlawful combatant'.

And the consequences were predictable as well: There was this new, fictious, intermediate class of prisoners for whom no rules existed. Before the military commissions act was crafted the question of what to do with the detainees was very much unclear in the US because nobody had found a solution to that self-imposed dilemma. And I don't view the solution found as particularly lucky.

The invention of a new class of prisoners the Bush crowd chose to get their way reminds me of a thief choosing 'schmealing' as a definition of what we know as stealing and then defending himself that - read the law - 'schmealing' isn't listed as criminal anywhere - you only get through with such shenanigans from a position of strength. 'Unlawful combatant' or 'Enemy combatant' is a semantics game of the same sort. Same with 'coercive interrogation' and 'torture'. You see these little games all over the place.

Out of the whole thing oozes the initial question the administration must usually ask their legal staff: 'I want to do this, now go craft me a supporting opinion, and don't tell me I can't do it'. The Bushies who call the shots generally want as few strings attached as possible. Oh yes, and no papertrail.

 

Scalia is exactly right in his comments (at least in the article you referenced). He did not comment on whether he felt such actions were right or wrong -- only that it was not an issue for the Supreme Court.

The Supreme Court has a very limited scope in its rulings -- it was designed that way. It is up to the legislative branch to make the laws, the executive branch to enforce them, and the judicial branch (Supreme Court) can only determine whether or not those laws fall within the Constitution.

The executive branch has been given a wide berth in defending the country. Laws were set in place by the legislative branch and past rulings (precedents) have further defined the scope of those laws. It is up to the legislative branch, not the judicial branch, to reign back in the executive branch and limit how far the military can go in these situations. Until the legislative branch does so, the judicial branch has their hands tied.

The best course of action would be to make an amendment banning certain actions.

 

T2,
the question of whether the Third or Fourth Geneva Convention applies to every individual detainee, as I think it does, would need to be addressed in a court, by a standard military tribunal. Now this is not happening with the Guantanamo detainees, you don't see such tribunals. Don't let yourself be confused by the military commissions - they're something else and much less than standard military tribunals.

The conventions have been ratified by congress, and have become part of the US law, law of the land. Let's just forget about it's rank as international law for the sake of argument.

When you have a case when the government refuses to apply the law when it it obliged to by simply denying jurisdiction - isn't it the job of the courts including the supreme court to determine whether they should or not if called upon? This is a real question, not a rhetorical one. Is it the job of a normal federal court? After all it's the US government acting here.

Or is it a question of the discretion of the president to apply the law or not? The question of whether it is at the discretion of the president to obey the law - the reach of presidential powers - is a in all probability question that the supreme court would need to address? In our legal system it would be a job first for federal courts and then, indeed, with a constitutional reference point, for our constitutional court. From an individual point the government acting against a citizen in a harmful way would violate his constitutional rights if they act without a legal justification - which again would make relevant a discussion of the extent of presidential powers. And there are rights that apply for non-us citizens as well. So I can't quite understand how Scalia can rule out jurisdiction for the Guantanamo cases so easily.

How would it be addressed in the US? Who determines that? Congress and/or Senate in Impeachment hearing? Federal courts? The supreme court?

 

Ragusa, I think you really do not understand the US government [obviously, neither do I]. The Geneva Convention is the jurisdiction of the World Court and international law. The US Supreme Court would not be involved at all.

The Articles of the Geneva Convention are basically a treaty. As such, they are an agreement countries choose to honor amongst themselves (and whether or not we do is a different argument). Such agreements must be ratified by congress but are not adopted as law [this statement is wrong].

This is an important distinction -- a treaty is not a law [wrong again]. It cannot be enforced, or ruled upon, by the Supreme Court [partially correct]. It is not within the powers of the judiciary branch to ensure the executive branch is abiding by signed treaties. I don't even believe the legislative branch can enforce such things [the legislative branch must ratify treaties in order for them to be considered law]. The legislative branch can start impeachment proceedings on the President if ignoring those treaties would be considered an impeachable offence. One standard for impeachment is:

(Yes Montresor, a Supreme Court Justice can be impeached.)

Edit: I am wrong here -- I've tried to explain those errors with [brackets]. A treaty is a law after it is ratified by two-thirds vote of the senate. The Supreme Court has the authority to determine if whether or not the treaty was constitutional (or more precisely, whether signing into the agreement was constitutional).

 

Although, unlike with the presidency*, this has never happened.

*Most people believe that when a president is impeached he is removed from office, which is why many people falsely believe no president has ever been impeached. Being impeached puts you on trial in the Senate, and if two thirds of the Senate agree that the Prez is guilty as charged, he is then removed from office. So actually two presidents have been impeached in the history of the U.S. - Andrew Johnson back in the 1860s, and Bill Clinton. Both, however, survived the Senate trials and remained in office to complete their term. Richard Nixon was not impeached, but that is mainly because he resigned before the vote was taken. If he had not resigned, he almost certainly would have been impeached.

 

I would just like to point out that this thread appears to consist less of "randomness" and more of "stream of consciousness".

So in the spirit of the thread's title - Politicians Suck! (Insert Clinton jokes here. Well, not here literally, because unless you're a moderator, you can't edit posts. But you know what I mean. Or maybe not. )

Go Obama!

 

Why can't you edit posts?

 

Recall that they're nominated by the executive and approved by the Senate. Outside of the other two branches of government, though, they're completely unchecked.

 

Clarification: You can't edit other people's posts unless you're a moderator.

More randomness:
Who thinks there'll be a Canadian election in the next few months?

 

OK, so I asked a random political question ("Who thinks there'll be a Canadian election in the next few months?") in keeping with the thread title. A Canadian election is actually a real possibility, but not likely to be a hot topic of discussion on the Boards.

What exactly is the point of a "Random political venting/rambling thread" if not to ask questions like this? And yes, believe it or not, I'm actually being serious here. If there's a "theme" to a thread, then it's not random, and therefore it's not a "Random political venting/rambling thread". With all due respect, BTA, it might not be Whatnots, but random is random. Maybe the thread needs to be renamed.