June 30, 2006

"The Court is giving the administration a mulligan."

Writes Randy Barnett about Hamdan. "But the do-over will be much more difficult than the initial shot would have been. It did not have to be this way." He identifies two "colossal errors" that the Bush Administration made. He also links to Jack Balkin's Hamdan post, elegantly titled "Hamdan as a Democracy-Forcing Decision."

16 comments:

the pooka said...

Barnett's second "colossal error" seems a bit forced. Bond drives? Volunteer militias? What is it, 1918 again? (Is it just there because he feels the need to say "two things" or "three things" rather than "one thing"?).

But it's hard to argue with the first one, though I slightly prefer Balkin's take. And I for one am happy with anything that will (pick and choose): halt or reverse the executive branch power-grabs we've seen since 9/11, tear down the walls of secrecy around the policymaking in this area, and/or generally make the conduct of this "war" that much more difficult for the Bushies.

David said...

What is extremely interesting is that the court said it was acceptable to hold Hamdan in custody without being allowed a trial. Wouldn't Hamdan prefer a trial that might let him go for lack of evidence than sit in Gitmo until the GWOT is concluded?

So it appears that Bush was seeking a way to get these guys their day in court but were thwarted by SCOTUS. The question appears to center on the composition of the trial court for these terrorists and not their form of incarceration.

History points to the forced internment of Japanese citizens during WW2 to prevent terrorist activities on American soil. What we are seeing at Gitmo is the latest version of dealing with subversion and terrorism with an eye to keeping terrorists out of the anti-American tentacles of OJ juries and the ACLU.

Continue holding them incommunicado until their countries of origin want them returned (not likely) or until congress decides what rights a battlefield murderer not wearing a uniform, who kills innocents in God's name, is entitled to.

This should be fun to watch!

Jacques Cuze said...

The Divider could have used the opportunity to involve the citizen in civil defense preparation.

Providing funds and encouragement for each neighborhood to have teams that know who and where the elderly and kids live, to know first aid and have well stocked first aid supplies, to know how to communicate best with others in the city if telephone systems go down, to know who the engineers are and where the bulldozers are in case a neighborhood has to provide for its own ability for self-rescue. Neighborhoods could have been encouraged to make sure they have supplies of water and C-Rations.

All of this would be handy not just for a terrorist attack, but it would be especially useful when nature strikes: Katrina, and Ice Storm, an 8.0 on the Hayward fault.

All of this would have acted to bring people together, to foster discussion, and to help people understand and take ownership of the war being fought in our name.

Lots of other stuff to do, but in essence what we were told is that we weren't competent, should not worry about what Dad is going to do for us, and to go shopping.

I don't think we need a volunteer militia, but then you have to understand that Randy Barnett is part of the alien wingnut conspiracy over at V'olokh dot com.

Jacques Cuze said...

So it appears that Bush was seeking a way to get these guys their day in court but were thwarted by SCOTUS.

...

History points to the forced internment of Japanese citizens during WW2 to prevent terrorist activities on American soil.
What we are seeing at Gitmo is the latest version of dealing with subversion and terrorism with an eye to keeping terrorists out of the anti-American tentacles of OJ juries and the ACLU.


Wow, self-delusion, willful ignorance, or ironic parody of the wingnut contingent? Well played sir!

Joe said...

Pooka:
"tear down the walls of secrecy around the policymaking in this area, and/or generally make the conduct of this "war" that much more difficult for the Bushies."
So Pookie thinks our plans in conducting this war should be transparent and available to the enemy, and make the war more difficult for the "Bushies" (Americans) to fight.
If you accept that we are in a war, there are "sides." Glad to know which side you are on, Pookster. If you don't think we are in a war, get therapy.

Jake said...

Barnett is wrong about this. What Bush did was approved by the Supreme Court in WWII. It is this Supreme Court that is ignoring established law.

This a big boon for the Republicans. The Supreme Court's mistake can easily be fixed by legislation. Every one who votes against the fix will be seen as supporting terrorists.

David said...

Cuze...


Thanks, there's more!

Let's talk about the erosion of the American judicial system in favor of the European model. The U.N., bless their heart, envision a future where these trials would be held in an international court with a specialty group tasked with prosecuting the American military.

The talk always centers around power grabs by POTUS. Rarely do we hear about the atrocities committed by the murdering terrorists and their supporters in their global Islamic power grab.

The antithesis of making the prosecution of the GWOT difficult for Bush is that it makes terrorism easier for the terrorists.

knoxgirl said...

Once again, it's obvious that many still see Bush as a greater threat than terrorists. Beyond delusional.

Jacques Cuze said...

The war on terror was Bush's to lose. I don't congratulate the terrorists for winning, I blame Bush for losing.

PD Shaw said...

Ms. Althouse, if you've had a chance to read/digest the opinion, did you see anything Congress did wrong or poorly in stripping jurisdiction, or is this just one of those games that you cannot win sometimes?

Ann Althouse said...

PD: In retrospect, it seems Congress should have drafted the legislation spelling out the details with an eye toward eliminating everything that could possibly have been seen as a loophole. This question of application to pending cases should have been seen and explicitly dealt with. The same thing came up in Lindh with respect to AEDPA, which Stevens discusses in Hamdan.

PatCA said...

Sure, pooka, let's follow Bill Veck's Grandstand Manager style of governance. Every time Veck had to make a decision, he'd turn to the crowd and ask, for instance, "bunt" or "swing" and the crowd would cheer for their choice.

And if we make any more "colossal errors" we should allow Osama to burn down another building, or whichever penalty the crowd decides upon. Of course, the building housing the detainee's lawyers would be exempt.

David said...

Rhetorically, is it possible for a group of lawyers to draft anything without a loophole?

I don't think so!

Elizabeth said...

I first read that as "giving this administration a mullet." What the heck is that a metaphor for? Never mind.

vnjagvet said...

The effect of Justice Stevens decision is not only to give the administration a mulligan, but a mulligan complete with instructions on how to avoid further necessity for SCOTUS intervention.

It is almost like the dreaded "advisory opinion" which is supposed to be avoided at all costs.

I think that is a good thing under the circumstances of this case, and avoids a constitutional crisis except among the extremes of the political spectrum.

dick said...

I am wondering whether the Supremes are giving the administration an out by saying the president should go to Congress and get a rewrite of the setup of the tribunals or else just hold the prisoners for the duration. If the president should decide just to hold the prisoners as POW's for the duration, which apparently the Supremes said was one option, what affect will this have on the ambulance chasers and the ACLU who are trying to force the administration to agree to civilian court cases for these prisoners. Seems like the administration would then be justified to just tell them to take a hike because what was going on at Gitmo was done according to the Supremes. Is this really what the Supremes meant or is there some alternate reading. Sure sounds like what one of their options was.