« Ummm... Nevermind | Main | Bill Keller: The Unitary Editor »

July 02, 2006

The ADD Nation Concedes The War On Terror

TigerHawk reads Andrew Sullivan so you don't have to:

Is Bush A War Criminal?

The Hamdan decision certainly suggests that, by ignoring the Geneva Conventions even in Guantanamo (let alone in Iraq), a war crime has been committed. And in the military, the command structure insists that superiors are held accountable. I've been saying this for a long time now, and have watched aghast as the Bush administration has essentially dumped responsibility for war-crimes on the grunts at Abu Ghraib. The evidence already available proves [?]that the president himself ordered torture and abuse and the violation of the Geneva Conventions. Now he has been shown to be required to act within the law, and according to the Constitution, his liability for war crimes therefore comes into focus. Money quote from a useful Cato Institute Hamdan summary:

...the majority stresses that the Geneva Conventions 'do extend liability for substantive war crimes to those who "orde[r]' their commission" and "this Court has read the Fourth Hague Convention of 1907 to impose ‘command responsibility' on military commanders for acts of their subordinates." The Court’s emphasis on the liability that attaches to "orders" is significant, because trials in the military commissions are, of course, pursuant to a direct presidential order. Even so, it's difficult to imagine a circumstances in which charges under Section 2241 might actually be prosecuted.

What is it about Hamdan that gets the Hanes UltraSheers of both righty and lefty pundits all in a twist? The half-vast editorial staff had not even had our coffee this morning when we were assaulted by this breathless Dahlia Lithwick column, perhaps best summed up as [cue Valley Girl voice] The Best Supreme Court Decision Everrrrrrrrrr!!!!

Not since Ted Kennedy warned us a John Roberts court would repeal the 13th amendment, ban women from the workplace, and execute twelve year old black girls who bring french fries onto the Metro have we read such overheated analysis. This just confirms our first take on Hamdan:

Practical significance and political/symbolic significance are two different things...By ruling that we must follow Geneva when disposing of detainee cases, the Court has handed the Left and our enemies easily demagogable [is that a word?] talking points that will surely be used against us. What's more, the Court has, with its trademark arrogance, unilaterally and with no legal justification taken it upon itself to adopt an interpretation that violates the spirit, if not the letter, of an existing treaty. This is just one more example of judicial overreaching and the President and Congress would be wise to challenge it.

Whatever happened to judicial restraint? In a long-ago post on the topic, we mused that in medicine doctors are advised, "First, do no harm." This is a maxim the Court would have done well to consider before presuming to expand its charter from interpreting the Constitution to interpreting the provisions of the Geneva Convention. In his stinging dissent, Clarence Thomas noted there were two reasonable interpretations of Article 3 of the Geneva Convention:

The President’s interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also “occurring in the territory of” more than “one of the High Contracting Parties.” The Court does not dispute the President’s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President’s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with “furnish[ing] minimal protection to rebels involved in. . . a civil war,” ante, at 68, precisely the type of conflict the President’s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.

Thomas goes on to note:

Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusions that a storm drain is a tributary of the water of the United States. It goes without saying that there is much more at stake here than storm drains.”

Justice Thomas, at the least, seems still to believe in the separation of powers. During wartime, he notes:

...our duty to defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments “‘are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’”

But the concept of judicial restraint is one the Court increasingly seems unwilling to adhere to, instead preferring to wade into the very political fray the Founders tried so hard to shield them from. As J. Harvie Wilkenson once noted, this nation deserves better:

"Americans deserve not a liberal court, not a conservative court, not even a wise or Solomonic court, but a court that respects the limits of its power and the place of others within the constitutional structure."

It is perhaps the ultimate irony that we have come to view the Supreme Court as the ultimate arbiter of Constitutional questions. It is certain the Founders themselves did not intend this to be so, as I noted in this attempt to place the signing statements controversy into historical context:

Thomas Jefferson, the eponymous source of so many oft-quoted if imaginary rebukes to the Bush administration, remarked:
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps… and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all departments co-equal and co-sovereign within themselves.

James Madison also:

...doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution and whether it ought not to be limited to cases of a [j]udiciary [n]ature. The right of expounding the Constitution in cases not of this nature ought not to be given to that [d]epartment.

It is only historical ignorance which allows critics of the Bush administration to ignore the fact that it was the Supreme Court which unilaterally granted itself the right of judical review in Marbury v. Madison, an act which in many respects could be viewed as a dangerous and unconstitutional power grab. And indeed, the Court has used that power to unilaterally amend and expand the Constitution without a popular referendum. So could the practice of issuing Executive orders, yet time and longstanding tradition have retroactively ratified both practices.

With the rise of the cult of "international law", the importance of judicial restraint has never been more clear. When a Court originally intended to be one of three co-equal branches of government entrusted with guarding and interpreting the Constitution presumes to be the sole interpreter - not just of the Constitution but of treaties to which the United States is a signatory - it usurps the role of the Executive and Legislative branches.

It is interesting to note that if we ignore the Supreme Court's historical power grab in Marbury, the original intent of the Founders was for a weak judiciary well-insulated from the political sphere:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

How far we have come - from a system in which all three branches were meant to be co-equal and only by agreement of the People of the United States could the Constitution be altered or our laws be changed to a system where 9 men and women unilaterally change the course of history by citing foreign laws. And the true danger here is not so much that the legislative or executive branches may not still quite legally oppose the judiciary.

It is that, in a mass-media era with a public not well-versed in civics or American history, men like Andrew Sullivan will exploit decisions like Hamdan to suit their political agendas. Unfortunately, because decisions like Hamdan turn on fine points of long and dry documents, the general public will never bother to read the Geneva Convention. They will never bother to ask whether al Qaeda really fall under the class of persons that treaty was meant to protect, or more importantly whether the Court had the right to rule on the meaning of a foreign treaty rather than referring the matter to Congress.

Ignorance, cheap emotion, and America's short attention span are on the side of her enemies. The Left often admonishes the administration for not asking America to share the sacrifices of our troops. I often wonder, is anyone willing to put in the time to understand just who and what we are fighting? Given all that our troops have done on our behalf, that seems the least of the many things we owe them in return.

Posted by Cassandra at July 2, 2006 08:27 AM


Peasant! How dare you criticize your betters! Ignorant louts of your villainous station cannot hope to comprehend the rarefied and lofty debate of this august body! Why, you would be helpless without us to guide and direct every aspect of your pitiful, unsavory lives.

We no longer deign to speak with your uncouth selves. You are not fit to be presented at Court. Let the insolent wench be given 50 lashes for her impudence in daring to question Us. You may now kiss Our pinky rings and thank Us for our tolerance and mercy. Begone!


Posted by: a former european at July 2, 2006 02:04 PM

Why, of course! Obviously the President and Congress should have the unlimited right to redefine all laws and Constitutional clauses to mean whatever they want them to mean -- including the election laws. (Lest we forget, the Founders initially made the Supreme Court weak only because of their crazy initial belief that they could and should prevent political parties from coming into existence in this country at all -- a mistake which they discovered almost instantly, which is why only cranks like Cassandra have ever objected to Marbury vs. Madison.)

And of course the President should have separate power to ignore any Congressional laws by simply completely redefining them in "signing statements", or by ignoring the fact that Article 1 gives Congress the power to make laws regarding "captures on land and sea" in wartime -- as it did with the McCain anti-torture amendment, only to have Bush announce that he would obey it whenever he damn well felt like it because of his revolutionary new Unitary Executive theory that makes the president an effective dictator in wartime.

Posted by: Bruce Moomaw at July 2, 2006 04:09 PM

As for "Former European's" rantings above that the Court is defying the Will of the People in this matter, see http://www.washingtonpost.com/wp-dyn/content/article/2006/06/30/AR2006063001737_pf.html

"The issue is not without complexity for Republicans. A Washington Post-ABC poll this week suggested that while Americans continue to favor holding suspects at the U.S. military installation at Guantanamo Bay, Cuba, they are leery of an administration policy that has resulted in almost all of the 450 detainees being held without charges. Of those polled, 71 percent said the detainees should be either given POW status or charged with a crime."

The Court did not defy the will of the people in this matter, nor did it defy the will of Congress. What it defied the will of was Bush, Cheney, Rumsfeld, Yoo and Addington, who had decided that they could unilaterally defy the most elementary -- repeat, elementary -- rules of both American law and justice.

Posted by: Bruce Moomaw at July 2, 2006 06:12 PM


What part of ...On balance I think this is probably a good thing. My stance on the torture issue has always been that Congress needs to quit ducking and spell out the rules. We are supposed to have civilian control of the military. For that reason, McCain's adoption of the Army Field Manual was a traveshamockery. It essentially puts the fox in charge of the henhouse, leaving Congress to conveniently scapegoat DOD the next time something bad happens.

...was difficult to understand? And just who gave the Supreme Court the authority to re-negotiate treaties? The entire point of Geneva has always been that only signatories were entitled to coverage and only those who honor its terms are entitled to coverage. Al Qaeda falls under neither category. But that didn't stop SCOTUS from arbitrarily extending a clause meant to cover civilians caught in a civil war to cover a situation vastly different.

Posted by: Cassandra at July 2, 2006 07:36 PM

Send for the Royal and Imperial Knoutsman! This knave "Bruce" hast offended Us with his pitiful attempts to toady and brownnose Our August Selves! We are not amused! He shall be subjected to durance vile! After all Our every whim has the force of Law and may not be questioned.

It is well that you understand your need to be governed by "enlightened", aristocratic elites like Us, in any case. When we say "jump", you will say "how high, your Majesties"! We are not accountable to anyone, particularly those of your lowly, non-noble station! We rule you as a result of our innate intellectual and moral superiority, and do so for life. Who dares defy Our will?

It is long past time that you give up these illusions of "freedom". You exist only to serve us. We will decide what you may wear, what you may say, who you may marry, what monies you may retain (if any), what property you may own (if any), up to and including every bit of minutiae of human existence. No feudal lord ever had such power over his subjects as we have over you! We welcome the return of your serfdom.

We also intend to re-institute the Peerage, gilt carriages, and the wearing of powdered wigs, ribbons, and lace, i.e. "the good old days" when peasants knew their place. Kneel before your rightful Rulers and Lords!

Posted by: a former european at July 2, 2006 07:44 PM

As for Former European, at this point it's a bit hard to tell whether he's a former student of Carl Schmitt or Koko the Gorilla.

Posted by: Bruce Moomaw at July 2, 2006 11:05 PM

I had a dyslexic moment and thought the SCOTUS wanted us to kiss their Oinky Rings.

My bad.

Posted by: Cricket at July 2, 2006 11:10 PM

Cassandra wrote to Bruce:

What part of ...

(Example snipped to save bandwidth.)

...was difficult to understand?

Oh, it was in the way of the strawman he was setting on fire. It put a damper on things, so he completely ignored it and launched his claim.

All in the hope that people would be too lazy to, you know, scroll up and see that "the President and Congress should have the unlimited right to redefine all laws and Constitutional clauses to mean whatever they want them to mean" was exactly not what you were trying to say.

(Should strawmen be given Geneva protections as well?) ;-)

Posted by: Patrick Chester at July 2, 2006 11:54 PM

...and my italics malfunctioned. PIMF, blast it.


Posted by: Patrick Chester at July 2, 2006 11:56 PM

Egad, is "Bruce" the example of what jester schools are turning out these days? Jester is too noble a rank for him, We dub him Royal Buffoon! Dance, Dance We say! Dance for Us little man!

Your wish for an all-powerful Judiciary is granted! Now We have ruled you will amuse Us with your buffoonery. There is no appeal from our Will, fool. No others may question Us. Now don your fool's cap, your pointy shoes, and prance and caper for Our amusement!

Posted by: a former european at July 3, 2006 01:04 AM

"All in the hope that people would be too lazy to, you know, scroll up and see that 'the President and Congress should have the unlimited right to redefine all laws and Constitutional clauses to mean whatever they want them to mean' was exactly not what you were trying to say."

Er, Patrick. That will be an inevitable consequence of throwing out Marbury vs. Madison, as Cassandra has just advocated that we do.

Posted by: Bruce Moomaw at July 3, 2006 04:58 AM

Actually that wasn't my point at all Bruce. You need to learn to read more carefully.

My point was that unilateral expansions of implied Constitutional power are hardly unprecedented in US history. In fact there are lots and lots of examples. It is only in our mass-media age that they are endlessly questioned. Up until the 1970's the President had an intel slush fund that he was allowed to spend without ANY Congressional oversight whatsoever. And he did. And somehow, the Republic survived.

People say a lot of incredibly dumb things, only because they never bother to crack a history book. You can make an argument that things are better or worse, but to say "this is an unprecedented power grab" is arrant nonsense and totally unsupported by the factual record.

Posted by: Cassandra at July 3, 2006 09:42 AM

It's not necessary to "throw out" Marbury to conceed that Jefferson was perfectly correct. His letter to William Johnson states:

"The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States."

That's rather obviously true, regardless of whether or not SCOTUS has an intermediary role. The consequence of which is that SCOTUS rulings are not binding on the people at all. Just as the SCOTUS has left the Executive with the right to appeal to the Congress for new authority, so does the Constitution leave open always the possibility for the Congress to appeal to the people for new authority -- or for the states to do so, as they can summon a constitutional convention.

What that means is that the SCOTUS is not the last word (or "ultimate arbiter") on anything. We retain the right to override them. It has not been used, but that changes nothing in the fact that the right always exists -- and that, therefore, SCOTUS must pay some attention to the popular (that is, "the People's") expectations.

Neither Congress nor the President, nor the Court either, have the power to redefine terms to mean whatever they want. There remains always, however rarely used, the two final appeals: first to constitutional convention, and last "to arms and to the God of Hosts." With those two final appeals waiting in case of extreme action, all three branches -- SCOTUS too -- is forced to a certain moderation.

In the current case, the President will appeal to the Congress for new authority, and the Congress to the People. It won't need to go so far as a constitutional convention -- I think we, the people, are only too ready to grant the authority needed to deal with terrorists.

SCOTUS is designed to act as a brake on change, and that is all it is doing here -- reasserting the understanding of a past era over current thinking. That brake having been engaged, we will stop and consider, and then gladly grant the authority that was being assumed.

Which is to say only that Jefferson was right, even if judicial review is acceptable practice. The Court, the Congress, and the President can act only within the broad confines of what we trust them to do. None of the three branches may pass outside of those confines for long.

Posted by: Grim at July 3, 2006 12:21 PM

"Up until the 1970's the President had an intel slush fund that he was allowed to spend without ANY Congressional oversight whatsoever. And he did. And somehow, the Republic survived."

In the 1970s, my dear, Watergate occurred, and the revelations of what J. Edgar Hoover had been up to with HIS unmonitored intelligence-gathering power came out. Which is why Congress passed FISA (which Bush has solemnly claimed the uinilateral power to ignore -- until now.) The Republic survived Hoover and Nixon, all right, but with severe damage to that little thing called democracy.

Now let me try for the third time to send that more detailed response to your points that your site keeps blocking --possibly because it's too long, so I'll break it up into two parts.

We do agree on one thing: Jack Balkin is right in saying that the Court's decision -- contrary to the rantings of Marshall Wittman, the NY Post and company -- leaves Congress perfectly free to rubber-stamp Bush's current tribunals if it chooses, and it may well end up doing so. But -- as Balkin points out -- it also says that if Congress does so, it must say publicly that neither the Geneva Conventions nor the most elementary rules of justice in the UCMJ apply to the detainees. If Congress does this and the people are willing to go along with it, it will at least let the rest of the world see what kind of a nation we've allowed our fear to turn us into.

Why are such safeguards necessary? First, we have Sullivan's encyclopedic and detailed cataloguing of our very frequent use -- and coverups -- of torture in this war And I'm not referring to torn-up Korans and panties on the face.

[to be continued]

Posted by: Bruce Moomaw at July 3, 2006 02:50 PM

Second, the evidence is very strong both that there are a large number of genuine, honest-to-God innocents locked up in Gitmo and that -- shockingly -- the Pentagon often KNOWS they're innocent, and is continuing to keep them locked up apparently just to protect what's left of Rumsfeld's reputation. (We have, after all, been through this sort of thing once before):

Calling the tribunals, as constituted by Bush, "kangaroo courts" would seem to be an insult to marsupials.

[to be continued]

Posted by: Bruce Moomaw at July 3, 2006 02:53 PM

Finally: Cassie: since you're a Marine wife, I'd recommend that you find out what a large number of US military men think about the Hamdan decision: http://www.tnr.com/docprint.mhtml?i=w060626&s=ackerman063006 . But then, one must constantly be on the alert against such pinko pacifists, including Greg Djerejian, John Cole, Stephen Bainbridge, William Arkin -- and Sullivan, who (again lest we forget) still thinks we ought to slug it out to the bitter end in Iraq. (My own feeling is that doing so will be seriously counterproductive, mostly because we need our military much more to deal with the threat of nuclear proliferation -- starting with that other country with the name almost the same as Iraq's.)

Posted by: Bruce Moomaw at July 3, 2006 02:54 PM

And two final points:

(1) Jefferson's letter simply makes the obvious point that a new Constitutional convention could be called to amend the Constitution to explicitly reverse Marbury vs. Madison -- which is hardly in question. As I say, nobody outside a few cranks has ever proposed doing so.

(2) As Stuart Benjamin points out ( http://volokh.com/posts/1151601422.shtml ), with the (partial) exception of Thomas, not a single one of the eight justices agreed with you that it doesn't apply to al-Qaeda (or, more accurately, to people captured and ACCUSED of being al-Qaeda supporters). But then, as
Balkin points out, that's the least important part of the decision -- the most important part is that the White House's bizarre "Article II on
steroids" legal theory that the President is a little tin god in wartime has been blown to bits, and from now on he will at least need explicit and public permission from Congress to abuse detainees in ways that no previous POW or criminal defendant has been abused before.

Posted by: Bruce Moomaw at July 3, 2006 03:00 PM

That's not a fair reading of Benjamin. What he said was that not a single justice agreed that it was impossible to read Article 3 to apply to al Qaeda. 'All the justices agree that it could be read to apply' is notably different from 'all the justices agree that it should be read to apply.'

Posted by: Grim at July 3, 2006 03:56 PM

For God's sake, Grim, learn to read. Quoting Benjamin: "A major aspect of today's Hamdan v. Rumsfeld opinion was the Court's conclusion that Common Article 3 of the Geneva Conventions applies to Al Qaeda...[T]he only dissenter who says he disagrees with the majority's reading of Common Article 3 as applying to Al Qaeda is Justice Thomas...On that key question, Justice Thomas says that both the President's and the majority's positions are plausible and reasonable."

That is, Benjamin says flatly that seven justices agreed that CA 3 DOES apply to al Qaeda; Thomas is the only one who said only that it "COULD be read to apply" to al Qaeda.

Posted by: Bruce Moomaw at July 3, 2006 04:14 PM

I'll thank you to adopt a politer tone, if you care to continue the discussion. It's of no concern to me if you don't.

Benjamin also says, "Scalia and Alito join the portion of Thomas's dissent that talks about whether Common Article 3 applies, so that's where the discussion is." That suggests that you have three partial exceptions, not one -- and, as it was a 5-3 case, that is to say that every dissenter raised the possibility that Art. 3 should not apply.

I think, therefore, it is fair to say that "every justice agrees it could apply," but that not every justice agrees it should.

Posted by: Grim at July 3, 2006 04:48 PM


You have the patience of a saint, but I do believe Bruce is stuck on "Send". "Receive" mode seems to be inoperative at the moment, making it extremely difficult to carry on a conversation. But if you want to be converted to his way of thinking (which is the only way of thinking), he's all game.

Posted by: Cassandra at July 3, 2006 05:36 PM

Same ol' same ol' with the same talking points. Again. And again. And again.

I wonder if Bruce knows who killed the discretionary fund and the result thereof. In lives. Little nitpicking history facts sure do get in the way of a good story.

Let's see, Nixon and Watergate provided a platform for the destruction of HUMINT and the discretionary funding for it? Uh, is it just me or is that so wrong it's laughable?

Oh well, back to practicing my BushReich goosestep. I've almost got it down! I'll leave all of this intellectual stuff to y'all of far superior brain power than us dumb ol' redneck bass fishin' rum drinking Southerners.

Posted by: JarheadDad at July 3, 2006 06:06 PM

President Bush is personally abusing detainees?
Who is doing the genital mocking? I have the Enquirer, Paris Match and Le Monde on speed dial.

Bruce, the detainees have not been 'abused.'

Nor has their Koran been mocked.

JHD, come on up to the Rockies and let's us little ol' hairy knuckled mouth breathing rednecks fish for some trout.

Posted by: Cricket at July 3, 2006 06:26 PM

As long as I don't have to use a flyrod, carry a creel, and smoke a pipe I'll be there Cricket! Still can't use corn out there huh? ;-)

We've actually got some excellent trout fishing around here. Some serious natives and brown trout. They stock the rivers with hundreds of thousands of little rainbows but those are for amateurs. You've got to do some hiking and climbing to get to the best fish. I caught a brownie that was about 6# in a creek the size of a ditch last year. A three day hike into the Linville Gorge up in NC.

They use little bait trout to catch 30# + stripers in Lanier. Stripers are really getting some size to them in all our lakes nowadays. Not quite like chasing them over the rocks in the Atchafalaya spillway in Louisiana but they can really stretch a string even without the current.

I wanna' go to Alaska and do some fishing. I had the chance a number of years ago when we were headed that way to run a soccer camp in Chugiak but unfortunately decided I needed to destroy myself and lay around peeing in a Gatorade jar for a few months. Heh! Bigtime overshare! :-o

Posted by: JarheadDad at July 3, 2006 10:36 PM

Post a comment

Remember Me?

(you may use HTML tags for style)