July 12, 2006


Terror and Presidential Power: Bush Takes a Step Back (SCOTT SHANE, 7/12/06, NY Times)

After the Pentagon released the memo, the White House confirmed that it had formally withdrawn part of the 2002 order and accepted that Article 3 now applied to Qaeda detainees. That article prohibits “humiliating and degrading treatment” of prisoners and requires trials “affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

“This is an important course correction, and there are political ramifications to it,” said Scott L. Silliman, an expert on the law of war at Duke University. Top defense officials “never really clarified when Geneva applied and when it didn’t,” he said.

Richard H. Kohn, a military historian at the University of North Carolina, said the administration might have anticipated that it would have to adjust its policies, formed under immense pressure after the Sept. 11, 2001, terrorist attacks.

“They were going to reach as far as possible to prosecute this war, and if they were forced to scale back, they’d scale back,” Mr. Kohn said. “Almost from the beginning, the administration has had to back away and fuzz up the issues.”

If there has been a retreat, it may partly reflect a change in the perceived threat from Al Qaeda since the disorienting days after Sept. 11. As months, then years, passed without a new attack in the United States, the toughest measures seemed steadily less justifiable.

“As time passed, and no more buildings were blowing up, it was no longer an emergency, and the rules had to be renegotiated,” said Dennis E. Showalter, a professor of history at Colorado College.

Charles Krauthammer nearly had this right, High court made a premature ruling on tribunals (Charles Krauthammer, 7/10/06, Philadelphia Inquirer)
1861. 1941. 2001. Our big wars - and the war on terror ranks with the big ones - have a way of starting on the first year of a decade. Supreme Courts, which historically have been loath to intervene against presidential war powers in the midst of conflict, have tended to give the president until mid-decade to do what he wishes to the Constitution in order to win the war.

During the Civil War, Lincoln suspended the writ of habeas corpus - trashing the Bill of Rights or exercising necessary emergency executive power, depending on your point of view. But he got the whole troublesome business done by 1865.

During World War II, FDR interned Japanese Americans, but he got his war wrapped up by 1945.

Had the current war on terror ended in 2005, the sensational just-decided Hamdan case concerning military tribunals for Guantanamo prisoners would have either been rendered moot or drawn a yawn.

But it wasn't a particularly big war and we did win it that quickly. Nor are Congress and the Courts going to to be able to limit the Executive to any significant extent even though the emergency has passed.

Posted by Orrin Judd at July 12, 2006 7:41 AM

Nor when trains in India are bombed and some of the same media scoffing at the need for covert surveillance program go into a tizzy because there aren't enough security cameras, emergency exits or electronic bomb detection equipment devices available for U.S. subway systems. You can't stir your readers or viewers into a panic over what might kill them, then try to limit the government's efforts to track down the people who are trying to carry out those schemes.

Posted by: John at July 12, 2006 10:18 AM

Perhaps the planning for this attack could have been intercepted and the attack prevented if our crack media hadn't let them know how we were going about getting terrorist intel?

It must make the media so proud. While hundreds lie dead and mutilated on train tracks, the perps at Gitmo are being looked after by leftist loonies here and abroad.

Posted by: erp at July 12, 2006 10:45 AM

As Ronald Reagan used to say, there you go again.

The procedural side of the Hamden case is not the big deal it is being made out to be. The United States should, quickly, for a change, this time, adopt a set of procedures and rules on evidence which superficially resemble the UCMJ and the MCM, mutatis mutandi. (MCM =Manual for Courts-Martial, the military rules of procedure and of evidence)

Now comes the good part. The necessary changes can be lifted, preferably verbatim, from an existing Code Law system. We could look at the French, or the Russian systems, but the best bet would be the Chinese, not only the Chinese system as written down, but as actually practiced. Do this, and then let them tell us we are not "civilized."

The substantive law questions are more important than working out the procedural niceties. The vicarious liability of members of criminal organizations must be spelled out. Chicom law will again be of great help here, as will the Nurenberg precedents.

The challenge here is to avoid the trap already set for us by the weasels, foreign and domestic. That trap consists of expansion of privileged belligerency to include the methods of stateless terrorists.

Posted by: Lou Gots at July 12, 2006 12:51 PM

Elected officials aren't going to vote pro-terrorist.

Posted by: oj at July 12, 2006 1:58 PM
« JIHADIS R US: | Main | WANNA WIN A BOOK? (via Glenn Dryfoos): »