The WingNut Version of the Hamden Decision

[RockHardCore]

Could someone please help me understand this? They are trying to make it sound like the Hamden decision actually favored the President!!!!

"It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities." — i.e., indefinitely."


Hamdan v. Rumsfeld and the Democrats' Search for New Talking Points

Congress—and the nation—will in coming weeks have to engage seriously in a debate about how to treat our detainees in the war on terror in a way that is consistent both with America's safety and with Constitutional and legal limitations on the power of the government. An important part of this debate will be the Supreme Court's recent ruling in Hamdan v. Rumsfeld, and it is too bad that very few Americans—and very few of the people making comments about it—have any idea what the ruling actually says. The effect can be observed in the liberal talking points developed in rapid reaction to yesterday's speech announcing the proposed legislation: The president should not be proposing legislation to legalize policies that the Supreme Court has already struck down as unconstitutional. In fact, the Supreme Court has done no such thing.
Because it is so long and technical, most people never understood how inconsequential the Hamdan decision is in constitutional terms. No part of the ruling raises an issue of constitutional law, and the Hamdan Court says almost nothing about the powers of the president, except to confirm them. The ruling did not declare unconstitutional any law of Congress or any action of the President. In fact, it is composed chiefly of the most trivial technicalities of statutory construction that I have ever encountered in a Supreme Court opinion. (And I had to read hundreds of them in law school). And because it is pure statutory construction, every part of the ruling can be "reversed" by changing or clarifying the underlying statutes—the Detainee Treatment Act of 2005, and the Uniform Code of Military Justice.

This suggests the proper way to understand the legislation proposed by the President yesterday. If passed, it will not only almost completely reverse the effects of the Hamdan ruling, but it will also leave the President's national security policies on much firmer and more permanent footing: that of federal legislation. Meanwhile, it's worth recalling the single most important sentence in the Hamdan majority's opinion: " It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities." — i.e., indefinitely

[sinkingfeeling]

1. From what source are you quoting?

[RockHardCore]

2. Source

This is National Review - the epicenter of evil and hate on the Right. They work overtime to justify rightwing bs.

[sgxnk]

3. these are the facts

this is a matter of law, not opinion

the hamden decision did NOT declare bushco's acts UNCONSTIUTIONAL

period.

they said that they required STATUTORY authority (which is not yet present).

all that is needed is the proper legislation passed.

if you don't understand this, then i suggest some legal research. www.volokh.com has some very good commentary on this case, and that website has some of the smartest (and smarmiest) constitutional law authorities around.

there is a big difference between saying an act or program is UNCONSTITUTIONAL vs. saying it requires (not present) statutory or congressional authority

as for NReview, they have tons of commentators against the war in iraq, against various bush policies, etc. etc. etc. they are hardly a bushco organ, although OBVIOUSLY they are a conservative one.

[EstimatedProphet]

4. Link?