WASHINGTON, Jan. 10 (UPI) -- A powerful federal court, ruling on broad issues, has brushed aside international law and the laws of war, saying only domestic law restricts the president's power to hold an enemy combatant.
The 2-1 ruling was handed down in the case of a Guantanamo detainee seeking release through a constitutional, or habeas, review of his case. But instead of being a paean to the power of the writ of habeas corpus, language in the opinions supporting the ruling may instead serve as a rallying cry for those who say it is time for the president and Congress to face reality and recognize the old rules no longer apply.
U.S. Circuit Judge Janice Rogers Brown wrote the majority opinion, and a separate concurrent opinion agreeing with the majority document. In that second opinion, in a highly unusual departure from judicial custom, Brown sets out a chilling vision of the stakes and new tactics in the war against terror.
"War is a challenge to law, and the law must adjust," Brown wrote. "It must recognize that the old wine skins of international law, domestic criminal procedure or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort."The opinion said all of al-Bihani's arguments "rely heavily on the premise that the war powers granted by the (congressional Authorization for Use of Military Force) and other statutes are limited by the international laws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005 ... or the MCA of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the president's war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. ...
"Therefore, putting aside that we find al-Bihani's reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles," the opinion added. "The sources we look to for resolution of al-Bihani's case are the sources courts always look to: The text of relevant statutes and controlling domestic case law. Under those sources, al-Bihani is lawfully detained."
read more:
http://www.upi.com/Top_News/US/2010/01/10/US-Supreme-Court-In-terror-war-to-hell-with-international-law/UPI-45561263112200/___ This decision will have a huge impact on how our government applies detainees’ rights because it has, for the time being, handicapped the 2008 majority decision in Boumediene v. Bush, in which the Supreme Court granted that detainees in Guantánamo had habeas rights and that the military commissions were wrong. As ScotusBlog explains: (
http://www.scotusblog.com/wp/wide-detention-power-upheld/#more-14394)
Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington.
The Circuit Court panel embraced the definition of detention power first spelled out by the Bush Administration (somewhat wider than the Obama Administration has advocated) and adopted by U.S. District Judge Richard J. Leon. Leon has been prepared to allow a wider scope for detention than most of his District Court colleagues; their views on the issue must now yield. Conceivably, the practical result may be that fewer detainees can now win court orders for their release. While the government has not appealed to the Circuit Court all of the prior release orders, it presumably has a free hand now to contest almost any such order.
Why does this matter? Because in Al-Bihani, neither the case nor the court ruling are based on “reasonable doubt” but rather a “preponderance of the evidence,” the lowest legal hurdle and among the flimsiest reasons for indefinite detention—which is a terrible precedent going forward. In fact, In Al-Bihani v. Obama, Judge Brown’s sentiment is that, “War is a challenge to law, and the law must adjust.”
Should it?
When Congress has yet to formally declare war, shouldn’t our Constitution be upheld in cases like this and shouldn’t people who are detained, if there is not formal war, have their day in court? John Adams would think so and, as Justice Kennedy wrote in the majority opinion of the 2008 Boumediene v. Bush ruling, “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, ’say what the law is.’”
read more:
http://www.constitutioncampaign.org/blog/?p=389___ This decision represents a rare frontal attack on the prevailing Supreme Court doctrine, rendered in the Boumediene decision of 2008. In that decision, a majority of the court, led by Justice Kennedy, said: “We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation of relevant law.’ ”
. . . contrary to the Supreme Court’s decision in Boumediene, they said that standards of international law have no bearing on the treatment of detainees. “We have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles,” the Circuit Court judges said.
The D.C. Circuit Court retreated from the Supreme Court’s courageous decisions during the Bush Administration that limited executive power. Instead, the circuit court reaffirmed the arguments of Bush Administration lawyers that granting traditional habeas corpus rights to detainees “would have systemic effects on the military’s entire approach to war” and that “military operations would be compromised.”
But the Supreme Court squarely addressed these arguments in Boumediene and repudiated them. “Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict,” the Supreme Court acknowledged, but it immediately went on to say: “There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”
read more:
http://www.progressive.org/wx010910.html___ The panel rejected Al-Bihani’s argument that detention power extends only to those who are part of an official state military or to a civilian who has committed a direct hostile act, such as firing a gun in combat. Al-Bihani insisted he did not fit either category, and, therefore, that international law of war barred his detention.
Presidential detention power, stemming from the post-9/11 congressional resolution (the Authorization for the Use of Military Force), is not limited by international law, the majority said in the part of the opinion to which Judge Williams expressly objected. Concepts of international law, the majority said, lack “controlling legal force.”
Turning from presidential power to the nature of the legal rights that detainees have in habeas challenges, the majority rejected every one of Al-Bihani’s claims that the procedures used in his case were inadequate. The panel rejected his claim that a “reasonable doubt” standard should be used to test the government’s reasons for detention, embracing instead a “preponderance of the evidence” (the lowest legal hurdle).
More broadly, the panel turned aside his basic claim that as a detainee he was entitled in his habeas case to the procedural protections that normally are available in a regular court case involving a criminal in custody. Habeas procedures for wartime detainees, the majority said, need not match those developed for regular criminal cases.
read more:
http://www.scotusblog.com/wp/wide-detention-power-upheld/#more-14394___ You could almost feel the pleasure taken by Judge Janice Rogers Brown in her opinion, concluding that the international laws of armed conflict have no bearing on the scope of government power to decide who may be detained as a wartime enemy. It wasn't in her grandiloquent declaration that war trumps law ("War is a challenge to law, and the law must adjust") and it wasn't in the brazenness of this staunch conservative's extreme judicial activism. No, it was in a simple, almost invisible, aside; a gratuitously deprecating retort to the petitioner's claim that the lower court ruling against him was erroneous: "Al-Bihani's argument clearly demonstrates error, but that error is his own." Or, as I would say on the 5th grade playground when Freddy Harris called me a jerk, "I know you are, but what am I?"
OK, this is far from the most egregious display of judicial distemper on any given day. Still, it is not such a stretch to see Judge Brown's smack-down of the litigant and her treatment of the rule of law as parts of an imperious whole.
But let's focus on the law. And on the Judge's curious dismissal of international law applicable to detention in armed conflict. There is, says Judge Brown, "no occasion... to quibble over the intricate application of vague treaty provisions and amorphous customary principles." Well, tell that to the Supreme Court, which in its majority opinion in Hamdi made express reference to the international laws of war as a source of interpretive guidance on the scope of detention authority under the 2001 Congressional Authorization for the Use of Force (AUMF). That would be the same Supreme Court which, in Hamdan, decided that Guantanamo detainees are, indeed, protected by the Geneva Conventions.
Over at Balkanization, Deborah Pearlstein notes that Judge Brown invokes the President's Constitutional War Powers as authority to trump the international laws of war, but then ignores the same President who, like the Supreme Court, construes those war powers to be informed by the laws of war. Admittedly, the torture lawyers of the Bush administration hawked a vision of War Powers much like that of Judge Brown: unconstrained by international law. But is this Court also suggesting that the executive's vast powers in matters of war do not include the competence to determine that it will abide by its international legal obligations? Looks more like an exercise in judicial war powers, a citation for which I cannot find in the Constitution.
read more:
http://www.huffingtonpost.com/human-rights-first/appeals-judge-disses-gitm_b_416900.html___ Think of that. Let it sink in.
"The president's war powers cannot be constrained by the international laws of war." Whatever the Leader (no points for translating this term into German) decides to do in the course of a war is thus rendered entirely "legal." He cannot be accused of international war crimes because such things do not apply to him.
With this ruling -- which is all of a piece with many more that have preceded it -- we are well and truly "past the leading edge of a new and frightening paradigm." What is most frightening, of course, is the obscene philosophy of machtpolitik -- the craven kowtowing to the demands of brute force -- that is embodied in Judge Brown's chilling words: "War is a challenge to law, and the law must adjust."
Again, remember the context of this ruling. It deals with the Leader's power over foreign citizens in lands that the Leader's armies are occupying. The judicial "reasoning" expressed by Judge Brown could apply, without the slightest alteration, to the Nazi regime's various programs of mass killing and "indefinite detention" of "enemy" foreigners in occupied lands.
The "resettlement" of Eastern Europe -- in order to provide for the "national security" of the German people and the preservation of their "way of life" -- did indeed require a pathbreaking advance into a "new paradigm" on the part of the law. The exigencies and challenges of the war demanded, as Judge Brown would put it, that "new rules be written."
And so they were. Under the duly, officially, formally constituted German "law" of the time -- as interpreted and applied by obsequious jurists in the mold of Judge Brown and her fellow war power expander, Judge Brett Kavanaugh -- there was little or nothing that was "illegal" in the vast catalogue of Nazi wartime atrocities, including the Holocaust itself. The perpetrators were "only following orders," which had been issued by "legal" entities, acting through "legal" processes, under the direction of the "legal" executive authority, whose unrestrained war powers had been established and upheld by the "rule of law."
Now this legal philosophy -- the primacy of raw, unaccountable power -- is being openly established by the highest courts of the United States.
read more:
http://www.opednews.com/articles/The-Lie-of-Law-Courts-Bow-by-Chris-Floyd-100107-742.htmlthe D.C. Circuit Court decision can be read here: http://www.scotusblog.com/wp/wp-content/uploads/2010/01/CADC-ruling-in-Bihani-1-5-10.pdf
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
