Unreligious Right is outraged the U.S. military isn't able to "apprehend people in foreign countries, far from any Afghan battlefield, and then bring them to a theater of war" for indefinite detention without judicial review.
Our judiciary, he says, should not "have any say over military operations."
I mentioned our system of checks and balances, but as he concludes in the comments:
A check is different from a usurpation. This is a usurpation. Do you think the president should start deciding what type of prison sentences judges can hand out? Would that be a check on judicial power?Why, yes I do, and yes it would be. We tend to call them "pardons", "reprieves", or "commutations". That'd be from Article 2, Section 2. Great example of how our checks and balances work, buster. He continues:
If the military is fighting to give foreign prisoners they capture access to the U.S. Court system, you might want to tell them, they'll probably be surprised to learn that's part of their mission. I'm sure it will be good for morale.Damn. Do they need a constitutional primer as well? I just assumed maybe they'd read it before solemnly swearing to "support and defend the Constitution of the United States against all enemies, foreign and domestic."
As for where the judiciary gets its powers to rule on military detentions, here's Article 3 Section 2 with my emphasis:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.As pertains to Congress making such laws, Article 1 Section 8:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;Now I'm no lawyer, but I have no reason to think the judge in the case we're discussing wasn't acting within the lawful authority prescribed by the Constitution and Congress. If Mr. UNRR or any of you know of one then I'd be interested to hear it.
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Update: publius explains this rulling well, I think. Basically it's narrow and only affects situations identical to Guantanamo Bay, applying the Supreme Court’s Boumediene case from last year.
"Why, yes I do, and yes it would be. We tend to call them "pardons", "reprieves", or "commutations"."
ReplyDeleteA pardon is a specified presidential power. This power the judiciary is claiming is a mere interpretation. Creative interpretations can always be found for expansions of power.
"Damn. Do they need a constitutional primer as well? "
Except that this has nothing to do with defending the Constitution, and is instead an unwarranted attempt to provide foreign prisoners of the U.S. military with rights. It is instead an attack on the Constitution, which weakens the value of the rights of U.S. citizens.
"As for where the judiciary gets its powers to rule on military detentions, here's Article 3 Section 2 "
There should be no "case" at all. The court interfering with the disposition of these prisoners is a usurpation of executive branch authority to direct military operations. The "controversy" is wholly manufactured.
"As pertains to Congress making such laws, Article 1 Section 8"
You are pretending that this is a normal exercise of judicial branch oversight, when it is instead a radical new interpretation of judicial authority in a sphere traditionally dominated by the power of the executive branch.
"but I have no reason to think the judge in the case we're discussing wasn't acting within the lawful authority prescribed by the Constitution and Congress. If Mr. UNRR or any of you know of one then I'd be interested to hear it."
To clarify, I'm not saying that you can't make a constitutional argument for what the judiciary is doing, I'm saying that the argument is a bad one, and that the president has a strong case that this action is an unconstitutional usurpation of executive powers. It's a radical attempt to extend judicial power into areas that have been controlled by the executive.
Your position (and that of the judge) is way to the left of the Obama administration and of every administration that preceded him. This case has nothing whatsoever to do with "Cheneyism." Every president has had the authority that the court is now attempting to usurp.