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Hamdan v. Rumsfeld

Dave Sidhu - June 30, 2006

On Thursday, the Supreme Court of the United States issued one of the most important decisions of our generation, one that vindicates the American constitutional design and, in particular, the judicial check on executive wartime authority.

In Hamdan v. Rumsfeld, the Court held that:

Congress did not take away the Court's authority to rule on the military commissions' validity, and... that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention.

In addition, the Court concluded that the commissions were not authorized when Congress enacted the post-9/1l resolution authorizing a response to the terrorist attacks, and were not authorized by last year's Detainee Treatment Act....

The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction" (emphasis added).

Neal Katyal, lead counsel for Mr Hamdan, spoke about the decision this afternoon. His concluding remarks capture the essence and importance of this decision. Professor Katyal said:
One final note.... And that just has to do with... the lesson of the decision more generally.... I had hoped that when we won that the administration would just take a deep breath and think to themselves, 'well this is actually something great about America.'

Presidents make mistakes.... I don't think that this is a rebuke to the Bush administration per se, I think the Founders anticipated that presidents are going to push their power. But, what's great about America, it seems to me, is that we have a court system... that checks the President and allows this guy -- a fourth-grade educated Yemini accused of conspiring with one of the worst individuals on the planet, Osama bin Laden -- ... sue the... world's highest, most powerful official, the President of the United States, and says 'you're doing something illegal to me, you're violating your own basic laws.'

What other nation on earth allows people to do that? It's a great thing about America. We should be celebrating it, I think, and I think the administration should celebrate it as well because it says that we're different. And, if we're going to win the war on terror, we are going to win it through our soft power, we're going to win it through saying to the world that we actually have a better model than you because in your countries you settle these things through force and fiat, and here we settle them through law, we settle them through law.

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Posted by Dave Sidhu at June 30, 2006 07:02 PM

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So Salim Ahmed Hamdan is free then I presume . . .

yeah . . .

It looks nice on paper though!

peace

and yet as a stand...

I hear ...

oneness at its best ...

i agree...

how does one implement it ???

when we remain trapped in separation ...

judgement ...

eye for an eye level of justice?

the shift within

we are called to rise above

towards that ...

which remains ...

like Wayne says "we cannot solve a problem with the same energy that it was created ..."

The 3 July New Yorker has an article about David Addington, the lawyer who's said to be behind the the philosophic, strategic and legal (sic) implementation of things like the Guatanamo military commissions. This guy is Cheney's COS, has worked with Cheney for decades, and a scary character. It's a good article -- you can read it at http://www.newyorker.com/fact/content/articles/060703fa_fact1

live in love, heather

This is one step in the right direction. Separation of powers is probably the single most important concept in American government.

The 'checks and balances' we hear about are not abstractions. They are roots of our way of life, the trunk of the American tree.

To dissolve the separation of powers and do away with the checks an balances cuts the not only the heart, but the mind and the soul also out of America.

Without the separation of powers and the system of checks and balances, you cannot have the United States Of America as a Democratic Republic.

What do call it when one indiviual has all the power? What do you call it when freedom of press is non-existent, when citizens are spied on by a paranoid government, and are encourage to spy on each other?

What do you call it when the criminal justice system is reducued to a system of jails, torture, and kangaroo courts where the accused are stripped of their rights to competent legal defense?

What do you call it when citizens can be rounded up, carted off to jail without a search warrant, without warning, without being charged with any crime, and can be locked away indefinitely without recourse to see a lawyer, or even their family members?

What do you call it when torture is used to generate "confessions" to be used against the accused in "tribunals" which are not legal courts of law?

Think about the answers to these questions and list the countries in the past 50 years who have run their governments this way. It is the list if countries run by totalitarian dictators.

It is not a list our country should be on.

THe USA has managed to weather some fairly withering attacks on its fragile democracy.

I hope we get through this stage too. Everything depends on the Supreme Court and the houses of Congress to return to practicing the principles of the American Constitution and the Bill of Rights.

In no way does nullifying those principles make us a safer or stronger nation.

Now matter how much a small group or single family or single individual organizes to seize absolute powere, the idea is completely antithetical the core concept of the United States Constitution.

The Constitution is expressly and unambiguously designed to split up the power between three branches of government, and hundreds of representatives of the voters. The voters are the people who have the ultimate authority under the Constitution.

The Presidents job description defines him as being a public servant.

That means you and I, the public, are the President's boss.

Not the other way around.

To forget that is absolutely the most un-American attitude you can adopt.

The concept of representative democracy and the structure of the Democratic Republic of the USA are not up for grabs. They are not maleable concepts to be either followed or not as the President (or anybody else) sees fit.

When these principles are abandoned, the Republic itself dissolves.

This is the dream of every person who craves absolute power.

And it is precisely that insane, addictive power-craving that the Constitution was designed to protect us from.

It amazes me how easily some Americans allow themselves to propagandized away from that essential foundation of our way of life.

When you stop believing in the separation of powers, the checks and balances, or the separation of church and state, there is one thing you most assuredly are NOT: a patriot.

The patriots that founded this country all held those principles with the highest reverence.

The patriots held the concept if individual liberty as the highest personal value.

That's right - you heard rioght - "L" word that is the scourge of the neocons: liberty and freedom of the individual.

Read your American history: the concept is central to the entire structure of the American Democratic Republic.

Without individual liberty and freedom, you cannot have the American Democratic Republic.

And that very concept is why people from all over the world come here to find their liveihoods and pursue their dreams.

There can be absolutlely no compromise of this principle. Not if the Republic is to survive intact.

At least the Supreme Court still understands that much.


yogi-one, You made every point that is worth making. I was happy with the court's decision on this issue, but I am not sure this means they will rule the same way on the other seperation of powers issues.

Some tests for the courts like NSA warrantless wiretaping will hopefully be making it to the court and we will see.

I read that whole article that heather referred to. It took a while, but boy was it educational. I bookmarked it and read it in chunks when I had time.

David Addington's name should be all over the front pages of the nations news media for being the legal mastermind behind almost every policy in which the the President has been accused of usurping his authority. It's amazing -these all seem like separate cases, but Addington and Cheney are the architects of these power grabs every single time - so far, literally without exception.

And the article clarifies a few other relevant points - how Addington and Cheney both were scarred psychologically for life by the outcome of the Vietnam War, Watergate, and the prosecution of President Reagan's illegal Iran-Contra war.

They adamantly believed the US should have stayed in Vietnam and fought to the last man, that too much power was removed from the Office of the President during Watergate, and that President Reagan should have had absolute authority to wage any war he wanted, at any time, with no checks and balances on his decisions.

People who know both of these men very well have verified that the two men are still fighting these past battles and using the "War on Terror" to change policies implemented after Vietnam and Watergate.

This confirms what I have suspected all along: that the linking of Vietnam and Iraq are not "lefty" fabrications, but the two wars are seen as part of the same ideological battle by Dick Cheney himself, along with David Addington.

Hmmm....

The Brittish had a Constitution to, it was called the English Constitution. But the American colonists didn't care how "constitutional" Brittians policies were. So they killed the Brittish and wrote thier own constitution, it was called the U.S. Constituion. What do we learn from the American Revolution? We learn that Constitutions don't take precedent over what's right. So what do we do when the U.S. Constitution starts getting used to justify wrong?

Dear baba, I am dhaba (that stands for an inexpensive eating house). I am your fan of prose- poems. I would like to learn how to write like you. You be the guru for a new chela. You write in English slang. I am no English. I am hindustani. So dear readers, please bear with my hindustani slang and words of bharti bhasa.... (and dear Mallika, don't worry with yet another avatar. Things come and go, as you know. And everything finally comes to an end.)

*****


We’re going to win the war …
Through soft words...
Through soft power…

Dropping bombs
Maiming millions
Killing thousands
Jailing hundreds

Ya, ya we’re going to win the war…
Through soft words…
Through soft power…

Raping women
Shooting at ease
They’ll kneel
At prayer mats
Asking Allah for mercy

Ya, ya we’re going to win the war…
Through soft words…
Through soft power…

They don’t follow no law
Shariat is their law
We follow our law:
That’s is no law

Killing them for no reasons
Maiming them for no reasons
Jailing them for no reasons
We follow our law
That’s no law

Did you forget years ago
He threatened to kill my dad
I am my dad’s lad
I could have killed him
When captured
But I’m a kind cowboy
I put him in jail
To torture…

Ya, ya we’re going to win the war…
Through soft words…
Through soft power…

Our model is good
Their model is bad
No body can challenge our model
No body dare ask what we do
We have all the power

Don’t be mistaken
We won’t be taken
By their empty terrorist threats
Let them beat their breasts
We’ll beat them to smithereens
Dropping bombs on them

Ya, ya we’re going to win the war…

"...Most provocative is the contractor to whom this no-bid contract was handed:  ChoicePoint Inc. of Alpharetta, Georgia.  ChoicePoint is the database company that created a list for Governor Jeb Bush of Florida of voters to scrub from voter rolls before the 2000 election.  ChoicePoint's list (94,000 names in all) contained few felons.  Most of those on the list were guilty of no crime except Voting While Black.  The disenfranchisement of these voters cost Al Gore the presidency.
 
Having chosen our President for us, our President's men chose ChoicePoint for this sweet War on Terror database gathering.  The use of the Venezuela's and Mexico's voter registry files to fight terror is not visible -- but the use of the lists to manipulate elections is as obvious as the make-up on Katherine Harris' cheeks. "
http://www.rense.com/general72/ddoe.htm

hey matt !!
that is a very interesting post ! i hope more grows from it!

"... are challenging a new law which says that no one may demonstrate within a kilometre, or a little more than half a mile, of Parliament Square if they have not first acquired written permission from the Commissioner of the Metropolitan Police. This effectively places the entire centre of British government, Whitehall and Trafalgar Square, off-limits to the protesters and marchers who have traditionally brought their grievances to those in power without ever having to ask a policeman's permission.
The non-demo demo, or tea party, is a legalistic response to the law. If anything is written on the placards, or if someone makes a speech, then he or she is immediately deemed to be in breach of the law and is arrested. The device doesn't always work. After drinking tea in the square, a man named Mark Barrett was recently convicted of demonstrating. Two other protesters, Milan Rai and Maya Evans, were charged after reading out the names of dead Iraqi civilians at the Cenotaph, Britain's national war memorial, in Whitehall, a few hundred yards away.
On that dank spring afternoon I looked up at Churchill and reflected that he almost certainly would have approved of these people insisting on their right to demonstrate in front of his beloved Parliament. "If you will not fight for the right," he once growled, "when you can easily win without bloodshed, if you will not fight when your victory will be sure and not so costly, you may come to the moment when you will have to fight with all the odds against you and only a precarious chance for survival. There may be a worse case. You may have to fight when there is no chance of victory, because it is better to perish than to live as slaves."
Churchill lived in far more testing times than ours, but he always revered the ancient tradition of Britain's "unwritten constitution". I imagined him becoming flesh again and walking purposefully toward Downing Street - without security, of course - there to address Tony Blair and his aides on their sacred duty as the guardians of Britain's Parliament and the people's rights. "
http://news.independent.co.uk/uk/politics/article1129827.ece

Hi Chela of baba...What ru doing in dhaba?:))

I was looking for Insight
but is no where In sight
Maybe he's far way from light
Or you think he got too tight
Inspite of telling am not here to fight
But they think we don't have right

Oh the Right Oh the Right
Human rights Human rights!
Talks go on forever and ever
But the poor humans suffer and suffer

Loved the concept of soft power
Yeah soft power soft power
Dropping bombs to take out the power
We'll win the war on terror
We'll win the war on terror
Yeah thru' soft power soft power.

Soft Power?? Never heard that!:))

Oh not to forget the model
Coz we got the best model
U better be like us
Or else we will go full throttle

You don't have any rt to live per ur model
We decide for u what is the best model
But Don't we have rt to live as per our model
No way you've to live as per our model
But what abt human rights, human freedom
No no that is meant only for the paper
Becoz we are the only Super Power!

Did you read yogi's points? Good. Honest&Self reflective!

Truly...Sachin

"...The day after the exchange was published, the grudging truce between the Government and me was broken. Blair gave a press conference, in which he attacked media exaggeration, and the then Home Secretary, Charles Clarke, weighed in with a speech at the London School of Economics naming me and two other journalists and complaining about "the pernicious and even dangerous poison" in the media.
So, I guess this column comes with a health warning from the British Government, but please don't pay it any mind. When governments attack the media, it is often a sign that the media have for once gotten something right. I might add that this column also comes with the more serious warning that, if rights have been eroded in the land once called "the Mother of Parliaments", it can happen in any country where a government actively promotes the fear of terrorism and crime and uses it to persuade people that they must exchange their freedom for security. ..."

http://news.independent.co.uk/uk/politics/article1129827.ece <v^

""What is assured as being harmless when it is introduced gets used more and more in a way which is sometimes alarming," he says. His colleague David Davis, the shadow Home Secretary, is astonished by Blair's Labour Party: "If I had gone on the radio 15 years ago and said that a Labour government would limit your right to trial by jury, would limit - in some cases eradicate - habeas corpus, constrain your right of freedom of speech, they would have locked me up."
Indeed they would. But there's more, so much in fact that it is difficult to grasp the scope of the campaign against British freedoms. But here goes.

Do these tiny cuts to British freedom amount to much more than a few people being told to be more considerate? Shami Chakrabarti, the petite whirlwind who runs Liberty believes that "the small measures of increasing ferocity add up over time to a society of a completely different flavour". That is exactly the phrase I was looking for. Britain is not a police state - the fact that Tony Blair felt it necessary to answer me by e-mail proves that - but it is becoming a very different place under his rule, and all sides of the House of Commons agree. The Liberal Democrats' spokesman on human rights and civil liberties, David Heath, is sceptical about Blair's use of the terrorist threat. "The age-old technique of any authoritarian or repressive government has always been to exaggerate the terrorist threat to justify their actions," he says. "I am not one to underestimate the threat of terrorism, but I think it has been used to justify measures which have no relevance to attacking terrorism effectively." And Bob Marshall-Andrews - a Labour MP who, like quite a number of others on Blair's side of the House of Commons, is deeply worried about the tone of government - says of his boss, "Underneath, there is an unstable authoritarianism which has seeped into the [Labour] Party."


"..Chakrabarti, who once worked as a lawyer in the Home Office, explains: "If you throw live frogs into a pan of boiling water, they will sensibly jump out and save themselves. If you put them in a pan of cold water and gently apply heat until the water boils they will lie in the pan and boil to death. It's like that." In Blair you see the champion frog boiler of modern times. He is also a lawyer who suffers acute impatience with the processes of the law. In one of his e-mails to me he painted a lurid - and often true - picture of the delinquency in some of Britain's poorer areas, as well as the helplessness of the victims. His response to the problem of societal breakdown was to invent a new category of restraint called the antisocial behaviour order, or Asbo."

/Shocked

"The point about the Human Rights Act," he declared, "is that it does allow the courts to strike down the act of our 'sovereign Parliament'." As Marcel Berlins, the legal columnist of The Guardian, remarked, "It does no such thing."
How can the Prime Minister get such a fundamentally important principle concerning human rights so utterly wrong, especially when it so exercised both sides of the House of Commons? The answer is that he is probably not a man for detail, ..."

hummm

the words "'you're doing something illegal to me, you're violating your own basic laws."

imagine how much healthier and happier we would be if we would implement such motto in ourselves and those we interact with ...

in honesty, courage and conviction ...

specially when we are living an era where so much power has been made available ...

and yet how many of us use such power uncounsciously ...

in controlling and highly egocentric ways ...

to the detriment of the self and those we attract in our lives ...

the reason maybe why I get so ignited when I see myself or another knowing better and choosing otherwise ...

truth is that whether we like it or not Bush was elected twice ...

whch says much of the collective force he represents ...

leading to much criticism and and and

as if he is some allien dropped in the world...

giving us permission to stand up in indignation and self righteous ways ...

forgetting we are part of the same pie we attack...

truth is

we know better ...

and I am inspired by this question "where am am doing something illegal to me??? Where Am I am violating my own basic laws?????"

a level of discussion I love participating on ...

so that I can see myself with different eyes and course correct where needed ...

much more empowering ... it feels to me

i agree baba

how are we ever violating our basic laws

maybe TV should be paused world wide for some time and let everyone have a break to see what has been going on

The Real Meaning of the Hamdan Ruling

Supreme Court: Bush Administration Has Committed War Crimes

By DAVE LINDORFF
http://www.counterpunch.org/lindorff07032006.html

Ametuer Boxing is a big thing here in Sydney Bankstown in particular, that's our shire, well anyway today I was talking to a Father whos son was about to go into a bout with a much bigger looking fellow, the Lebanese love it here, they all go to the local footy club and pay for their tickets and watch each other bash the shit out of each other, anyway, in this bout I was discussing above the fellow was sure to lose I suppose but then I don't know Cause I never watched the fight, I hate fighting but some people love it, what is the difference I'm pondering, maybe you can answer me mate?

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