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| 5/24 |
| 2006/6/29-7/3 [Politics/Domestic/President/Clinton, Politics/Domestic/President/Bush] UID:43526 Activity:kinda low |
6/29 Supreme Court rules 5-3 that Dubya-installed GTMO military tribunals
violate Geneva Conventions and U.S. Uniform Code of Military Justice
http://tinyurl.com/fmkxg (findlaw.com)
\_ Sure, the court interprets laws, but... our new government,
a different type of executive and the legislature will make
the law.
\_ John Yoo must be having a bad day....
\_ Christopher Yoo is ready to bat
http://judiciary.senate.gov/testimony.cfm?id=1969&wit_id=5481
"First, I believe that the use of Presidential signing statements
as legislative history is inherent in the system of checks and
balances embodied in our Constitution. Second, I believe that
Presidential statutory interpretation is also inherent in the
President's role as Chief Executive. Third, I suggest that
recognizing Presidential signing statements as legislative
history would better promote the democratic process."
http://law.vanderbilt.edu/faculty/yoo.html
"A History of the Unitary Executive: Executive Branch Practice
from 1789 to 2005" (Yale University Press, forthcoming 2007)
\_ This would put an inordinate amount of power to ignore two
branches of goverment in the hands of the Executive Branch.
I agree that the Pres. needs power to make commentary on
legislation passed by Legislative, but to go beyond this
to dictating law is dangerous.
\_ Note also that the Executive is obliged to execute
faithfully the laws of the land. His signing statements
have stated explicitely that he has no intention to do so.
People should be fucking pissed. Some are. Not enough.
\_ Don't worry. This will all be corrected forthwith as
soon as a Democrat is elected as head of the Executive
Branch of govt.
\_ go look up the phrase, "stroke of the pen, law of the
land. cool!" then come back and tell us how dems are
morally superior and the great protectors of the
constitution. power corrupts. period.
\_ go look up the phrase, "stroke of the pen, law of the
land. cool!"
\_ Why do you hate Paul Begala?
\_ Go look up Washington Times, UPI, Moonies.
The quote is solid, yes; the implication that what Bush
has done through Exec Orders and signing statements is
somehow mitigated by Clinton's use of same is asinine.
\_ Bullshit. You're putting words in my mouth. Go
see all of 3 lines up where I made it perfectly
clear that "power corrupts". The implication is
that this crap has been going on and will always go
on so long as there is power to be had. If you don't
want abuses of power then there has to be less power
to abuse which means smaller government with less
federal control. Having a Dem in office will change
absolutely nothing regarding power abuses. What is
asinine is believing that members of the one party
are somehow saintly while the other party is full
of devils out to kill and eat people's children.
\_ While I will gladly apologize for mischaracter-
izing your use of a quote oft-used by GOP flacks
to demonize Clinton as an attempt to do just that,
I think your solution to shrink government is
short-sighted and will cause more problems than
it will fix. My original point (the one you
replied to with your quote) was that Bush has
used Exec Orders and signing statements to
place himself above the ability of the other
two branches to contradict him. This is much more
dangerous than what previous presidents have
done.
\_ Corruption builds upon itself over time. One
guy gets away with X because we like him or we
like X that makes it ok, so the next guy does
X+1. I don't think any one branch should be
put above any other beyond what the const. says
about checks and balances. Thus, one abuse of
power is no 'better' or worse than any other.
It is an abuse of power. As far as a large or
small government goes, the less there is to
abuse the less abuse there will be. That seems
obvious to me. If you're saying that there are
other problems a weak federal system would
cause, maybe so, that would have to be weighed
against the harm a strong federal system
causes.
\_ The problem with absolutes is that they're
absolutely fallible. While I would agree
with you that 99.9% of power abuses are bad,
I think it's simplistic to say that there
are no degrees of better and worse in
regards to abuses of power. But better and
worse are utterly subjective, so here's a
clarification: Bush's abuses of power have
done more to weaken oversight of the Exec
Branch by the other two Branches than prev.
abuses of power. In my mind, this is worse
than prev. Admins' abuses of power because
it robs the citizenry of a mechanism to
ensure that such abuses are stopped; YMMV.
\_ As for smaller/no government (new thread),
sure, the current fed system has problems,
but I don't think those problems outweigh
its benefits. I have yet to see an alterna-
tive suggested that wouldn't lead to either
anarchy, plutocracy, or corporate robber
barons; if you have one that benefits all,
I would be very receptive.
\_ He will get spanked by the USSC, too. |
| 5/24 |
|
| tinyurl.com/fmkxg -> caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-184&friend=washingtonpost#opinion1 Dissent 3 HAMDAN v RUMSFELD, SECRETARY OF DEFENSE, et al. certiorari to the united states court of appeals for the district of columbia circuit No. Argued March 28, 2006--Decided June 29, 2006 Pursuant to Congress' Joint Resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided" the September 11, 2001, al Qaeda terrorist attacks (AUMF), U S Armed Forces invaded Afghanistan. During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U S military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba. Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes. After another year, he was charged with conspiracy "to commit ... In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him. The District Court granted habeas relief and stayed the commission's proceedings, concluding that the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that Hamdan is entitled to that Convention's full protections until adjudged, under it, not to be a prisoner of war; Although it declined the Government's invitation to abstain from considering Hamdan's challenge, cf. Held: The judgment is reversed, and the case is remanded. Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding: 1 The Government's motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. Section 1005 provides that S:S:1005 and --which give the D C Circuit "exclusive" jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions--"shall apply with respect to any claim whose review is ... pending on" the DTA's effective date, as was Hamdan's case. The Government's argument that S:S:1005 and repeal this Court's jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction. A negative inference may be drawn from Congress' failure to include S:1005 within the scope of S:1005. If anything, the evidence of deliberate omission is stronger here than it was in Lindh. The legislative history shows that Congress not only considered the respective temporal reaches of S:S:1005, , and together at every stage, but omitted paragraph from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph within that directive's scope. Congress' rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government's interpretation. Neither of the comity considerations Councilman identified weighs in favor of abstention here. Second, the view that federal courts should respect the balance Congress struck when it created "an integrated system of military courts and review procedures" is inapposite, since the tribunal convened to try Hamdan is not part of that integrated system. The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. courts-martial shall not be construed as depriving military commissions ... of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such ... Contrary to the Government's assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions--with the express condition that he and those under his command comply with the law of war. Likewise, the DTA cannot be read to authorize this commission. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court's task is, as it was in Quirin, to decide whether Hamdan's military commission is so justified. The commission's procedures, set forth in Commission Order No. Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and "other national security interests." Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer's discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan's commission permit the admission of any evidence that, in the presiding officer's opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other "protected information," so long as the presiding officer concludes that the evidence is "probative" and that its admission without the accused's knowledge would not result in the denial of a full and fair trial. The Government objects to this Court's consideration of a procedural challenge at this stage on the grounds, inter alia, that Hamdan will be able to raise such a challenge following a final decision under the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to law. First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years, he has no automatic right to federal-court review of the commission's "final decision" under DTA S:1005. Second, there is a basis to presume that the procedures employed during Hamdan's trial will violate the law: He will be, and indeed already has been, excluded from his own trial. Thus, review of the procedures in advance of a "final decision" is appropriate. Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan's commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exigency that necessitates it. The "practicability" determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The President here has determined, pursuant to the requirement of Art. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. And even if subsection 's requirements could be satisfied without an official practicability determination, that subsection's requirements are not satisfied here. Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. There is no suggestion, eg, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. It is not evident why the danger posed by international... |
| judiciary.senate.gov/testimony.cfm?id=1969&wit_id=5481 PRINTABLE VERSION Statement of Christopher S Yoo Professor, Vanderbilt University Law School and Visiting Professor, University of Pennsylvania Law School Hearing on "Presidential Signing Statements" United States Senate Committee on the Judiciary June 27, 2006 Mr Chairman and Members of the Committee, my name is Christopher Yoo, and I am a Professor at Vanderbilt University Law School and a Visiting Professor at the University of Pennsylvania Law School. As the coauthor of a forthcoming book on the history of Presidential power and a scholar who has spent a significant amount of time over the past decade researching the proper role of the President in our system of government, I am grateful for the opportunity to testify today on the use of Presidential signing statements as legislative history. I would like to make three basic points today: First, I believe that the use of Presidential signing statements as legislative history is inherent in the system of checks and balances embodied in our Constitution. Second, I believe that Presidential statutory interpretation is also inherent in the President's role as Chief Executive. Third, I suggest that recognizing Presidential signing statements as legislative history would better promote the democratic process. I The argument usually advanced against the use of Presidential signing statements as legislative history draws on the principle that legislation is the exclusive province of Congress and that any attempt to inject the Presidency into the legislative process would violate the separation of powers. I believe that this argument reflects a fundamental misapprehension about the nature of our system of government. he President is a participant in the legislative process." As a result, the Constitution crated a "single, finely wrought and exhaustively considered, procedure" for enacting legislation. For example, the Constitution specifically gives Presidents the authority to convene sessions of Congress as well as the duty to propose legislation that they believe to be "necessary and expedient." The Framers also envisioned that Presidents would use means outside of the formal legislative process to influence the enactment of legislation by lobbying Members of Congress. Presidents have been quite active in proposing and promoting legislation since the beginning of George Washington's first term. To the extent that the President is one of a bill's primary proponents, the reasons usually given for giving greater weight to views of a bill's sponsors and floor managers would also support giving weight to the President's views. Even more importantly, in order for a bill to become law, the same statutory language must be approved by both Houses of Congress (known as the "bicameralism" requirement), after which point, the language that has been approved by both Houses is enshrined into a document known as an "enrolled bill," which is signed by both the Speaker of the House and the President of the Senate to verify that the language has been approved by his respective legislative body. The enrolled bill then must be submitted to the President (known as the "presentment" requirement). wait ten days and allow the bill to become law without signing it; or, if the bill is presented within ten days of the adjournment of Congress, pocket veto by refusing to sign it. The Constitution thus assigns essential roles in the legislative process to both Congress and the President. Except in the case of a Congressional override of a Presidential veto, a bill cannot become law without the mutual assent of the House of Representatives, the Senate, and the President. The Supreme Court has held repeatedly invalidated attempts to enact legislation that had not been specifically approved by all three of these constitutional actors. For example, in INS v Chadha, the Supreme Court invalidated the legislative veto because it purported to allow Congress to change the force of a statutory enactment without the presenting the proposed change to the President. Similarly, in Clinton v City of New York, the Court invalidated the line item veto, which would have allowed the President to revise the language of an enrolled bill without resubmitting the revised language to Congress for approval. Together these decisions underscore the extent to which the House, the Senate, and the President each represent an essential part of the lawmaking process. Any attempt to enact legislation without giving each of these actors a coequal role would be unconstitutional. T he following thought experiment illustrates this principle nicely. Suppose that the Senate were to propose legislation that would require courts to give controlling weight to the legislative history generated by the Senate and to ignore the legislative history generated by the House of Representatives. Suppose further that the House of Representatives lacked the political will and political support to oppose the provision, that the President signed it into law, and that the statute eventually ended up being challenged in court. The simple answer is that that the Constitution gives the House of Representatives a role in the lawmaking process that is coequal with the role that it accords to the Senate. As a result, any attempt to privilege the views expressed in the Senate's legislative history over the views expressed in the House's legislative history would represent the same type of denigration of one of the three actors that the Constitution deems essential to the legislative process that led the Court to invalidate the legislative and the line-item vetoes. The same reasoning would appear to apply to Presidential legislative history. Because (again, in the absence of a veto override) the assent of the President is as essential a part of the legislative process as the assent of the House of Representatives and the Senate, the President's understanding of the meaning of the statutory language is entitled to no less respect than the House's or the Senate's. Any attempt to privilege the views of one legislative actor over another would be unconstitutional. Some have suggested that the role played by the President is more limited than the role played by the House and the Senate, in that the President lacks the power to change legislation and can only approve or disapprove it. The problem with this argument is that the same can be said about the House and the Senate. Neither House of Congress has the power to alter a statute without the assent of the other House of Congress and the President. Indeed, the situation faced by Presidents when presented with bill language with which they disagree is little different from the situation confronting the Senate when presented with bill language passed by the House with which it disagrees. Although the procedural details differ, in essence both the President and the Senate face the same choice of either approving or rejecting the proffered language. The similarity of these roles is demonstrated quite clearly by the "enrolled bill doctrine," which regards the enrolled version of the legislation as conclusive evidence of the language passed by the House and the Senate. Any bill that bears the signatures of the Speaker of the House, the President of the Senate, and the President of the United States is thus conclusively presumed to be a valid statute and forwarded to the Archives for inclusion in the Statutes at Large. The mandate on each actor is the same: each must approve the language contained in the enrolled bill for proposed legislation to become a law. In this respect, the President's authority is coequal with that of Congress: no more and no less. This conclusion is bolstered by the fact that Presidents have used signing statements to expound their understanding of the meaning of statutes since the days of Andrew Jackson. The validity of Presidential legislative history draws further support from the Supreme Court's willingness to rely on Presidential interpretations when construing statutes. As the Court observed as early as 1801, the "principle that the contemporaneous construction of a statute by the executive officers of the gov... |
| law.vanderbilt.edu/faculty/yoo.html Read Professor Yoo's white paper: "Promoting Broadband through Network Diversity" Profile Christopher S Yoo has emerged as one of the nation's leading authorities on law and technology. His research focuses primarily on how technological innovation and economic theories of imperfect competition are transforming the regulation of electronic communications. He is also pursuing research on the economics of copyright as well as a historical project on presidential control over the administration of the law. Prior to joining the faculty in 1999, Professor Yoo clerked for Justice Anthony M Kennedy of the Supreme Court of the United States and Judge A Raymond Randolph of the US Court of Appeals for the DC Circuit and practiced with the law firm of Hogan & Hartson in Washington, DC, under the supervision of now-Chief Justice John G Roberts, Jr. Selected Publications Books and Chapters in Books * Networks in Telecommunications: Economics and Law (Cambridge University Press, forthcoming 2007) (with Daniel F Spulber) * A History of the Unitary Executive: Executive Branch Practice from 1789 to 2005 (Yale University Press, forthcoming 2007) (with Steven G Calabresi) * "Network Neutrality and Competition: A Complex Relationship," in Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated? |
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