In response to
this post I made about modern politics, he had one of the most intelligent responses possible.
Agreeing yet disagreeing, and doing so brilliantly. And yeah, he's a lawyer. A really damn smart one. :)
Read what my brother has to say:---------
And now for something completely different.
After your emphatic post yesterday, I remembered a Supreme Court case I read in a Constitutional Law class I had as an undergrad. Ex parte Quirin, 1942, 317 U.S. 1. The Case of the Nazi Saboteurs. (I think the only reason I remembered the name is that I didn't think "Quirin" sounded like a German name.) I have attached it. Among the members of the Court at the time were Hugo Black and William O. Douglas, the great liberals, Felix Frankfurter, the great scholar, and Robert H. Jackson, later the chief American prosecutor at Nuremburg.
The point here is that trying unlawful combatants by military tribunal is neither unprecedented nor even abnormal.
I may be mistaken on this point, since this really isn't my area of law, but I read the language you quote as nothing more than a limited suspension of the writ of habeas corpus, which is provided for in the Constitution. The writ of habeas corpus is a judicial means of determining the lawfulness of someone's detention. It is not an appeal (a direct attack on a conviction) but a collateral attack, generally after the appeals have been exhausted. Ex parte Quirin appears to have been a petition for writ of habeas corpus begun before trial, to challenge the trial before a military tribunal instead of in the civil courts.
To cut to the chase, I am not concerned with a law treating terrorists as unlawful belligerents. They certainly consider themselves belligerents (and, in point of fact, they are), and they fail on the distinguishing characteristics of lawful belligerents: to carry arms openly, and to wear a fixed distinctive emblem.
What *would* concern me would be if the law subjected to trial by military tribunal those who are not properly unlawful belligerents. As for this point, I have not read the new law, nor have I re-read the Quirin case in detail, nor do I remember much about international law. In other words, I might be that I would find that I disagree with it, but not on the grounds that you give.
During the War between the States, President Lincoln suspended the writ of habeas corpus. After the War, the Supreme Court decided 9-0 (it may have been the Vallandigham case cited in Quirin; Vallandigham, if I remember right, was a famous Copperhead) that the President acting alone did not have the authority, but 4 or 5 of the Justices went on to say that the President and Congress did have the authority. The point wasn't necessary to the decision; it only mattered that the President alone didn't have the authority. (This whole paragraph is from memory from nigh onto fifteen years ago. It may be totally wrong, but I don't think so. As I recall, the suspension was not limited to unlawful combatants but extended to citizens.)
Art. I, sec. 9, clause 2 of the Constitution: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Would such a step call for vigilance? Absolutely. But we as a nation have proven that we can take such a step and survive with our liberties intact, safe from both foreign and domestic dangers.
The Roman Republic was a remarkable institution. It worked for several centuries, until the decadence of the Roman people caught up with it. I seem to remember that Livy is a good source for what went wrong, but I have never read him. At any rate, they had a very remarkable provision for the appointment of a Dictator (that was his title). In times of emergency, they could appoint a Dictator, who would hold the reins of civil power . . . for six months! The famous example is Cincinnatus, who was called from his plow to the Dictatorship, and when the six months were up went back to his plow, happy to be rid of the Dictatorship. Sulla was also appointed Dictator, but he reigned for five years in the early first century B.C. By then, the Republic was already collapsing, and the extension of his Dictatorship was a major violation and a sympton of the collapse.
The Roman Republic teaches us that a nation will keep its liberties as long as it deserves them, and longer, even. But it will not keep them forever after it has ceased to deserve them. I therefore find it difficult to get too worked up over the long-term effects of what the whole country must surely regard as an emergency measure (setting aside the question of whether the magnitude of the emergency demands the magnitude of the measure). Emergencies come and go, and with them, the measures (wise and unwise) that they prompt. What interests me more is how we will react to the end of the emergency. The signs I see are not good ones, and if they continue, they will bring us no end of harm: (a) thoughtless screaming hatred from both extremes of the political spectrum, and no longer just from the extremes, and (b) a population that for at least a generation (if not for nearly a century) has been increasingly fixated on pleasure for me, me, me. If we develop a population that for the most part either (a) refuses to reason or be reasoned with or (b) does not care to reason or be reasoned with, then we will will have travelled far on the road the Romans took from the Republic to the Empire. The former group (a), the Emperor will repress by force (and there will be much rejoicing, as there was then), and the latter group (b), the Emperor will keep docile with bread and circuses (or TV and Coke and Cheetoes, as the case may be).
Enough for one night.
Love,
J
(This, by the way, is suitable for your Live Journal, should you see fit to post it.)
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