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an imperial presidency? « Previous | |Next »
July 19, 2006

Sidney Blumenthal's article, 'The rule of law vs the war paradigm,' over at Democracy Now is interesting in its account of the war paradigm. This refers to the Bush administration endeavours to concentrate power in the Presidency to create an imperial presidency. Blumenthal says that the origins of the "war paradigm:"

can be traced to vice-president Dick Cheney's experience with the thwarting of Richard Nixon's imperial presidency and Cheney's subsequent decades-long effort to recreate it on a new basis. The attacks of 11 September provided the casus belli for the concentration of power in an executive unfettered by checks and balances. Legal doctrines developed by neoconservative theorists, who happened to be appointed to key posts in the justice department's office of legal counsel (OLC) were applied.

The key principle is that the president as commander-in-chief can set or obey laws as he wishes.

Blumenthal says that the Supreme Court's decision in Hamdan v Donald Rumsfeld, Secretary of Defense, et al., on 29 June 2006 has thrown Bush's war paradigm into profound crisis. he ruling is sweeping in its rejection of Bush's claims; it leaves none of the precepts of his war paradigm standing. In its wake his imperial presidency, at least before the majesty of the law, is a ruin. The Executive is bound to comply with the rule of law.

| Posted by Gary Sauer-Thompson at 4:17 PM | | Comments (1)


Sidney Blumenthal is not correct in his assertions that the Bush Administration's methods are unconstitutional or illegitimate. The entire Supreme Court decision is based on the tribunal being a violation of the UCMJ and the Geneva Convention.

There are several concepts being missed that are specifically stated in black and white.

--Article 2 of the Geneva Convention
"Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."

The last sentence clearly states "if the latter accepts and applies provisions thereof." Do you see or have you seen any of the detainees or insurgents showing any indication of "accepting and applying" any provisions of the Geneva Convention.

--Article 4 of the Geneva Convention

"A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.


6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."

In order to save some space and time, you can go to the above link and view the ommitted sections as you see fit - they are not pertinent to my point.

In order to be protected by the Geneva Convention, the detainees must be classified as "Prisoners of War" (POW). In order to be classified as a POW, they MUST meet all of the 4 criteria stated above in Section A2(a) through A2(d). The only criteria they may have met is (c) "carrying arms openly". (d) is definitely out the window as they have no regard for any civilian casualties they purposely inflict.

According to the specific requirements qualifying the classification of Prisoner of War, they ARE NOT POW's, therefore, not to be afforded the protection of the Geneva Convention, therefore, the tribunals can not be in violation of the Geneva Convention, therefore can not be a violation of the UCMJ, therefore can not be considered to be a violation of any constitutional rights that they are not to be afforded as they are not citizens of the US, therefore not entitled to the constitutional rights of a US citizen.

All I ask is that before cudo's are given to writers, bloggers, justices or anyone else that a little research be done and your own opinions are posted.

The above comments are submitted after reading the Supreme Court Decision, studying the Geneva Convention, the US Constitution and applicable sections of the Uniform Code of Military Justice and are not off-the-wall interpretations of the "Rule of Law" as our current Supreme Court Justices so enjoy doing.

I am not a lawyer. I am retired from the Navy and being in the medical field was classified as a non-combatant, category II of the Geneva Convention. As such there were certain weapons I could not carry in the field and certain things I could not do, like refuse to treat any enemy casualties I came across. If I did anything contrary to the "Law of War" or the Geneva Convention, I lost all protections afforded. The Geneva Convention, UCMJ and the Constitution are not new to me.

Thank you and God Bless!