"When philosophy paints its grey in grey then has a shape of life grown old. By philosophy's grey in grey it cannot be rejuvenated but only understood. The owl of Minerva spreads its wings only with the falling of dusk." -- G.W.F. Hegel, 'Preface', Philosophy of Right.
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'Constant revolutionizing of production, uninterrupted disturbance of all social conditions, everlasting uncertainity and agitation distinquish the bourgeois epoch from all earlier ones ... All that is solid melts into air, all that is holy is profaned.' Marx
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Hamdan v. Rumsfeld: democracy affirming
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July 2, 2006
The US Supreme Court ruled in Hamdan v. Rumsfeld that the US military commissions, which the Bush administration had set up to judge enemy combtants at the US military prison at Guantanamo Bay in Cuba were illegal, under both military justice law and the Geneva Convention. Some comment here at public opnion. Those labelled enemy combatants at Guantanamo Bay faced indefinite detention in isolation, and were subjected to harsh questioning for intelligence purposes, without allowing some kind of a hearing before a neutral body in which the government has to lay its cards on the table and allow the prisoner the right to say.
The Court's decision is about much more than military commissions. The Supreme Court effectively undermines the Administration's strongest claims about Presidential power. As Elizabeth Drew points out in the New York Review of Books:
During the presidency of George W. Bush, the White House has made an unprecedented reach for power. It has systematically attempted to defy, control, or threaten the institutions that could challenge it: Congress, the courts, and the press. It has attempted to upset the balance of power among the three branches of government provided for in the Constitution; but its most aggressive and consistent assaults have been against the legislative branch: Bush has time and again said that he feels free to carry out a law as he sees fit, not as Congress wrote it.
Linda Greenhouse, writing in the New York Times says that the decision represents:
...a defining moment in the ever-shifting balance of power among branches of government that ranked with the court's order to President Richard M. Nixon in 1974 to turn over the Watergate tapes, or with the court's rejection of President Harry S. Truman's seizing of the nation's steel mills, a 1952 landmark decision from which Justice Anthony M. Kennedy quoted at length.
Marty Lederman over at Balkinization argues that the Supreme Court's decision established some broad principles.
These principles he says are:
--- That the President's powers are limited by statute and treaty, and he acts independently at his peril where such statutes and treaties are in the picture....;
-- ...That statutes should be construed, absent evidence to the contrary, to require the Executive branch to comply with the laws of war; and
-- That Common Article 3 applies to all armed conflicts, a holding of enormous implications, not least of which is with respect to the debate about torture and other interrogation techniques.
This is a firm reaffirmation of the Youngstown principle respecting congressional power and against the executive overriding clear congressional will in areas Congress clearly has authority over.
This article in the New York Review of Books says that:
As Justice Jackson famously explained in his influential opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." For example, the President in his role as Commander in Chief directs military operations. But the Framers gave Congress the power to prescribe rules for the regulation of the armed and naval forces, Art. I, ยง 8, cl. 14, and if a duly enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the President must follow that dictate. As Justice Jackson wrote, when the President acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson wrote, "Presidential power [is] most vulnerable to attack and in the least favorable of all constitutional postures." Id. at 640.
So to say that the US President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted.
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The overnight US Sepreme Court decision on the legal standing of Gitmo detainees is a decision which ultimately reveals how great is the US democratic system, and the significance of the separation of powers.
We has always held the position that Gitmo was necessary in the context of liberating Afghanistan. And our views have not changed. For details on its operation read here. However, with this Supreme Court decision, we recognise the sophistication and maturity of the US political system.
see http://weekbyweek7.blogspot.com/2006/06/guantanamo-whether-you-agree-with.html#links for more inf interested