Graham predicts Supreme Court will uphold military tribunal law

[Rose Siding]

snip>
"I think this could be 7-2" to uphold the new law, (Lindsay) Graham said Thursday in an interview. "I think the court is going to find that the military commissions Congress has authorized are compliant with Common Article 3 of the Geneva Conventions, and that they afford due process of a civilized nation."

"Everything we've done is consistent with the law of armed conflict, and the detainees have more rights than any other enemy prisoners have had in any other war," Graham said.

Legal scholars' opinions vary.

The tribunals law "unconstitutionally suspends the writ of habeas corpus, and it denies any noncitizen held anywhere in the world his fundamental right to contest the lawfulness of his detention by the United States," said Jonathan Hafetz, who represents a detainee as associate counsel at New York University's Brennan Center for Justice.
...
Randy Barnett, a constitutional law professor at Georgetown University, expressed confidence that the new law will pass Supreme Court muster, however.

"Most of the Supreme Court's focus (in post-Sept. 11 detainee cases) has been about the failure of the Bush administration to get congressional authorization for what it was doing," Barnett said. "Now the administration has such authorization. The odds of the Supreme Court saying that what Congress did was unconstitutional are extremely remote."

http://www.realcities.com/mld/krwashington/15810630.htm

[babylonsister]

1. Holy crap. How can constitutional law professors from

prestigious universities differ so wildly on their opinions? Hafetz and Turley vs. Barnett?
This is not comforting.

[kstewart33]

2. I'm sure Graham wishes the law will be upheld.

I'm wishing for a yacht for Christmas.

Let's see what they say. I'm hopeful the law dies a quick death.

[fooj]

3. We prosecuted waterboarding and considered it a war crime. FACT.

"Everything we've done is consistent with the law of armed conflict, and the detainees have more rights than any other enemy prisoners have had in any other war," Graham said.

Treason. That's what you are guilty of, Mr. Graham. How's that for a prediction?

[babylonsister]

4. Right on, fooj!

:thumbsup:

[nealmhughes]

5. Ms. Graham makes a good point in differentiating the treatment between

POWs and this anamoly that BushCo, Inc. has created, viz., "enemy combattants." What is this thing? A criminal or a legitimate armed resistance band?

How long can they be held without counsel or thru coerced or hearsay evidence? We know what a POW is, and aren't the Taliban de facto and possibly de jure elements of the former Afghani unorganized militia?

Are these men captured soldiers or suspected arrested criminal suspects?

That is the first thing that we need to determine. I think a military comission might be able to do the first round of vetting of the status. POWs get to go to POW camp, under full Geneva Accords IRC monitored status. That means mail, care packages, etc. If they are accused criminals, then I do not see how the military has jurisdiction over them when civil courts are functioning. And to my last knowledge, they were, in theory, functioning.

Even were these men declared to be some sort of undefined status detainees, does that obsolve us as a state of denying a single one of them due process and all the benefits of a normally defined legal proceeding free of threat, hearsay and the right to confront all accusers and witnesses? Anything less is a new Star Chamber, a Kangaroo Court, and not even benefitting the trappings of a Stalinesque show trial.

There are some things that we did not think had to be codified such as an enumeration of what construes torture or not allowing hearsay or not having the witnesses face the defendant. In short this is a complete travesty of the ancient Anglo-Saxon system of justice, the common law, and a negation of one of the prime assumptions of the common law: that all men are presumed to be free and that anyone who has a claim on their person for any reason is bound to produce the evidence in open court and that it has to be convincing, not hearsay.

In short, this ruling is worse than anything against which the Colonial patriots rebelled against King George III. At least George only made some of them go to London for trial rather than in NYC or Philadelphia, Boston or Charleston...

[DocSavage]

6. I do

believe that the law will be upheld also. The ability for a detainee to seek appeal after the actions of a military court is greater than that for a active duty member of the military right now.

A detainee can go almost directly to the US district court in DC for redress. There was a UN official on the radio the other day, looking for a paper that he may have written about this, but he said that the way the law is set up, it is the most protective of the detainee of any country in the world.

The question is will it hold up to a US court challenge. Guess it is going to depend on which court hears it and what the counter arguments are. Time will tell, but I do feel that this is a step in the right direction.