Archives: 06/2006

Military Tribunals Plan B, or C, or D, or…

By Tim Lynch

Yesterday, the Supreme Court ruled that the Bush administration’s military tribunals violated the law. On the news today, I heard someone say that the White House must now consider “Plan B.” 

Ahem — we passed Plan B some time ago.

Here’s a recap of what has transpired over the past four years:

PLAN A: Issue “military tribunals” order. (The resistance may be negligible.)

On November 13, 2001, President Bush quietly and matter-of-factly issued a “military order” to establish military tribunals for prisoners in the “war on terror.” The order stated that any prisoner designated by the president to be an “enemy combatant” would be imprisoned by the military. The order boldly declared that such prisoners could be tried before tribunals and that the prisoners “shall not be privileged to seek any remedy in any court of the United States.”

When the prisoners did get legal representation, Mr. Bush’s people told the defense lawyers that the military order precluded them from challenging the legality of the tribunals in court. After all, that’s what the order said. 

However, Plan A failed; legal challenges were filed anyway.

PLAN B: Make the argument to the judges. (They may buy it.)

The Bush administration argued in federal court that legal challenges to the tribunals must be dismissed immediately because the president’s order clearly said that prisoners may not “seek any remedy in any court.” 

But Plan B failed; the court was not persuaded.

PLAN C:  Appeal. (Keep arguing until some court buys it.)

A key aspect of the controversy reached the Supreme Court in Rasul v. Bush in 2004. Mr. Bush’s lawyers argued that U.S. courts lack jurisdiction to consider any legal challenges from prisoners held at Guantanamo Bay. 

Plan C failed; the Supreme Court was not persuaded.

PLAN D: Start the tribunals anyway, and handle any legal challenges later. (Perhaps by bringing strong cases against unsympathetic figures like Hamdan, the judicial system will acquiesce.)

Hamdan’s lawyer immediately challenged the legality of the tribunal. Mr. Bush’s lawyers responded by telling the court that Hamdan’s argument was without merit. The judge was not persuaded.

PLAN E: Appeal. (Keep arguing.)

At first, Plan E appeared to work. The appellate court overturned the district court and ruled that the tribunals were legal. But Hamdan’s lawyers refused to go along, and they appealed the case to the Supreme Court.

PLAN F: Persuade the Supreme Court not to hear Hamdan’s appeal. (This will secure the lower court victory.)

But the Supreme Court was not persuaded, and granted certiorari.

PLAN G: Persuade Congress to pass a law that will prevent the Supreme Court from hearing Hamdan’s appeal. (The legislative branch could check the judiciary.)

With time growing short before the High Court would hear Hamdan’s opening arguments, Congress passed the Detainee Treatment Act, ostensibly blocking the case. But the Supreme Court responded that it would hear arguments on the new law at the same time that it would hear arguments on the merits of the military tribunal controversy.

PLAN H: Argue again that the new law means the Court has no jurisdiction to hear Hamdan’s case, then argue that Hamdan’s objections should be heard on post-conviction appeal, and then argue that the tribunals are lawful and proper. (The plan could also be called “Broken Arrow.”)

But Plan H failed. The Supreme Court was unpersuaded by all three arguments and found the tribunals unlawful.

PLAN I is presently in the works, under the codename “Plan B.” 

When it arrives, scrutinize it.

Topics:
Foreign Policy and National Security, Law and Civil Liberties

This Sunday in Bolivia and Mexico

By Ian Vásquez

This Sunday, when Mexicans will vote for a new president, Bolivians will also be going to the polls — selecting a new constituent assembly that will rewrite their constitution.

Bolivian president Evo Morales is using Venezuelan leader Hugo Chavez’s example as a model to concentrate power. Chavez introduced a new constitution that centralized political control and he has used popular referendums to eliminate checks and balances on his power. Morales will have a somewhat harder time at gaining and maintaining similar control, since he doesn’t have the vast oil resources or military background to support him that Chavez has.

If Mexican populist Andres Manuel Lopez Obrador is elected this weekend, will he too follow the Chavez path? Many observers, including the market, don’t seem overly concerned. Mexico is not Bolivia; it is a much larger, more diverse, open economy with a free trade agreement with the United States. Democratization and economic reforms — especially openness to international capital markets — will temper Lopez Obrador’s populist sentiments. At least, so the argument goes.

Unfortunately, I don’t believe that Mexico’s reforms have been sufficiently institutionalized. Mercantilism, political opportunism, and the party machine are still quite alive in a Mexico that spent most of the 20th century looking inward and under state domination. Even President Vicente Fox’s great achievement of maintaining a macroeconomic stability not seen in more than 30 years depended heavily on the admirable qualities of the current finance minister and central bank president.

As Mexican economist Manuel Suarez Mier has been emphatically warning, a President Lopez Obrador would find it relatively easy to buy off congressmen from the opposition and discredited PRI party and to thus begin re-establishing the political hegemony that existed in Mexico before Fox came to power. Except this time, the ruling party would be Lopez Obrador’s PRD.

That scenario may seem extreme, especially since it would require plenty of resources to sustain. The path to populism in Mexico would be different than that of Venezuela. But given Lopez Obrador’s political record of behaving irresponsibly and openly disdaining the rule of law (e.g., he has disregarded court rulings with which he disagrees), there is every reason to believe that he will follow through with the vast New Deal-type spending projects that he has promised, the creation of state-owned businesses, and the protection of favored industries even in the face of adverse economic results.

Bolivia is guaranteed a rough ride almost regardless of its election results this weekend. Because the leading presidential contenders are essentially tied in the polls, Mexico can still opt against the candidate that promises to take the country backward.

Topics:
Foreign Policy and National Security, International Economics, Development & Immigration

Challenging the NEA: Priceless

By Andrew J. Coulson

To quote the old Mercedes Benz airbag commercial: “Some things in life are too important not to share.”

The National Education Association’s national convention begins today at the Orange County Convention Center in Orlando, FL. Outside, the Evergreen Freedom Foundation (a Washington State think tank) is parking a truck with a billboard highlighting some of the expenditures the NEA listed on its 2004 federal financial disclosure forms. 

The billboard is too important (and good) not to share:

You can read about the case Evergreen is making against the NEA (both in the court of public opinion and soon the U.S. Supreme Court) here and see some of the truck’s other displays here.

If teachers gain the freedom to decide how their own paychecks are spent, it will in no small part be due to the folks at Evergreen.

Topics:
Education and Child Policy, Trade Policy

Russ & John’s

By Radley Balko

From The Onion:

Citing a longstanding need to “restore honor and dignity to the American food-service industry,” Sens. John McCain (R-AZ) and Russ Feingold (D-WI) announced the public debut of their joint business venture Monday, a chain of integrity-themed restaurants which opened in 12 locations nationwide.

The new Russ & John’s chain, which the two senators funded privately via small financial donations of no more than $2,000 per investor, was founded on the idea that “today’s customers want quality food without all the lies and exaggerations that all too often accompany it,” according to McCain.

[…]

In an effort to avoid the “thinly veiled bribery” found in the majority of restaurants, Russ & John’s prohibit tips, disparaging them as “the worst kind of soft money,” according to the “Message From The Founders” on the restaurant’s menu. Instead, management will distribute company-issued “server grants,” intended to prevent undue influence on the waitstaff’s performance and ensure that every customer receives the same quality service.

McCain said the staff has been trained to deliver “straight talk” to customers.

“Our servers are not there to just tell you what you want to hear,” McCain said. “If a customer asks how the Zesty Three-Cheese Ranch Chicken Platter is, and if it’s not particularly good, they’re going to be up-front with you and say, ‘Frankly, the chicken is not that good.’”

“Same goes for the Lasagna Rollups, which, to be perfectly honest, are terrible,” McCain added.

The restaurants are apparently not doing well. They’re losing customers to “McConnell’s Pork Barrel,” the BBQ joint.

Topics:
Government and Politics, Law and Civil Liberties

Hamdan v. Rumsfeld: A (Tentative) Guide for the Perplexed

By Mark Moller

Hamdan v. Rumsfeld, the recent Supreme Court case concerning the use of special military commissions to try Guantanamo prisoners, is a bear to boil down, accurately, in a single blog post. It touches on a perfect storm of arcane questions: customary international law, treaty interpretation, the common law of war, the Uniform Code of Military Justice, and jurisdiction-stripping.

The Court’s basic argument, as I understand it, is this: Congress can set the rules governing military commissions in most cases, including this one. Those rules, spelled out in the U.S. Code of Military Justice and corresponding treaties, specify as follows:

  • The commissions must conform as much as practical to the procedures that govern standing courts-martial (the standing tribunals in which U.S. serviceman can be tried) and ordinary civil criminal trials.
  • The Geneva Convention sets additional, overlapping requirements that trial of prisoners must occur in “regularly constituted” courts.

Those requirements have been violated. While the commissions depart from the standard procedures of courts-martial, the president hasn’t made a sufficient showing that consistency with the procedures of ordinary courts-martial isn’t a “practical” option, as U.S. law (specifically, Article 36 of the U.S. Code of Military Justice) requires. Because the president hasn’t made that showing, the Gitmo commissions also aren’t “regularly constituted” courts — and therefore trying persons before the commissions violates Common Article 3 of the Geneva Convention.

Got that? Good, because there are some more wrinkles:

The Court also holds that Common Article 3 of the Geneva Convention is part of the “law of war” that governs military commissions under U.S. law. That means that Common Article 3 of the Geneva Convention is a restraint on the procedures that govern the commissions. Furthermore, the Court holds that Common Article 3 of the Geneva Conventions applies to the armed conflict with al Qaeda. That suggests that the Geneva Convention is a restraint on the way we treat prisoners who are in U.S. custody, since Common Article 3 requires that they be treated humanely.

Finally, the Court lays out a safe harbor for the administration. If the administration (1) adopts procedures and oversight mechanisms that apply to courts-martial — particularly, standards and procedures that insulate the “presiding officer” (judge-like officer who presides over trials in commissions) from control by political appointees selected by the SecDef, and (2) conform standards governing admission of evidence to the rules that govern courts-martial, the commissions might be upheld. Also, if the administration offers record evidence that the procedures of courts-martial are impractical, it might also secure judicial approval of the commissions. Even if it doesn’t do this, the military can still hold Guantanamo detainees indefinitely without trial. The administration can also convince Congress to approve the procedures it prefers.

Here’s some of what the Court didn’t decide:

  1. Can Congress withdraw the Supreme Court’s authority to hear future challenges to the military commissions by persons who aren’t yet enmeshed in a prosecution before a commission? We don’t know. The Court holds only that Congress hasn’t withdrawn its jurisdiction over prosecutions already initiated.
  2. Is the Detainee Treatment Act — which removes Supreme Court jurisdiction to hear appeals by Guantanamo detainees based on U.S. statutes or the Constitution, gives lower courts discretion to deny appeal of non-capital cases in which defendants face short prison sentences, and limits appeal to judgments contained in a “final decision” of a military commission — valid as applied to persons who haven’t yet been charged? No answer.
  3. Does the president have inherent power to ignore Congress in cases of “controlling necessity” in, for example, the field of combat? The Court doesn’t clearly answer that question. Says the Court: “Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions ‘without the sanction of Congress’ in cases of ‘controlling necessity’ is a question this Court has not answered definitively, and need not answer today.” The Court specifies, in footnote 23, only that the President “may not disregard limitations that Congress has, in proper exercise of its own powers, placed on his powers.” The meaning of that all important qualification — “proper” — remains undetermined.
  4. Can the president establish commissions that depart from ordinary procedure of courts-martial? Yes — if he shows that the ordinary procedures are impractical. The Court holds only that the president hasn’t made such a showing — not that he can’t ever make such a showing. The Court also doesn’t settle when such a showing is substantial enough to deserve deference.
  5. Can civil courts hear claims raising violations of the Geneva Convention? This, too, remains unanswered. The majority, including Justice Kennedy, holds that only the Convention is enforceable under the Uniform Code of Military Justice as part of the “law or war” that governs military commissions. That ruling has no necessary application to civil courts. However, the opinion is quite suggestive. Both the majority and concurrence cite 18 U.S.C. § 2441, which Justice Kennedy stresses makes violation of Common Article 3 of the Geneva Convention a war crime punishable as a federal offense, enforceable in federal civil court. The majority holds, of course, that trying pesons under the president’s military commission order violates Common Article 3 of the Geneva Convention, suggesting that trial is a war crime within the meaning of 18 U.S.C. § 2441. Furthermore, the majority stresses that the Geneva Conventions “do extend liability for substantive war crimes to those who ‘orde[r]’ their commission” and “this Court has read the Fourth Hague Convention of 1907 to impose ‘command responsibility’ on military commanders for acts of their subordinates.” The Court’s emphasis on the liability that attaches to “orders” is significant, because trials in the military commissions are, of course, pursuant to a direct presidential order. Even so, its difficult to imagine circumstances in which charges under Section 2441 might actually be prosecuted.

[Ed. note: In the original post, the author mistakenly cited 18 U.S.C. § 2241.  The correct citation is 18 U.S.C. § 2441, updated in the text above.]

Topics:
Foreign Policy and National Security, Law and Civil Liberties

Whither the Budget Hawks?

By Brandon Arnold

Congressman Jeff Flake of Arizona is on a crusade against wasteful pork barrel spending. During the consideration of Congress’s annual spending bills, he introduced dozens of amendments that would defund ridiculous pork projects such as swimming pools, retail markets, and aquariums. He even brazenly targeted a pet project in Speaker Denny Hastert’s Illinois district.

You’d think Flake’s efforts would attract the support of the many self-proclaimed budget hawks in both major political parties. But you’d be wrong; his efforts have failed miserably, sometimes barely garnering support from a tenth of the House. 

His amendments haven’t even consistently drawn the vote of his colleagues in the Republican Study Committee — a group of more than 100 supposed fiscal conservatives. For instance, only about a third of RSC members supported Flake’s recent amendment to cut funding for the Southern and Eastern Kentucky Tourism Development Association.

The Blue Dog Coalition — a group of about 35 moderate to conservative House Democrats — has been even less frugal than the RSC. Though the coalition claims to advocate a balanced budget and fiscal restraint, only three of the Blue Dogs have consistently supported Flake’s efforts to cut pork spending.

Of course, pork only makes up a small fraction of the overall budget. But as Chris Edwards notes, it is illustrative of the reckless spending that pervades Congress, even amongst some of the supposed proponents of limited government.

Topics:
Government and Politics, Tax and Budget Policy

Competitive Federalism Can Reform Health Insurance, Med Mal

By Michael F. Cannon

In a previous post, I suggested that my brother and his family could save thousands on their health insurance if they moved in with his former college roommate’s family in Pennsylvania, rather than settle and buy coverage in New Jersey.

I thought that former roommate’s wife (Kristin, another college friend) would shoot me virtual daggers. Instead, she wrote:

Wow — guess we’re pretty lucky! Although, we can’t seem to keep our doctors here in PA due to high malpractice insurance costs. So maybe the best deal for everyone would be to buy their insurance in PA, then drive to NJ for their doctor’s appointments.

That’s one way to get around unwanted costs imposed by a state’s medical malpractice laws. In our book Healthy Competition, Mike Tanner and I suggest another: Let patients, doctors, hospitals, and insurers agree up front on the level of malpractice protection that patients receive.

 

You like caps on non-economic damages? Sign yourself right up. You want more malpractice protection than that? It might cost you more, but the choice is yours. The contracts that providers are willing to write could even tell patients something about the quality of care.

Patients can already choose a different level of malpractice protection by traveling out-of-state or out-of-country for treatment. Why not let them do so without leaving home?

Topics:
Cato Publications, General, Health Care & Welfare, Law and Civil Liberties, Regulatory Studies

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