Hamdan = Most Important Pres. Power Decision?
hendersl at ix.netcom.com
Thu Jun 29 17:44:47 PDT 2006
First, COngress can certainly set up a definition of "commission" that
would meet the Supreme Court's requirements. It wouldn't take a rocket
scientist to figure out that the "process" of the Order of Nov. 13 was
laughable, and could be corrected and justified through a proper Act of
Congress. (Although "emergency" loses its meaning after 4 years of
detention at Gitmo, courts-martial are apparently acceptable; Geneva 3
doesn't preclude this , unless we are in a *Hamdi* situation)
Sen. Specter reportedly has already introduced legislation addressing
those concerns, though I haven't seen it yet.
The dissents point to many ways to "prove" crimes against Mr. Hamdan
without resort to conspiracy charges, by referring to acts that might
come within the law of attempt rather than conspiracy. Since
prosecutors can refile, there's no reason for them not to do so
here--reliance on conspiracy is lazy anyway. (as are the charges
against Mr. Hamdan, unless he really was a witless servant of Bin
Laden's, the dissents point to things that could be attempt or
for the 10 they have managed to charge with criminal offences, most
have something besides conspiracy counts. And then it is simply a
matter of constituting tribunals which are neutral and consistent with
due process. I don't see any huge ex post facto problems
here--especially since the Court didn't really address the merits of
indefinite detention as an "enemy combatant" and hints that such
detention (if a determination were made consistent with Geneva 3) is
On Jun 29, 2006, at 4:37 PM, MARK STEIN wrote:
> On the issue of whether Congress can or will set the prosecutions on
> track again:
> Four Justices held that "conspiracy" (i.e., being an active member of
> Al Qaeda) is not prosecutable under the law of war. Kennedy expressed
> no opinion on this issue, and neither (as I read it) did Alito.
> While Congress can authorize military tribunals, wouldn't it be a
> prohibited ex post facto law for Congress to say that being a member
> of Al Qaeda now IS an offence against the law of nations, with
> retroactive effect?
> So as to most detainees, successful prosecution in the future would
> seem to require that the Administration and Congress go through a big
> rigamarole in the hope that Kennedy and Alito will eventually vote
> their way and overturn this aspect of the plurality decision. Maybe
> the Administration will do it, but since indefinite detention was
> probably the Administration's first choice all along, I predict not.
> Howard Gillman <gillman at usc.edu> wrote: ...is there a chance that
> Congress may respond to the decision by giving the President all the
> powers he's requesting?
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