Super Moderator
Location: essex ma
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this didn't take long.
i am curious about the effects of a decade or so of routinized vilification of the courts--and by extension of the legal system they are charged with administering--in conservativeland and the extent to which this appalling legislation (a) plays into it and (b) presupposes it as a kind of ideological logic so that (c) the inevitable (i would hope) rejection by the supreme court of this as unconstitutional will be coded in conservativeland as an example of "activist judges" undermining the Supreme Power of the Leader in a state of exception.
it is sometimes difficult not to become paraonoid.
anyway:
Quote:
Gonzales Cautions Judges on Interfering
By MICHAEL J. SNIFFEN
The Associated Press
Friday, September 29, 2006; 12:18 PM
WASHINGTON -- Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime.
He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president's pre-eminent role in foreign affairs. "The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime," the attorney general told a conference on the judiciary at Georgetown University Law Center.
"Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review," Gonzales said.
And he said the independence of federal judges, who are appointed for life, "has never meant, and should never mean, that judges or their decisions should be immune" from public criticism.
"Respectfully, when courts issue decisions that overturn long-standing traditions or policies without proper support in text or precedent, they cannot _ and should not _ be shielded from criticism," Gonzales said. "A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches."
His audience included legal scholars and judges, including Justice Clarence Thomas, one of the Bush administration's most reliable supporters on the Supreme Court.
The attorney general did not refer to any specific case or decision but only to wartime, military and foreign affairs cases in general.
Gonzales has sent Justice Department lawyers into federal courts from coast to coast defending Bush's detention of terrorist suspects at Guantanamo Bay, Cuba, his plans to try some of them before military tribunals and his use of the National Security Agency to wiretap Americans without court warrants when they communicate with suspected terrorists abroad.
Over administration objections, the Supreme Court ordered that detainees could challenge aspects of their imprisonment in federal courts and overturned Bush's plans for military tribunals, forcing Bush to ask Congress to approve a new version of the panels.
A handful of federal district judges either ordered an end to the warrantless wiretapping or agreed to hear court challenges to it. Opponents of the plan argue the NSA program violates the Foreign Intelligence Surveillance Act's requirement that the government get a warrant from a court that meets in secret before wiretapping Americans to gain intelligence information.
The administration contends that despite the statute's language, the president has inherent authority from the Constitution to order such eavesdropping without court permission. Justice lawyers also have argued that the challenges to the NSA program should be thrown out of court because trials would expose state secrets. Most of the judges' rulings and proceedings have been stayed pending appeal.
Gonzales also said he thought more states should move away from having judges stand in partisan elections to keep their seats. Gonzales himself as a Texas Supreme Court justice "had to raise enough money to run print ads and place television spots around the state in order to retain my seat."
In such contested elections, "most of the contributions come from lawyers and law firms, many of whom have had, or will have, cases before the court," Gonzales said. "The appearance of a conflict of interest is difficult to dismiss."
He noted favorably that some states have adopted other ways of picking judges, including merit selection and appointment with simple up-or-down retention elections rather than contested campaigns. With polls showing many voters think judges can be swayed by campaign contributions, Gonzales said, "If Americans come to believe that judges are simply politicians, or their decisions can be purchased for a price, state judicial systems will be undermined."
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source: http://www.washingtonpost.com/wp-dyn...900511_pf.html
as for the protecting of americans from prosecution for war crimes in connectino with iraq, the case has been made for doing so by the former lead prosecutor at nuremberg:
Quote:
Could Bush Be Prosecuted for War Crimes?
By Jan Frel, AlterNet. Posted July 10, 2006.
A Nuremberg chief prosecutor says there is a case for trying Bush for the 'supreme crime against humanity, an illegal war of aggression against a sovereign nation.'
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The extent to which American exceptionalism is embedded in the national psyche is awesome to behold.
While the United States is a country like any other, its citizens no more special than any others on the planet, Americans still react with surprise at the suggestion that their country could be held responsible for something as heinous as a war crime.
From the massacre of more than 100,000 people in the Philippines to the first nuclear attack ever at Hiroshima to the unprovoked invasion of Baghdad, U.S.-sponsored violence doesn't feel as wrong and worthy of prosecution in internationally sanctioned criminal courts as the gory, bload-soaked atrocities of Congo, Darfur, Rwanda, and most certainly not the Nazis -- most certainly not. Howard Zinn recently described this as our "inability to think outside the boundaries of nationalism. We are penned in by the arrogant idea that this country is the center of the universe, exceptionally virtuous, admirable, superior."
Most Americans firmly believe there is nothing the United States or its political leadership could possibly do that could equate to the crimes of Hitler's Third Reich. The Nazis are our "gold standard of evil," as author John Dolan once put it.
But the truth is that we can, and we have -- most recently and significantly in Iraq. Perhaps no person on the planet is better equipped to identify and describe our crimes in Iraq than Benjamin Ferenccz, a former chief prosecutor of the Nuremberg Trials who successfully convicted 22 Nazi officers for their work in orchestrating death squads that killed more than one million people in the famous Einsatzgruppen Case. Ferencz, now 87, has gone on to become a founding father of the basis behind international law regarding war crimes, and his essays and legal work drawing from the Nuremberg trials and later the commission that established the International Criminal Court remain a lasting influence in that realm.
Ferencz's biggest contribution to the war crimes field is his assertion that an unprovoked or "aggressive" war is the highest crime against mankind. It was the decision to invade Iraq in 2003 that made possible the horrors of Abu Ghraib, the destruction of Fallouja and Ramadi, the tens of thousands of Iraqi deaths, civilian massacres like Haditha, and on and on. Ferencz believes that a "prima facie case can be made that the United States is guilty of the supreme crime against humanity, that being an illegal war of aggression against a sovereign nation."
Interviewed from his home in New York, Ferencz laid out a simple summary of the case:
"The United Nations charter has a provision which was agreed to by the United States formulated by the United States in fact, after World War II. Its says that from now on, no nation can use armed force without the permission of the U.N. Security Council. They can use force in connection with self-defense, but a country can't use force in anticipation of self-defense. Regarding Iraq, the last Security Council resolution essentially said, 'Look, send the weapons inspectors out to Iraq, have them come back and tell us what they've found -- then we'll figure out what we're going to do. The U.S. was impatient, and decided to invade Iraq -- which was all pre-arranged of course. So, the United States went to war, in violation of the charter."
It's that simple. Ferencz called the invasion a "clear breach of law," and dismissed the Bush administration's legal defense that previous U.N. Security Council resolutions dating back to the first Gulf War justified an invasion in 2003. Ferencz notes that the first Bush president believed that the United States didn't have a U.N. mandate to go into Iraq and take out Saddam Hussein; that authorization was simply to eject Hussein from Kuwait. Ferencz asked, "So how do we get authorization more than a decade later to finish the job? The arguments made to defend this are not persuasive."
Writing for the United Kingdom's Guardian, shortly before the 2003 invasion, international law expert Mark Littman echoed Ferencz: "The threatened war against Iraq will be a breach of the United Nations Charter and hence of international law unless it is authorized by a new and unambiguous resolution of the Security Council. The Charter is clear. No such war is permitted unless it is in self-defense or authorized by the Security Council."
Challenges to the legality of this war can also be found at the ground level. First Lt. Ehren Watada, the first U.S. commissioned officer to refuse to serve in Iraq, cites the rules of the U.N. Charter as a principle reason for his dissent.
Ferencz isn't using the invasion of Iraq as a convenient prop to exercise his longstanding American hatred: he has a decades-old paper trail of calls for every suspect of war crimes to be brought to international justice. When the United States captured Saddam Hussein in December 2003, Ferencz wrote that Hussein's offenses included "the supreme international crime of aggression, to a wide variety of crimes against humanity, and a long list of atrocities condemned by both international and national laws."
Ferencz isn't the first to make the suggestion that the United States has committed state-sponsored war crimes against another nation -- not only have leading war critics made this argument, but so had legal experts in the British government before the 2003 invasion. In a short essay in 2005, Ferencz lays out the inner deliberations of British and American officials as the preparations for the war were made:
U.K. military leaders had been calling for clear assurances that the war was legal under international law. They were very mindful that the treaty creating a new International Criminal Court (ICC) in The Hague had entered into force on July 1, 2002, with full support of the British government. Gen. Sir Mike Jackson, chief of the defense staff, was quoted as saying "I spent a good deal of time recently in the Balkans making sure Milosevic was put behind bars. I have no intention of ending up in the next cell to him in The Hague."
Ferencz quotes the British deputy legal adviser to the Foreign Ministry who, in the lead-up to the invasion, quit abruptly and wrote in her resignation letter: "I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution ? [A]n unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances that are so detrimental to the international order and the rule of law."
While the United Kingdom is a signatory of the ICC, and therefore under jurisdiction of that court, the United States is not, thanks to a Republican majority in Congress that has "attacks on America's sovereignty" and "manipulation by the United Nations" in its pantheon of knee-jerk neuroses. Ferencz concedes that even though Britain and its leadership could be prosecuted, the international legal climate isn't at a place where justice is blind enough to try it -- or as Ferencz put it, humanity isn't yet "civilized enough to prevent this type of illegal behavior." And Ferencz said that while he believes the United States is guilty of war crimes, "the international community is not sufficiently organized to prosecute such a case. ? There is no court at the moment that is competent to try that crime."
As Ferencz said, the world is still a long way away from establishing norms that put all nations under the rule of law, but the battle to do so is a worthy one: "There's no such thing as a war without atrocities, but war-making is the biggest atrocity of all."
The suggestion that the Bush administration's conduct in the "war on terror" amounts to a string of war crimes and human rights abuses is gaining credence in even the most ossified establishment circles of Washington. Justice Anthony Kennedy's opinion in the recent Hamdan v. Rumsfeld ruling by the Supreme Court suggests that Bush's attempt to ignore the Geneva Conventions in his approved treatment of terror suspects may leave him open to prosecution for war crimes. As Sidney Blumenthal points out, the court rejected Bush's attempt to ignore Common Article 3, which bans "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment."
And since Congress enacted the Geneva Conventions, making them the law of the United States, any violations that Bush or any other American commits "are considered 'war crimes' punishable as federal offenses," as Justice Kennedy wrote.
George W. Bush in the dock facing a charge of war crimes? That's well beyond the scope of possibility ? or is it?
Jan Frel is an AlterNet staff writer.
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source: http://www.alternet.org/story/38604/
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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear
it make you sick.
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