Perhaps, for the purposes of intellectual debate, you'd be interested in this argument that seems against your position.

cheers,
md

Hey Matthew,

Thanks for the link.

Clearly, not being a lawyer, I cannot speak, except in vague generalities, regarding the law. If I were to speculate, there are three general areas that I have an opinion on -

a. One is simply the legal aspects, the division of power between 3 co-equal branches. Anything I might say on this issue is by its very nature speculative and uninformed - although I can provide links to other informed sources such as the link in the post.
b. Second is the argument from morality and a spiritual view, as divorced from the argument from constitution. From THIS perspective, I know of few traditions, outside of mad fundamentalism of various stripes, who advocate practices such as waterboarding, "torture lite", etc.

From that perspective, and the perspective of an informed religious view, there clearly is, must be, a place for self-defense. But not a place for physical abuse, torture, and confinement at whim. And so I would agree that the Supreme Court affirming there their should be no "outrages upon [their] personal dignity, in particular humiliating and degrading treatment." is a good thing. There are very few 24 type situations in the world, and though there are humans - using politics, or simply deranged individuals, such as serial killers - who simply deserver no sympathy, to be "brought down to that level", to abandon our own moral underpinnings, that define us, as moral, ethical, and spiritual beings, is not something that should be tolerated where there is a choice.

c. Then there is simply the argument that you refer to, which I will give my perspective on, keeping in mind that my knowledge here is limited.

But, here is what looks like a good response from Legal Fiction:

Mark Levin, NRO:

Congress and the Court are systematically stripping the presidency of war-making powers. Congress demands that the president get court approval before intercepting enemy communications (we call that intelligence gathering) and the Court demands that the president get statutory support from Congress before he can use military tribunals to try terrorists.

And yet, neither Congress nor the Supreme Court have any explicit constitutional authority to make these decisions.



United States Constitution, Article I, Section 8:


The Congress shall have power . . .

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To make rules for the government and regulation of the land and naval forces;

That seems a pretty basic error for an argument to make.

While I don't know the contextual background of that article of the Constitution, I'll grant that at best sounds like rhetorical hyperbole.

The link to Legal Fiction attacks the first couple sentences of Levin. Which are fair game, but also aren't the main thrust of the argument in his article, you must admit.

I take the main point by Levin to be the strange interpretation of the Geneva Conventions by SCOTUS.

To the extent there is a moral and spiritual view, it is not to be voiced by SCOTUS directly. Rather, that is voiced through Congress and then made into law. Which may or may not get to the point you raise about the article of the Constitution.

Again, the main question is how SCOTUS was able to interpret what it did from the Geneva Conventions. I am not willing, nor do I think it wise, to through out consideration of that because of rhetorical excess in other places by Levin.

md

Well, your question has shifted from the point of my original post. My original post was celebrating the fact that the court agrees with me that:

detained persons shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment

I think this is the best policy for the United States, from a moral, ethical, and practical perspective.

So whether the interpretation of the Geneva Conventions is strange, I don't know - I'm not an expert in Constitutional law.

However, there are many legal scholars who disagree with Levin.

Here is a link to a Mary Lederman post - who is very knowledgeable about constitutional law - who has a much different take than Levin.

In particular to the Common Article 3 of the Geneva Conventions (CA3):

These standards establish what CA3 itself specifically refers to as "a minimum" code of conduct that parties are "bound to apply." And from at least the time of the Geneva accords (1949), if not back to the time of the Civil War, United States policy and practice had been to apply these minimum, fundamental standards to all detainees, whether or not the detainees themselves were party to (or abided by) Geneva or not (including, for instance, the Viet Cong). Thus, for example, and as Justice Stevens notes at page 70 of his opinion, even as late as 2003, the State Department's Legal Advisor wrote that although the U.S. had not signed the first Protocol to the Geneva Conventions, and had "major objections" to parts of that Protocol because it provided too many protections to unlawful combatants, nevertheless the U.S. "does regard the provisions of Article 75" -- which are virtually identical to those in CA3 -- "as an articulation of safeguards to which all persons in the hands of an enemy are entitled."

Also this:

The Court's holding in Hamdan that Common Article 3 applies as a matter of treaty obligation to the conflict against Al Qaeda thus should stop at least some of the Administration's interrogation policies in their tracks. In this respect, the holding will de facto require the Administration to finally adopt the recommendation of the 9/11 Commission (see page 380 of its Report) that the United States "engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists," and in so doing "draw upon Article 3 of the Geneva Conventions on the law of armed conflict," which was "specifically designed for those cases in which the usual laws of war did not apply.



If the 9-11 commission also recommended something similar, that is telling.

So, there are definitely well-thought scholars who disagree completely with Levin on this question, and you also have the fact that the course DID rule this way.

But again, the point of my particular post, isn't affected so much by whether the interpretation of CA3 by SCOTUS is strange.

As always, thanks for the comments!

Yeah, I can only go so far in this field, because I'm pretty uninformed by legalities, in general.

One thing I'd like to see: an essay that outlines in laymen's terms the positions of the justices. Done without prejudice and, to take it one step further, in a way that the justices themselves would agree with. It is my feeling that there is much to be learned by studying the thought processes behind SCOTUS decisions, including this particular issue. I am not one to ever think that ANY justice deserves the kind of hatred that Thomas receives from the left, and Ginsburg from the right.

md

sorry....link:

here.