Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Tuesday, December 19, 2006

Bush Cannot Credibly Invoke Lincoln

Unlike Lincoln who openly disclosed to Congress what he had done, Bush defies this precedent and keeps the illegal, unconstitutional activity secret.

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Bush and Lincoln are inapposite.

The error of Judge Robertson in re the Military Commission Act ruling is failing to see that the DOJ Staff has invoked the image of Lincoln, without a fair showing of what resolved the issue: A complete cooperation by Lincoln in going to Congress to discuss what he had done.

This President secretly violates the law, pretends Congress has no oversight, and fails to use the secrecy of the Congressional hearings as a basis to discuss what he is doing. Bush has fallen well below the standard of Lincoln, and cannot credibly invoke Lincoln as a precedent to deny any Prisoners of Geneva Convention protections -- the right to challenge their detention.

Regardless what Lincoln did or didn't do in the 1860s, the Geneva Conventions of the 20th Century were passed because of the civil war-era abuses.

It is a flawed legal argument for DoJ to make, and for the court to accept: That a precedent condition or inapposite case has any bearing on the issue. The Supreme Court in Hamdan rejected the DoJ arguments that Geneva could be ignored . This Congress and Judiciary has no power to retroactively revoke the Conventions, especially when the Supreme Court has affirmed the Conventions are requirements.

The trap is to argue whether the US Constitution does or does not apply to prisoners. The legal issue is whether the Congress and Judiciary can ignore the Conventions which require the protections -- afforded to all American prisoners -- be granted or similarly revoked on the basis of legal process. Congress made no finding that there had been an insurrection or rebellion, and cannot lawfully deny Habeas to anyone, even enemy combatants.

Until Congress going forward determines that there has been an invasion or rebellion, no prisoner -- regardless their citizenship, combatant status or location -- can be credibly denied any Geneva Convention protection. It is irrelevant that the answer may or may not change if these prisoners were engaging in an internal civil war.


Judge Robertson's ruling is not enforceable. It is legally unsound and consistent with the Nuremburg illegalities -- that of a judicial officer illegally enforcing unlawful statutes. He could be prosecuted for war crimes.