tag:blogger.com,1999:blog-6427940.post5130332622430710859..comments2023-12-05T07:50:19.855-05:00Comments on No Oil for Pacifists: Detainees And the Law@nooil4pacifistshttp://www.blogger.com/profile/16688417615117569825noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-6427940.post-73777527582390597332007-06-21T22:09:00.000-04:002007-06-21T22:09:00.000-04:00My follow-up is here. Regarding your question abo...My follow-up is <A HREF="http://nooilforpacifists.blogspot.com/2007/06/detainee-rights-part-ii.html" REL="nofollow">here</A>. Regarding your question about the Executive and international relations, the statement isn't mine--it's a quote from the <I>Curtiss-Wright</I> case, quoting, in turn, Chief Justice Marshall.@nooil4pacifistshttps://www.blogger.com/profile/16688417615117569825noreply@blogger.comtag:blogger.com,1999:blog-6427940.post-91427619787277616362007-06-20T13:26:00.000-04:002007-06-20T13:26:00.000-04:00Generally the militia didn't wear uniforms, unless...Generally the militia didn't wear uniforms, unless they joined larger units, and sometimes not even then. I don't know if their insignia were consistent enough to meet the current requirement, though I doubt if hiding behind trees in country garb would've been considered following the customs of war by the British in their straight up formations and bright red targets I mean jackets.<BR/><BR/>Obviously the point I'm making here is that these standards aren't fixed in time or place, usually the winner gets away with stuff the loser doesn't.<BR/><BR/>I'll take time to read more of your response later though. For now, I must you to clarify your statement if I may that the executive is the sole organ of international relations. Thanks for taking the time.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6427940.post-74497180844378070192007-06-19T22:25:00.000-04:002007-06-19T22:25:00.000-04:00Paul:1) The point is that it's not up to the judi...Paul:<BR/><BR/>1) The point is that it's not up to the judiciary to decide who is an unlawful combatant. The Constitution charges the Executive and Congress with the conduct of combat, not the courts, according to the Supreme Court. <BR/><BR/>a) <I>United States v. Curtiss-Wright Export Corp.</I>, <A HREF="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=299&invol=304#319" REL="nofollow">299 U.S. 304, 319-20 (1936)</A>:<BR/><BR/>Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations at a very early day in our history (February 15, 1816), reported to the Senate, among other things, as follows: <BR/><BR/>'The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee considers this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.' 8 U.S.Sen.Reports Comm. on Foreign Relations, p. 24. <BR/><BR/>It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment-perhaps serious embarrassment-is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty-a refusal the wisdom of which was recognized by the House itself and has never since been doubted. <BR/><BR/>b) <I>Chicago & Southern Airlines, Inc. v. Waterman S.S. Corp.</I>, <A HREF="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=333&invol=103#111" REL="nofollow">333 U.S. 103, 111-12 (1948)</A>: <BR/><BR/>The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. Coleman v. Miller, 307 U.S. 433, 454 , 982, 122 A.L.R. 695; United States v. Curtiss-Wright Corporation, 299 U.S. 304, 319 -321, 220, 221; Oetjen v. Central Leather Co., 246 U.S. 297, 302 , 310. We therefore agree that whatever of this order emanates from the President is not susceptible of review by the Judicial Department. <BR/><BR/><BR/>So, Paul, if you don't approve of the Bush Administration's policies toward detainees, your remedy is to vote for a Democrat next November. <BR/><BR/>2) Assuming applicability of current treaties, <A HREF="http://www.yale.edu/lawweb/avalon/lawofwar/geneva03.htm#art3" REL="nofollow">Geneva III, Article 3</A> probably would apply. Thus, those American revolutionary fighters who were members of the Continental army or a state militia, wearing uniforms with rank insignia and carrying arms openly would be protected. Again, assuming current law, the fact that the Americans hid behind trees (as opposed to forming a "British square" like their adversaries) would not forfeit protection. Those without uniforms, etc., or hiding among civilians, would be considered unlawful combatants.@nooil4pacifistshttps://www.blogger.com/profile/16688417615117569825noreply@blogger.comtag:blogger.com,1999:blog-6427940.post-14688269402495312792007-06-19T08:20:00.000-04:002007-06-19T08:20:00.000-04:00Another problem with Quirin is that it considered ...Another problem with Quirin is that it considered men whose circumstances convinced the court they were enemy combatants. The men at Guantanamo have made no such admission, indeed, many were released when our government figured out they weren't either illegal, enemies, or combatants. Some are still being held who fit none of the three categories.<BR/><BR/>Do you believe that the militia units who fought the revolutionary war on the side of the Americans were illegal combatants under the law of war?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6427940.post-38303785531363788432007-06-18T20:16:00.000-04:002007-06-18T20:16:00.000-04:00SC&A, Powerboss: thanks. The left's inability t...SC&A, Powerboss: thanks. The left's inability to articulate assumptions and reason in a circle never ceases to amaze.@nooil4pacifistshttps://www.blogger.com/profile/16688417615117569825noreply@blogger.comtag:blogger.com,1999:blog-6427940.post-17597791943542253762007-06-18T14:13:00.000-04:002007-06-18T14:13:00.000-04:00Outstanding work....Blown away.Outstanding work....<BR/>Blown away.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6427940.post-49902503320799126782007-06-18T10:02:00.000-04:002007-06-18T10:02:00.000-04:00This is very, very good.The fact remains that in t...This is very, very good.<BR/><BR/>The fact remains that in the end, if there is to be a 'litmus test' for war- any kind of war- it is that it is fought to win- not to meet outdated regulatory standards.SC&Ahttps://www.blogger.com/profile/08896449261475558935noreply@blogger.com