War on Fox Commissions

I’ve been complaining of late that the LAT’s stupid Republican blogger, Andrew Malcom, is so bad that he must get tons of links making the LAT think he’s great for traffic.

So I wanted to be sure to link to Fox legal analyst Andrew Napolitano’s good discussion of the problems with military commissions–so the LAT gets rewarded for something besides Malcom’s idiocy.

Start with this description of the problem with everyone’s unshakeable faith in the value and legitimacy of military commissions.

The casual use of the word “war” has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war — and thus trigger the panoply of the government’s military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.


Think about it: If the president could declare war on any person or entity or group simply by calling his pursuit of them a “war,” there would be no limit to the government’s ability to use the tools of war to achieve its ends. We have a “war” on drugs; can drug dealers be tried before military tribunals? We have a “war” on the Mafia; can mobsters be sent to Gitmo and tried there? The Obama administration has arguably declared “war” on Fox News. Are Glenn Beck, Bill O’Reilly and I and my other colleagues in danger of losing our constitutional rights to a government hostile to our opinions?

Maybe that will get the fearmongerers to start demanding War on _____ Commissions?

There’s more–and actual conservative legal argument against the military commissions. But since I’m trying to reward the LAT for something other than that loathsome Malcom, click through to read that.

10 replies
  1. bobschacht says:

    Good point, EW!
    I’ve long felt bothered by the Democrat’s acquiescence in the Bush/Cheney “war” language, ceding ground needlessly. We need more appropriate language to call these things by their real names. The MSM sometimes goes along– e.g. the “invasion” of Iraq.

    Bob in AZ

    • knowbuddhau says:

      Brilliant! I love it, that’s exactly what I’m always on about.

      There’s a salient characteristic of the War Party that never gets examined: war is how they believe the world to have been made by a male war god to favor males in the rightful conquest of all things feminine, esp. Mother Nature.

      Even liberal blogs use war as the metaphor for everything we do. Gas wars, drug wars, ratings wars; hell, Seattle even had coffee wars a few years back.

      War is the way too many of us believe thew world was made to work. Problem is, of course, that the world is growing, not being manufactured by the force and fiat of a patriarch imaged as a cosmic tyrant. Who doesn’t see the influence of mythology on our politics, in the conflation of the president with The Great Father? The power of the state and the power of myth are combined in very effective propaganda.

      It’s obvious that the mythologies of patriarchal war gods, forever at war with all things feminine, are ascendant right now. As you so rightly suggest, we need to change the terms in which we think of the cosmos, in order to change the way we act in society. Bowing down to the gods of war, even rhetorically, is no way to achieve lasting peace.

      Just consider the folly of peaceniks declaring a war on war. Tragically, that’s the way many of us on the Left engage this struggle.

      Thanks for your comment, I bow in your virtual direction.

  2. 4jkb4ia says:

    I found him!

    This is not exhaustive and based only on the English “commentary digest” in Judaica Press Psalms because I had limited time to spend with the book.
    You have two commentors, Radak and Malbim, saying that Psalm 82 is about the corrupt judges in the time of Jehoshaphat. You also have Radak saying that if judges perform justly, they are called “elohim”, for which he brings Exodus 21:6 which I vaguely mentioned earlier.
    A Chabad-sponsored site on Radak using word “Mohammedan” Basically, he lived in Provence between 1160 and 1236.
    The Malbim Site

    (This is a followup on Thursday’s trashtalk)

  3. Mary says:

    Napolitano has had good information on the military commissions and jurisdictional issues etc for a long time.

    I’m glady you linked him and highlighted it bc he does make good legal arguments. I have to admit I skip giving links to him for a personal bias reason – he ooged me out, the way he let himself be used for pro-GITMO propaganda on conditions of detention, etc. when DOD gave him a personal invite to GITMO after the three suicides. While they were keeping real journos out, they invited him down, gave him a guided tour, fixed him up with FBI and military officers and evidence files, etc. and he came back gushing about how they were so kind and gentlw with detainees and there were these terrific files with oodles and boodles of evidence that the FBI had on all the bad guys there etc.

    Somehow his descriptions of the files he was reviewing sound, um, “dissimilar” to what we’ve heard from others about the case files – and the 30+ habeas cases upheld so far give a little lie to what he was propagating at that time. He’s also not so crazy that he would think that, after the suicides, if he got a personal invite, that he would be allowed to be exposed to anything other than a great facade. He knew he was lending himself to a propaganda situation that was beefed up by his nominal status as a “critic” and he kind of happily played out the role he was given. It bugged me and I haven’t forgotten it, but his actual legal input on commissions v. court martials and jurisdiction etc. have been very good from way back when. Unfortunately, FOX didn’t choose to beat out the talking point repetitions for his analysis that they did for O’Rielly’s and Hannity’s “guts.”

  4. greenharper says:

    It’s one of those ‘of course, the emperor has no clothes’ moments, isn’t it?

    I sent the link to Mike Capuano. He’s been in Congress since 1998, and is running for Ted Kennedy’s seat in the Mass primary next Tuesday, Dec. 8.

    Capuano is by far the most qualified of the 4 Dem candidates in the race. None of the rest have any legislative experience, at any level of government. (Probably he’s far more qualified than the 2 Republicans, also, but I’ve not looked at them).

    His civil liberties record is good. E.g., voted against USA-PATRIOT Act & invasion of Iraq; co-sponsor of H.R. 676, single-payer Medicare for All.

    Mass. Attorney General Martha Coakley’s, however, is to my mind deeply suspect. In the Sup. Ct. case of Holly Wood, an Alabama murder defendant sentenced to death, Coakley in Sept. signed on to a friend of the court brief urging support for federal procedural rules severely limit federal courts’ ability to undo serious injustices occurring state courts. (I’ve not read the brief.)

    The case was argued recently. If the Supremes buy the pitch of Coakley and 18 other state AGs, Alabama will execute a mentally-impaired guy with an IQ in the 60s whose court-appointed lawyer failed to present evidence about this in the penalty phase. Oh, and it was the lawyer’s first criminal case. Boston Globe: http://www.boston.com/news/local/massachusetts/articles/2009/11/06/coakley_criticized_for_joining_death_penalty_brief/

    Am grateful therefore that we’ve a really fine candidate who is catching up to Coakley’s current lead.

    But I was really concerned by one statement in Capuano’s otherwise excellent responses to an ACLU civil liberties quiz. http://www.aclum.org/election/#capuano2

    He was not sure that Guantanamo detainees “could appropriately be tried by existing procedures in federal courts.” First I sketched the “existing procedures” of the Classified Intelligence Procedures Act. Then I sent him the Napolitano link.

    Thanks, Mary, for the background on Napolitano. Very good to know. And sad.

  5. powwow says:

    Thanks for bringing this op-ed to our attention, emptywheel. Good for Andrew Napolitano for taking a meaningful swing at the issue.

    As a result, some detainees had to be freed, and [President Bush] and Congress eventually settled for trying some before military tribunals under the Uniform Code of Military Justice and subsequent legislation.


    Among [legitimate presidential war] powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.

    Where did Napolitano pull that misleading assertion from? An assertion that manages to elide and hide the fundamental fact that the Guantanamo Military Commissions – as first unilaterally created by Bush, then co-created by Bush and a Republican Congress (without a Democratic filibuster) via the 2006 “Military Commissions Act,” and now revised and renewed by Obama and a Democratic Congress – were not created by, and did not and do not adhere to, the Uniform Code of Military Justice, and do not use or follow its due process protections or court-martial procedures for enemy POWs accused of violating the law of armed conflict [aka the laws of war, or International Humanitarian Law (IHL)].

    Yes, select portions of the UCMJ law were borrowed for the segregated, non-POW-prosecuting, Executive Branch-operated Guantanamo Military Commissions [along with a modified version of the Classfied Information Procedures Act (CIPA), used in federal criminal court trials, in the latest 2009 iteration], but it is grossly misleading – and very much misses the point – to imply that those military commissions or “tribunals” bear any meaningful relationship to our regular military law-of-war courts-martial that were created and formalized by the UCMJ, and comply with the Geneva Conventions’ “regularly-constituted” courts requirement.

    In Ex Parte Quirin, the Supreme Court case that eventually upheld the military trial of these Germans — after they had been tried and after six of the eight defendants had been executed — the court declared that a formal declaration of war is the legal prerequisite to the government’s use of the tools of war. The federal government adhered to this principle of law from World War II until Bush’s understanding of the Constitution animated government policy.


    All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.

    Congress “declared war” on Vietnam?

    Is Napolitano really trying to make the case here that a less-than-full-declaration of war (such as an Authorization to Use Military Force, aka limited or “imperfect” war) cannot Constitutionally invoke presidential/CIC war powers? Both the Supreme Court and the federal district judges hearing the Guantanamo habeas corpus appeals seem to disagree. But if he is, that’s a different argument – if one perhaps worth making, and not fully tested in the courts – than the important argument that most captives in Guantanamo, based on their alleged behavior abroad, cannot be legitimately charged with offenses against the law of armed conflict, which is a point Napolitano also seems to be making.

    Napolitano implies that in the absence of a full declaration of (“perfect” or total) war by Congress, no IHL-recognized armed conflict can be said to exist, and thus no law of armed conflict is triggered. This is clearly not the case under the law of armed conflict. [See footnote [2] here.]

    But I certainly concur with the fundamental principles Napolitano promotes in this paragraph, apparently in an effort to argue that Congress should or must revert to issuing full declarations of war (with all their business-contract loophole implications, etc.) to the exclusion of mere authorizations to use military force:

    The framers of the Constitution feared letting the president alone decide with whom we are at war, and thus permitting him to trigger for his own purposes the military tools reserved for wartime. They also feared allowing the government to take life, liberty or property from any person without the intercession of a civilian jury to check the government’s appetite and to compel transparency and fairness by forcing the government to prove its case to 12 ordinary citizens. Thus, the 5th Amendment to the Constitution, which requires due process, includes the essential component of a jury trial. And the 6th Amendment requires that when the government pursues any person in court, it must do so in the venue where the person is alleged to have caused harm.

    Especially because even our regular military courts governed – for enemy POWs and US servicemembers alike – by the due process-laden Uniform Code of Military Justice [where – as with the irregular, discriminatory Guantanamo Military Commissions – the Executive Branch alone gets to act as judge, jury and executioner absent last-minute Supreme Court intervention] probably ought to be seen as a sort of necessary evil, to the extent that such Executive Branch-operated military courts are utilized only in the rare instances in which the law of armed conflict compels their use.

    • Mary says:

      To give him credit – Napolitano has a history of very clearly recognizing that the ways to go are a) civilian trial proceedings and b) regular military tribunal proceedings and that military commissions are a different creature altogether. Since he has that history (I’ll try to find some links for you) I don’t think he was trying to be misleading or “hide the fundamental fact” about the commissions, bc it is a point he’s made himself before.

      Re: “Congress “declared war” on Vietnam?” again, to give him his due, we didn’t set up military commissions to try people we picked up around the world as being purported supporter of North Vietnam – I think we just funded operation Phoenix and did murders by proxy of civilians rather than commission proceedings against them (/snark)

      IOW – his point was what kind of proceedings we have used since the evolution of the Geneva Conventions at least, and in general as well. He’s not saying that there is no law of armed conflicts at issue when there is an armed conflict that is not a “perfect” war, but he’s saying that under the Geneva Conventions we don’t get to create piecemeal “commissions” to deal with the issues.

      Let me see if I can find you some of his older stuff with a quick google, to give you context on what positions he’s taken.

      • bmaz says:

        Yeah, I agree. Napolitano can be a muttonhead on some things, but every time I have seen him talk on this subject, going back to the decisions that were killing Bush and Rumsfeld, he was surprisingly decent I thought.

  6. mattcarmody says:

    If you look at how Johnson envisioned the Tonkin Gulf Resolution and how he implemented it, it’s exactly what Bush did with the AUMF. To use an argument that was used against continuous support for successive regimes in Vietnam, at what point does a prior agreement or authorization lose its legitimacy, assuming there was any to start with?

    Can whoever the GOP president is in 2014 invoke the AUMF to go after “al-Qaeda” in Pakistan or Turkmenistan or wherever we’ll be sending our people to be killed then?

    For the record, Phoenix wasn’t just the work of proxies. We got lists from village leaders with specific names on them, where the targets were, which hootch they were in, etc,. and WE went and killed them. Kind of like how we kidnapped some of the people who are currently slowly going crazy in Gitmo. Helping the locals to settle scores by removing the stone from their shoe as Carlos Marcello would put it.

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