Just cause Congress makes a torture law doesn't mean it's constitutional

[bigtree]

or will pass the scrutiny of the courts. I think the Habeus provisions are the most vulnerable.

What's the line on the prospects for court challenges to the law?

[Warren Stupidity]

1. Keep grasping at straws. nt.

[bigtree]

2. beats tearing my hair out

:D

[Cessna Invesco Palin]

24. Seriously.

How many times have we been COMPLELELY DOOOOOOOOOOOOOOOMED in the past three years? Thirty?

[The Stranger]

27. Each time seems like DOOOM, but fucking somehow it gets worse.

It's an express train down a sliding slope to fucking Hell. Each new turn reveals a new, careening horror.

[Cessna Invesco Palin]

31. Which is why it's important to get back majorities in November...

...instead of sitting at home crying in your beer, as some people here are suggesting they'll do.

[The Stranger]

43. Right, I was just referring to the Doom part.

[bryant69]

3. I think the point to the law is to provide legal immunity to

torturers - so I don't know how easy it will be to get a case actually into the courts.

Bryant
Check it out --> http://politicalcomment.blogspot.com

[bigtree]

7. well, the courts have been the remedy all along

who is to say that the courts would agree with the law if an agent used it to defend himself? Courts interpret these bills all the time. This one was cobbled together for an election. I have my doubts that it rests on any solid law which can't be rattled.

The effect of the deterrent to torture is the prospect of the agent being charged with a crime, or possibly sued for damages. The process that holds these agents accountable is not a static one. There will be plenty of opportunity to challenge this legislation as it is used to defend.

Also, It's been my experience that dubious legislation, as I think this law is, is not relied on until such challenges are settled. That is, there may not be any moves to take advantage of the new permissions if there is enough of a legal challenge or the prospect of one from defendants who have already been subject to the practices.

They're not scott-free yet.

[Greyhound]

38. Normally I would agree with you, but looking at the make-up of today's

SCOTUS fills me with dread.:scared:

[bigtree]

45. they shot down the original Bush tribunals

[Greyhound]

39. Double post

SCOTUS fills me with dread.:scared:

[GreenPartyVoter]

4. The court? The one stacked in **'s favor? Yeah, I really have high hopes

there. :(

[Marie26]

23. Not totally stacked

Remember, they struck down Gitmo. There's a pretty solid 5-member majority on civil liberties issues.- Stevens, Breyer, Kennedy, Souter & Ginsburg.

[blm]

5. A Dem majority would REVISIT a bill and force a REWRITE that weighs more

towards THEIR preferred language.

No bill gets permanent status in reality, unless it is added to the Constitution.

[bigtree]

8. that too is true

the courts are on my mind though

[Warren Stupidity]

13. The retroactive grant of immunity

shields the criminal cabal in the white house from prosecution, and that cannot be undone.

[Phredicles]

16. Can a retroactive grant of immunity be retroactively rescinded

at some point in the future?

[Warren Stupidity]

18. No.

The ex post facto restrictions in the constitution make this impossible. The cabal cannot be prosecuted in this country for these crimes.

[Marie26]

28. Yes.

It's been done in the Pinochet case, among others.

[ContraBass Black]

6. Before it can be struck down, it has to be enforced.

[bigtree]

9. they did this to excuse tortures already done, I imagine

what about a challenge from one of the detainees already tortured?

[annabanana]

10. To be challenged in the courts, The Courts must have

JURISDICTION!

A provision of this torture bill (per today's NY Times) is:

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

http://www.nytimes.com/2006/09/28/opinion/28thu1.html?_r=1&oref=slogin

[bigtree]

11. whoa. shit.

that put a chill in me

[Warren Stupidity]

14. This is the part that many people don't understand.

The granting of unreviewable executive power here is staggering in scope. On the word of the executive alone, in secret, without any form of review, any person on the planet may be removed into their gulag. This is what the Loyal No Position Party has taken no position on.

[Marie26]

22. They would be able to challenge the law itself, right?

There's no judicial jurisdiction to hear detainees' appeals, but there IS jurisdiction to hear challenges against the law itself. Congress can't remove the court's authority to determine whether a law is constitutional - that's the bedrock of our judicial system. Correct me if I'm wrong here.

[Warren Stupidity]

25. That is undecided.

"Congress can't remove the court's authority to determine whether a law is constitutional" is in fact one of the constitutional issues the fascists are pushing - that congress can in fact legislate authority of the supreme court.

However I have no faith that the courts will step in and save us. We are on our own, and the sooner we stop thinking otherwise the better.

[Marie26]

35. It is decided

There's more than 200+ years of case law giving the Supreme Court the authority to rule on the constitutionality of a law, stretching all the way back to Marbury v. Madison. In that 1803 case, the SC ruled that it has the power to declare void any law that violates the Constitution. It is the essence of the concept of judicial review.

From Wikipedia entry on Marbury v. Madison:

"Marshall then looks to Article III of the Constitution, which defines the Supreme Court's original and appellate jurisdictions (see Relevant Law above). Marbury had argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagrees and holds that Congress does not have the power to modify the Supreme Court's original jurisdiction. Consequently, Marshall finds that the Constitution and the Judiciary Act conflict.

This conflict raises the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answers that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looks to the nature of the written Constitution — there would be no point of having a written Constitution if the courts could just ignore it. "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?".. Finally, Marshall points to the judge's oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution" before the "laws of the United States."

http://en.wikipedia.org/wiki/Marbury_v._Madison

Things are bad, but there is still a functioning judiciary, and a functioning Constitution. This law can be challenged in the Supreme Court, and probably will be.

[Cessna Invesco Palin]

26. You're not wrong.

[The Stranger]

Without a detainee, you have no justiciable case or controversy.

No jurisdiction for detainees. So no means of challenging the law.

[Marie26]

33. I don't think so

The detainees only need to have standing, meaning that they personally have been injured by the law. A detainee had standing to challenge the Gitmo prisons before the Supreme Court, and a detainee would have standing to challenge this law, as well.

If the law itself is ruled constitutional, & the military tribunals are set up, a detainee wouldn't be able to challenge his actual verdict or sentence in a real court of law. That's what they mean by removing the jurisdiction of the courts. But a detainee can challenge the actual constitutionality of the enabling legislation.

[bigtree]

34. right. I'm thinking of the 14 CIA prisoners just transferred there

they've all been tortured, right?

[Marie26]

48. Most probably

But it seems like any "enemy combatants" could challenge this legislation. It's basically a revamped version of the Gitmo policies that the Supreme Court already struck down this year.

[bigtree]

52. it arguably has even more pernicous and unconstitutional provisions

like the burden of proof requirement for the defendant with regard to hearsay evidence

[The Stranger]

44. Without subject matter jurisdiction, all bets are off.

The courts can do nothing. Those incarcerated can rot in Cuba for 50 more years.

[Marie26]

47. I'm sorry, that's just not right.

Federal courts, including the Supreme Court, have subject-matter jurisdiction to decide cases & controversies that arise under the Constititution or a federal law. Federal courts do have s.m. jurisdiction to consider this case.

[The Stranger]

51. Congress just removed subject matter jurisdiction, which the Constitution

(they will argue) allows them to do, as the lower federal courts are created by Congressional statute under the Constitution.

[lumberjack_jeff]

46. You're asking the choir.

Of course we all believe that the courts can test the validity of unconstitutional laws. Rightwingers disagree. They point to Article III, section 2 of the constitution;
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

They interpret this to say that the constitution allows them the loophole of passing unconstitutional laws IF they simultaneously forbid the courts from hearing challenges to that law.

[Marie26]

49. But I've read the bill, and

there's no such provision in the bill, AFAIK. There's nothing in the bill forbiding the courts from hearing challenges to the law (because THAT would probably be struck down as well). One of the main reasons Warner & McCain objected to the law is because they said the Supreme Court will find it unconstitutional. Why would they all say that if the SC has no authority to hear the case? I'm worried about this law too, but my basic point is that it can be challenged. And it must be challenged.

[The Stranger]

30. Congress can legislate jurisdiction of the lower federal courts, but would

have to amend the Constitution (with 2/3 states approval) to change the Supreme Court's ORIGINAL jurisdiction.

[Junkdrawer]

12. I detected a pattern in the last two SCOTUS appointments...

Seemed to be purpose-picked to approve this sort of nonsense...

[Marie26]

29. Yep.

Roberts ruled for the Guantanamo detentions while on the Court of Appeals, and Alito wrote briefs supporting the idea of a superior "unitary executive" while w/the Justice Dept. They were hand-picked.

[madmusic]

15. Then they will blame "activist" judges.

You're right, can't pass SCOUTS muster, but they can't lose with shit like this until the public knows it's BULLSHIT.

[Skidmore]

17. So should the law be enacted, how many years are you willing to

allow for it to meander its way through the courts? How many people are you willing to let be tortured or to disappear without trying to stop it before the fact?

[bigtree]

19. *I'm* not willing to let it stand for a second

the anger is misdirected if it was aimed at me. where did I give the impression that I'm not actively trying to stop it?

[Marie26]

20. Right

I do believe that the Supreme Court will strike this law down if it rescinds habeas corpus. Yeah, I'm naive.

[bigtree]

36. Sen. Kerry just mentioned the courts and habeus corpus on the Senate floor

[blm]

57. He said the Constitution does not ALLOW the suspension of Habeus Corpus.

And they know it is going to court where they don't believe there is any way the Court will stand with this bill.

He also said the REAL reason for the bill and the timing is ELECTION POLITICS, just like 2002, they want to suppress votes for the Democrats and keep the country further divided.

IMO, the OTHER reason is that they REALLY wanted to get the IMMUNITY section passed through to cover their asses for when their crimes are revealed GRAPHICALLY, and the Habeus Corpus was never expected to get through the courts because of its protective standing in the constitution, but provided a serious distraction.

[KansDem]

21. You know, I talked to my 14-year-old daughter last night about this...

She was upset about what the House did yesterday (and the legislation allowing strip-searches in school as well) and I explained that the Senate could throw a monkey wrench into the works, and, if it still passed, the Supreme Court could rule it unConstitutional.

But I have to agree with the above poster: with the SCOTUS bought and paid for by the neo-Con fascists, they'll no doubt what a return on their investment...

[Jawja]

32. Yes, I would

think this legislation would be challenged in the courts. After all, we still have 3 branches of government and the Congress and Executive cannot just nullify the Constitution by passing laws.

The torture and kangaroo court bill will eventually find it's way to the high court. We would expect them to uphold the Constitution; that remains to be seen. Anyway, this unAmerican and immoral law will be challenged to the courts.

[HiFructosePronSyrup]

37. I think it's a move to avoid impeachment.

Bush is worried about the dems taking back congress. In order to impeach, dems need high crimes and misdeamenors. If Bush is immune then they can't impeach on the torture issue.

[bigtree]

41. that would be my guess as well

the sudden transfer of the CIA torturees after the court ruling was too convienient

[Jacobin]

40. A healthy democracy has to have three FUNCTIONING

branches of government.

Right now, congress is out to lunch, the executive is full of war criminals and they are packing SCOTUS with rubber stamps.

It is utterly absurd for congress to give up their constitutional role and hang it on SCOTUS to do something right. After all SCOTUS appointed Bush president in 2000. That should give us all a clue

[bigtree]

42. I don't think that accurately describes their opposition

it is, however, a point of debate against the bill

[warrens]

50. This is going to be in court so fast, your head will spin

The way I look at it, let's just call Smirk n Snarl enemy combatants when we take over. Put Cheney being waterboarded on pay per view internationally, and wipe out our national debt.

[bigtree]

53. it passed the Senate, on to the House to pass the Senate bill

to Bush to sign, then, on to the Courts.

[KamaAina]

54. Alas, if five of those fiends in the black robes say it's constitutional,

it's constitutional, for a generation at least. :scared:

[bigtree]

55. they voted down the original Bush tribunal

there is a bloc of five I believe

[watercolors]

56. I feel in will be back in supreme court

and thrown back at congress, At least thats what I'm hoping for.