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Thursday, June 29, 2006

The NewsHour Hamdan roundtable transcript

This transcript is a must read. Participants include Neal Katyal (Mr. Hamdan's lawyer), Joseph Margulies (Northwestern University Law), Andrew McBride (lawyer who filed amicus brief siding with the administration) and John Yoo (UC Berkeley Law, and "primary architect of the Bush administration's detainee and interrogation policies while working in the Justice Department's Office of Legal Counsel")

ANDREW MCBRIDE: ...If a foreign force uses a flag of truce in the battlefield to fool our troops and then shoots at them, I don't think that our military needs to consult a judge before they punish that act. And I think that having the judiciary intervene in that and superintend that weakens our military.

MARGARET WARNER: But you're saying that's what this ruling does?

ANDREW MCBRIDE: I'm saying that's what this ruling does, by emphasizing the role of the court in evaluating whether or not statutory criteria are met. I think the president, as commander in chief, can use military tribunals in the same way that he uses bunker busters.


That's putting it bluntly. Hard to believe, but, yes, you just read that.

NEAL KATYAL:...let me say, you know, I respect Professor Yoo a lot on some things, but on this, I think, when he says the court could have saved the country a problem by basically letting the president do what he wanted, I think that fundamentally misunderstands the Constitution and the separation of powers.

As Justice Stevens today for the court said: We have a government of divided powers, and the president can't just make the rules up as he goes along and act as the prosecutor and judge and jury in these things.


That's the point, and has been all along. Why Guantanamo and unnamed third countries? Because we have rules inside our borders; we have courts and the rule of law. In fact, we have rules period.

JOSEPH MARGULIES: What the Supreme Court held in the recognition of Common Article 3 as a baseline is that war is not a dissent into lawless anarchy, that you do not allow, no matter who you believe this person to be, no matter what you believe he may have done, no matter where you caught him, no matter what you think he may have been responsible for, we do not return to the time where you could treat prisoners like caged beasts.


Amen. And, finally:

MARGARET WARNER: John Yoo, you were the co-author, famously, or a co-author of what some people call the "torture memo," but it was a memo, Justice Department memo that argued that, in fact, the Geneva Convention did not apply to these detainees and, therefore, different kinds of more extreme interrogation methods were certainly permissible.

Does this ruling knock the pins out from under that position that you and others in the administration took? And, if so, what are the implications?

JOHN YOO: Well, I do think it's fair to say the court rejected the idea that Common Article 3 doesn't apply in the war on terrorism or that the Geneva Conventions don't apply to al-Qaida in the war on terrorism, so it does knock that out from under the administration's legal position on the status of detainees.

I do think the court was mistaken on that, and if there is going to be one thing that Congress is likely to overrule it will overrule that part of the opinion.


Congress, Professor Yoo, how quaint!

Read the whole thing. This is one that will get talked about. (h/t gimmel at dkos.)

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2 Comments:

  • I was struck by this line as well, "If a foreign force uses a flag of truce in the battlefield to fool our troops and then shoots at them, I don't think that our military needs to consult a judge before they punish that act."

    When I was watching this on TV I started to scream out at the false analogy: to equate the (necessarily) instantaeous response on the battlefield in this situation and the (necessarily) deliberate decision of constructing a prison and holding prisoners there.

    I thought it was flagrant deception to equate these two processes. Looking at the quote more carefully now, there is another explaation. By "punish the act," does McBride mean *respond to the act in the midst of battle* (in which case "punish" is really not the right word) or does he mean, precisely, "punishing" the men who flew a flag after the battle is over? And, in this case, what exactly is he saying: what would/should this punishment consist of?

    I imagine that he spoke in this way deliberately, which is perhaps most disturbing of all.

    By Blogger awol, at 8:00 AM  

  • There is no stupidity, no false analogy, no straw man argument that the mouth-breathers of the right will not use to advance their false world-view. They cannot win an honest argument about the issues and the more intelligent of them are starting to realise that.

    The reason they have gotten away with this so far is that SCOTUS and Congress have not weighed in on these issues. Our government was purposefully structured to move slowly by the Founders. SCOTUS finaly did so this week and in one of those peculiarities of our system upheld the rule of law as opposed to the whims of a brain-damaged incompetent and his flatterers and sycophants.

    This is not an accident as some have said. It's how the system works. The fact that SCOTUS is moving to the right is not to be denied but I think you will see Congress move far, far to the left in coming elections in a pre-emptive reaction. The American people have had enough of the Right's lies and destructive governance.

    These are issues that will never be put to rest for humans do not agree on the universality of the rule of law or even it's utility. The incompetent Mr. Yoo is a striking example of this; someone who has devoted his life to the law yet is willing to prostitute himself for imaginary gain. As an Asian he will never be admitted to the inner sanctum of BushLand just as Abu Gonzales will not because of his ethnicity. Yet these 'useful idiots' will tie themselves into knots and demonstrate to the entire world the essential mediocrity of their souls in an effort to be 'recognised' by those whose boot is firmly planted on their race's neck. They are sad examples of those Dante consigned to the 8th Circle of Hades. I have no pity for them they deserve what is going to happen to them. As creatures of the BushCrimeFamily they will vanish from the scene as if they had never been when Bush leaves the stage.

    I see dark days ahead for Mr. Bush and his cronies. He'd better pray to his vengeful god that no European country suffers a nuclear or biological attack by anyone even remotely associated with the conflagration in Iraq.

    If that happens he, Cheney and the rest could be called to face a Spanish or French Judge.

    That could prove very interesting indeed.

    Off-post, I say Gore/Feingold 2008!

    Oh...yeah, crush 'Gurney Joe' and give the crook Pombo the boot.

    By Blogger A. Citizen, at 10:56 PM  

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