[RP TownTalk] Md senator helps pass Telecom immunity

[Alan Thompson and Sarah Wayland]

Dear Roland,

(I hope at least Lou/C.O. Coot is happy we're still discussing this)

I'm happy to propose a new, different system of review for the long 
haul, but at the moment a bill is in conference that could change 
something Real Soon Now, and I want to take advantage of that 
situation.

As we both agree, the President is Commander in Chief and runs a war.  
However, as we also both agree, it is the Congress that has the power 
to suspend civil liberties (for example habeus corpus) during times of 
war, civil unrest, ...  The President thinks the Congress gave him that 
power in the Authorization for Use of Military Force (AUMF), a piece of 
legislation.  Some Members of Congress have stated that this was not 
their intent with the AUMF, and they would not have voted for it if it 
said that.

So, the Congress and the President disagree on what a piece of 
legislation says.  Congress *could* just re-write the AUMF, but they 
would have to do it with a veto-proof majority (I doubt the President 
would sign a piece of legislation tying his hands); this isn't likely.  
So we're stuck with this version of the AUMF.  Who should interpret the 
law and decide whether the President's interpretation is correct?  The 
President??  That doesn't make sense to me.

So, I am going to stick with my request that Congress allow the courts 
to interpret the law and decide whether the President is following his 
Article 2 duties to "take care that the laws be faithfully executed".  
They may well decide that they DON'T have jurisdiction, but I would 
rather they considered the question than not.

	Alan

P.S. Ex-parte Milligan (1866): military trials in areas where the civil 
courts were capable of functioning were illegal, even during times of 
war
Hamdi v. Rumsfeld (2004): the Executive Branch does not have the power 
to hold indefinitely a U.S. citizen without basic due process 
protections enforceable through judicial review.  I can't believe I 
actually agree with Scalia on this one.

On Feb 17, 2008, at 6:48 PM, Roland Walker wrote:

> I should have written more clearly throughout that I'm talking about
> Commander-in-Chief powers vs all Article 2 powers -- there's a lot of
> other stuff in Article 2.
>
> God knows I agree there is such a thing as too much surveillance.  I
> also think that the domestic side of the war has gone on too long and
> should be re-thought.
>
> Imputing what the Supreme Court might have been thinking when they
> declined to take a case puts you on weak ground against a clear
> precedent in Ex Parte Quirin.
>
> I think you'd be on stronger ground to acknowledge past practice and
> caselaw and make your argument in favor of a new, different system of
> review.  After all, Bush has argued that this is a new, different kind
> of war.
>
> R
>
> On Feb 17, 2008 8:29 AM, Alan Thompson and Sarah Wayland 
> <twacks at his.com> wrote:
>>
>> On Feb 17, 2008, at 2:30 AM, Roland Walker wrote:
>>> It's fun, but I don't want to keep this going forever.  Surely we are
>>> already boring people.
>>
>> Yep.  Agreed.  But I'm not shutting up yet ;-)
>>
>>> I must point out that many, many, many did argue that the Judicial
>>> Branch had no business there.
>>
>> Not the current US Supreme Court, though (they could have rejected
>> Padilla's case outright, rather than sending it to another court for
>> consideration).  And the Administration was worried enough that they
>> transferred Padilla's case to civilian court, so I don't think THEY
>> were so sure, either.
>>
>> Some people (I'm pretty sure you are in this group from your earlier
>> statements) think that everything the telecoms (and the
>> administration) did was legal and authorized under Article 2.  I'm
>> not so sure -- I would like the courts to review what happened, since
>> I (and you) don't even KNOW what happened, exactly, we just have a
>> few hints of it.  Congress has the power to stop that legal review
>> (we agree on this, I think).  I don't want them to, and let my
>> representatives know my opinion.
>>
>> I continue to encourage everyone, regardless of their opinion on this
>> issue, to share it with their Senators and Representative.  I hope
>> that you agree that is a good idea.
>>
>> Regards,
>>
>>
>> Alan
>> _______________________________________________
>> TownTalk mailing list
>> To post to the list, send mail to TownTalk at riverdale-park.org
>> TownTalk-request at riverdale-park.org is for automated subscription 
>> processing only
>> http://riverdale-park.org/mailman/listinfo/towntalk
>>
>> For more information about Riverdale Park, visit 
>> http://www.ci.riverdale-park.md.us
>>
>