[RP TownTalk] Md senator helps pass Telecom immunity

[Roland Walker]

Hey Alan,

It's fun, but I don't want to keep this going forever.  Surely we are
already boring people.  But here

> and much to the point, the December 18, 2003, decision by the Second Circuit
> Court of Appeals in the case of José Padilla that "the President lacked
> inherent constitutional authority as Commander-in-Chief to detain American
> citizens on American soil outside a zone of combat"; that particular point
> was never reviewed by the Supreme Court and is thus still an open question,
> admittedly, but NO ONE suggested that the Judicial Branch did not have the
> right to review the President's actions).

I must point out that many, many, many did argue that the Judicial
Branch had no business there.  The Padilla decision was in fact
contrary to all precedent.

Actually there's little de jure precedent, because before our current,
gentle times, this stuff was all just assumed.  But here is a
precisely relevant Supreme Court precedent, Ex Parte Quirin

   http://www.law.cornell.edu/supct/html/historics/USSC_CR_0317_0001_ZS.html

The short story is that FDR put (unsuccessful) domestic Nazi saboteurs
before secret military tribunals.  Three were US citizens.  They each
were sentenced to death; two sentences were commuted to life
imprisonment.  The Supreme Court found they (the courts) had no
jurisdiction.

I repeat: under his Article 2 powers, FDR had US citizens executed by
secret military tribunals.  Those are some powerful powers.  Let's not
even get started on Lincoln.

Your idea that Article 2 powers may be circumscribed by judicial
review might even be correct, but here you are resting your idea on a
single recent decision in a lower court.  There's 200 years of de
facto and de jure precedent on the other side of the argument,
including a decision of the Supreme Court.

Tipsily,

Roland