Rule of War? Rule of Law
As is written on page 281 of the reader, a la Scalia's Rasul dissent: "...Scalia maintained, would mean that American military prisoners held not just in Guantanamo but anywhere in the world now controlled by Americans...could sue the government in American courts." (281)
Its interesting how things come around and, legally speaking, bite you in the butt. Post 9/11, the government wanted to get out and make war on someone that people and politicians willingly (almost blindly) gave the executive powers never seen before in the course of American political history. For a period of 2-3 years, the executive enjoyed these powers and was, for all intents and purposes, a warlord....completely unchecked by the government. Worse, by setting up Guantanamo as a detainee center where anyone could be held indefinitely based on a whim, it became a legal concentration camp of sorts, minus the inhumane work and living conditions. Executive power was absolute, laws of war were done. These were not POW's, no, they were enemy combatants, not even POWs and did not have rights under military law.
Fast forward to the Rasul case and Scalia's dissent. He and the executives now realize their fatal flaw: They refused to treat these men as POW's and instead treated them as some unclassified group never seen before. BIG mistake. Now, the court has ruled that those prisoners can sue the US government legally for habeas corpus in a US court wherever the US is occupying a nation or territory. Inadvertently, the US government changed the laws of war so much so that now, a POW standing would look like heaven to the executive. The failure of a pro-executive outcome to Rasul is ultimately the failure of legitimacy of this overextension of executive power and prerogative.
Its often been said that those who live by the sword shall perish by the sword, and that still holds true, but I would also add that the pen is mightier than the sword. The pen writes the opinion that destroys executive legitimacy in this entire post 9/11 disaster of government. Had the executive just stayed in his political place, and used the traditional and well established rules of war, this may not have happened in the first place. Now, the executive has come full circle and perhaps, just perhaps, we may be able to return to the political and judicial life that existed on September 10th, 2001.
Its interesting how things come around and, legally speaking, bite you in the butt. Post 9/11, the government wanted to get out and make war on someone that people and politicians willingly (almost blindly) gave the executive powers never seen before in the course of American political history. For a period of 2-3 years, the executive enjoyed these powers and was, for all intents and purposes, a warlord....completely unchecked by the government. Worse, by setting up Guantanamo as a detainee center where anyone could be held indefinitely based on a whim, it became a legal concentration camp of sorts, minus the inhumane work and living conditions. Executive power was absolute, laws of war were done. These were not POW's, no, they were enemy combatants, not even POWs and did not have rights under military law.
Fast forward to the Rasul case and Scalia's dissent. He and the executives now realize their fatal flaw: They refused to treat these men as POW's and instead treated them as some unclassified group never seen before. BIG mistake. Now, the court has ruled that those prisoners can sue the US government legally for habeas corpus in a US court wherever the US is occupying a nation or territory. Inadvertently, the US government changed the laws of war so much so that now, a POW standing would look like heaven to the executive. The failure of a pro-executive outcome to Rasul is ultimately the failure of legitimacy of this overextension of executive power and prerogative.
Its often been said that those who live by the sword shall perish by the sword, and that still holds true, but I would also add that the pen is mightier than the sword. The pen writes the opinion that destroys executive legitimacy in this entire post 9/11 disaster of government. Had the executive just stayed in his political place, and used the traditional and well established rules of war, this may not have happened in the first place. Now, the executive has come full circle and perhaps, just perhaps, we may be able to return to the political and judicial life that existed on September 10th, 2001.
posted by Ian S. Crawford at 19:43
1 Comments:
Ian,
Excellent point. It would be ironic if the executive's overreaching led to exactly the kind of limitations they were trying to avoid.
2
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