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Bush Again Tramples on Constitution — Now It’s Military vs. Civilian Courts

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Imagine you and your family take a drive to Annapolis, MD to visit our nation's naval academy.  While there, your 18-year-old son, Timmy, gets into an argument with a naval officer over the war in Iraq.  Your son, somewhat of a hothead to begin with, starts cursing the naval officer and making statements that could easily been taken as treasonous.

Now, what do you think would happen to the lad?  You'd all get thrown off the base?  A bunch of first year Naval cadets would beat him with rubber hoses until he's singing "God Bless America" at the top of his lungs?  The MPs stop by, arrest your son and hand him over to the civilian police for a variety of misdemeanors — disturbing the peace, for example?

Well, if the Bushman has his way, the MPs can not only arrest him, but hold him for military trial.  That's not the current intention of a new law slipped into a spending bill last year — but it's not impossible.  According to the Washington Post, the purported need for the law is to "close a long-standing loophole that critics say puts contractors in war zones above the law."

The provision makes private contractors and other civilians serving with U.S. troops overseas subject to military courts-martial.  Legal scholars say there will certainly be challenges partially because the law could easily be applied to civilian government workers and even journalists.  Another reason is that judicial history has not been kind to the idea. 

"The Supreme Court has been quite hostile to trying civilians in a court-martial," said Eugene R. Fidell, president of the National Institute of Military Justice.  Not only has the Supreme Court turned a dim eye towards this practice, legal observers say it could be interpreted broadly to also include employees with other government agencies, as well as reporters.

Got some troublesome reporters?  Haul them up before juries decidedly not their peers.

Trials before military courts violate fundamental requirements of international law and standards for fair trial, as recognized by Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

Back in the early days of this millennium, Egypt was widely condemned for holding military trials for approximately 3,465,734,888 citizens.  It was probably less that that, but the point is that, once in the clutches of the men in uniform, one questions the possibility of getting tried before a competent, independent and, impartial court.  

Remember the quaint notion of grand juries — forget it.  While Bush was certainly enthusiastic about the new toy, the Supreme Court has struck down civilian convictions under military law, and no conviction of a civilian under the Uniform Code of Military Justice (UCMJ) has been upheld in more than half a century.

Even discharged members of the military have some constitutional protection, darn those Founding Fools.  Way back in 1952, an American soldier was involved in the death of South Korean civilian.  Before the military could work its magic, the U.S. soldier was honorably discharged.  Five months pass.  The military arrest him and want to conduct a court-martial for murder.

In steps in the Supreme Court.  In a 6-3 decision, they said the specific code of the UCMJ that the brass used was unconstitutional.  Justice Hugo Black, who wrote the majority opinion noted that the U.S. Constitution contained a number of "safeguards designed to protect defendants against oppressive governmental practices."

See, it's not that we don't trust Bush, it's that we don't trust any politician.  And that's the way it should be.  What's alarming is how little play this story has gotten.  I suppose we'll have to wait for Timmy to be sentence to 30 years at hard labor before anyone pays attention.

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About Mark Schannon

Retired crisis & risk manager/communications expert; extensive public relations experience in most areas over 30 years. Still available for extraordinary opportunities of mind-numbing complexity. Life-long liberal agnostic...or is that agnostic liberal.
  • http://www.diablog.us Dave Nalle

    Your son, somewhat of a hothead to begin with, starts cursing the naval office

    I’d like to think I brought little Timmy up better than that.

    What troubles me about this article is that you’re sort of portraying what is an accidental loophole in this law – which was designed to fix another loophole – as if it was the purpose of the law and the intention of Bush, which it clearly was not.

    Go after Bush for the things he’s actually done, but do you need to create essentially bogus accusations like this?

    Dave

  • http://www.youtube.com/watch?v=hIMW5iYFGhM D’oh

    The argument could be made that there are no accidental consequences. The administration legal team has quite the history of writing their opinions and recommendation with all kinds of little things tucked in and implied that can be used to expand executive authority, and throw aside constitutional protections.

    This is just another brick in the wall.

    Nicely done Mark, and a timely article all should read and ponder.

  • http://www.diablog.us Dave Nalle

    Ok, D’Oh. What would their motive be for deliberately wording the legislation too broadly? For that matter, why was this issue never raised by the Congressmen who voted on and passed the thing? It wasn’t a Presidential order, it was an amendment to a bill in Congress.

    There are bricks involved here, but they mainly fill certain heads.

    Dave

  • http://parodieslost.typepad.com Mark Schannon

    Dave, it was literally slipped last minute into a funding bill. I’ll best 90.43% of the Congress Monkeys even knew what they are agreeing to.

    And you’re probably right that I shoulndn’t have started off with such a bizarre example–I was trying to be funny. BUT, the law, as written, allows for that kind of unbelievable situation. It’s just another example of the slow shaving our Constitutional and Bill of Rights beard until we’re…clean shaven. (Now that was a stupid analogy.)

    People are seriously concerned about the media, consultants, and others who could get swept up into potential hysteria.

    I didn’t want to go into too much length, but the history on this issue is very interesting, both internationally and domestically. I love the Supreme Court quote: “You can’t hurry love, no, you just have to wait…” Oops, wrong quote.

    Sorry. Justice Hugo Black, who wrote the majority opinion noted that the U.S. Constitution contained a number of “safeguards designed to protect defendants against oppressive governmental practices.”

    That kind of says it all.

    In Jameson Veritas

  • Ruvy in Jerusalem

    Mark, if you’re going to live in a country with those fantastic protections of your liberty, you might as well live here. So long as you don’t fart in Olmert’s face, insult a public servant, you’ll do just fine here. Well, getting paid may be a problem…

  • http://parodieslost.typepad.com Mark Schannon

    Hey Reuven, there’s one big difference. Nobody wants to kill me here…yet. Like Yossarian in Catch 22, the problem is that everyone is trying to kill you there. Move back here, we’ll do lunch!

    In Jameson Veritas

  • Ruvy in Jerusalem

    “Nobody wants to kill me here…yet.”

    Don’t forget the emphasis in that sentence, boychik. I’m safer asleep at the village gate here (I’m ashamed to say it – I fell asleep at 02:45 with a quarter hour left in my guard duty) than I am in America – or than you are. You just don’t realize that – yet.

  • http://parodieslost.typepad.com Mark Schannon

    Oy, such a worrier. Look, Mendleson, with a name like S(c)hannon and an addiction to Irish whiskey, I figure I’m as safe as the pope.

    Plus I’m old and gray — how much trouble could I get into.

    In Jameson Veritas

  • Maurice

    Mark

    this article should be about Sen. Lindsey O. Graham – not Bush.

    What would make you think that Bush was clever or mean enough to even think of such a thing?

  • http://www.diablog.us Dave Nalle

    Mark, Ruvy is old and gray too and they’ve got him mounting guard duty on their gated community – asleep as one might expect. That either speaks to desperation or profoundly poor judgment.

    As for terrorism, the one good thing about Israel is that if you live there you’re at least safe from Katrina evacuees.

    Dave

  • MCH

    “Mark, Ruvy is old and gray too and they’ve got him mounting guard duty on their gated community – asleep as one might expect.”
    – Dave Nalle

    Mark,
    Nalle is old and bald too, and mounts guard duty on his fortified compound, killing stray dogs with an .06.

  • Ruvy in Jerusalem

    Hey listen y’all.

    If Mark had been sitting in that booth with me Sunday night arguing religion, neither of us would have fallen asleep. The whole Jordanian army might have gotten by by crawling under the gate because we would been arguing, but that is another story.

    It is damned quiet in that booth from 0:00 to 03:00, and even if I had the money to pay someone else to sit in that booth for me (yes, that does happen), I wouldn’t. Tired as I was, it was an honor to at least try to guard the village…

    Tonight, when I go out on patrol, I won’t be asleep… I’ll be all coffeed up with a bottle of water to keep me going, and a book to keep my mind going…

    And I’m not that grey – yet

  • Nancy

    While this isn’t the sort of sneaking thing that W could think up on his own, you can bet your booties that the presidential legal weasels did & W. certainly IS mean enough, low-down enough, power-mad enough, and treacherous enough -as he’s proved over & over again to date – to not think twice or hesitate about further tearing down of American rights & civil liberties. Christ almighty – it’s HIM & Cheney who are making threatening noises about the independent judiciary including the supremes, after all? What more indication do we need that Bush perhaps has also been reading “Mein Kampf” on vacations as well as “My Pet Goat”?

  • http://parodieslost.typepad.com Mark Schannon

    Maurice, you’re right about Lindsay, and that ol’ Bush ain’t clever enough to… oy, was I about to get gross, lol. But mean enough. Nancy’s right on that one.

    Ruvy, I can think of nothing more interesting than spending hours late at night discussing religion, life, and social justicianism with you…but off the top of my head, I can think of a million places I’d rather do it than standing guard duty with a lot of very pissed off Arabs watching me.

    And there you go again, Dave, always looking for the silver lining. No Katrina. No Thanks.

    Actually, it would be riot to have me, Dave, & Ruvy sitting guard duty. The entire Arab army and all their population could come by singing Arab songs and shooting off their guns, and we’d miss it because we’d be too busy arguing.

    Thanks all.

    In Jameson Veritas

  • http://handyfilm.blogspot.com handyguy

    This may be an unlikely scenario.

    It’s also unlikely that most Guantanamo inmates will ever be tried…less than 1 in 5, one government prosecutor has estimated. The rest will be allowed to rot in jail, without ever even being charged.

    Maybe President Obama will close Gitmo down in January 2009. Or maybe President Giuliani will decide this is a nifty idea that needs to be expanded.

    See Children of Men, and the new season of 24, for scary visions of governments taking this practice just a couple of steps further.

  • STM

    Mark: The right to a speedy and fair trial has less to do with the constitition, although certain rights are guaranteed under that document and specifically mentioned in Article I, than it has in the Great Writ, or the Writ of Habeus Corpus, part of English Common law, which passed in to American common law pre-revolution and then remained part of American common law after the War of Independence.

    It actually predates the constitution by centuries, and forms the foundation stone of all the criminal justice systems based on English common law, ie: British, American, Canadian, Australian, New Zealand, and many countries of the Commonwealth, including India and much of the West Indies.

    This is really the problem as this is the proud tradition that the Bush administration is destroying in one fell swoop, and it’s not just an American one and many people outside the US who believe Habeus Corpus is the cornerstone of our ciollective criminal justice systems are watching in disbelief: it’s a legal tradition that is many, many centuries old, and that is what is so disgusting about the whole thing. All the detainees in Guantanamo are entitled to these protections, that were specifically designed to stop governments (or Kings and Queens, in centuries past) doing this kind of thing.

    No wonder the Brits asked for all their detainees in Guantanamo to be sent home, where they WILL get a fair go. Bush may not realise it sitting in the Oval Office a world away from reality, but he is responsible for a storm that is making the US very unpopular on this issue all around the world in countries where Habeus Corpus is seen as an absolute, inalienable right of an accused.

    How bizarre that a country that champions itself as a leading light when it comes to personal freedoms is the first among this group to dispense with a centuries-old tradition that actually does guarantee such rights.

    It’s also about time the Australian government asked for the return of David Hicks, who has been in Guantanamo since 2002. He should have been tried years ago, as he would have been had he been arrested and charged with a terrorism offence on his home soil.

    It’s likely he would have already served his sentence by now, and yet he hasn’t even been to trial. Even his US Marine lawyer says its an injustice.

  • STM

    Unfortunately, however, I forgot to add the US constitution actually gives itself a way out, with Article I stating: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

    The second part of that, which doesn’t exist in other systems based on English common law, unless decreed by an Act of Parliament and which therefore is not absolute and can later be changed, is indeed what gives the Bush government the loophole it needs to wriggle out of it.

    Why? It says it’s OK in the constituition. Don’t worry, they have had their constutional lawyers on the case.

  • http://www.diablog.us Dave Nalle

    That’s not the only way out, STM. Because they aren’t US citizens they aren’t necessarily covered under the Constitution in the first place. I think the basic protections ought to be universal, but technically they’re just not.

    Dave

  • STM

    Come on now Dave, old chap, we know that we can argue around this issue to support whatever viewpoints we like but there is one inescapable fact here, US citizenship or not: these people have been deemed to have committed offences against the United States – which technically means they are entitled to the writ of Habeus Corpus under American common law AND the constitution.

    I know you are a supporter of the Military Commissions legislation but that doesn’t change the paradoxical nature of it if you consider that it’s the United States – a country that has based its own international street cred on the export of its own particular brand of democracy and freedom.

    I think Americans may not understand that it has caused a shitfight outside their own country, most importantly among their allies, and that that reaction has nothing to then polarisation of views between liberals and conservatives. It reinforces the notion, rightly or wrongly, that the US is a bully.

    Simple stuff, really: in dishing out justice under our collective legal systems, Habeus Corpus remains the cornerstone of our criminal jurisdicitions and without it, the criminal justice system means squat. It’s a tremendously dangerous precedent, IMO.

    For the US to manipulate its way around this basic tenet of freedom shows just how cynical this administration really is.

    As you know, I am a supporter of tracking down terrorists and believe in the right of the US and any other country whose interests are under threat to engage its opponenents with whatever force is neccessary. So I’m a supporter of the global anti-terror campaign loosely known in the US as the war on terror.

    However, it should not be undertaken at the same time as the basic rights upon which our countries depend for their democratic instititions are trampled underfoot. Habeus Corpus is a particularly important one here as, as I’ve said above, it was in fact instituted as part of English common law, and thus American common law, to prevent the very kinds of abuses by governments (or rulers) as those that are today taking place in guantanamo bay. Americans, having fought against the British for their freedom, should understand this as much as anyone (although the right to a speedy and fair trial existed pre-revolution too).

    BTW, the ruling that Guantanamo Bay is not part of the US is a technicality. To all intents and purposes, it has long been regarded as US soil, in spirit at least, and you could theoretically argue the toss either way in a court of law.

  • RedTard

    I used to think anyone that took up guns or IED’s and tried to kill my fellow American’s was a bastard who should rot in hell/guantanamo. Thanks to the new leftist revolution I’m changing my stance so I don’t end up in the new Siberia.

    I think we should let all our enemies go. They were justified because of our evil capitalist empire (just look what we did to Hawaii, our last conquest). Our soldiers should drop their guns and pick up evidence collection bags.

    Soldiers should get proof beyond a reasonable doubt, a judges order, congressional appoval, and a note from Cindy Sheehan before fighting back or taking any prisoners.

    If the new thought police have any questions I’ll be out donating my entire livilihood to those poor oppressed minorities, women, illegal immigrants, gay and transgendered folks until the government can set up a tax system to do that for me.

  • Maurice

    That was a funny comment, RedTard.

    I say never declare war unless you are prepared to let the military fight with everything they’ve got. That means allowing them to bomb the shit out of places like Fallujah:

    “On March 31, 2004 – Iraqi insurgents in Fallujah ambushed a convoy containing four American private military contractors from Blackwater USA who were conducting delivery for food caterers.

    The four armed contractors, Scott Helvenston, Jerko Zovko, Wesley Batalona and Michael Teague, were dragged from their cars, beaten, and set ablaze. Their burned corpses were then dragged through the streets before being hung over a bridge crossing the Euphrates.

    Photos of the event were released to news agencies worldwide, causing a great deal of indignation and moral outrage in the United States, and prompting the announcement of a upcoming “pacification” of the city.”

  • http://absent-mind.blogspot.com/ Jet in Columbus

    Maurice-it’s not funny if he’s being serious

  • R.Wallace

    What? Do you have a mental problem, or do you always write idiotic lies?

  • Maurice

    Geez, Jet. Haven’t heard from you in a long time. How are the eyes today?

    I really think RedTard was joking….

  • http://www.diablog.us Dave Nalle

    Wallace, an inflamatory statement like #23 is waaay more effective if you point out whether you’re responding to the original article, part of the article or one of the comments.

    Dave

  • http://parodieslost.typepad.com Mark Schannon

    I think Redtard was talking about anyone who won;t kill a commie for Christ. I’ve seen his posts before, and he certainly is predictable in his POV.

    We can argue the legitmacy of Bush’s actions until the caribou come home, but his diplomatic and foreign policy actions have been such that the only person who loves us is a blind and deaf Frenchman who was living on Normandy beach lo those many years ago.

    I’m convinced Bush’s got this big dartboard thing and on it are all the things we can do to piss someone off. Every morning, after his 10k run, he goes into this secret situation room and throws a dart. How else do explain American foreign policy?

    In Jameson Veritas

  • SHARK

    Redtard: “I used to think anyone that took up guns or IED’s and tried to kill my fellow American’s was a bastard who should rot in hell/guantanamo. Thanks to the new leftist revolution I’m changing my stance so I don’t end up in the new Siberia.”

    By “new Siberia” — you mean Iraq, right?

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