News-Record.com

Wrong again, Lex. It never ceases to amaze me how you libs can so horribly lie about something to try and sway the masses to your minority point of view! Great use of your imagination, though.

The court decision did not say that the Bush administration had DONE anything illegal, merely that their plan was flawed.
The Court did not address the terrorist surveillance program, the detention of prisoners, the FISA questions, interrogation techniques, bank record reviews, sun spots, the Civil Right Museum, or Councilwoman Groat’s budget argument.
As is it’s duty, it addressed a narrow area of one challenge.
This has been common throughout our history in areas of new endeavor, such as technological, labor, and transportation issues.
When the business or government enters a new, unprecedented area, they must go with what they feel is the best way to address issues and problems. We’ve seen this in the telecommunications industry, labor and wage laws, environmental programs, etc. When a challenge is made, the Court sometimes steps in to set parameters for these new programs or to guide them in implementation in accordance with the Constitution.
In this issue, the Court has given the administration guidelines on how to pursue bringing justice to the terrorists, and it will be used to shape future action.
The Court did exactly what it was supposed to do, and the administration does not see this as a roadblock, but as guidance from the appropriate branch of government.

“Don't you marvel at how the supposedly locally oriented N&R can afford to pay a reporter to sit around writing endlessly on the newspaper's website about his obsessive hatred of the Bush administration instead of actually reporting and writing local stories that might be of some interest if only they weren't filled with the blatant political bias displayed here. Maybe the readers are better off for this, but you do wonder how the newspaper benefits.
Jerry Bledsoe”

I think I'll include Jerry's quote on every post to your blog so all of your readers can benefit from his insight.

First, blogging is part of my job. Jerry might not like it, but he stopped working here a long time ago so I don't really care what he thinks.

Now then, speaking of lies, when the court says that the particular type of military commission the administration wishes to use does not comply with either statutory law or Geneva, that means it is illegal. You might not like that fact, but fact it is and all your semantic dancing won't change that.

No, the court did not address the NSA wiretapping program, et al., directly. I specifically said that in the paragraph beginning, "Because violations of FISA were not at issue ... " (Can you read?) I said it addressed the legal defenses for those violations and dismissed both of them. And that's exactly what it did, explicitly in the case of the AUMF and implicitly (except for Kennedy's explicit concurrence with Youngstown) in the case of presidential war powers.

Finally, your contention that the administration was "seeking guidance" is laughable, inasmuch as the administration was the defendant in this case and has fought like hell to keep all issues of this type -- torture, tribunals, warrantless domestic wiretapping -- out of court whenever possible. (Whether or not the federal courts even had jurisdiction in this case was also at issue, and the high court naturally found in the affirmative or else its ruling would have stopped right there.)

What's more, the Supreme Court doesn't give advisory opinions or "guidance." It only rules in real cases involving real people facing, or having incurred, real harm, and for better or worse, that's what it did today.

Go read the sources I linked to. Perhaps they're mistaken, but I think they know a good deal more about the law than you.

Read closer, Lex, I never said the administration was "seeking guidance." As with any issue subject to legal ramifications, the Court decisions are used to "guide" or revamp programs or laws as needed to comply with Court rulings.
This is common in all aspects of law. You can look at Miranda and Escobedo, search warrant law, rulings on monopolies, rulings on Anna Nicole Smith's lawsuit, etc. As society changes, so do the laws and the way they're enforced and interpreted.
This was merely a message to the administration that they need to tailor their programs to comply with the ruling. It doesn't dictate how it must be done, it just sets parameters within which those concerned must design and implement their programs.
I know you like to put words into people's mouths, but how about a little intelligence and fairness in your replies?

The Court did not provide "guidance." It told the administration that it was breaking U.S. and international law. That's a fact. Save your spin.

Lex, I know you're not very knowledgeable about court functions, law, etc. So let me enlighten you.
The US Supreme Court never decides guilt or innocence. Never. They rule on the constitutionality of lower court rulings.
An example:
If your company handled personnel records in a certain way for years, and then the Court said it needed to be done another way, you weren't "breaking" the law. You were doing it in a way that was later determined to be unconstitutional. The Court handles Constitutional questions, that's all. They don't adjudicate guilt or innocence, they rule on decisions of lower courts and decide whether the decision adhered to the Constitution.
Another example is search warrant law. Let's say that a police agency searched all items in a car during a search, including luggage in the trunk. A court rules that legal, and it's appealed up to the Supreme Court. The court then decides that the search of luggage is not lawful without a separate search warrant. Were the police in the initial case "breaking the law?" No. They were doing what was legal when they did it, but was later determined to be unconstitutional. They would be required to modify their procedures to comply with the Court's ruling. Same with this issue.
It's really pretty simple.

I see that you've edited, altered, and removed some of my comments.
My posts conformed to the "Terms of Use, Submission Rules" as required by the N&R.
I wrote no vulgarity, no cursing, no offensive language.
You didn't remove the original post by Jerry Bledsoe that I quoted, so why did you remove my quote of that post?

I find that offensive, narrowminded, and juvenile.

jaycee, you publicly announced your intention to, in effect, spam my comments with the Bledsoe quote. I'm well within my rights to remove it from your comments; deal with it. I didn't change or remove anything else despite the fact that, among other things, you baselessly accused me of lying.

Now, any more substantive criticism? Or, in the alternative, any more whining?

Are you going to respond to your misunderstanding of the meaning and importance of the Supreme Court decision today? Do you now understand the role of the Supreme Court in our government?
You intentionally misstated material facts about the Supreme Court decision, and deliberately misled readers about the content of the decision. It's a shame journalists have no code of conduct or professional ethics that govern their actions.

SPAM:
"Spamming is the abuse of electronic messaging systems to send unsolicited, bulk messages."
http://en.wikipedia.org/wiki/Spam_(electronic)

I chose to add Bledsoe's comment as a "signature line" for my posts which in no way resembles spam.
Your actions are childish.

jaycee, anyone who actually reads what I wrote will conclude that I didn't come close to making the mistakes you've accused me of making, let alone "lied."

As for the Bledsoe quote, it ain't your blog, so you aren't entitled to a signature line. If you don't like it, you're free to leave.

Anyone who reads what you wrote and actually knows something about how the Supreme Court and our government works will immediately recognize your factual errors. They will also notice the unbridled liberal spin you put on everything you write.
If you didn't censor Bledsoe's original statement, why do you censor it when it's repeated?
Your censorship of those who contribute to your blog (and there aren't many, have you noticed?) is narcissistic and infantile.
I'm sorry people don't like you. It must be lonely being Lex.

Anyone who reads what you wrote and actually knows something about how the Supreme Court and our government works will immediately recognize your factual errors. They will also notice the unbridled liberal spin you put on everything you write.

Uh, yeah, jaycee, right. And damn those liberal facts, huh?

If you didn't censor Bledsoe's original statement, why do you censor it when it's repeated?

Just to annoy you.

Your censorship of those who contribute to your blog (and there aren't many, have you noticed?) is narcissistic and infantile.

You say that like it's a bad thing.

I'm sorry people don't like you. It must be lonely being Lex.

Eh, online, sometimes. Out in meatspace, OTOH, I do OK, but thanks for your concern.

So your idea of free speech is to use the blog provided you by the N&R to annoy people personally?
My, I'm so glad the N&R has responsible journalists like you on their staff.
If you stated facts, people would respect what you write. But you state your opinions as fact, when they're just your opinions.
You refuse the address the main topic, which is your misunderstanding and misstatement of the Supreme Court decision.
You spout your lib views and "cut and paste" the opinions of others with which you agree.
So if ten liberals tell a lie enough times, does it become fact? No, thank goodness.

So your idea of free speech is to use the blog provided you by the N&R to annoy people personally?

Nah. That's just a perk.

If you stated facts, people would respect what you write. But you state your opinions as fact, when they're just your opinions.

I'm being lectured on facts by a Foucaltian? That's genuinely funny, jaycee.

You refuse the address the main topic, which is your misunderstanding and misstatement of the Supreme Court decision.

I'm happy to let anyone who wants to peruse the legal commentary by real lawyers and let them decide how close to or far off the mark my own opinions are.

You spout your lib views and "cut and paste" the opinions of others with which you agree.

Yeah, respect for the rule of law is a lib view ... in the Lockean sense of lib. But, you know, whatever.

So if ten liberals tell a lie enough times, does it become fact? No, thank goodness.

Those darned liberal facts again. Have a good weekend, jaycee. I'm outta here.

A huge step toward greatness will be the day we kill ALL the Islamic bastards that are tryiing to destroy America.

Lex, please explain just where in the Cupreme Court decision they addressed Gitmo, CIA interrogation techniques, violation of the War Crimes Act, torture, FISA, or the NSA's warrantless domestic wiretapping program.
Or did you just make that up to try and add some validity and weight to your liberal fantasies?
As I've said before, the Supreme Court does not decide guilt or innocence. So the Court did not find the administration "guilty" of anything, no matter how fervently you wish in your liberal dreams. That's the LAW, not opinion.
Your premise is flawed, your presentation is shoddy and shy on facts, and your bias is transparent.
You lied. And Bush won. Twice! Get over it.

1) The Court merely stated that the Military Commissions had to be specifically authorized by Congress- this is an interpretation debate, nothing more. It will be interesting to see how fast Congress (including Democrats) pass such an authorization. It was not a declaration of illegality, but merely a ruling which stated that the Bush Administrations understanding of an act of Congress was incorrect. It happens all the time.

2) The Court merely stated (erroneously, I believe) that a PART of the Geneva Convention applies in these matters. However, again, Congress could change this ruling by the Court with the stroke of a pen by stating that "enemy combatants" do not fall within the Geneva Convention for the reasons argued by the administration. There would be nothing the Court could do about that because the Court only has jurisdiction over Geneva Convention cases to the extent granted by Congress. In other words, the Congress, not the Court has the ability to define the meaning of its terms.

3) This case had nothing to do with the wiretapping despite what was stated by Lex. The Court did not say that the Administration could not promulgate its own rules regarding the implementation of the AUMF, it merely stated that its interpretation of the military commissions was too broad. Lex would have you believe that the Court struck down the Administrations executive powers on this issue simply because they struck them on another issue. This is completely wrong.

4) The Administrations rationale was not "blown out of the water" as suggested by Lex. The Court only ruled that their interpretation was overbroad and that in order to accomplish what they mistakenly believed (according to the majority) was already authorized, they would need a more specific grant from Congress. As stated above, it will be interesting to see how quickly a bipartisan Congress provides such a grant. Then it will be Lex who is blown out of the water when it becomes clear that despite all of the political posturing, most of the Congress supports the general methods used by the Administration thus far. The Court said if you want to do Y, you first need X. If Congress gives you X, then there is nothing we can say about it. The President said "our position is that we already had X, but if you say we're wrong, fine, we'll go back to Congress to try and get it". It's that simple- this ruling does not state that the Administration has trampled on anyone's rights nor is it a damning indictment of the Administration's tactics. It is like any other case in that there was a dispute over the interpretation of a law, that's all.

5) There is a lot more in this case regarding jurisdiction of the Court that Lex did not mention. The "non-activist" Court Lex referred to was actually quite activist in finding it's jurisdiction to hear the case in the first place considering that a strict constructionist and literal interpretation of the Constitution grants Congress the authority to limit the jurisdiction of the Court. This is a fact that was well presented by Justice Scalia in his dissent. There was a specific congressional limitation of jurisdiction in this case that the Court went out of its way to override. Sounds pretty activist to me.

Sorry, Lex, you were just a little too willing to believe the earth was shaking.

Samuel S. Spagnola
J.D. Southern Methodist University
Admitted to the United States Supreme Court

Whew, thanks for jumping in here, Sam, with a much more "legalese" explanation of where Lex was wrong.
Lex and I battle often, and I'm usually by myself, LOL.

Court finds right to Jihad in Constitution. Mark Steyn explains:

Being al-Qaida Means You Never Have To Sign Conventions

So, Fred, does this mean that Al Qaeda is now required to abide by the Geneva Conventions in a spririt of reciprocity? And they can be held accountable for "War Crimes" if they treat our prisoners harshly? Like cutting their heads off on video?
So can we expect Amnesty International, Cher, Susan Sarandon, Nancy Pelosi and Harry Reid to start demonizing Al Qaeda in their speeches for their failure to follow Geneva Conventions?
Cool.

I find it amusing that some people think the Hamden decision is some sort of apocalyptic defeat for the Bush Administration, or some sort of vindication for the "Loyal Opposition Party"'s constant drumbeaten political agenda.

It is of course neither, for reasons so well stated above.

And it seems clear that no amount of reason on this subject will stop the ongoing delusional words and behavior.

Well, guys, John Yoo certainly seems to think it's a defeat for the administration. But what does he know?

Now that you're all here, let me pose this question: Do you believe torture should be legal? Do you believe kidnapping people in other countries and flying them to CIA prisons in third countries, without judicial oversight, should be legal? Do you believe warrantless domestic wiretapping should be legal?

What say ye?

Sam, to address your specific concerns in more detail:

1) The Court merely stated that the Military Commissions had to be specifically authorized by Congress- this is an interpretation debate, nothing more. It will be interesting to see how fast Congress (including Democrats) pass such an authorization. It was not a declaration of illegality, but merely a ruling which stated that the Bush Administrations understanding of an act of Congress was incorrect. It happens all the time.

Yes, it does, primarily because for the past quarter-century the Congress, the administration or both have insisted frequently on trying to do things that were, to be polite, plainly outside the scope of their authority. Now, these "illegal" actions aren't crimes, of course, but they are no less illegal for that. Any eighth grader knows that the executive branch cannot do what the Congress has not empowered it to do (save for powers enumerated in the Constitution, of course). You call it an "interpretation debate," and you're a lawyer so that's fine, but I think most laypeople understand that when the administration tries to do something Congress has not authorized it to do, then it's doing something illegal. And that sense, and not the criminal sense, is the sense in which I was speaking here.

The Court merely stated (erroneously, I believe) that a PART of the Geneva Convention applies in these matters. However, again, Congress could change this ruling by the Court with the stroke of a pen by stating that "enemy combatants" do not fall within the Geneva Convention for the reasons argued by the administration.

Indeed, I noted above that Congress could undo most of what the Court has done here. But don't kid yourself: Backing out of the Geneva accords, though within the power of Congress, would have unpleasant ramifications in a number of realms, not the least of which is the safety of our military personnel in combat.

This case had nothing to do with the wiretapping despite what was stated by Lex. The Court did not say that the Administration could not promulgate its own rules regarding the implementation of the AUMF, it merely stated that its interpretation of the military commissions was too broad.

I'm used to jaycee accusing me of saying things I didn't say, but, frankly, Sam, I expect a little better from someone who has been admitted to the Supreme Court and all. I did NOT say that the case in any way addressed warrantless domestic wiretapping directly. What I did say, and what I will stand by unless/until shown otherwise, is that it pretty well demolished the only two defenses of that wiretapping that the administration has raised -- that it's authorized by the AUMF and/or inherent in the president's constitutional warmaking powers. The ruling said, basically, don't go reading stuff into the AUMF that's not there, and don't go presuming that the president's warmaking powers include X when Congress has already specifically banned X even in wartime. Authority for warrantless domestic wiretapping isn't explicitly granted in the AUMF; thus, FISA controls. And if FISA bans warrantless domestic wiretapping, which it does, then per the Youngstown Co. case, the president cannot simply claim that his warmaking powers include warrantless domestic wiretapping. It's not slam-dunk prohibition, as I read Youngstown, but it looks as if the executive branch would have to meet an extraordinary burden of proof.

There is a lot more in this case regarding jurisdiction of the Court that Lex did not mention. The "non-activist" Court Lex referred to was actually quite activist in finding it's jurisdiction to hear the case in the first place considering that a strict constructionist and literal interpretation of the Constitution grants Congress the authority to limit the jurisdiction of the Court. This is a fact that was well presented by Justice Scalia in his dissent. There was a specific congressional limitation of jurisdiction in this case that the Court went out of its way to override. Sounds pretty activist to me.

I'll bow to your superior education and experience on the issue of jurisdiction, for the simple reason that I didn't really look at that question -- for better or worse, I doubted four justices would have voted to hear the case if there had been serious issues of jurisdiction.

I stand by what I said about the substance of the ruling being fairly strict-constructionist, however: The court said, in effect, if Congress has not given you this power, you do not have this power. Indeed, you made this same point yourself, albeit in different contexts, more than once.

"Do you believe torture should be legal?"

No, that's why our government doesn't do it.

"Do you believe kidnapping people in other countries and flying them to CIA prisons in third countries, without judicial oversight, should be legal?"

No, that's why we don't do it.

"Do you believe warrantless domestic wiretapping should be legal?"

No, that's why we don't do it. (You DO understand the legal definition of "wiretapping" don't you?)

OK, jaycee, you just keep telling yourself that.

Phred: Any plain reading of Article 3 suggests that it does indeed apply to al-Qaeda members in Iraq and Afghanistan, inasmuch as those countries have ratified the convention. You don't have to like or approve of that fact, as Steyn does not, to understand that it is binding law for the U.S. nonetheless.

Jaycee:

Lex just likes the nuances that "wiretapping" gives him. Whether the word is correctly used does not seem to be an issue, does it?

Bubba, you can call it whatever you like -- it's a violation of FISA and the administration itself has said so.

Bubba:

No, it doesn't. I doubt he really knows the difference between the many intercept programs out there. But it makes him feel "big" to use words like that.

jaycee and bubba: given that going into chapter and verse on pen registers and trap-and-trace authority and all that would wander somewhat far afield of the original subject of this post, no, I'm not going to get into the details here of the various programs. When and if it becomes relevant, I will.

Bubba:

Shorter Lex: I don't know what I'm talking about.

shorter jaycee: "Facts? There is nothin' but opinion! I don' need to show you no stinkin' facts!"

Lex, you are missing the point on the Geneva Convention. Congress would not have to back out of them. They could merely state in a resolution that Al Qaeda and other similar groups that are non-state entities engaged in military affairs in another country (such as the terrorist attack on September 11) do not fall within Article 3. This is a reasonable interpretation (as pointed out by Scalia et al) because Article 3 could be read to apply only to matters of civil war (insurgents within their own country) as opposed to those who act abroad like Al Qaeda.

Second, you read the Youngstown case way too broadly. By your reading, the President would have to ask Congress where to drop each bomb before acting. This sort of micromanagement by Congress was not contemplated in the Constitution. The executive authority of the President to promulgate rules based on a statute has been well established. Almost every executive agency establishes its own rules and guidelines based on an enactment authority by Congress. The Hamden case was just an example of where the Court ruled that the President read a statute too broadly. It happens every day even at the state level. Most appellate civil cases are about statute interpretation. Losing doesn't mean you've done something illegal, it just means you were wrong. As I stated above, Congress is the ultimate authority in defining what the meaning and scope of it's legislation is. They will act swiftly to give Bush back most of what he was doing before the ruling.

Third, the Supreme Court does get it wrong. Go back and read Article 3 of the United States Constitution about the authority of Congress to limit the jurisdiction of the Courts. Our Constitution only mandates one Supreme Court. "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish". US CONS. ART. III. All other federal courts exist only by the will of the Congress. That is why Jesse Helms tried so many times to get Congress to pass a law banning the Court of Appeals from jurisdiction on abortion cases.

Congress could wipe out every appellate court if they wanted to, or could limit jurisdiction to any subject matter they wanted to. In the Hamdan case, they did exactly that. It was Congress, NOT the President. Indeed, as Thomas pointed out, the Supreme Court contradicted its previous case law in this matter. Also noteworthy is the fact that the Court did not rule that Hamdan's constitutional rights were violated. Such a ruling would preclude any further congressional action absent a constitutional amendment. That is not the case here.

On the same subject, Al Qaeda did not sign the Geneva Accords. Are we to pretend that they would follow it? Question whether any of the other signatories would agree with OUR court that Article 3 of Geneva applies to Al Qaeda. What authority does OUR court have to make such a claim? What if Russia said tomorrow that Article 3 did not apply to Al Qaeda? Does that mean it applies differently dependent upon each countries interpretation? If that is the case, is it really an enforceable treaty? What if the UN said it did not apply to Al Qaeda? If the rest of the signatories believe the US violated Geneva, isn't the UN the proper body to determine that, and not our Supreme Court? As Scalia pointed out, a Geneva violation must be raised by a signatory country, not an individual. These are the reasons the Court was wrong on the jurisdiction question.

Fourth, FISA does not ban "domestic" wiretapping as you say. It does place restrictions on such wiretapping, and the Patriot Act provisions authorizing electronic surveillance of non-governmental agents (i.e., terrorists) would seem to authorize interception of such communications. This issue was not before the Court.

Last, the Youngstown case, and even Justice Kennedy quoting the Youngstown case admit that the President can act if legislation gives him expressed OR implied authority. Indeed, in Youngstown, the Court ruled against the executive branch by stating "Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied." This is quite different from Hamdan. The President argued that such power in Hamdan was implied, if not expressed. Indeed, as Thomas pointed out, prior precedent has held that the President is to be given the "strongest presumption and the widest latitude of judicial interpretation" when acting under an express OR implied authority of Congress. In other words, the President's interpretation of an act of Congress is to be accorded great latitude. This is what Bush was doing, and the Court has agreed in the past that Congressional acts can imply powers upon the President even when there is no specific directive. Further, the President has the authority to refuse to enforce congressional action if he chooses. That is part of his presidential powers. Finally, on this issue, Justice Kennedy's opinion was mere dicta, meaning it was his own opinion, and because he did not have a majority vote in his concurrence, his opinion is not controlling law. Thus, it does not apply to the President's wiretapping justification as you claim it does any more than the dissents are controlling on the issue at hand.

Forget it, Sam. Lex has his illogical, anti-Bush position and no amount of truth or facts will sway him from it.
Many people have pointed out his misunderstandings but he fails to comprehend reality.
Don't confuse Lex's opinion with the facts, he hates that.

Sam, first, thanks for the civil tone of your comments. I appreciate that.

Now to the substance:

Lex, you are missing the point on the Geneva Convention. Congress would not have to back out of them. They could merely state in a resolution that Al Qaeda and other similar groups that are non-state entities engaged in military affairs in another country (such as the terrorist attack on September 11) do not fall within Article 3.

I (admittedly a nonlawyer) read Geneva 3's intro -- "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions ... " as applying to the U.S. (a "Party to the conflict") as it is involved in a conflict "not of an international character" (since Iraq's military surrendered, anyway) "occurring in the territory of one of the High Contracting Parties," i.e., Iraq, which is a party to the treaty even if it's now under new management. And the broad language seems to me to cover al-Qaeda prisoners even if they are stateless, so long as they are taken "in the territory of one of the High Contracting Parties," which include Iraq and Afghanistan. There is perhaps an argument to be made that I shouldn't understand Article 3 in that way, but if so I haven't heard it yet. Have you one?

Second, you read the Youngstown case way too broadly. By your reading, the President would have to ask Congress where to drop each bomb before acting.

I understand that the executive branch historically has promulgated many rules under statutory authority created by Congress. I don't have a problem with that. And I don't see Youngstown applying so much to the military commissions at direct issue in Hamdan.

What I do see it as applying to are the defenses that have been offered thus far for the president's otherwise-illegal order for the NSA to conduct electronic surveillance, without a warrant, on U.S. persons. To the extent that the court relied on Youngstown in this case, has it not created a precedent here on which it will have to rely when the NSA program comes before it?

Congress is the ultimate authority in defining what the meaning and scope of it's legislation is. They will act swiftly to give Bush back most of what he was doing before the ruling.

And I said above that it could. But will it? Sen. John Warner, who chairs the Senate Armed Services Committee and will be holding hearings on remedial legislation (if that's the correct term) this summer, is by no means sure the executive branch should get everything it had pre-Hamdan ... and is in a position to keep it from happening if he sees a need. Moreover, the National Institute of Military Justice, which filed an amicus brief in Hamdan and actually knows a little about the subject, has written draft legislation addressing the issues the court raised:

Under the Institute's draft, the President's power to set up military commissions would be specifically authorized, the bill would tailor the processses of the commissions closely to existing courts-martial procedures, and it would set up an appeals process from commission decisions -- including Supreme Court review. The text of the draft, together with commentary on its provisions, can be found here (*.pdf). In the draft bill, new matter has double-underscoring, old matter being deleted is struck through, and the language with neither is existing law.

So whatever legislation Congress enacts may well be much closer to established legal procedures and, thus, comply with Geneva. I think that's a minor sacrifice, if sacrifice it be, that will pay major dividends.

Our Constitution only mandates one Supreme Court. "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish". US CONS. ART. III. All other federal courts exist only by the will of the Congress. That is why Jesse Helms tried so many times to get Congress to pass a law banning the Court of Appeals from jurisdiction on abortion cases.

Right ... but if Congress doesn't impose jurisdictional limits on the courts from the outset, are they not included in the broad grant of judicial power to the Supreme Court? Article III reads, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." That phrasing seems to me to say that although inferior courts' decisions may be appealed to the Supreme Court, they otherwise have the full "judicial Power of the United States" unless Congress states otherwise. Again, I'm not a lawyer, so am I missing something here?

On the same subject, Al Qaeda did not sign the Geneva Accords. Are we to pretend that they would follow it?

Article 3 applies behavioral limits to those holding the prisoners, although I'll grant that the passive verb construction makes that fact less obvious than it should be: "... those placed 'hors de combat' by ... detention ... shall in all circumstances be treated humanely ... To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: ... "

That's very broad and very clear language. It appears to impose legal limits on U.S. behavior and to draw no distinction among those we have detained that could meaningfully be understood to exempt al-Qaeda from the humane treatment and due process otherwise required. (As to your "what if" questions, I believe, but cannot prove, that we would recognize real-world benefits from adhering to Geneva even in any instances in which we are not clearly required to. As this article indicates, the military's own lawyers appear to feel the same way.)

Fourth, FISA does not ban "domestic" wiretapping as you say. It does place restrictions on such wiretapping, and the Patriot Act provisions authorizing electronic surveillance of non-governmental agents (i.e., terrorists) would seem to authorize interception of such communications. This issue was not before the Court.

FISA does ban warrantless domestic wiretapping -- technically, warrantless wiretapping of U.S. persons, be they citizens or not. Indeed, it makes such behavior a felony punishable by up to five years in prison. I understand why the government might need to tap domestic communications to fight terror; I ask only that it follow the legally required procedures for doing so. It has not, and the president has indicated an intent to continue violating the law. I'm not a lawyer, but I find that troubling. You?

Further, as I said above, I understand perfectly well that this issue was not before the court. However, some of the government's same defenses for its behavior in this case also have been trotted out (post hoc, or post-New York Times publication, anyway) in defense of the NSA program: that the AUMF authorized it and/or that it is implicitly included in the president's Article II warmaking powers. My point is that the Court's problems with these defenses in Hamdan are likely to recur in spades with the NSA program when it gets in front of a judge: The AUMF says nothing that could be construed as authorizing the program, and the Article II defense runs aground on the shoals of Youngstown. Moreover, even if Congress were to revise FISA to make warrantless domestic surveillance legal going forward (and such a revision almost certainly would face a constitutional challenge), it cannot retroactively legalize criminal behavior.

Last, the Youngstown case, and even Justice Kennedy quoting the Youngstown case admit that the President can act if legislation gives him expressed OR implied authority. ...

Right, and w/r/t Hamdan I'm not taking issue with that. Again, I'm saying that the argument the court is making here does, however, create a precedent that spells trouble for an Article II defense of the NSA program when that program gets in front of a federal judge. The same Youngstown opinion (Jackson's, I believe) that gives the executive branch a lot of leeway when it claims warmaking power X and Congress hasn't legislated either way on X gives it little or no leeway when Congress has specifically banned X, as it has in FISA. If I understand you correctly, you're saying that that precedent is meaningless because five justices didn't join in that part of his concurrence. I'll defer to your training on that question. But I find it hard to justify the program in light of the clear language of FISA and the precedent of Youngstown without completely overturning Youngstown ... and the Fourth Amendment.

Once again, thanks for your civility.

Thanks, Lex, you've confirmed for me that you do not know the difference between domestic wiretapping, terrorist surveillance, phone record reviews, bank record reviews, and FISA requirements.
Your ignorance of these programs casts doubt on both your conclusions and your opinions.
If you want to intelligently discuss a subject, you should know what you're talking about. Otherwise, you come off as an ass.

And you should know, Mr. There-Are-No-Facts.

Seriously, I'm delighted you've cracked the secret of proving a negative. I'm sure epistemologists worldwide will be beating down your door to speak with you.

Lex, inferior courts only have the jurisdiction given to them by Congress. Consult a law professor.
Hamdan did not change Youngstown, and Youngstown was not really the issue in Hamdan. Youngstown is not the smoking gun you think it is on this issue. I stand by the rest of my argument.

Article III grants Congress to limit the appellate jurisdiction of the Supreme Court and the appellate courts.

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Article 3, Section 2.

Sam, I'd be interested in your take on the jurisdiction issue as described here by John Dean