Martial Law: Good for Iraq! Good for the US? ...and a few thoughts on SCOTUS

Will the newly re-"sovereign"-ized Iraq need to impose martial law? Mere hours after the surprisingly early handover, whispers are already circulating that a severe Iraq-implemented clampdown (which would certainly have caused outrage had the US tried it) is Plan A to deal with the insurgency. Who's going to be watching to ensure any clampdown stays this side of Husseinesque is a good question, but I can see the wisdom of letting the Iraqi's themselves call this shot.

Having said that, there is this bit of confusion to clear up (from a few days ago):

The US-led occupation authority in Baghdad has warned Iraq's interim government not to carry out its threat of declaring martial law, insisting that only the US-led coalition has the right to adopt emergency powers after the June 30 handover of sovereignty. [emphasis mine: Sounds like a funny kind of full sovereignty to me, but....]

Senior American officials say Iraq's authorities are bound by human rights clauses in the interim constitution, known as the Transitional Administrative Law, prohibiting administrative detention.

But they say the recent United Nations Security Council resolution 1546 sanctions the use by foreign forces in Iraq of "all necessary measures" to provide security.

A senior coalition official in Baghdad said: "Under the UN resolution, the multinational force will have the power to take all actions traditionally associated with martial law." He said they had raised their legal objections with Iyad Allawi, Iraq's prime minister.

Mr Allawi on Tuesday appeared to back away from remarks made on Sunday that the government would assume emergency powers after the handover.

"No, I didn't specifically say martial law meaning martial law," he said, adding that the government was developing a "public safety law" which would allow it to implement curfews, searches, and "apprehend the enemies of Iraq".

Well, so long as he didn't mean "martial law meaning martial law." Besides, he really should leave that kind of legally nebulous acrobatic nonsense to the professionals; like George Bush's 9 closest friends.

The Supreme Court sent down a mixed verdict on the rights of "enemy combatants": on one hand SCOTUS said G-bay detainees can challenge their treatment in US Courts, but on the other hand it said that Congress gave President Bush the power to hold an American citizen without charges or trial.

The ruling sided with the administration on an important legal point raised in the war on terrorism. At the same time, it left unanswered other hard questions raised by the case of Yaser Esam Hamdi, who has been detained more than two years and who was only recently allowed to see a lawyer.

The administration had fought any suggestion that Hamdi or another U.S.-born terrorism suspect could go to court, saying that such a legal fight posed a threat to the president's power to wage war as he sees fit.

"We have no reason to doubt that courts, faced with these sensitive matters, will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns," Justice Sandra Day O'Connor wrote for the court.

O'Connor said that Hamdi "unquestionably has the right to access to counsel."

Access to counsel, but indefinite captivity without charges or a trial. Well, so long as your lawyer's willing to play a game of Scrabble now and again, I guess that's something.

And then, like some pitiful little bone to the ideals and laws that make us who we are, O'Connor tossed out this lame-ass consolation prize:

O'Connor said the court has "made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Excuse me if I'm not overly impressed. Really, I'm ready to replace all 9 of them at this point. This must be the most cowardly SCOTUS in our history. Finding technicalities to avoid doing their job again and again. What the hell do we pay those slackers for anyway?

Comments

[Katherine]

The early headlines were really misleading. For a more coherent summary than I can give, read Dahlia Lithwick,

I think today mostly stands for an enormous victory in the efforts to balance tyranny with reason. As a practical matter, I can't imagine how all these future terror trials can possibly work. But as someone largely terrified that today might have ended with a blank check for the chief executive, I think the court got it more right than not.

Walter Dellinger:

My goodness, Dahlia!

The Great Writ lives. Government by law is reaffirmed. Constitutional balance is restored. A historic day. It's hard to know where to begin.

or Jack Balkin:

In essence, the Court has said in these cases: don't tell us that we are irrelevant. The flip side of that demand is that if the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes. In that sense, the decisions in Hamdi and Rasul cannot be understood to be complete victories for civil liberties. But they are better than the alternatives.

This was better news than I'd heard in a while.

[Paul Cella]

Edward:

With respect to cases like this, can you not see that the judicial usurpation of politics is a real phenomenon, and an extremely perilous one? Everyone stands around with their hands in their pockets waiting for nine aged attorneys to make all our decisions for us. That is not self-government.

Poll after poll shows that Americans "trust" the Court and the Executive far more than they trust the republican institution of Congress. No republic can long survive such servility among its people. When tyranny comes it will come because we no longer choose to govern ourselves.

(But keep in mind that the Court began it usurpation on social issues like conception, school prayer, and abortion.)

[Anarch]

With respect to cases like this, can you not see that the judicial usurpation of politics is a real phenomenon, and an extremely perilous one?

With respect to this particular case, can you not see that political usurpation of the law is a real phenomenon, and an extremely perilous one?

[Gromit]

Of course the public trusts the executive and the Supreme Court more. They have a national constituency. Legislators do not.

[Jesurgislac]

Paul Cella - There needs to be some major reworking of the US electoral system (as a Brit once said "They've got Early Adopter problems - the rest of us have been forging ahead and they're still stuck with the beta version"*) At this point, a Senator once in office need not fear being turned out of office. The House of Representatives is rapidly going the same way. The President, as has been observed by many in the recent interviews, isn't required to be able to cope with someone asking him questions about his policies - and can't: he delivers memorized answers to questions he knows in advance. And the two-party dominance is extreme. Until these things are changed, and changed to make elected representatives conscious that they are representing their constituency rather th
an their network, of course people will trust nine experts who may be selected politically, but who do at least have a collective purpose which they do (with occasional horrible lapses), by and large, conscientiously abide by. There is something horribly wrong with all this, you're right: but the solution is not to fix SCOTUS, but to fix Congress. (How to do this is left as an exercise for the reader...)

*I'm paraphrasing. I really wish I could remember who said this and where I read it. I suspect it was on Electrolite.

[Testme]

as a Brit once said "They've got Early Adopter problems - the rest of us have been forging ahead and they're still stuck with the beta version"*)

... but this might imply that some people would have to much control. Thank goodness we don't live there.