Obama needs to go back to law school

Barak Obama concurs with the recent Supreme Court decision about Habeas Corpus. Experts on Constitutional law agree that the President has the constitutional authority as the Commander in Chief to detain enemy combatants and the Supreme Court or other courts have no authority to interfere with this authority. The constitution places the check on Executive Branch's military by having Congress fund the military. The Supreme Court has not part in this check and balance.

'Mr. Obama issued a statement calling the decision “a rejection of the Bush administration’s attempt to create a legal black hole at Guantánamo” that he said was “yet another failed policy supported by John McCain.”

“This is an important step,” he said of the ruling, “toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.” '

Prof John Yoo in his excellent book 'War By Other Means' lays out a throughly researched argument as to why the Supreme Court should stay out of the war or terror.

His point is that those in Gitmo are enemy combatants and are not prisoners of war. To be a POW the warring nations must have accepted the Geneva Conventions and follow the rules of war. Most terrorist organizations are not linked to nation states and thus are not signatories of the Geneva Conventions. The Taliban in Afghanistan are not signatories to the Geneva Conventions and therefore those captured in that theater of war are enemy combatants.

The Constitution gives the Executive branch the authority to wage war and execute the war strategy. As the commander in chief the President has the constitutional authority to conduct a war. The various parts of our armed forces can and have (in previous wars such as in the First Gulf War, Vietnam War, Korean War, WWII, WWI, Spanish American War, Mexican American War, Civil War) detained enemy combatants. These enemy combatants have no standing in US courts. The armed forces follow the rules of war.

I am betting that this will be reversed in the future or will be superseded by another law.

Posse Comitatus

I am reading John Yoo's The Powers of War and Peace and came across the reference to Posse Comitatus. (It is not some hip hop Italian music group)

If you believe that the federal government could have done more to help with immediate aftermath of Katrina then you need to understand The Posse Comitatus Act.

The armed forces are the only ones who have the logistical experience to handle the aftermath of Katrina in New Orleans. Under this act the President, as the Commander in Chief cannot deply the armed forces of the United States within the borders of the United States.

Seeing the short comings of this law, congress passed a law which President Bush singed called John Warner Defense Authorization Act. It allows the President to deploy the military in certain circumstatnces within the United States.

John Yoo - The Legal Brains Behind The War on Terro

The following is an excerpt from John Yoo who was the intellectual power house that crafted the legal framework used by the Bush Administration against the 'War on Terror'. He was instrumental (and rightly) in redefining the rules of dealing with those involved with terror.

Emphasis is mine.

"Both the president and Congress have agreed that the United States is at war, and Congress passed an authorization for using force against any groups, nations or people responsible for the 9/11 attacks. Capturing prisoners has been a permanent feature of war throughout human history; hundreds of thousands were detained during World War II alone. Sometimes, unfortunately, the enemy has included U.S. citizens - in the Civil War, every Confederate soldier was a citizen, and in World War II some Americans fought in the Axis armed forces. They never had a right to sue the soldiers who caught them.

We are in a difficult war against an unprecedented enemy. Its members deliberately disguise themselves as civilians and carry out surprise attacks on innocent civilian targets. They do not have a territory, city or population. They are trained to claim abuse when captured and to appeal to the legal system to tie up democracies in knots.

It is a difficult job for our government and armed forces to adapt the rules for war to such an unconventional, non-state opponent."

John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute and the author of War By Other Means".

He is a supporter of the unitary executive theory and based his arguments for a strong response from the executive branch to terror. Here is an example of this: The War Powers Act.

Most folks wrongly assume that the unitary executive theory is something cooked up the the Bush Administration. It has a long history and has been used by past Presidents. This post, called, What the "Unitary Executive" Debate Is and Is Not About , from the University of Chicago Law School, gives some information on the history of the unitary executive theory.