Hamdan v. Rumsfeld

The US Supreme Court has ruled that the military commissions set up to try the inmates of Guantanamo Bay are illegal. Justice Stevens, delivering the opinion of the Court, held that the commissions were unlawful for a number of key reasons.

First, President Bush lacked any specific legislative authority to convene commissions of the type used in Guantanamo. Many commentators around this area seemed oblivious to the fact that while the Constitution makes the President ‘Commander in Chief’ (Art II), it vests the powers to ‘declare war’, ‘make rules concerning capture’, ‘raise and support armies’, ‘define and punish offences against the Law of Nations’ with the Congress (Art I). Thus, the rather ineffectual attempt by the Administration to invoke some overarching Executive authority in war-time was probably always going to fail. The Court, invoked the seminal case of Ex parte Milligan (which was a military tribunal case from the Civil War):

The power to make the necessary laws is in Congress; the power to execute in the President … The President [cannot] without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians …

The government argued that Article of War 15 granted the President the authority to ‘invoke military commissions when he deems them necessary’. The Court held however, that at most the President had a general authorisation to convene military commissions in conformity with the law and Constitution. In Justice Breyer’s words (which are an echo of many, many commentators):

‘Congress has not issued the executive a blank cheque … Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens our Nation’s ability to determine – through democratic means – how best to do so.

It was the failure of the Guantanamo Bay commissions to observe the law and Constitution which renders them invalid. This constitutes Justice Steven’s second major point. I note here that the Court was split evenly on this point – although it is still legally binding as a plurality opinion (with Roberts CJ not taking part of obvious reasons). The Court held that military commissions were limited to trying acts committed during the war (not before) and must be within the theatre of war. In this case, Hamden (the appellant) who faced the nebulous charge of “conspiracy to commit war crimes between 1996 and November 2001” met neither of these criteria. Moreover, the Court also found that conspiracy to commit war crimes was not a recognised violation of the law of war.

The third, and in my view most important reason why the military commissions are illegal, is that they dispensed with the procedural safeguards already in place. The right of the accused to be present at his trial, a right dispensed with by the executive order establishing the commissions, cannot be ‘lightly excused as practicable’. The Court found no compelling reason why international terrorism should require any variance in the normal rules governing a court-martial. The Government’s failure to show any practical reasons why procedural safeguards should be dispensed with was ‘particularly disturbing when considered in the clear and admitted failure to afford one of the most basic protections afforded by [the law]’.

The Government’s objection that requiring compliance with the court-martial rules imposes an undue burden … misunderstands the purpose and the history of military commissions. The military commission was not born of a desire to dispense a more summary form of justice than that afforded by courts-martial; it developed, rather, as a tribunal of necessity to be employed when courts-martial lacked jurisdiction over either the accused or the subject matter.

The commissions are also a breach of the Geneva Conventions, and the Court held that Hamden had a right to challenge the commissions under international safeguards.

One for the Rafemeister-general

Over at the Scienceblogs version of GNXP, Razib encounters the Popper cult among scientists and asks why?:

This is a question I’m throwing out to the philosophers out there, what is the current thinking in regards to Popper in philosophy of science? My own impression is that Popper is considered passe. I find this interesting, because in my personal experience when workings scientists mouth philospophical platitudes, it is almost purely in a Popperian language.

Obesity as market failure?

I think Ross Gittins has had one too many diet milkshakes. In his recent column he argues that obesity is caused by market failure, and thus government intervention is appropriate. The general thrust of the rather incoherent argument is that the ‘capitalists’ who run the food industry, are flogging their junk to people who can’t control themselves:

The capitalists are only doing what comes naturally and using all their wiles to flog their food and make a quid. But when the rest of us do what comes naturally and yield to their blandishments, the result is major social and economic dysfunction.

Why is it people can’t control themselves? Could it simply be that they are lazy? Heavens no. Gittins invents some pseduoscience to explain the predilection some show for fast-food:

Because nutrition used to be hard to come by in the forest, humans have an evolutionary predisposition to load up with all the energy and salt that comes our way.

And thus? Regulation is appropriate to protect us from ourselves.

I think it is clear that there is a time inconsistency problem in consumer preference; that is, consumers select their food based upon the short-term benefit even where the long-term costs mean that benefits will not be maximised over the longer term. My general view is that provided consumers face the correct price signals (and arguably they currently do not), they can do whatever they like – including smoking/drinking/eating themselves to an early grave. After all, this is a liberal blog!

But convincing me that regulation is appropriate to solve this problem is going to take more than Gittins’ perennial struggle with his diet:

There’s nothing like going on a diet to make you realise the world’s become a conspiracy to make us fat. It’s certainly helped me understand why so many of us have a weight problem.

Hurricane Katrina and Waste

In a finding that will surprise no one, the NYTimes is reporting that the Hurricane Katrina relief program has cost $2bn (USD) in waste and fraud. This represents 11% of FEMA aid, and 6% of total money spent on disaster relief.

Of the many examples cited by the Times, one caught my eye. FEMA bought 10,000 mobile homes, at $34,500 a piece. The Louisiana government decided against turning the state into a giant trailer park, leaving FEMA with an excess of homes and nobody to live in them. And thus, they sit abandoned in an old airfield costing $250,000 (USD) a month to store.

 

Milton Friedman speaks

The wonders of the Internet now bring you a classic Milton Friedman video from several decades ago. (link via Greg Mankiw).

Update: A more recent appearance by Milton Friedman via GNXP.

How courteous are Australians?

In an attempt to compare courtesy internationally, Reader’s Digest (no, not on my usual list of periodicals) sent its staff out into 35 cities around the world to test people on three things:

* holding doors open for the person behind you;
* buying small items, and seeing if the sales assistant says thank you; and
* dropping a folder full of paper and seeing if anyone would help pick it up.

Their results are a little surprising. Though Americans in general tend to be very polite, the first time I went to New York I was given the impression it was going to be the most dangerous and unfriendly place I had ever been to, but here it is as the top of the courtesy list, with New Yorkers passing 80% of the courtesy tests. Communism is widely thought to have seriously undermined social norms and social capital, but 5 cities with communist pasts are ranked in the top 11 (though this includes 17 countries because of tied scores). Asian people are sometimes thought excessively polite by Westerners, but the best an Asian city could do was 25th (Hong Kong and Bangkok). And friendly Australia – or at least Sydney – could manage courtesy on only 47% of the tests to come in 23rd. They were particularly bad on the dropped papers test. I’d hope that things are more civilised here in Melbourne.

OK, Reader’s Digest admits that these tests don’t meet the usual standards of social science – only 60 tests in each city, and there are other tests I’d like to see included in a bigger survey, particularly to do with behaviour on the road and in public transport. Are blog commenters as bad in other countries as they are here? Also, perhaps more effort should be made to control for local social customs – apparently holding doors open is not big in Asia, and European countries would not do so well if things like smoking with non-smokers around were taken into account. But it’s high quality anecdotal evidence, at least.

Comments policy update

Our benevolent dictator, c8to, has intervened and has ‘recommended’ that Catallaxy discourage the use of the infamous ‘c’ word that is so beloved of a certain fowl-mouthed commenter. Our benevolent dictator’s recommendation was on the strongest of terms, and as c8to is the master of his domain and it is technically his private property, I shall implement this. Commenters, feel free to attack each others’ ideas as viciously as you want, but refrain from use of the ‘c’ word.

robbed

all who stayed up to watch will already know we were robbed.

so very sad…the worst possible result irrespective of the winner.

ridiculous referee decisions deciding progressions is a tarnish on the beautiful game.

post condolences below.

More silly talk about think tank funding

This post is based on a silly mistake, the article appeared weeks ago and was discussed at the time. I didn’t actually hold the paper in my hands at the time and some loose leaves got mixed up with the current edition on the weekend.

I will put up another post to add some value by exploring some of the possible reasons why people like Denis Glover have such a strange perception of this situation.

Dennis Glover has done it again, beating up the so-called funding advantage of free enterprise think tanks.

All up, I calculate that the CIS and allied conservative think tanks have spent about $45 million since 1996 influencing the direction of political debate in Australia. They employ about 40 staff and support about 20 regular contributors to our most well-read opinion columns…

By my reckoning, since 1996 social-democratic think tanks – those broadly aligned with the ALP – have spent only about $1.5 million developing and marketing political ideas.

They have no researchers or fellows writing opinion pieces or fighting it out with conservatives on radio or TV. It’s true some Labor figures are prolific writers. Lindsay Tanner, Wayne Swan and Craig Emerson have written significant books on social policy in recent years, but they’re fighting lone guerilla struggles.

Ultimately, Australian social democracy’s weakness comes down to this: how can social democrats hope to seriously influence the direction of the nation when they’re being out-spent 30-1 in the development and marketing of new political ideas?

What planet is this guy living on? Has he never heard of the academic community of leftwing scholars, the countless columnists and other journalists who routinely spin left or ALP, the leftwing little magazines, the pronouncements of the luvvies and cognate commentators on arts and literature?

He counted a staff of 24 at CIS but there are that many fulltime academic staff in the school of Sociology at the Uni of NSW alone. How many more schools in how many other universities could you count if you wanted a real score of the salaried leftwing thinkers, writers and teachers in the land? And that is before you even start to count the activists in the school teachers unions.

The problem for social democrats is not a shortage of mouthpieces and outlets for their ideas. The problem is the thin and wornout nature of the ideas themselves.

Taking up Mark’s point from the comments, can people point to schools or departments in the humanities and social sciences (apart from economics) that are not overwhelmingly populated by leftwing/ALP folk? I will visit their websites and have a look at the courses and reading lists.

Round about 1988 I conducted a survey of the courses and reading lists of the Philosophy, Sociology and Politics schools of the (then) 20 universities. It was pretty clear that the so-called neoliberal ideas had a near zero profile at that time. How much has changed?

Bruce Willis on Vietnam

Bruce Willis, of Diehard fame, who also happens to be a diehard Republican (Geddit? Thanks Peter Overton…) has a novel view of the Vietnam War:

The perception in the modern world is that America lost the Vietnam War. A lot of Australians fought in the Vietnam War. But if the free world had not fought in Vietnam for 15 years, there would be no multibillion-dollar free trade world in the Pacific Rim. There would be no Taiwan. So we held back that communism that would want to shut down that free trade. And if a free trade economy is established in the Middle East, hopefully, a similar thing could happen.

Thus, the Vietnam War brought KFC to Vietnam (one opened very recently in Saigon – the locals regard it with amusement). Score one for the free world.