Matters Blackwater (Merged thread)

[jmm99]

JTF
Final point: it is just too much fun to tease you lawyers.

KW
I can agree with that...

we all can gum ourselves to death. (please knock out teeth in little icon)

Since John has now accepted Judicial Review, I can throw in my two cents worth about the remedies available to the other two branches.

Brief Opinion piece:

I believe that each of the three constitutional branches has the right and duty to determine independently the constitutional issues that are within its realm.

In the case of the Executive, the President has the duty to execute the laws, but that duty does not extend to executing laws which the President determines to be unconstitutional (e.g., Andy Jackson & Abe Lincoln). Besides not executing the mandate of the Supreme Court (which has no independent enforcement powers except over members of its Bar), the President also can indirectly affect the Court by judicial appointments.

In the case of Congress, it can act to limit or change the jurisdiction of the Federal Courts in many ways - although, there are practical and constitutional limits on that. Its ultimate sanction is simply to defund the Supreme Court, or any other Federal court.

These potential constitutional collisions have usually been defused by application of comity and reciprocity. The People tend to react when any one of the branches moves too far outside the norm.

[Ken White]

we all can gum ourselves to death. (please knock out teeth in little icon)

...The People tend to react when any one of the branches moves too far outside the norm.

and dat...

[John T. Fishel]

Did you forget that Congress can impeach judges/justices?

[Stan]

Did you forget that Congress can impeach judges/justices?

This is specifically the part that has always bothered me. Not that my meager existence as an Army NCO was boring, but that changing administrations often translated into new gun laws, higher (purportedly lower) tax laws and (ahem) refined legislative maneuvers (catchy French word for a strategic or tactical movement know as weaslin').

I give up

[jmm99]

from JTF
Did you forget that Congress can impeach judges/justices?

I did, indeed - and I won't blame it on age.

That remedy, as a practical remedy against what are perceived as bad decisions by SCOTUS justices, seems to have been placed on the shelf when Samuel Chase was acquitted in 1805.

A brief summary of the arguments is here (one of 500K Google links).

The Chase Impeachment

The issue of the scope of impeachable offenses was early joined as a consequence of the Jefferson Administration’s efforts to rid itself of some of the Federalist judges who were propagandizing the country through grand jury charges and other means. The theory of extreme latitude was enunciated by Senator Giles of Virginia during the impeachment trial of Justice Chase. “The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate.... A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him . . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.”788 Chase’s counsel responded that to be impeachable, conduct must constitute an indictable offense.789 The issue was left unresolved, Chase’s acquittal owing more to the political divisions in the Senate than to the merits of the arguments.790

788 1 J. Q. ADAMS, MEMOIRS 322 (1874). See also 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES§§ 2356-2362 (1907).

789 3 HINDS’ PRECEDENTS at § 2361.

790 The full record is TRIAL OF SAMUEL CHASE, AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES (S. Smith & T. Lloyd eds., 1805). For analysis of the trial and acquittal, see Lillich, The Chase Impeachment, 4 AMER. J. LEGAL HIST. 49 (1960); and WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992). The proceedings against Presidents Tyler and Johnson and the investigation of Justice Douglas are also generally viewed as precedents that restrict the use of impeachment as a political weapon.

So, the question is still technically open.

PS: Bill Rehnquist was either very prophetic or lucky in becoming the modern expert on impeachments in 1992.

[Polarbear1605]

I am always surprised how the complexities of these discussions rattle around in my head keeping me wake at night (probably because I am a “keep it simple” person). I also feel strongly that the US Rules of Law do not apply to combat, especially when outside of the US borders. Let me make an argument here (as he pulls out my soap box) and this gets back to the Rules of Law vs the Laws of War. Under the Laws of War, people are either civilians or combatants. A civilian’s status changes to a combatant once they pick up a gun. The Blackwater folks, under the Laws of War, are combatants for this reason. Under US Law (Goldwater-Nichols), only one person in the region has Combat Command authority and they are (what we use to call) the CINC but now call the Combat Commander. It seems to me, that jurisdiction of combatants must fall under the authority of the Combat Commander (no matter who they work for in country). The Blackwater crew should therefore, be charge using the UCMJ for the violations of the Laws of War for killing civilians. Granted this argument has never been made but it seems to me that the defense lawyers should be disputing the charges on those grounds.

[John T. Fishel]

JMM, for lesser judicial lights than SCOTUS, the impeachment remedy has been used often enough to be well remembered. One of the more intriguing cases was that of Judge Alcee Hastings who after being immpeached and removed from office by the Congress was elected to that august body by the good people of FL where he is today, Rep. Alcee Hastings - D.

At the SCOTUS level, Justice Abe Fortas (and LBJ appointment) was being investigated for elevation to Chief (as I recall) when some strange dealings came to light and the investigation took a turn toward impeachment. Fortas resigned before anything came of it - sort of like Nixon...

Cheers

JohnT