On 11/22/2013 5:38 AM, Telmo Menezes wrote:
On Thu, Nov 21, 2013 at 7:51 PM, meekerdb <meeke...@verizon.net> wrote:
On 11/21/2013 1:50 AM, Bruno Marchal wrote:

On 20 Nov 2013, at 22:20, Richard Ruquist wrote:

Chief Supreme Court Justice Marshall usurped the Constitution
when he maintained that the Supreme Court had the right to rule
laws made by Congress and signed by the President unconstitutional.
As a result the USA is essentially ruled by the Supreme Court

  There is no provision in the US Constitution for this right.
Congress instead has the right to regulate the Supreme Court,

The supreme court has judged the NDAA 2012 anti-constitutional. But
apparently this has changed nothing. I don't find information on this. Some
sites on this  have just disappeared.

It changed nothing because it didn't happen.  First, the NDAA authorizes the
defense budget and other things.  The Supremes would not have found it
"anti-constitutional".  The controversial provision you may be thinking of
was clause that affirmed the Presidents power to detain people without trial
as set out in the 2001 resolution following the 9/11 attack.  The ACLU has
challenged this provision and a case was brought in 2012, Hedge v Obama.  A
district court ruled that the indefinite detention provision was
unconstitutional and gave an injunction against its use.  This went up
through the layers of appeals courts.  The Supreme Court threw out the
injunction on the grounds that the plaintiffs lacked legal standing to bring
the case - and so in effect upheld the law without actually ruling on
whether or not it is constitutional.

This is an aspect of U.S. law inherited from English law, that only persons
who are actually harmed by a law can challenge it in court.  More modern
democracies, seeing the importance of the U.S. Supreme Court in being able
to nullify unconstitutional laws, have explicitly provided for court review
of laws without there having to be a plaintiff and a case.

I would say you're making an implicit extraordinary claim here. This
claim being that the reason why certain fundamental rights (like the
right to a trial) are not being is bureaucratic impediment, as opposed
to these impediments being created for the purpose of preventing the
application of said rights in practice.

?? Left out some words?

I argue that this claim is extraordinary for the following reasons:

- The President signed the NDAA. He also swore to defend the
constitution and he's supposed to be a constitutional expert, so it is
not likely that he is not aware that citizens have a fundamental right
to a trial.

The controversial clause of the NDAA only applies to citizens who have taken up arms or aided organizations that have taken up arms against the U.S. and only for the duration of the war against Al Quida and the Taliban. So you are confused on several counts. This is what the 6th amendment actually says:

/"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.//"/

Note that it refers to a criminal trial. An enemy soldier captured in wartime is not a criminal. Second, it clearly refers to crimes committed in a state or district of the U.S. - not Afghanistan or Iraq. So it is not at all unconstitutional to deny a trial to those captives in Guantanomo. I agree that they should be tried, but the use of a military tribunal is certainly not unconstitutional.

He was not forced to sign the NDAA by bureaucracy (he
might have been forced in other ways, but here we get into pure
speculation). It was fully within his powers not to sign it or to
demand changes;

Demanding things of Congress doesn't necessarily get them (particularly when the House is controlled by the Republicans).

- Harm is a very subjective word. If the Supreme Court was interested
in upholding fundamental rights, it could easily interpret loss of
fundamental human rights as harm;
The point is that the people who were plaintiffs in the case weren't harmed.

- The bureaucratic impediments seem to work mostly in a direction of
loss of freedom. Empirically, it does not look plausible that they are
just neutral attrition -- they prevent Guantanamo from being closed,
they allow for total surveillance, they allow the Federal Government
to go after marijuana businesses that were authorised by their states,
they allow for "free speech zones", they allow for random road check
points and so on;

- The constitution is the highest law. If people were serious about
following it, they couldn't possible let some lower level law get in
the way. It's a truism that anything that prevents the application of
constitutional principles is unconstitutional, and a lot of people in
the USA swore to defend the constitution.

And they are. You are just assuming that it says what you think it should say, instead of what it actually says.


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