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tribunals into kangaroo courts....don't blame Kennedy

Andrew, I was not 'blaming' Kennedy. I was refuting the specific assertion from 'elmer fudd' that this decision was caused by supposedly having not actually declared the war.

That was not true. Nowhere did I 'blame' Kennedy for anything. I merely said Kennedy (and the majority) expect that the Executive must now go farther than we have in the past, and as you say obviously, farther than the DTAs or CSRTs have gone so far.

And yes, I have read the entire dissent and most of the decision, though I think I've gleaned the substance of the majority opinion in the single sentence above.

Did you see that we agree in #9? Must we argue so much if we are in agreement on this FRikken forum?

Sorry, for my clumsy wording and directing it at you, specifically. I am not sure that Kennedy is telling the administration that they had to go further than the CSRTs, so much as in their implementation they perverted the CSRTs. As the decision pointed out, in Eisentrager the defendants had the right of counsel, cross examination, and a neutral tribunal. In this case, in Guantanamo, the detainees, as Kennedy points out, the government was given the presumption of fact (i.e. it isn't neutral), and the detainees were given little right to find and present evidence and were denied counsel (so it wasn't fair).

There is a key issue in this case. Folks try to argue that the detainees are prisoners of war, and furthermore that they were unlawful combatants. Unfortunately, you cannot have it both ways. If they were lawful combatants you have to treat them as POWs under the Geneva convention, and they get to go home some time. If they are illegal combattants, then you have to try them as war criminals, under some form of judicial proceeding, even if it is a properly constituted military tribunal. At least one of the detainees, accused of being a member of Al Qaida denies that and claims that he is being improperly held as he did not do anything. There is always the possibility someone got picked up in the wrong place at the wrong time.

I read elsewhere that one of the things that is slowing up the proceedings setting up tribunals to try these cases is that the government wanted panels without a judge. What were they thinking?

In my view, this is all on Bush and the senior administration officials. The world has been conducting tribunals since the beginning of time, and we know how to do it. Bush1 did it in GW1. We seem determined to pervert any appearance of real justice is these cases. I wonder what the motive is, since it just makes us look bad to the rest of the world.