Weighing in on Moral Tactics and International Military Law is Professor Amos N. Guiora writing in the Baltimore Sun about a ruling in the Israeli Supreme Court:
The ruling establishes a checklist of how the state is to proceed in these cases. Harming civilians who "take direct part in hostilities," as defined in the decision, "even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportional. That proportionality is determined according to a values-based test, intended to balance between the military advantage and the civilian damage."
Recently, the United States Supreme Court, in Hamdan v. Rumsfeld, held that the military tribunals established by President Bush in the aftermath of 9/11 did not pass judicial muster. The presidential order of November 2001, creating the tribunals, was not subject to rigorous checks and balances. The U.S. Congress was largely somnolent, and then-Chief Justice William H. Rehnquist had previously written that in times of conflict, the court must be "reticent."
Counterterrorism consists of four "legs": the rule of law, morality, operational considerations, and intelligence gathering. Successful, aggressive counterterrorismoperations reflect a harmonious confluence of the four. Balancing the rights of the individual with the equally legitimate rights of the state is the essence of counterterrorism. It is also very difficult to develop, implement and articulate.
Amos N. Guiora is professor of law and director of the Institute for Global Security, Law and Policy at Case Western Reserve University School of Law. He served for 19 years in the Israel Defense Forces and held senior command positions including commander of the IDF School of Military Law. His e-mail is email@example.com.
Here is the SCOTUS Feb calendar (hat tip SCOTUSblog)
And here we'll find Habeas Corpus Restoration efforts (also from SCOTUS blog) S. 4081, titled "To restore habeas corpus for those detained by the United States." The text of the bill can be found here, and statements by the two senators when they jointly introduced the measure can be found here. Lyle Denniston reporting:
***The measure would appear to have a good chance of passage, at least in the Senate: when Specter attempted to head off the court-stripping wprovision in
the just-ended session, his move failed by a 51-48 vote. The Senate's membership, of course, has changed markedly after the November election.
President Bush would be strongly likely to veto any habeas restoration bill that reached his desk in the new Congress. And there almost certainly would
not be enough votes in Congress to override a veto, even with Democrats in control. Even so, the maneuvering indicates that the question of habeas rights is not likely to be resolved finally, any time soon.
In a comment, Don Robertson, "The American Philosopher" posted a note and excerpt from "The Road to Harpers Ferry" J.C. Furnas, 1959, (William Sloane Assciates, New York) which looks very interesting for abolition, civil war history buffs AND habeas corpus nuts.
CapitalDefenseWeekly has this encouraging post about yours truly, (recognition, at long last there is evidence of--no not water on Mars, which is there too--but that the writing has resulted in the reading).
This is Still Big News: from Howard Bashman at How Appealing (link at right); and Doug Berman at Sentencing Law and Policy (link at right) leads with a post of his own on this today. But this item from yesterday about Claiborne and Rita (pair of SCOTUS cases in sentencing to be decided soon) is the one I am really looking forward to sinking my teeth into:
"Georgia Man Fights Conviction as Molester": The New York Times today contains an article that begins, "Genarlow Wilson, 20, is serving a prison sentence that shocked his jury, elicited charges of racism from critics of the justice system and that even prosecutors and the State Legislature acknowledge is unjust. He was sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year’s Eve party, an offense that constituted aggravated child molesting, even though Mr. Wilson himself was only 17."
And The Atlanta Journal-Constitution today contains an editorial entitled "Order justice under righted sex law."
My earlier coverage appears at this link. This matter was also discussed yesterday at "The Volokh Conspiracy" [link at right] and "Sentencing Law and Policy." HB.
AND maybe this is why (from StandDown Texas), as Grits (link to right) reports, Harris County (Houston) Texas wants to increase the already largest county jail in the country's capacity by fifty percent.
ALSO Sex Crimes had some good ones yesterday, making up for HIS weekend hiatus (link at right).