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06/29/2006 11:54:50 AM · #1 |
These three news stories highlight a recent (IMO) worrying trend:
1. The extradition of the NatWest 3 from the UK to the US on fraud charges
the failure of the appeals of three London financiers to avoid extradition to face trial in the US in respect of Enron collpase related charges – they point out that they face imprisonment and crippling legal fees that they would not face if charged in the UK, interfering with their human rights and expectations as UK citizens. They can be extradited because of broad new extradition rules that were passed on the understanding that their purpose was enabling the easier extradition of terrorist suspects.
2. UK Governmental criticism of judicial sentencing
Parliamentary ministers have come out criticising judges for passing lenient sentences, in response to which the judiciary (which would never normally comment on news stories) is being forced to point out that the sentencing rules are the product of recent legislation restricting judicial discretion passed by the government
3. US rejection of Military Tribunal for Guantanamo Bay prisoners
the US administration has been told that it does not have the authority to try Guantanamo Bay prisoners by Military Tribunal, but must use Court Martial or Civilian Trial to prosecute the prisoners – no doubt there will be heavy criticism of the judiciary for being “soft on terror”
Each of these stories highlights a worrying trend where the judiciary is being lent upon to support political aims. The judidiary is pilloried for applying the law and the rule of law. The political solution is to legislate away the people’s rights and restrict the judiciary’s discretion, using the excuse of “terror”, in order to be seen to be “hard on crime, hard on terror”.
Governments are guilty of massive interference in the last few years in watering down civil liberties and in preventing the judiciary from properly applying the rule of law. This done in the name of preventing terrorism, but in fact breaks down the systems we have in place that distinguish our actions from those of the terrorists.
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06/29/2006 01:04:41 PM · #2 |
I do find these stories to be trouble, but I am not sure that I follow your analysis. The first story is shocking on a number of human rights grounds.
The story about the government criticising its own judiciary is VERY disturbing because it shows a breakdown in the system and it puts pressure on the judiciary which should not be there, fettering their independence without the legislature taking any responsibility for the sentences that judges can impose due to the legislative limits placed on them by the laws the politicians have drafted (and usually badly I might add).
And again, I don't see how the judges being SOFT on terror forwards a political goal of the govt appearing hard on terror. I do think these stories are quite interesting though.
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06/29/2006 01:59:58 PM · #3 |
Originally posted by legalbeagle:
3. US rejection of Military Tribunal for Guantanamo Bay prisoners
the US administration has been told that it does not have the authority to try Guantanamo Bay prisoners by Military Tribunal, but must use Court Martial or Civilian Trial to prosecute the prisoners – no doubt there will be heavy criticism of the judiciary for being “soft on terror” |
I'm actually quite shocked at this development -- I was rather expecting that sometime before the 2008 election we'd all be getting trials by military tribunal. |
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06/29/2006 02:07:03 PM · #4 |
I'll echo frisca in that I'm not quite sure what your analysis is. I certainly applaud #3. Guantanamo will be a black mark on our reputation for a generation.
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06/29/2006 03:30:49 PM · #5 |
Originally posted by DrAchoo:
I'll echo frisca in that I'm not quite sure what your analysis is. |
Yes - I rushed the last bit, because work suddenly got busy.
My point is to criticise Western governments that are undermining the rule of law by interventionism and criticism of the Western democratic and progressive system.
The first story is an example of the government intervening by legislating to restrict civil liberties in the interests of protecting us from terror, following concerns that the courts would otherwise obstruct terror suspects being extradited.
The second is government intervening because of concerns about the judiciary applying the law independently, and of the government then criticising the judiciary for having applied the new law in accordance with the new legislation.
The third is government criticising the independent application of the law.
In each case, the government is criticising or undermining the independent application of law, preferring to criticise, legislate against and treat as if flawed. IMO, the independent application of law is to be admired, as it is what sets us apart and legitimises each state. The contrary illiberal political view is closer that that of the terrorist groups and dictatorships that our governments are supposedly protecting us against.
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06/29/2006 03:59:10 PM · #6 |
I'm not going to jump in to this discussion whole-heartedly because I'll be unable to log in for the next week or so and unable to participate, but I do feel compelled to point out that the Judiciary is as much a part of "government" as those "other" parts - the ones that are "intervening" and "criticising".
In the U.S. the only way to keep the Judiciary from "legislating" from the bench is for the Legislature to tighten the laws that the Judiciary are interpreting. And that lends itself to going around in circles.
I do agree that many laws have unintended consequences. When the Legislature complains about the Judiciary's interpretation of the law, they really have only themselves to blame - for enacting laws that contain loopholes and unintended consequences. That's why it's important to have legislators who can formulate laws without having to take a poll to see what their constituents ( voters ) think.
Ron
Message edited by author 2006-06-29 16:46:42. |
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06/29/2006 05:10:38 PM · #7 |
Originally posted by RonB:
I'm not going to jump in to this discussion whole-heartedly because I'll be unable to log in for the next week or so and unable to participate, but I do feel compelled to point out that the Judiciary is as much a part of "government" as those "other" parts - the ones that are "intervening" and "criticising".
In the U.S. the only way to keep the Judiciary from "legislating" from the bench is for the Legislature to tighten the laws that the Judiciary are interpreting. And that lends itself to going around in circles.
I do agree that many laws have unintended consequences. When the Legislature complains about the Judiciary's interpretation of the law, they really have only themselves to blame - for enacting laws that contain loopholes and unintended consequences. That's why it's important to have legislators who can formulate laws without having to take a poll to see what their constituents ( voters ) think.
Ron |
I agree with Ron on most points, but usually intepret the phrase "'legislating' from the bench" to mean "I wish we controlled all three branches of government"...
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06/30/2006 08:54:02 AM · #8 |
Originally posted by DrAchoo:
I'll echo frisca in that I'm not quite sure what your analysis is. I certainly applaud #3. Guantanamo will be a black mark on our reputation for a generation. |
Guantanamo just reinforces the view held by the many that America has a double standard when it comes to freedom, human rights and justice.
The American Government has been given a serious rebuff in the Supreme court. It will be very interesting to see how they respond now.
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06/30/2006 09:05:07 AM · #9 |
Originally posted by keegbow:
Originally posted by DrAchoo:
I'll echo frisca in that I'm not quite sure what your analysis is. I certainly applaud #3. Guantanamo will be a black mark on our reputation for a generation. |
Guantanamo just reinforces the view held by the many that America has a double standard when it comes to freedom, human rights and justice.
The American Government has been given a serious rebuff in the Supreme court. It will be very interesting to see how they respond now. |
They're going to get Congress involved. No one will be saved, but the bright side is that Republicans will besmirch their reputations by getting their hands dirty in this travesty.
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06/30/2006 09:07:20 AM · #10 |
Originally posted by RonB:
...I do feel compelled to point out that the Judiciary is as much a part of "government" as those "other" parts - the ones that are "intervening" and "criticising". |
True: technically I should have referred specifically to the "executive", to differentiate it from the judiciary and the elected house.
Originally posted by RonB:
In the U.S. the only way to keep the Judiciary from "legislating" from the bench is for the Legislature to tighten the laws that the Judiciary are interpreting. |
Rules always require interpretation, because they cannot be drafted to take into account every circumstance (an open challenge to those who think that they can would be to redraft the site rules here to eliminate the need for the SC to interpret the rules when making an adjudication).
The fact that the judiciary can uphold the rule of law in the face of the government is not something that we should be trying to legislate away - it is a principle that we ought to be spreading (I think that its importance is on a par with the vote).
Originally posted by RonB:
it's important to have legislators who can formulate laws without having to take a poll to see what their constituents ( voters ) think. |
I agree - but perhaps for a different reason. We have a representative democracy for a reason - the majority of people are not always right on every subject. Democracy works because it is one step removed from modern governance. We have to hope that the people continue to vote for people who are competent for the job and take the time to understand the issues.
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07/03/2006 09:25:42 PM · #11 |
Just who is using "pre-911 thinking" here anyway ...
Exerpted from today's New York Times:
The prisoners of New York left their mark somewhere else, too — in international law. Almost to the bitter end, the British took the position that captured American insurgents weren't soldiers but "rebels" and that defining them as prisoners of war amounted to de facto recognition of American independence. Americans responded that by not according prisoner-of-war status to the captives, the British had opened the door to, perhaps even encouraged, prison abuses.
An additional complication was that rules and standards governing the treatment of prisoners of war had yet to be spelled out definitively in international law. This began to change in 1785, just two years after the British evacuated Manhattan, when the United States and Prussia concluded a treaty that included the first guidelines for the humane treatment of prisoners of war. They mustn't be denied adequate rations and basic "comforts," it declared, nor "be confined in dungeons, prison ships, nor prisons, nor be put into irons, nor bound, nor otherwise restrained in the use of their limbs."
This groundbreaking agreement — a direct result of the recent American experience — was a historic first step toward the multinational conventions that now protect prisoners of war.
Of course, even if such guidelines had been in effect during the Revolutionary War, there's no guarantee that they would have been followed. Britain was the world's superpower in those days, as the United States is now, and if King George didn't want to treat "rebel" prisoners humanely, only principle and conscience stood in his way.
[i]Edwin G. Burrows, a history professor at Brooklyn College and the co-author of "Gotham: A History of New York to 1898," is the author of the forthcoming "The Prisoners of New York."[i] |
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07/04/2006 07:10:41 PM · #12 |
While all 3 are disturbing, it's the first that bothers me the most. The US has been clear it will never submit to the international court because they argue that it overrides their rights over US Citizens but it's just dandy when it goes the other way :-/
At least the UK has a better history then Australia in this respect - Oz might as well join the union and get all the benefits of been another state since the current government appears to be playing the role nicely without getting much in return (unless you believe in the "free" trade deal).
The last, I aplaud as a small piece of common humanity, although how the world governments tolerate the US kidnapping people and running illegal prisions in Europe (and probably else where) is beyond me. I find it disturbing that if you are in charge, you get a trial with cameras and the whole deal but if your a foot slogger on the wrong side you just get disappeared without charges or a real trial. |
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07/10/2006 04:42:14 AM · #13 |
Originally posted by GeneralE:
Originally posted by legalbeagle:
3. US rejection of Military Tribunal for Guantanamo Bay prisoners
the US administration has been told that it does not have the authority to try Guantanamo Bay prisoners by Military Tribunal, but must use Court Martial or Civilian Trial to prosecute the prisoners – no doubt there will be heavy criticism of the judiciary for being “soft on terror” |
I'm actually quite shocked at this development -- I was rather expecting that sometime before the 2008 election we'd all be getting trials by military tribunal. |
put the whole white house on trial.. and the dept of defense. throw them behind bars. |
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07/10/2006 04:43:23 AM · #14 |
its like rome.. but faster
Message edited by author 2006-07-10 04:44:15. |
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