http://www.cnn.com/2003/LAW/07/14/moussaoui/index.html I always thought that we had "three" branches of government that provided a "checks and balances" system. However, it appears now that the judicial system only applies to the people, not the government. So if this goes up to the Supreme Court and the Justice Dept. still says, "Screw off," then what will happen then? The federal judge has the right to drop the case. I'm sure all hell would break lose, especially in NYC. Of course, in a worse case scenerio, the military takes orders from the executive branch and not the judicial branch, so that would mean the judicial system couldn't really enforce anything. What are they going to do -- hold the U.S. government in contempt of court?
I think here what is being discussed by the judge and the prosecutors is whether the defendant has a right to question a witness able to testify as to the defendant's innocence of the crime of which he is accused. The government prosecutor's are exercising their right, based on a 'national security interest' argument, to try and win their case. You don't just expect them to roll over to the judge's ruling do you? That's why there is a court of appeals. The appeals court will make a ruling on this after the trial judge rules on whether she will dismiss charges or not in response to the government's non-compliance with her order. I think it will be settled before it gets to the Supreme Court. Bruce, BWTHDIK
There's nothing incorrect about what's happening so far. The executive branch (in this case the government prosecutors) hasn't refused to comply with an order of the US Supreme Court. Prosecution and defendent attorneys refuse to immediately comply with lower court rulings all the time pending appeals to higher courts. In this case it sounds like prosecutors just forced the lower court judge to make an official ruling on this in order to give the court of appeals the chance to make a ruling. Besides, you don't really think the judicial branch as a whole has generally demonstrated itself to be any better than the other two branches, do you?
They can refuse the court's order on competing constitutional grounds. The executive is charged with safegaurding the public welfare which has precedence over individual liberty. However, If the highest court rules, they can't refuse without precipitating a constitutional crisis. The President would have to order the Justice Dept. to conform to the (Supreme) court's order. If he does not, in such a case, were he to not execute the laws as he is duty bound, he could face impeachment. Outside of impeachment, the President can only be removed from power by methods in Amendment XXV: Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
This is a pretrial procedural ruling from a federal district court judge, hardly the stuff of great constitutional drama. It is kind of an interesting issue, whether the defendant can question another terrorist held in secret custody, complicated by the fact the defendant is acting as his own counsel. The government has obvious reasons for not wanting these guys to be chatting, but it would certainly be highly relevant for the defendant if a top Al Queda terrorist says he was not part of their crew. The obvious solution is drop the criminal case and throw his ass in gitmo.
No doubt this administration will be studied by every law student for decades to come. Of course, that is, unless the administration tries to block it. (Don't blame me -- my vote wasn't counted).