Key Quotes from Boumediene v. Bush:
In this post, I want to excerpt the key passages from the majority opinion in Boumediene v. Bush. Boumediene is a remarkably long opinion — 70 pages, probably Justice Kennedy's longest majority opinion ever. Here are the key sections:
First, in Justice Kennedy's majority opinion, the Court concludes that the detainees have a Constitutional right to habeas relief at Gitmo. Here's the holding stated in the majority opinion:
First, in Justice Kennedy's majority opinion, the Court concludes that the detainees have a Constitutional right to habeas relief at Gitmo. Here's the holding stated in the majority opinion:
Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.The Court then goes on to talk a lot about the history of habeas, and then distinguishes Eisentrager very much along the lines of Justice Kennedy's concurrence in Rasul v. Bush. The Court then concludes that the detainees have a constitutional right to habeas:
It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.The Court then looks to whether the alternative to traditional habeas is adequate and effective, which the Court interprets as asking if the alternative is similar to traditional habeas. The Court concludes that the law Congress passed, the Detainee Treatment Act (DTA), is not adequate and effective alternative to traditional habeas:
We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. . . . The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.
Congress intended the Court of Appeals to have a more limited role in enemy combatant status determinations than a district court has in habeas corpus proceedings. The DTA should be interpreted to accord some latitude to the Court of Appeals to fashion procedures necessary to make its review function a meaningful one, but, if congressional intent is to be respected, the procedures adopted cannot be as extensive or as protective of the rights of the detainees as they would be in a [habeas] proceeding. Otherwise there would have been no, or very little, purpose for enacting the DTA.The Court then details ways in which the DTA is insufficiently protective, and concludes that the problems with the DTA are too major to allow minor tinkering:
[E]ven if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President’s legal authority to detain them, contest the CSRT’s findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress’ reasons for enacting it, cannot bear this interpretation. Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus.Finally, near the end of the decision, the Court gets to the timing of habeas review. Can a court step in with a habeas proceeding immediately, or do they have to wait for CSRT hearings? Here's what Justice Kennedy concludes:
Although we do not hold that an adequate substitute must duplicate §2241 in all respects, it suffices that the Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effects an unconstitutional suspension of the writ.
In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way.However, the Gitmo detainees have been held for up to 6 years, and they deserve a prompt hearing:
Our holding . . . should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status.
While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.Justice Kennedy's opinion concludes with a message to the Bush Administration:
Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.
Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. . . The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.
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To call this claim breathtakingly disingenuous may be generous. There is NOTHING new about this situation. During the entire Anglo American history of the Writ, the English and American armies have taken prisoners of war from regular and irregular militaries and this is the first time over those hundreds of years in which a civilian court has arrogated the power to determine the status of foreign POWs. The length of the war does not grant the Court this executive power.
Also, I thought Robert smade a great point in saying that all the court's opinion really does is waste time. Whatever happens in the DC district court(and there are actually a whole bunch of Bush appointed judges there so the detainees may actually regret their victory)will be appealed by the loser to the DC Circuit Court, where things would have started under the MCA.
All the court did is add a step that will tack on another year or more to the process, which will ultimately be decided by the DC Circuit regardless.
In the end, though, this opinion is largely meaningless. Both Obama and McCain have said they'll close Gitmo and bring the prisoners here so even if the dissenters had prevailed today, they would have ended up getting the habeas rights next year anyway.
All in all though I found Roberts and Scalia to be much moe persuasive than Kennedy.
I just hope that the guns case comes out the right way, as that could potentially be a major victory.
Souter's concurrence is pretty withering on this "waste time" argument. In effect, he tells Roberts that all the concern for timely action rings hollow in the face of the fact that some of the prisoners haqve been there for six years with no meaningful process.
Perhaps, but if you accept that jihadists are violating the laws of war (fighting out of uniform, targeting civilians, blending with non-combatants, etc.), why should they have the privileges of POW status? That privilege should be earned to encourage adherence to the laws of war. We certainly want to be able to interrogate them, something forbidden of a true POW.
Of course the current slow motion path we're on - treating them as criminal defendants - is even worse. I have no particular interest in defending the Bush administration's handling of this, but what would have been a better way to handle this if you legally wanted to be able to detain and interrogate these (suspected) jihadists?
They should have been kept abroad. Guantanamo counts as the United States for the purposes of these cases.
Roberts point is not that time is being wasted, but that this decision only benefits the Court as an institution to exercise unelected power.
lets they they were all in a prison at Bagram outside of Kabul, and had always been kept there. Do you honestly believe the majority would have ruled any differently?
byomtov, they've been there so long because they keep appealing and wasting time in the courts. I also fault the administration. they've screwed up big time and now it'll be up to next president. whoever wins in november both candidates have already said that they'll move all the prisoners to the US so in the end the detainees would have ended up with habeas reagrdless of today's decision.
but I think Roberts point still stands. Lets say that these cases now go to the district court and the judge finds for the detainee. Given that the district court has 4 Bush and 2 Reagan appointees and 8 Clinton appointees, I'd say that's around a 50-50 shot. But lets posit the detainee wins in the district court. The govt will appeal right away to the circuit court where the case would have started under the MCA. So, no matter what happens in the district court remedy that the majority just ordered, the case will be decided by the Circuit Court. Presumably, if the govt wins in the district court, the detainee will then appeal to the cirucit court.
In the end, whoever loses in the circuit court will then appeal again to the Supreme Court.
This whole thing is a huge waste. The govt should have killed all these guys once they were pumped clean of information. In the end, the worst of the worst like KSM and Abu Zubaydah and Binalshibh wil end up with life in prison no matter what happens.
What were the odds of Stevens lasting from 80-88 and Ginsburg lasting from 68-76 on the court for all 8 years of the Bush Administration? If only one of them had retired or been forced off the court, this case would have had the opposite result.
Anyway, I hope the guns case comes out the right way.
Keeping people imprisoned for 6 years without trial or even charges against them is not the American way.
This is certainly arguable, and in my view correct. The issue then raised is this: If they are not POWs, what are they?
The Geneva Conventions specifically, and International Humanitarian Law generally, do not allow for a total gap in coverage. If one is not a POW (covered by GC 3), then one is a civilian (covered by GC 4).
I will certainly concede that their have been violations of both provisions. That, however, does not permit ignoring them. Rather, each of these documents provide specific provisions for violating them. We have not followed those provisions.
The Geneva Conventions are not reciprocal responsibilities, but rather, as Nuremburg shows, universally binding norms . That "they" have not followed the Conventions does not authorize us to do the same. Would you argue that because the Nazis killed POWs indiscrimately (and inviolation of the older GenCons), that the U.S. would have been justified in doing so? Similarly, just because the Taliban/Al Qu'eda has violated the GenCons does not justify our own violation.
It's the way of war. Wartime prisoners are not held because they are necessarily guilty of anything, they're held because it's in the best interests of the nation who captured them, and because we're sufficiently civilized to take them as prisoner. They don't have to be guilty of anything. They get released when Congress declares the war over (which they can do by revoking the AUMF), when it advantageous to release them (a prisoner exchange), or when the military decides it's no longer worth detaining them (happening with some regularity).
That's war. Congress declared it overwhelmingly. If you dislike the fact that these prisoners can be detained indefinitely without trial or charges, you should be agitating for Congress to end the state of war against Al Qaeda, not a judicial neutering of the wartime powers of both the legislative and executive branches. Even if you think this war is ill-advised, the next one may not be. Should Nazi POWs (who were held on American soil) have had access to civilian courts for habeas determinations? Is this decision a good precedent to set?
I think this should be taken one step farther, and we should just agree to send the SCOTUS Five back to where they came from and then have an "accident" occur on the way there. Screw the Court.
There are X number of detainees, all of whom will now flood the DC District Courts with habeas petetions. Some will be granted and some will be denied. All district court decisions will be appealed to the circuit level, and then to the SC level by whichever side loses.
So, in the end, we'll end up with the SC, a couple years down the road deciding hundreds of habeas cases of these detainees.
As far as what will actually happen, how does this really change anything? The majority didn't order anyone released. All they did was give the detainees review at the district court level, which will inevitably be appealed to the circuit court level, where their review would have started under the MCA.
The Bush and Reagan appointees will find for the govt, the Clinton appointees will find for the detainees, and it'll be up to the circuit court, the majority of which is Bush and Reagan appointees to review their decisions. Then it'll be up the SC to review the circuit court. It's really a neverending cycle.
I mean, does anyone think KSM is going to go free because of this? Of course not.
All this decision does is delay and prolong the inevitable result of most of these guys being sentenced to life in prison, a few to death, and the rest probably released back to their home countries at some point in the future.
What actually changed today as far as what will ultimately happen to those in custody?
Any objections?
The same 5 Justices from Hamdan decided today's case. They obviously knew back then that they would give the detainees habeas rights. Why waste time and go through this charade of kicking it back to Congress and saying that Congress and the President can come up with something new when they knew all along that they would void whatever they came up with.
The Court should have just said in Hamdan what habeas rights the detainees have, what the procedures needed were to meet those rights, etc...
The past two years have all been a game where nothing really happened. You could have predicted this the day Hamdan was decided.
Also, does anyone know why there was no discussion of Youngstown here? This was clearly a case where the president's power was at its highest ebb as he was acting under the full authorization of Congress and the Court still struck the act. Has that ever happened before? An action of the president backed by Congress struck down in nat'l security/military context? I don't think it has.
Also, this case seems to clearly contradict the cannon that states that a law shall be constitutional unless it is clearly and without doubt violative of the constitution. That goes back all the way to Hamilton and Madison.
Well, in this case, Kennedy admits that the case isn't clear. He says there's arguments for both sides, and that neither is really dispositive. That the case could go either way. Given that, it is clear that the govt should have won the case. All cannons of construction say so. For the Court to hold an act of Congress, passed by both houses, with votes from both parties, and signed by the President as unconstitutional when the Court itself admits that the case was ambiguous and could have gone either way is really the height of judicial activism and supremacy.
What the affect of the ruling will be, is to encourage the US to set up prisons (secret or not) in countries around the world where no argument can be made that the US has "complete and total control", like Iraq, Afghanistan, or some leased area of Tajikistan. I can see the US forced into actions like handing the celebrated Uzbeks back to China, after they prevail in their habeas petition.
On this practical matter, I agree with you. But to me the interesting question is: What happens to a suspected jihadist in Afghanistan tomorrow? My guess is that, instead of being captured (at great risk to the soldiers tasked with that duty) and interrogated (revealing information that could protect US interests), he gets a bomb dropped on him with some attendant collateral damage and he never has any opportunity to convince someone that he was framed by his brother-in-law.
I also guess that the operation is more likely to be covert, as to be able to invoke state secrets to avoid retroactive judicial scrutiny.
Extrapolating out, my guess is that this path ends with US run death squads. This prediction is independent of which party controls the White House. The US has real enemies, and whoever controls the White House is obligated to defend the country. (Remember: Bill Clinton started the extraordinary rendition policy and cross-border warrantless wire-tapping).
Depends on how you mean. The English king was prone to coming up with clever new places to stow his prisoners, and the English courts kept expanding habeas as needed.
Welcome to the common law, ladies and gentlemen.
Remarkably, the British manage to give their captives habeas rights, yet civilization hasn't collapsed.
Nothing as to that. What happened today is that the US showed that we are a nation of laws, not men.
The House of Saud might get upset.
That leaves civilians. Except for the intel value, they should therefore have been tried in the country where they were committing what are generally considered war crimes. I can see the Afghan and Iraqi judicial systems being scrupulous about their rights. Lucky for them we didn't consider them civilians.
The best thing for them would have been to have come from Yemen, or be able to prove it, and be sent back on Yemen's promise to keep them locked up. In Yemen's unbarred prisons.
As many have said, this is a new phenomenon. The GC's original concern with francs-tireurs pictured same being citizens of and fighting within their country of origin. It did not foresee state-sponsored non-state actors attacking other countries in other countries.
It most assuredly did not foresee such attackers retreating behind state borders and having the state express helplessness or complete ignorance of their existence.
It did not foresee repatriation being the equivalent to death by torture.
This is all new. New laws should be enacted.
In the meantime, the Gitmo procedure may or not be legally flawed, probably does inconvenience the terrorists, but is not some inhuman device invented by the evil trolls of PNAC and the Bushhitler admin.
So what do you think should happen to Khalid Sheik Mohammed and others? If it was up to you, how would you resolve the situation?
Where did is make such a ruling?
At least it showed that Roberts and Alito are safely in the conservative camp. Sure, in a few cases here and there they go with the liberals, but in all the big cases since they've been on the court, they've been with Scalia and Thomas.
Kennedu is an odd duck. In cases like this one, and in Lawrence, and in Casey, Weismann he can be as liberal as anyone and in lockstep with the liberals. But in affirmative action/race cases, partial birth abortion, campaign finance, the whole federalism(lopez, morrison) and sovereign immunity he's with the conservatives 100%. There doesn't really seem to be any rhyme or reason to his jurisprudence. No anchor or guiding principles that could tell us where he is and why he thinks what he does. Nothing to judge him by.
This term alone, he'll be with the liberals here, but with the consrevatives in Medellin, Baze, Stoneridge, Crawford, Williams, and Heller. At least he seems to be more conservative recently.
I can't tell offhand.
This is utterly facile reasoning.
Since the "global war on terrorism" does not have a defined enemy, it can continue in perpetuity.
If you believe that our nation does not have the ability to charge and try a few hundred prisoners within 6 years of their capture, you must have a very low opinion indeed our our abilities.
- Once detainees can get access to the court system they can get out, because our security requires that we can't hand over all our evidence, and the defense lawyers get to portray any lacunae as evidence of mistreatment.
- They then can't be repatriated, because the worse they are the easier it is for their attorneys to claim that they will be mistreated in their own country.
- At the same time the defense attorneys will fight any recognition of existing sentences against these guys in their own countries, by attacking the credibility of the legal and political systems there.
QED
The sad joke in Europe has become that if you want to get in as an illegal immigrant the one thing you should be sure to do before you leave your own country is to murder someone and get yourself a death sentence, because then you can never be sent back, but you won't be imprisoned in Europe either.
Examination of their guilt is not an option. Treating them as POWs is likewise not allowed as their outfits when they were captured were all wrong for that.
With this ruling, it is clear the SCOTUS liberals prefer death.
A critique of the decision is generally more compelling when you don't distort the facts. Falsely distorting the facts will make people think you have to do that in order to support your ideological position.
Ha!
Incorrect. Read the AUMF (2001).
Except that if they had exhausted the process that was created for them (that the court ok'd previously), they wouldn't have been there 6 six years with nothing going on. "no meaningful process" is actually this current appeal process.
A direct refutation of "The Constitution is not a suicide pact?"
There is no guarantee that the Nation will "live" to regret this ruling. There seems to be some kind of expectation in legal circles that the terrible decisions handed down by Courts will go without consequence for the health of our society and civilization. They seem to think that the Constitution will endure forever. It won't. Every civilization must end at some time, the only questions are when and how. Roman Civilization, once considered the strongest on the planet, even fell.
Given today's technology, it is certainly foreseeable that American civilization can end in our lifetimes. Several nukes used on American soil could easily take care of that. Or multiple suicide bombers set off DAILY across the entire country at random. Operationally, it would be easy for hordes of Islamic radicals to sneak across our open borders and blow themselves up in major public areas. How many would it take before things go to pot? 1 bomber a day for several years? 10 bombers every day for several months? 100 bombers a day for several weeks?
The intentional misreading and willful blindness the Court takes in aggrandizing its own power at the expense of the Executive to protect us is the worst part of it. They don't even CARE about the threat. They just care that their own precious Power rubber stamps everything. The Courts cannot rule over us because they are institutionally incapable of providing the BASIC civilizational needs: safety and security. Decent judges in earlier times recognized that fact of life, today's judges don't even care.
All civilizations end. This ruling reminds me of the apathy the Roman Senate had in defending itself from the German tribes. The elites then didn't see the threat and they don't care to deal with it, too caught up in providing themselves more trappings of power.
Surely such a procedure would not satisfy you, even though the Court told Congress they could make the rules.
This is a fundamental disagreement on what it means to have a "right," and I have to reread this, but on principle the whole majority opinion feels like dicta except for its conclusion. The Court doesn't issue advisory opinions, but this is cutting it very, very close.
On 9/10 according to Jane's, the Afghan army under the Taliban government numbered 45,000 front line troops. Some of those ended up in US detention (KSM is one notable name) and [I would maintain] plausibly are entitled to POW status under GC 3 Article 4 as the regular army of a Geneva signatory whose government was not recognized by the US. This is not to say that terrorist acts were not committed, but when the regular soldiers of an enemy army commit terrorist acts they become war criminals and not civilians.
Since POW status requires a clear and open admission of combatant status, anyone who contests his combatant status in a CSRT or Habeas proceeding waives any right to POW status. He is either an innocent civilian or else an illegal enemy combatant.
It is not clear how today's decision would effect someone who not only was entitled to POW status but also followed the Laws of War by giving name, rank, and serial number and demanding GC 3 protection. Plausibly the court may clarify its position that a demand for POW status is implicitly a waiver of Habeas rights [since POWs, unlike those who contest their combatant status, may still not have Habeas rights].
However, the six Bosnians in the Boumediene case are not plausibly enemy combatants in any rational definition of the term. They were arrested in a neutral country in a different continent than any combat area, then they were rendered to the US without judicial process. The most telling part of this decision is that the Supreme Court skipped even the most obvious factual decision that these six detainees cannot rationally be held by the military. By avoiding even the simplest of merit questions, the court then threw every important legal question into the air for random and contradictory decisions by the district courts.
We are not as weak as you suggest.
giving these Gitmo terrorists rights means our civilization will fall to the Muslims! Unless we can detain these guys forever we're dooomed to fall just like Muslim Europe has!
Would that change anything?
The opinion seems to suggest that if they had bee kept at one of those two places all along, they wouldn't have had habeas rights and the govt would have won.
Why didn't they just keep them in Afghanistan to begin with? Or move them to Afghanistan or Iraq at some early point in time.
Ha ha ha. You wish.
Could Munaf be used to transfer the GITMO detainees to the countries from which they were captured? After such transfers, the detainees would be begging to be returned to GITMO.
More seriously: given the subjects in question--foreign nationals captured in foreign lands during a time of war--I'm inclined to give the President/Congress more latitude in what rules they can make up. The SC is trying to direct policy here, by forcing the other two branches into a trial-and-error process (no pun intended) of rule creation where the Court will keep finding reasons to shoot them down until they come back with a specific desired result.
If the actors here seriously consider there to be a time factor involved, the SC justices should save us the lengthy trouble and write an opinion, op-ed, book, whatever detailing exactly what they will approve, so others can just copy/paste the text into a law and pass it.
The only reason the Court is able to pretend that its power means anything is because more worthy people are abroad fighting for it.
If the Court really had its way, they would quickly find out how limited their power of paper pushing really is. Paper doesn't protect a civilization. People do.
Give it time. The way the Court is progressing, they most certainly WILL declare one future authorization of force illegal. Probably as a pretext to impeach the next Republican president, since liberals seem to clamour incessently over "war crimes." They'll get the court to declare some force illegal. The left will use it to try to impeach the next Republican president. The Court will use it to expand their power over the Executive, all the while declaraing that they're just meekly defending the Constitution. The people will go along because the media will say that the Court is right.
Repeat until the civilization collapses.
Since any presumed infringement on presumed rights is evidence that "the terrorists have won", iow, making us do stupid stuff to ourselves, then when the horrors happen and we, say, tighten up access to public areas, "the terrorists will have won".
Sounds easy enough to imagine.
If we keep following pieces of paper like the Constitution, the terrorists who killed over 3,000 of us 7 years ago, will keep chiping away at us till we fall!
The same CSRTs and tribunals that have determined hundreds of captives to be no longer a threat and released them accordingly?
Don't be so precious. Seeing as you're not privy to classified information that the CSRTs are privy to, you couldn't possibly be "familiar" enough with the accuracy of their determinations.
So what's been stopping them so far? The fact that the Guantanamo detainees didn't have Habeas Corpus rights? Are you even trying to make sense??
If there is a great danger to our civilization, it more likely lies in scared little morons giving up on the rule of law and civil rights because oh-so-scary brown people managed to blow up two buildings. Reading the comments on this thread really drives home how democracies decent into fascism in face of real or imaginary external threats.
but, sarcasto and oren say there is nothing to worry about, so I'm not concerned. the enemies are just an illusion-they will vanish on 1/21/09.
I, for one, blame logic!
Goodbye, sweet America!
It was only a matter of time before people started minimizing 9/11. Shameful. That pales in comparison to your pathetic acceptance of this garbage that an unprecedented expansion of the Court's power equals "the rule of law" when hundreds of years of legal action says otherwise.
"two buildings." What a disgrace. You should be ashamed of yourself.
That's an interesting statement, since the people doing the protecting are, in fact, designated (by oath), to protect the piece of paper.
Of course, but the Constitution is not a suicide pact, although the Court today seems to suggest otherwise. If in the future it becomes clear that the Court does want to make the Constitution a suicide pact if it will increase their own power, then the people will not uphold their oaths. That's just basic human nature.
And yet, if we reduce the value of the ideas on the paper (our liberties), then equally, people will not want to protect it. If there's not much of value, then it's blind allegiance. "then the people will not uphold their oaths. That's just basic human nature."
I think the real cowards are the ones who seem so willing to give up fundamental tenets of our system of law for a little security.
a. A POW subject to being held for the duration of the war
b. An accused war criminal subject for trial under the Law of Land Warfare
c. A noncombatant that must be released as soon as possible subject to operational requirements (meaning you can keep him long enough to maintain operational security, but no longer).
I was involved in some wargames at the Naval War College 15 years ago...and came away convinced that in a shooting war, the lawyers would be a serious liability.
Not quite jiminy there is actually an in between given by the conventions. Its found in the 4th article of the 4th convention as it states "Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.". I believe this would mean that those in Gitmo would not receive any protections as we are not at war with either Iraq or Afghanistan.
It will take a few years for those habeas petitions to be decided, the appeals of the those decisions at the circuit level to be decided, the en banc appeals of those decisions to be decided, and the SC appeals of those decisions to be decided.
Fast forward 3 years from now and nothing will have changed. The process will just go on and on. As ELP once said, "welcome back my friends, to the show that never ends".
The killer SCOTUS strikes again!
Wrong again. Your schtick is taking over your mind. At least your reading comprehension.
Amazing how in the course of a couple of hours, a controversial, easily criticized 5-4 decision becomes a "fundamental tenet of our system of law."
The idea that this case is the pinnacle and apogee of our legal system is the most idiotic thing I've ever heard. The opinion in this case is rubbish and easily demolished by the dissents. If anyone is stupid enough to believe not only the assertions of the majority opinion, but ALSO that their arguments are a "fundamental tenet of our system of law," then perhaps you should seek out a different blog where people are dumb enough to believe such tripe.
That's precisely my point: familiarity with the operation is entirely different from saying that IN THIS CASE the system has failed to vindicate a right.
Your point is a bit of a non-sequitur.
The paper-thin Constitution, on the other hand, is a great asset in lawfare. I completely understand people's worries about any weakening or watering down of the protections it provides. However I suggest the problem is defining which activity we are currently engaged in: warfare, or its more tame metaphorical parallel, lawfare. And no, you don't get a free pass with the weasly "why can't we do both at the same time".
One of my greatest disappointments with Bush is his failure to put the nation on a true war footing. He accurately identified that Clinton's treatment of terrorism as a law enforcement problem was flawed... but failed to sufficiently articulate the logical alternative. He got the big questions right, but given his Administration's utter cluelessness when it comes to PR, he pitched the public case completely wrong.
As such, I think it was inevitable the larger military anti-terrorism effort would suffer setbacks in the courtroom.
"bedwetter"
On the morning of 9/11 I watched the twin towers fall from my window. I tried to call my friends that worked in tower 2, but couldn't get through (I would have been in the building with them if I had accepted the job offer one month earlier). That afternoon I welcomed two people into my home that had to leave their building in Battery Park. The next day we started helping with the clean up effort.
What did you do on the morning of 9/11?
Some of us have more faith in the US than you do. Faith that our nation of laws can prevail over the luck of some radical terrorists.
I can't answer this without knowing the extent of his torture.
First, Scalia does make those sort of criticisms. And many others have pointed out that the expansion of habeus rights to foreign fighters is unheard of in legal history, so that's an "originalist" type claim.
But frank, you're assuming that aguments matter. They don't, not really anymore. Do you think that arguments mattered to O'Connor in Planned Parenthood v. Casey? Of course not. She didn't want to overturn Roe and nothing was going to stop her. Did arguments matter in Lawrence? No, Kennedy had his sweet mystery of life and nothing was going to stop him. Did arguments matter in Kelo? Nope. Big government liberals on the court wanted to rule in favor of the big government.
The shame is, there are plenty of people on this blog who are smart enough to be lawyers, but are still deluded in thinking that all their hard work writing briefs matters to some unelected elitist judge who only rules to uphold a law or strike one down based on the way he feels that day.
Marty Lederman discusses that issue here.
I'll stipulate KSM was waterboarded as has been reported. What should happen to him and others?
Do you think he's innocent?
What would you do to him?
Lederman's analysis suggests that, were the government to transfer the detainees to Bagram, the Court "would not look kindly on it." Yet if the detainees had never been transfered from Bagram to begin with, that makes it alright? A bit arbitrary innit.
You may be on to something about arguments mattering. But that's a criticism of originalism. Judges can cite originalism to support all sorts of positions that they wish to reach.
If it is not happening already, the intel people will get agreements with other nations to hold these types of prisoners in their jails. And then they will not get habeas, and they will be lucky to get fed.
Actually he does. He textually dissects the majority's contrived rendering of Eisentrager. Try reading the dissent?
I expect you're absolutely right, and further that it's been going on for some time, even excepting rendition.
But I also expect the liberals will find a way to blame it on Bush.
What I think the liberals are most interested in is the assertion by the prosecution that huge fishing expeditions among mountains of classified material would damage the nation's security being turned down by trial judges.
Thus, either the terrs learn our stuff or they get turned loose in the US. Win-win.
Assuming there are independent sources of evidence to justify doing so, I'd try him in an Art. III court with full disclosure of what was done to him and claim that the evidence proffered was untainted by any violation of his rights.
While I am no expert on habeus proceedings, my gut tells me that the record in habeus proceedings will be better developed than the record developed through the process which the majority opinion deemed inadequate. If that is true, it seems that there would less of a need to remand from the Court of Appeals for further factual development. It would also mean that the decisions of the appellate courts would be better informed ones.
Is anyone out there experienced enough in this area to render an informed opinion on this issue? If my gut is correct, then CJ Roberts would be wrong. But I don't have sufficient experience in the area to know one way or the other.
I don't see how arguments no longer mattering is a "criticism" of originalism. Arguments no longer mattering is a criticism of the COURT. If the Judges are corrupt and will do whatever they want, then how is that the fault of originalism, which is a theory of interpretation? If a Judge refuses to interpret, I don't see that as a failure of the theory but the failure of the judge. Corrupt judges are people who decide cases based on their own personal view. What that means is that O'Connor and Kennedy, among others, are corrupt judges.
Judges can cite originalism to support all sorts of positions that they wish to reach.
I see. You think "originalism" is a sham designed to hide personal preferences. So, presumably, there's a better alternative out there that avoids the personal preferences of a judge? Perhaps you can direct me to that theory of interpretation, because I'd love to hear about it.
Try reading yourself with a degree of comprehension first, then read the dissent.
Nice case of misdirection. Are you telling me that Habeas Corpus isn't a fundamental tenet of our system of law?
The majority is not playing by those rules. The majority is engaged in POWER POLITICS, not originalism as you pretend. The dissent has every right to call them out on the practical results of their power politics, before then engaging in real legal arguments.
It seems to me that you're just mad that the originalist are finally calling out the practical results of a power-mad Court. You were all satisfied that the originalists would complain about losing their cases when they were silent about it. Now, they have the temerity to note that a power-mad court will actually result in the death of Americans. And that just makes you mad because they're right.
However, referring to textualism is simply a dodge. Words do not interpret themselves, which is why originalists say you need to use originalism for interpretation.
Tell you what: why don't you find out if the Barbary pirates had habeus corpus rights, and then get back to me. Thanks.
The horrible possibility exists that the waterboarding KSM underwent was solely for intel purposes and nothing, nothing whatsoever, used against him in court came from it.
Then he gets CONVICTED! No excuse like, "of course he did it, but look how you found out."
Well, can't have everything.
I would also like to point out that the inescapable Law of Unintended Consequences means that people will aways get around the law, so we shouldn't enforce it, lest the dodges make it worse.
This Law applies to Gitmo, but not to illegal aliens.
Kennedy's generally known as being one of the dimmer bulbs on the Court. As such, I think he's more easily persuaded by his colleagues that the other members of the Court, particularly when a result may be viewed as "extreme" by the mainstream media and/or the layperson. In those cases, I think he tends to err on the side of "moderation." O'Connor was similar in that regard, though she at least tried to dress up her lack of rigor with balancing tests, as opposed to Kennedy's paeans to the sweet mysteries of life.
Of course, only liberal Justices invert the customary laws of logical reasoning to support their points . . .
Here's the exchange -
frankcross: Shouldn't you be making originalist or textual criticisms, rather than talking about terrorists?
dangermouse: First, Scalia does make those sort of criticisms
frankcross: No, dangermouse, Scalia doesn't make those arguments.
You were clearly referring to Scalia in response to DangerMouse stating that Scalia does in fact make those "originalist or textual criticisms."
If you can't even follow the import of your own conversation, I fear comprehension of the dissent is futile.
Anyway, I'm not going to get into a pissing contest. Adios.
Sure that's possible. I already agreed with that. Of course, it's also possible that the case would be dismissed for prosecutorial misconduct.
This type of gamesmanship by elements within the executive branch, coupled with Congresscritters who lacked any spine whatsoever when they enacted the process declared inadquate by today's decision (who wants to be called "soft on terrorists" in the next election), resulted in the majority on the SCOTUS taking steps to reign in an out of control executive.
Now I have a question for many of you so called "conservatives".If Obama were elected Prez and then took drastic security measures that arguably violated rights of the people in the Constitution, but which Obama stated were necessary to preserve the security of the US, would you give him the benefit of the doubt and praise him for protecting the US, or would you criticize him and perhaps challenge his actions in court? Would you still say that, as commander in chief, Obama can do whatever he deems necessary to defend the US?
Please give us your generic answer now, and we may be able check back in about 2 or 3 years to see how honest you are.
That's brilliant discourse. Are you saying that we shouldn't apply our laws equally? We should have classes of people to which our laws just should apply, and the definition of that application should be at the whim of the executive?
And since the Barbary pirates weren't before the court, it's not germaine anyway.
How would an an originalist reconcile their position with the focus on policy issues, like the threat of terrorism.
And Dangermouse, I'm not saying that an alternative is better than originalism, I'm only saying that originalism is not better than the alternatives.
Yeah. Possible. Another win for the liberals. But this one would probably be legitimate. As if that mattered.
At the very mininum (and I'm not saying I only agree with this minimum), originalism at least makes a claim to be objective (and indeed that is the entire point of it) whereas the other "living constitution" theories expressly do not.
You're better off asserting that the Courts should be disbanded than accepting a corrupt Court system.
But is a false claim of objectivity ("Fair and Balanced") really better than a system that acknowledges subjectivity and works to keep it in balance?
How do you balance subjectivity with an unelected, for-life-appointed federal judge?
Actually, I was planning to throw away my vote for the sake of principle (hadn't decided how). Now I'm actually planning to vote for the Democrat. Just to make sure, you see.
you might want to go back and read history about what having an enemy who wants to destroy us does to a country.
When was the last time we didn't have one of those? It must have been before 1918.
usually, it helps to focus it on what's important, like survival (see WWII, for instance). ring any bells?
Ah, yes. All those Germans and Japanese we designated as "illegal enemy combatants" and held without charges indefinitely. Now I remember.
Um, excuse me? The majority opinion, which is utterly without precedent anywhere, anytime, is "originalist"? The Court which overturns its own opinion of only two years ago is "originalist"? The Court which has just rendered a duly ratified clause of the Constitution (the Exceptions Clause) null and void is "originalist"? Your definition of the word is utter sophistry.
I was in Manhattan with a few million other people who acted calmly and soberly and tried to stay out of the way if they weren't in a position to help. We watched the news, wandered out into the streets to look at the huge column of smoke rising from the lower end of the island, observed the emergency vehicles rushing around, cried a bit, talked with strangers in quiet tones and generally felt very glad to be alive and not south of Canal Street. I tried to reach my wife, who was working three blocks from the White House, and she was trying to reach me because she thought I was much closer to the disaster than I was. About mid-afternoon we managed to communicate. Eventually my roommate and I ate dinner at a sidewalk cafe and then rented a video because we couldn't take the news anymore. There wasn't much else to do.
Did you think everyone was everyone was falling to their knees, screaming and sobbing and begging for a suspension of the Constitution and a declaration of martial law so we'd feel safer? Screw you.
No, FDR didn't designate the Japanese, German and Italians in the US who were rounded up as "illegal enemy combatants." A lot of them, apparently most, were US citizens (some were 2d and 3d generation). They were rounded up (without charges or any evidence of sabotage or subversion -- women and kids, too, no gender or age discrimination) and sent to detention camps for the duration of WWII, and for sometime thereafter. After WWII, some, like the head of the German-American Bund, were then deported.
Though your reference to precedent makes me think you may not understand originalism
Hello Pot, I'm the Kettle...
One could say the same for Justice Kennedy's opinion.
While I would not claim that Gitmo should remain open for business as a policy matter, it seems to me that the political branches should make that decision. It further seems to me that Roberts' dissent was concise and accurate and Scalia's dissent cast doubt on the propriety of the majority opinion. Before today, I had never read convincing dissents that chided the majority for misinterpreting precedent in a clearly erroneous manner, for outright making stuff up whole cloth, for committing basic logical errors, for creating demonstrably irrational consequences. This pair of dissents was convincing.
The outcome of the politics aside, I would like to hear from those who read the dissents why they do not find them devastating. Justice Kennedy's opinion -- whatever you may think of the outcome -- is rife with actual errors of reasoning. What do you find persuasive about dislogic?
If the drastic security measures apply to foreign fighters captured in foreign lands during a time of war, then I don't care.
If the drastic security measures violate the rights of American citizens or those legally residing in the United States, then I would challenge his actions in court.
Bottom line, HC should not apply to our country's enemies. Obviously, there has to be some type of process to deal with detainees, and some oversight to ensure the system is run fairly, but granting HC to enemy fighters is going too far.
If the DoD and DoJ had set up a reasonable process with minimal safeguards and oversight, I may have supported that. But we are where we are. . .
And, of course, we're proud of that today.
I'm afraid you got the wrong impression from my comment. No matter, it's wasted breath to bother clarifying.
Like Oren, I think your stated position is reasonable in theory. When faced with an Executive who insists that he can do anything he wants as C in C as part of the GWOT, and who politicizes everything (while carrying out his objectives in an incompetent manner), the Supreme Court decided to push back. From my perspective, the result in the majority opinion is the direct result of what incompetent idealogues in the Bush administration have done.
Oren: "The previous round didn't say Congress could come up with any scheme whatsoever."
Yet Robert's dissent and the comments here make clear, the practical effect is just to add one more layer of lawyering to a process that provided an avenue for petitioners, an avenue that the court didn't even let play out. The court trumped and short-circuited the very processes developed to address this issue.
Had the Court done the right thing and affirmed the DTA law passed in the wake of Hamdan, or at least been cautious enough not to toss it out until its actual use and effect was measured, the 3 branches of Government would have been in concord on how to deal with this situation. The court has just arrogated too much power to themselves to dictate matters best decided by political branches. The practical effect of the ruling is injecting uncertainty rather than clarity. The end result will be a horrible mess as a flurry of cases force the Federal courts to 'craft' their own ad hoc solution to the difficult questions of legal procedures for enemy combatants etc. They blew away a balanced approach and left a hole in the ground to be filled in by high-priced lawyers. The only laws worse than those passed by Congress are those invented in Federal courts.
This is a dreadful ruling on multiple levels, but like many bad court rulings, its arrogance and overreach are its worst aspects. So many precedents upended, so many deviations from standard practice and logic, so many unintended consequences yet to play out. Congrats to Scalia and Roberts for brilliant and well-written dissents that demolish the illogic, lack of precedent and absence of restraint in the majority. They are required reading for all.
In theory, maybe. In reality, Your theory has nothing to do with the reality at hand.
The case involved a law that Congress passed that provided more legal rights to enemy combatants than any nation has ever granted in human history. The Executive branch had never asserted "do anything" but had originally leaned on military tribunal procedures (as traditional for combatants) and since DTA was passed was following that Congressional passed framework that provided legal processes for the prisoners. These included multiple layers of review available to the prisoners via those existing processes, including Federal court review of cases.
When faced with a balanced review process that was crafted in Federal law by Congress specifically to fully address a prior Supreme Court ruling, the Supremes, like an arrogant master of the other two branches of Govt, said "No good!" and set about creating a bold, new and *unnecessary* (viz Roberts dissent) precedent.
That's the reality. Was DTA not good enough? It's a bit like asking, does the prison have not enough pillows for Bin Laden's driver?
This proves only that human history is rotten, not that Congress is sweet.
I am not saying that I know that the Supremes were incorrect. I am saying that the majority opinion is an understandable reaction to an out of control executive.
The executive did not put a bunch of "enemies" in Gitmo. They put a bunch of people in Gitmo, some of whom are certainly very bad people who want to damage the US, and some of whom happened to be in the wrong place at the wrong time. Then the executive invented new theories in an effort to keep all of these people from challenging their detention in court, engaged in torture of these people, told interrogators to destroy their interrogation notes in an effort to cover up the actions of the interrogators, played politics in releasing at least one person (HIcks), told line prosecutors that "there can be no acquittals" and otherwise stacked the deck against those detained in Gitmo.
Even if you are of the opinion that the procedures established in writing are "fair", these procedures have not been carried out in a consistently "fair" manner.
If you are of the opinion that all of the persons who were sent to Gitmo are enemies of the US just because they ended up in Gitmo, then you are ignoring the basic facts of how some of these people ended up in Gitmo. Go check and see how many of the total number of Gitmo prisoners have been released. Quite a few. But the administration fought tooth and nail to avoid having to set up a reasonable review process for Gitmo prisoners. The process struck down today was put in place only after the administration fought all the way to the Supremes against setting up that procedure.
I want to get the bad guys as much as anyone. I happen to think that we collectively are smart enough to get the bad guys while providing a method to protect the rights of the "innocent." I also happen to believe that setting up this kind of procedure is the "right" thing to do. Call me "naive", call me stupid, call me any name you wish, except don't call me an enemy of this country. I happen to think that we can do the "right" thing and prevail against those who would destroy us if they could.
But, what the heck, maybe I am wrong. Maybe we are not that smart. Reading some of the comments on this blog makes me think that way from time to time.
Quis custodiet ipsos custodes?
That's good, but frankly it's obvious that many activists do not believe we're in a war against radical Islam or that terrorism is a threat. In fact, a large part of the liberal left thinks that the "bad guy" is America. And that liberal left includes liberal Judges.
I happen to think that we collectively are smart enough to get the bad guys while providing a method to protect the rights of the "innocent."
It's not a question of smarts, it's a question of willpower. If you open the Courts to terrorists, you open them up to the left wing liberal ambulance-chasing trial lawyers bar, who by and large are so radically liberal that they think America should be on trial in the war and the terrorists should go free.
I also happen to believe that setting up this kind of procedure is the "right" thing to do.
Again, if you give the keys of the kingdom to left-wing judges and their sycophantic trial lawyer friends who think America should be humbled (with more attacks?), it's not the "right" thing to do.
Call me "naive", call me stupid, call me any name you wish, except don't call me an enemy of this country.
It is definitely stupid to allow liberal judges to determine if terrorists can walk freely among us, or if soldiers have to read terrorists their Miranda rights before being captured or even shot at. At some point, the people are going to question whether the judges making those decisions have loyalty to America.
I happen to think that we can do the "right" thing and prevail against those who would destroy us if they could.
At least you think there's a threat out there.
Some prior commentary on this point, by an expert:
Unbeliever: "One of my greatest disappointments with Bush is his failure to put the nation on a true war footing."
He knew he couldn't actually demand sacrifice from more than 1% of the population, because that would have hastened the day when people started to pay attention and discover he was a serial dissembler and exaggerating all threats.
ejo: "tell us what you did on the morning of 9/11"
An enduring irony of the situation is that the people close to Ground Zero still vote D, as much as ever. The hysterical bedwetters tend be concentrated in areas that have never been targeted, and are not likely to ever be targeted in the future.
Fester: "I think what the court and everyone else is overlooking is the Law of Unintended Consequences. If it is not happening already, the intel people will get agreements with other nations to hold these types of prisoners in their jails. And then they will not get habeas, and they will be lucky to get fed."
I think what you (and others with similar ideas) are overlooking is the Law of Unintended Consequences. When it becomes known that American forces no longer treat prisoners well, every combatant in every future war has an extra incentive to fight to the death and avoid capture. This inevitably means more American casualties.
Also, those who hold captured Americans will have good reason to have reduced inhibitions with regard to mistreating Americans.
So you should give some consideration to the Law of Unintended Consequences.
oren: "I have yet to see any plausible hypothetical scenario in which terrorists manage to get anywhere near destroying the US as a country."
Their best shot is to convince us to shred the Constitution. They have made some progress in that regard.
wfjag: "They [Japanese-Americans] were rounded up (without charges or any evidence of sabotage or subversion -- women and kids, too, no gender or age discrimination) and sent to detention camps"
Ah, the good old days.
omarbradley: "I could care less if Obama had everyone in Gitmo shot on Jan 20th, 2009. In fact, it would probably be the right thing to do."
Many of the people in Gitmo appear to be innocent bystanders. Your concept of justice leaves something to be desired.
Do you realize how you discredit yourself with statements like this?
So how can the SCOTUS legitimately determine that federal district courts have jurisdiction to hear these habeas cases when congress has taken away that jurisdiction from them?
A large part of the hysterical right seems to not understand that America is a country, not a government. They also seem to not understand that a good country can have a bad government. They also seem to not know what Thomas Paine said about this distinction.
It's a feature of authoritarianism to have difficulty remembering that a group has an identity separate from the personhood of the current leader. Bush is not America. It's amazing that you need to be reminded of this.
Do you think the number of people who think
America is the bad guy is not a "large" number of the left?
We have had any number--as you know so don't bother asking for cites--of cases of people on the left in this country saying exactly that.
The argument comes down to how many and how many judges think that.
Neither number is zero.
"Some prior commentary on this point, by an expert:"That's a Hitler quote, or some other chief brown shirt or black shirt, no?
And that Bush=Stalin/Hitler contribution is merely your opening remark. That, out of a 5-4 decision and resulting discussion as pertains to subject matter that has no precedent, which is why it hit the Supremes in the first place.
Left/Dems and the Left in general, always evidencing their supple minds and keen insights.
The distinction is irrelevant for purposes of this discussion. Radical leftists hate America, meaning they hate the government because they believe it supports the capitalist system, they hate the people because of their American values, and they hate American culture because they don't think it's sophisticated enough. When I say that the left thinks that the "bad guy" is America, that means they hate America through and through. It's not merely that they hate Bush (what could Bush have done in the few months he'd been in office to deserve 9/11 anyway), but that they agree with our enemies that America is the Great Satan.
I'm sure, then, that you will be even more assiduous in reminding the supporters of Senator Obama of this should he be elected president given the cult of personality that has arisen around his personage.
Human history sure can be rotten, but not because Bin Laden's driver had to suffer the injustice of merely getting an aritcle III circuit court review of his tribunal review as under the DCA, and not a full bore access to all levels of Federal Court for habeus review as the over-lawyering Supremes demand. If one believes that the rottenest part of human history is the lack of sufficient additional layers of due process for suspected terrorists and incarcerated enemy combatants, one is a poor judge of history. They have been granted legal privileges that they have neither a moral nor a real legal claim to.
In Zimbabwe this week, Mugabe's thugs murdered the wife of an opposition leader by hacking off her hands and feet. Last week they burned another wife of an opposition leader, and have terrorized many others. The rottenness continues.
"Quis custodiet ipsos custodes?"
Jim Johnson, vetter and mortgage banker extraordinaire, is suddenly available.
At least the Republican Congress was looking out for us when they allocated Wyoming (and other states not likely to be on AQ's itinerary) a healthy share of homeland security money.
Generally speaking, when the SCOTUS holds that a provision of law is unconstitutional (and absent any part of the law specifying its severability), it attempts to see if it can sever the illegal provision from the rest in any logical manner. If it cannot, the whole act is voided. Thus Congress could very well pass a stand-alone act limiting habeas petitioners to the DC Court of Appeals (or they could have included a provision in the '06 MCA specifying that they wanted it severed).
The decision is unfounded: It misreads the DCA, misunderstands/misrepresents precedents, and unjustly and unnecessarily contradicts the historical application of Constitutional principles . As the dissents make clear, the courts have contradicted even recent rulings with this ruling: "Congress followed the Court’s lead, only to find itself the victim of a constitutional bait and switch. ... it is plain from the design of the DTA that Congress, the
President, and this Nation’s military leaders have made a
good-faith effort to follow our precedent.
The Court, however, will not take “yes” for an answer." - Roberts dissent. Roberts destroys the majority decision in detail by showing what little real argument they have with DCA. The infirmaties are really minor - "the Court finds the DTA
system an inadequate habeas substitute, for one central reason: Detainees are unable to introduce at the appeal stage exculpatory evidence discovered after the conclusion of their CSRT proceedings." On that, a Federal law is overturned?!? Roberts shows how weak that complaint is by detailing the real avenues available in law that are more than adequate, ie, remand after review.
Scalia's dissent chides the ruling based on the legal errors: "I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court.
Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today."
The legal errors are summarized thus: "Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspension
Clause, invoking judicially brainstormed separationof-
powers principles to establish a manipulable “functional”
test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misdescribes
important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization."
Scalia prefaced his review of how the court misread Eisentrager etc. with its impact. He mentions: "the Court’s decision today accomplishes
little, except perhaps to reduce the well-being
of enemy combatants that the Court ostensibly seeks to
protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released
from Guantanamo Bay have returned to the battlefield. ...in carrying on their
atrocities against innocent civilians. In one case, a detainee
released from Guantanamo Bay masterminded the
kidnapping of two Chinese dam workers, one of whom was
later shot to death when used as a human shield against
Pakistani commandoes. See Khan &Lancaster, Pakistanis
Rescue Hostage; 2nd Dies, Washington Post, Oct.
15, 2004, p. A18. Another former detainee promptly resumed
his post as a senior Taliban commander and murdered
a United Nations engineer and three Afghan soldiers. ... These, mind you, were detainees whom the military had
concluded were not enemy combatants. Their return to
the kill illustrates the incredible difficulty of assessing
who is and who is not an enemy combatant. ... During the 1995 prosecution of
Omar Abdel Rahman, federal prosecutors gave the names
of 200 unindicted co-conspirators to the “Blind Sheik’s”
defense lawyers; that information was in the hands of
Osama Bin Laden within two weeks."
It's a fine reminder that bad SCOTUS rulings do have practical real-world damaging effects, and a fine rejoinder that self-congratulation on making the war on terror more legalistic is fatuous nonsense.
So when the majority of the population disagrees with the government, they all hate America? How patriotic would it be to smear their patriotism if you happen to be wrong? Do you ever wonder how so many Americans could hate America if George Bush once had an approval rating over 90%? And do you wonder how it went from 90 to 30?
Yes, but this decision saves the country and the world from Bush suddenly morphing into Stalin, Hitler and Darth Vader all. So, it's worth it, the Left/Dems have saved the day. The rest of us need to sit back and applaud the beneficence that has been bestowed upon us, especially so given the Bush morphing into Stalin and Hitler thing that has now been avoided.
If I say 'goddamn that awful 5-court ruling majority', I am disagreeing with a Government decision.
When Rev Wright said "Goddman America" and that America (or is it AmeriKKKa) is an "Arrogant, white-run racist superpower" and that 'chickens are coming to roost' with 9/11, he is spouting Black Liberation Theology garbage aka Black Panther politics from the pulpit that treats the whole of America as a hostile and malevolent force. We as a whole are evil and oppressive and deserve bad things to happen to us. When he throws in the blaming US Govt for AIDS and other crazy garbage, he's spouting more hate based on lies. There is a big difference between that extremism and mere disagreement with a politician or our Government.
But keeping plying that phony equivalence. Liberals are great at that.
True. But if you say these things...
...you sound more like Jeremiah Wright.
(Quotes courtesy conservative commenters on VC.)
LM conflates Bush's popularity rating--let's see LM get lied about one tenth as much as Bush does and check his popularity rating--and the idea that some folks think the US is the bad guy. Problem with this conflation is that LM thinks he got over on anybody. Wrong.
Those quotes were about the government, not the country. But you probably quite honestly have no idea of the difference.
I showed that what Bush has been doing has a precedent. A highly unflattering one. If you can show why the comparison is wrong, you should. But you won't even try, because you're a complete waste of time. Then again, we already knew that (proof, more proof, even more proof).
I guess you mean like this. Or this. Or this.
Let's see if I got this straight. When folks approve of Bush and vote for him, that's the authentic voice of the people. But when the opposite happens, that's because they're naive simpletons who are being tricked by the vast left-wing conspiracy. Right?
It would also be nice to hear an example of a lie told about Bush.
"Those quotes were about the government, not the country."
When Pat Robertson said that 9/11 "happened because God is lifting His protection from this nation," was that also a statement about the government, not the country?
No, you quoted some brown shirt or black shirt.
That "shows" nothing. You can quote Darth Vader, Ahmadinejad, Osama bin Laden, representatives of Palestinian Islamic Jihad or anyone else, but what it will "show" is a sum total of: nada, nil, zil, nihil - unless you also are able to make some sense of it, as in forwarding a cogent, rational line of thought that is apprehendable.
Typical of the Left/Dems, so many exchanges begin at the most rudimentary, "1 + 1 = 2" level, as if they still need their hand held while crossing the street.
You obviously need things to be made that simple, so I'll do that for you.
The point I made here is that a corrupt leader can always excite support by raising fear of attack, and claiming that his political opponents are unpatriotic. Let us know if you're really claiming that this isn't exactly what Bush has done.
These grade-school level attempts at meta-arguments are precisely and only that, an example of the mental regression the Left/Dems have successfully entrenched in these discussions.
No, you quoted some dead Nazi's opinion on the matter, as if the dead Nazi's view is the last word. Your logic is as compelling as "Hitler was a gun-grabber, therefore all gun-grabbers are Nazis."
The point that was really made is that Godwin's Law is still in operation.
You're right, Richard, the difference is clear to me now. Blame the "government" and you're an upstanding conservative. Blame "America" and you're a left-wing Marxist Commie. Call government agents "Nazis" and you're in the clear; call Bush a "Nazi" and you're suffering from BDS. Accuse the government of routinely lying and acting immorally, and you're on solid conservative ground; but if you suggest that America as a nation has pursued policies that have born undesirable consequences, you're a hater.
Glad we straightened that out.
Is there some estoppel principle that applies to blog debate? In a related thread you have complained that "Prior to 911, I would have said it was ridiculous that a president would see a memo called "Bin Ladin Determined To Strike in US" and decide to spend the rest of the month clearing brush." yet now your claim is that Bush is falsely raising fear of an attack.
So which is it? Is Bush guilty of ignoring a serious threat, or is he guilty of exaggerating a non-existent one?
And was there some sort of Goldilocks position that you would have found "just right"? Or, as I suspect, would any policy adopted by the Bush administration have automatically drawn your complaint?
It's entirely within the realm of human possibility to do both.
There you go again, evading a simple question. It's what you do, routinely (proof, more proof, even more proof).
pjm: "you quoted some dead Nazi's opinion on the matter"
You're evading the same question that michael is evading.
"Godwin's Law"
You have no sense of irony. I guess you don't notice Nazi references when they're made by folks who agree with you (example, example).
As Grover said, both. In 2001, OBL was a serious threat. Bush ignored that. You probably don't recall that Bush spent the period prior to 9/11 arguing that SDI would be a great way to fight terrorism.
Saddam was not a serious threat. Bush pretended he was.
"was there some sort of Goldilocks position that you would have found 'just right'? "
Chasing Saddam instead of OBL was very, very far from "just right." Expecting us to go after the people behind 9/11, instead of people who had nothing to do with it, is not a "Goldilocks position." It's just common sense.
"Keeping people imprisoned for 6 years without trial or even charges against them is not the American way."
I agree. They should have been tried as war criminals and shot long ago....
The message is clear: anyone caught out of uniform engaged in unlawful warfare gets interrogated in the field and then executed. I'm sure the ACLU will be very happy.
So if POWs don't have that right, how can EC's?
Just the sort of response I'd expect from a tiresome Kosack like yourself.
Bush didn't want trials because apparently many of them are innocent.
clayton: "I think the message that the Court is sending here is: 'Take no prisoners.' "
I think the message that you are sending here is that you're a fool, and that you haven't read earlier comments in the thread.
"In previous wars, both sides have summarily executed enemy unlawful combatants."
In previous wars, there have been war crimes. What you are suggesting is a war crime, under the GC. Do you really not know this? Why do you hate the rule of law?
estebanj: "the hundreds of thousands of german/japanese POWs kept on US soil had no right to plead habeas in federal court"
There are a number of important differences. They were actually captured in battle, not handed over by bounty hunters. And they were not held for six years. And they were held while we were truly at war.
If you want to claim that we are currently at war, in a sense comparable to WWII, then you should explain why we've been told that we should help the war effort by doing more shopping.
Perseus: "Just the sort of response I'd expect"
English translation: 'since I can't manage a substantive response, I think I'll resort to gratuitous, unsubstantiated name-calling.' Yes, that's just the sort of response I'd expect.
The "shopping" think is old, lame, overdone, and a non-sequitur.
Think of something else.
Why I would have thought you'd be proud of your gracious Kos(ack) diary entries.
Here's the non-sequitur: telling us we're at war, and acting like we're not. This includes telling 99% of the population that no sacrifice whatsoever is expected from them.
If you can explain how that makes sense, you should. But you can't and won't, so instead you're waving your arms vigorously.
Why would you think I would post material on the internet if I didn't want people to read it. The only mystery is why you're using such a convoluted approach to finding the material. You don't need to go picking through the google cache. You can get at it more directly right here.
While you're at it, you might as well try this. And this.
If you have any substantive criticism of anything I've written, either here or elsewhere, you should let us in on the secret and tell us what it is. Then again, we should probably realize that substantive criticism isn't your thing.
By the way, I don't particularly think of myself as a 'Kosack,' and it's not particularly accurate to describe me as one, because aside from a few minor exceptions, I stopped posting there about 18 months ago. Meanwhile, in the same period I've posted more than 2000 times at Power Line. So strictly speaking, it's more accurate to describe me as a Powerliner. And you care a lot about being accurate, right?
"Acting like we're not" has exacty what legal weight?
Would it be better if we went around in mourning clothes and didn't smile?
How about putting half the nation's retailers out of business?
Nuts. You've latched onto a seeming contradiction under the impression it's impressive. Forget it.
Bush's claim that we're at war is hard to take seriously when he acts like we're not, and encourages the rest of us to act like we're not.
JKennedyShouldBe...
PJM
I noticed that Orin Kerr must have been smitten with Kennedy's opinion - he so lavishly quoted it without a single critical comment (and in a tone of "ordained finality" in his editorial comments to each quote block).
I have come to expect far more from Mr. Kerr, in the past he has actually analysed the arguements AND almost always from several perspectives. Has he converted into the "The Court is God" mindset?
Had he bothered to also quote as lavishly from Roberts and Scalia's dissents, I think that Kennedy's "profundity" who look at bit more like gaseous oratory and historically shaded half truths. Round house denunciations of the President and Congress may impress some, but it should not impress the more objective minded.
I have read the dissents. It seems to me that for the non partisan analyst the dissenters have the far stronger case. More importantly, it suggests that somebody might be fibbing...on several points it is hard to reconcile the two sides.
Oh, and did you catch Souter's crankiness? He was beside himself that certain questions regarding jurisdiction was still an issue in the mind of the dissenters. You would have thought the freshest of recent prior precendent (e.g. Rasul) had the gravity of several hundered years of common law and Constiutional authority.
Mark H.