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of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art.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.