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of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art.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

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.
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:
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.

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.
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:
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.

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.
However, the Gitmo detainees have been held for up to 6 years, and they deserve a prompt hearing:
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.
Bart (mail):
Kennedy for the Court:

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).

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.
6.12.2008 12:05pm
Eli Rabett (www):
Remember, they ain't POWs at least according to the administration. So, are they POWs? If so, then there are rules and laws that govern their treatment.
6.12.2008 12:08pm
omarbradley:
It seems to me the administration completely effed up by putting all these detainees in Gitmo. They should have just kept them in Bagram or somewhere else in Afghanistan or moved them to the same prison complex where they kept Saddam. Moving them to Cuba was a big mistake.

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.
6.12.2008 12:13pm
Just Dropping By (mail):
Eli is correct. If the administration had simply labeled them POWs in the first place, it could have avoided this entire problem. But instead it decided to get cute and insist that the prisoners weren't. And, as any litigator will tell you, judges don't like it when you get cute.
6.12.2008 12:15pm
RightWingLSB:
Indeed, judges (and particularly some of those on the Supreme Court) believe that it entirely the province of the courts to "get cute." Kennedy has served up yet another example.
6.12.2008 12:26pm
byomtov (mail):
I thought Robert smade a great point in saying that all the court's opinion really does is waste time.

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.
6.12.2008 12:32pm
SG:
If the administration had simply labeled them POWs in the first place, it could have avoided this entire problem.

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?
6.12.2008 12:35pm
Houston Lawyer:
None of these guys are POWs as defined by the Geneva Convention. It was quite proper not to give them the rights attributable to POWs. The administration was not being "cute" in this regard. We should never have removed these guys from the countries where they were taken prisoner. They shouldn't come to the States, but should go back to where we got them.
6.12.2008 12:36pm
srg:
SG,
They should have been kept abroad. Guantanamo counts as the United States for the purposes of these cases.
6.12.2008 12:38pm
DangerMouse:
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.

Roberts point is not that time is being wasted, but that this decision only benefits the Court as an institution to exercise unelected power.
6.12.2008 12:48pm
This Is What You Want, This Is What You Get:
None of this will matter in the end. Once the Jihadists attack the US again, which they no doubt will and on a scale larger than done before, whichever Administration is running the show will make up new rules to address the handling of such captured combatants. Then, as the memory of the latest attack fades, and the country gets back to doing what it does best (i.e., left vs. right food fights), we will once again set up a situation that could have been avoided from the start. And so it goes, over and over and over and over.
6.12.2008 12:49pm
pgepps (www):
both the move to Gitmo and our continuing allergy to actual declarations of war are biting us, here.
6.12.2008 12:49pm
omarbradley:
srg,

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.
6.12.2008 12:50pm
jrww (mail):
It is disappointing that the reaction in this thread to the decision includes speculation about how the Bush administration should have evaded habeas by just keeping the prisoners in Iraq or hiding them somewhere else.

Keeping people imprisoned for 6 years without trial or even charges against them is not the American way.
6.12.2008 12:50pm
Good for Scalia (mail):
We should just agree to send the detainees back to where they came from and then have an "accident" occur on the way there. Screw the Court.
6.12.2008 12:51pm
Klerk (mail):

None of these guys are POWs as defined by the Geneva Convention. It was quite proper not to give them the rights attributable to POWs.


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.
6.12.2008 1:00pm
SG:
Keeping people imprisoned for 6 years without trial or even charges against them is not the American way.

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?
6.12.2008 1:07pm
Sarcastro (www):
Good for Scalia is a Constitutional Genius!

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.
6.12.2008 1:07pm
Jiminy (mail):
Geneva defines them as enemy combatants, who, while they don't enjoy all the POW rights, still have rights under the convention which were discarded by the Administration. So, which way is it? POW, Enemy Combatant, or Our Interpretation of Something Other Than Enemy Combatant? The Administration was being very "cute" in this regard by creating their own category and rules based on the Conventions.
6.12.2008 1:08pm
David M. Nieporent (www):
They should have been kept abroad. Guantanamo counts as the United States for the purposes of these cases.
The problem is that this is something Kennedy just invented (though it was foreshadowed in Rasul). There's no legal or historical basis for such a claim.
6.12.2008 1:08pm
Jiminy (mail):
"The judgement quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law,'" Link
6.12.2008 1:09pm
omarbradley:
Really, what are the practical effects of this decision.

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?
6.12.2008 1:10pm
The Unbeliever:
Proposal: unilaterally release everyone in Gitmo back to their countries of origin, excluding the worst 5 offenders, even if the countries don't want them back. Simultaneously issue a directive to all the Armed Forces, that if any previously released detainee is re-captured on the field of battle, he/she is to be shot on sight, out of hand, no exceptions.

Any objections?
6.12.2008 1:17pm
darelf:
Once Kennedy decided that water was not, in fact, wet, the rest of the reasoning was inevitable.
6.12.2008 1:18pm
Mark at nonya (mail):
Is it so hard to simply declare that we are in a state of emergency and suspend the constitution? If the threat is so great we have to use crazed work arounds in order to justify holding people, then simply say that the risk to America is so great, suspend the constitution, and let the chips fall where they may.
6.12.2008 1:18pm
omarbradley:
So why did the Court waste everyone's time for the past two years?

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.
6.12.2008 1:22pm
Kazinski:
Do a little thought experiment and imagine this ruling in 1944 when the US had tens of thousands of Italian and German prisoners scattered across the US in camps in Arkansas, Oklahoma, Ohio, Iowa just to name a few states. So the Supreme Court is now ruling that all of those prisoners were entitled to habeas.

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.
6.12.2008 1:23pm
SG:
What actually changed today as far as what will ultimately happen to those in custody?

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).
6.12.2008 1:24pm
Anderson (mail):
There's no legal or historical basis for such a claim.

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.
6.12.2008 1:26pm
MarkField (mail):
Ya gotta love the Depends crowd. "Liberty or Death"? Piffle. Who cares about freedom or the Constitution when there are scary bearded guys out there?

Remarkably, the British manage to give their captives habeas rights, yet civilization hasn't collapsed.
6.12.2008 1:26pm
PC:
What actually changed today as far as what will ultimately happen to those in custody?


Nothing as to that. What happened today is that the US showed that we are a nation of laws, not men.

Proposal: unilaterally release everyone in Gitmo back to their countries of origin, excluding the worst 5 offenders, even if the countries don't want them back. Simultaneously issue a directive to all the Armed Forces, that if any previously released detainee is re-captured on the field of battle, he/she is to be shot on sight, out of hand, no exceptions.

Any objections?


The House of Saud might get upset.
6.12.2008 1:27pm
Richard Aubrey (mail):
If we consider they were soldiers and potentially POWs, they should/would have been executed on capture due to gross offenses against GC. Lucky for them we didn't consider them soldiers.
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.
6.12.2008 1:28pm
omarbradley:
MarkField,

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?
6.12.2008 1:30pm
anomie:
So the Supreme Court is now ruling that all of those prisoners were entitled to habeas.


Where did is make such a ruling?
6.12.2008 1:34pm
omarbradley:
I also wonder if we now see the reason for Jsutices like Stevens and Breyer going with the conservatives in cases like Baze and Crawford and Medellin and Williams Perhaps they were trying to show Kennedy they weren't doctrinaire liberals and were willing to compromise in an effort to get him to do the same in this case.

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.
6.12.2008 1:37pm
Humble Law Student (mail):
Can anyone tell from the opinion what the basis is for where the writ runs? In other words, is it solely because of de jure or de facto control over territory? Or, is it more of a structural restriction on government, so the writ can run to a place regardless of the status of the territory in question (with only military exigencies, etc. as a barrier)

I can't tell offhand.
6.12.2008 1:39pm
jrww (mail):

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.

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.
6.12.2008 1:43pm
ZFR (mail):
The reason this struggle has to go on is the the 'Human Rights' crowd will never give up until the terrorists we catch on the battlefield are at liberty inside the United States. That is where all this is going. It has already happened in Europe, in the following way:

- 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.
6.12.2008 1:43pm
Sarcastro (www):
For possible terrorists (you know who you are) there is only eternal detention or death!

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.
6.12.2008 1:44pm
frankcross (mail):
Just for the factual record, the great majority of these guys weren't captured on the field of battle. The US admits that.

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.
6.12.2008 1:44pm
AntonK (mail):
From the decision today: After describing a passage from the last round of GTMO cases, where the court had said that the president has to consult with Congress on how to deal with the detainees, he writes: "Turns out they were just kidding."

Ha!
6.12.2008 1:46pm
This Is What You Want, This Is What You Get:
Like all former great civilizations, ours too will be done in by its own hand. Such is the way of history.
6.12.2008 1:49pm
advisory opinion:
I thought Roberts' dissent superb, and renders Kennedy's baroque opinion silly-looking by comparison. Shorter Roberts: "Kennedy, J., has opened a can of activist worms for later consumption."
6.12.2008 1:58pm
advisory opinion:
Since the "global war on terrorism" does not have a defined enemy, it can continue in perpetuity.

Incorrect. Read the AUMF (2001).
6.12.2008 2:00pm
Alex Denmark (mail):

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.


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.
6.12.2008 2:02pm
William Spieler (mail) (www):
The laws and Constitution are designed to survive, and remain in force, in extraordinary times.


A direct refutation of "The Constitution is not a suicide pact?"
6.12.2008 2:05pm
DangerMouse:
Scalia says in his dissent that "The Nation will live to regret what the Court has done today."

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.
6.12.2008 2:06pm
Oren:
From the decision today: After describing a passage from the last round of GTMO cases, where the court had said that the president has to consult with Congress on how to deal with the detainees, he writes: "Turns out they were just kidding."
The previous round didn't say Congress could come up with any scheme whatsoever. What if Congress replaced the MCA with the following procedure:


Detainee will roll (or, if he refuses, a JAG will appointed to roll for him) a 6 sided die. 1-3: indefinite detention, 4: release to any country that will take him, 5: release to anywhere outside US control the detainee wishes, 6: instant execution.


Surely such a procedure would not satisfy you, even though the Court told Congress they could make the rules.
6.12.2008 2:08pm
AndrewK (mail):
I agree that the Robert's dissent was "superb." What pains me is how the procedural checks are designed to find the most appropriate time and place to vindicate a right, but the majority opinion seems to feel that rights need to be vindicated in a vacuum, absent any showing of actual systemic failure.

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.
6.12.2008 2:08pm
EIDE_Interface (mail):
We just need to get to $5/gallon gas before nobody cares about Gitmo anymore.
6.12.2008 2:09pm
Howard Gilbert (mail):
"If one is not a POW (covered by GC 3), then one is a civilian (covered by GC 4)." This would be correct if you limit it to enemy nationals. All enemy nationals in our custody are covered by GC 4. In its text, GC 4 explicitly excludes our own nationals or those of neutral or allied nations. So only Afghan citizens fall under GC 4, and there are few (maybe no) native Afghans in Gitmo.

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.
6.12.2008 2:09pm
Oren:
DangerMouse, your very low opinion on the survivability of this nation speaks volumes. I have no doubt we could survive even the absurd parade of horribles that you've mentioned (despite the fact that they will certainly not come to pass).

We are not as weak as you suggest.
6.12.2008 2:10pm
Sarcastro (www):
Hearken to what "This Is What You Want, This Is What You Get" says!

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!
6.12.2008 2:13pm
Oren:
absent any showing of actual systemic failure.
Anyone familiar with the operation of the CSRTs is already acutely aware of their "systemic failure".
6.12.2008 2:16pm
omarbradley:
what would happen if the govt transferred these detainees from Gitmo to Bagram or the prison at baghdad airport?

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.
6.12.2008 2:18pm
SG:
Why don't the Supremes just go all the way and just declare the AUMF (2001) unconstitutional? After all, there's hardly ever been a war this long and it's not against a nation-state so the lack of a precedent on point ought to be no barrier.
6.12.2008 2:18pm
So:
omarbradley:


This term alone, [Kennedy will] be with the liberals here, but with the consrevatives in Medellin, Baze, Stoneridge, Crawford, Williams, and Heller.


Ha ha ha. You wish.
6.12.2008 2:18pm
Repeal 16-17 (mail):
Today, along with Boumediene v. Bush, the Court decided Munaf v. Geren. In that case the Court, unanimously, ruled that American forces could transfer captives to the Iraqi government for trial on charges of committing "hostile and warlike acts" in Iraq (quoting Opinion of the Court in Munaf).

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.
6.12.2008 2:22pm
The Unbeliever:
Detainee will roll (or, if he refuses, a JAG will appointed to roll for him) a 6 sided die. 1-3: indefinite detention, 4: release to any country that will take him, 5: release to anywhere outside US control the detainee wishes, 6: instant execution.

Surely such a procedure would not satisfy you, even though the Court told Congress they could make the rules.
Of course it wouldn't. As proposed the statute doesn't allow the defendant to apply his Charisma modifier to the roll; and what if he's wearing a +1 Ring of Political Influence, which affects his saving throw vs non-magical holds?

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.
6.12.2008 2:26pm
DangerMouse:
Oren,

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.
6.12.2008 2:26pm
DangerMouse:
Why don't the Supremes just go all the way and just declare the AUMF (2001) unconstitutional? After all, there's hardly ever been a war this long and it's not against a nation-state so the lack of a precedent on point ought to be no barrier.

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.
6.12.2008 2:29pm
Richard Aubrey (mail):
Sarcastro.
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.
6.12.2008 2:30pm
Sarcastro (www):
We should get rid of paper and run an organization entirely with people power. REAL civilization is about soldiers, and nothing else!

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!
6.12.2008 2:31pm
ejo:
we are not as weak as you suggest-unfortunately, we won't know that until it is too late. do you think we can continue to spot points to our enemies indefinitely but never pay any consequences? if you do, you are either deluded or engaged in wishful thinking. not only was this not done in the past, it again gives greater rights to those who defied the rules of war than those who followed them, thus encouraging guess what kind of conduct. by the way, fc, even a biased report put out by a mouthpiece for terrorists wasn't consistent with your claim.
6.12.2008 2:33pm
advisory opinion:
Anyone familiar with the operation of the CSRTs is already acutely aware of their "systemic failure".

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.
6.12.2008 2:35pm
Commenterlein (mail):
"Operationally, it would be easy for hordes of Islamic radicals to sneak across our open borders and blow themselves up in major public areas."

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.
6.12.2008 2:36pm
ejo:
is their any limitation on this right-I have read thoughts on whether actual POW's will have hc rights as well. is there any compelling reason why their plight would be of less concern to this court as it continues down the slippery slope of sticking its nose into an area where it knows nothing?

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.
6.12.2008 2:37pm
Sarcastro (www):
Richard Aubrey just blew my mind. Liberals presume all infringements to be the Terrorists winning, but then Conservatives say that the Terrorists will win UNLESS we infringe means the Terrorists always win!

I, for one, blame logic!

Goodbye, sweet America!
6.12.2008 2:38pm
DangerMouse:
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.

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.
6.12.2008 2:40pm
Noops (mail):

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.


That's an interesting statement, since the people doing the protecting are, in fact, designated (by oath), to protect the piece of paper.
6.12.2008 2:42pm
ejo:
ooo, the scary brown people card, I take back everything I have said. throw in the word bedwetter-but, before you do, tell us what you did on the morning of 9/11. call a loved one? surely not given that you are full of courage and not a bedwetter, right? oops, I missed the word "fascism"-now I am scared that we are going down that path. managed to blow up two buildings-is that all. why, you are right-I think we should give those enemies which exist in our neocon fantasy world a big hug.
6.12.2008 2:43pm
DangerMouse:
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.
6.12.2008 2:44pm
ejo:
you know, I bet more people die from slips in bathtubs than on 9/11-we should be fighting bathtub slips rather than islamic terror, right CL?
6.12.2008 2:45pm
Noops (mail):

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.
6.12.2008 2:47pm
AntonK (mail):
Orin is a little short on "key" quotes. From Scalia:

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60--61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

6.12.2008 2:48pm
This Is What You Want, This Is What You Get:
Oren: Well said. Although I believe you are just paraphrasing what many an emperor, king and czar has said in the past on numerous occasions.
6.12.2008 2:49pm
chas (mail):
so i guess the military will just stop taking unlawful combatants prisoners. someone remind what the geneva conventions allows as punishment for a beligerent not wearing a uniform or otherwise complying w/ the rules of war? im sure the libs will have no problems w/ whatever that remedy is.
6.12.2008 2:49pm
Mike M. (mail):
Ultimately, all this is about the failure of the Bush Administration to wage lawfare instead of warfare. Had they waged honest war, every person taken prisoner would have been categorized as either:

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.
6.12.2008 2:49pm
Zaggs (mail):
"Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law"

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.
6.12.2008 2:49pm
omarbradley:
so in the end, what did this accomplish. there will be now be 270 habeas petitions flooding the dc district court. That amounts to each judge having about 20 or so petitions to deal with. no one will be released, and the csrts will continue as planned, along with the military commissions.

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".
6.12.2008 2:53pm
Sarcastro (www):
Cars also cause Americans to be killed. The Supreme Court's recognition of the right to travel will almost certainly cause more Americans to be killed.

The killer SCOTUS strikes again!
6.12.2008 2:53pm
Robert West (mail) (www):
Humble Law Student: i'm not done reding it, but it looks to me as though the Court is saying that hte writ runs to Guantanamo because we have de facto sovereign control over it. There's an argument Kennedy makes which says basically, if that weren't the case, the government could sell any unincorporated territory to a foreign power while leasing it back, and then exercise dictatorial control over that territory ... which can't be what the framers intended.
6.12.2008 2:53pm
Richard Aubrey (mail):
sarcastro.
Wrong again. Your schtick is taking over your mind. At least your reading comprehension.
6.12.2008 2:53pm
DangerMouse:
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.

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.
6.12.2008 2:54pm
Zaggs (mail):
Mike M. Look above about the POW argument. If you argue that terrorists are POW's then you no longer have rules for combatants to follow as those in gitmo meet no requirements (well most don't) of what a lawful combatant is according to geneva. Then anyone can hide amongst civilians and throw out a bomb using said civilians as cover. People forget that there are 2 reasons behind the geneva conventions not just 1. The first is the obvious goal to protect prisoners. The 2nd is the less obvious warning, follow the rules or suffer the consequences. If geneva was meant to cover everyone they would not have bothered to define who could be what.
6.12.2008 2:58pm
Wilson:
I think today is the day I decided to vote for a Democrat for president for the first time. If what I'm reading here and elsewhere is any indication, the conservative movement has become our nation's greatest single threat to the rule of law. Osama can kill people, but it is only with the help of the Republicans that he can turn America into a garrison state.
6.12.2008 2:58pm
AndrewK (mail):

Anyone familiar with the operation of the CSRTs is already acutely aware of their "systemic failure"


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.
6.12.2008 2:59pm
ejo:
fundamental tenet-given that we are now extending rights never before extended to enemies in a time of war, what fundamental tenet dating back to the birth of our republic are we talking about? perhaps one of you big brave non-bedwetting not irrationally frightened of brown building demolition/urban clearing experts can enlighten us?
6.12.2008 3:04pm
ejo:
actually, I expect you were voting Dem anyway, so spare us. turning us into a garrison state-you might want to go back and read history about what having an enemy who wants to destroy us does to a country. usually, it helps to focus it on what's important, like survival (see WWII, for instance). ring any bells?
6.12.2008 3:09pm
frankcross (mail):
One question for the conservative critics of the decision. You (and Scalia's dissent) seem very focused on the pragmatic effect of this decision for our anti-terror programs. Yet conservatives seem to oppose consideration of such threats with typical claims about originalism and the rule of law. How do you reconcile this? Now it may be that the conservative side is right about originalist interpretation, but all this handwringing about terrorist threats would seem irrelevant to the conservative position on originalism and the rule of law. Shouldn't you be making originalist or textual criticisms, rather than talking about terrorists?
6.12.2008 3:11pm
frankcross (mail):
One question for the conservative critics of the decision. You (and Scalia's dissent) seem very focused on the pragmatic effect of this decision for our anti-terror programs. Yet conservatives seem to oppose consideration of such threats with typical claims about originalism and the rule of law. How do you reconcile this? Now it may be that the conservative side is right about originalist interpretation, but all this handwringing about terrorist threats would seem irrelevant to the conservative position on originalism and the rule of law. Shouldn't you be making originalist or textual criticisms, rather than talking about terrorists?
6.12.2008 3:11pm
The Unbeliever:
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.
Nonsense. Lawyers make great ablative armor and human shields when the bullets start flying.

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.
6.12.2008 3:19pm
PC:
throw in the word bedwetter-but, before you do, tell us what you did on the morning of 9/11.


"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.
6.12.2008 3:23pm
MarkField (mail):

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?


I can't answer this without knowing the extent of his torture.
6.12.2008 3:23pm
DangerMouse:
Shouldn't you be making originalist or textual criticisms, rather than talking about terrorists?

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.
6.12.2008 3:25pm
Perseus (mail):
Since many countries do not want these detainees back, perhaps Justice Kennedy and his cohorts will volunteer to host them when they are released.
6.12.2008 3:26pm
MarkField (mail):

what would happen if the govt transferred these detainees from Gitmo to Bagram or the prison at baghdad airport?


Marty Lederman discusses that issue here.
6.12.2008 3:27pm
wfjag:
What I take away from the majority opinion is that it will undoubtably increase the sales of Prof. Goldsmith's new book. His thesis, that the GWOT is the most overly lawyered and poorly lawyered conflict in US history, is well documented as to the Executive and Legislative branches. Using this decision, he can extend his argument to include the Judiciary when the paperback version comes out, and those who read the hardback will have to go out and buy the paperback.
6.12.2008 3:31pm
omarbradley:
Mark Field,

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?
6.12.2008 3:37pm
advisory opinion:
And yet Neal Katyal has claimed, on an ASIL panel, that he sought for petitioners only habeas in Gitmo because of its unique territorial status; and would not go beyond that, to say, Bagram.

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.
6.12.2008 3:38pm
frankcross (mail):
No, dangermouse, Scalia doesn't make those arguments. The majority is heavily originalist, Scalia has but a throwaway line with little analysis or response.

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.
6.12.2008 3:53pm
Uncle Fester (mail):
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.
6.12.2008 3:53pm
advisory opinion:
No, dangermouse, Scalia doesn't make those arguments.

Actually he does. He textually dissects the majority's contrived rendering of Eisentrager. Try reading the dissent?
6.12.2008 4:00pm
Richard Aubrey (mail):
Uncle Fester.
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.
6.12.2008 4:02pm
MarkField (mail):

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?


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.
6.12.2008 4:03pm
Don de Drain:
I am curious about a point discussed by omarbradley and CJ Roberts, i.e., the statement that it is a waste of time to have the cases begin in District Court as habeus proceedings and then have the cases be appealed to the Court of Appeals, when instead the Supremes could have just let the DC Court of Appeals issue a ruling without further proceedings at the trial level.

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.
6.12.2008 4:04pm
DangerMouse:
You may be on to something about arguments mattering. But that's a criticism of originalism.

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.
6.12.2008 4:04pm
ejo:
if you witnessed the Towers go down yet support policies and procedures that will lead to our enemies killing even more people in the future, I am afraid that you will be able to exercise this same compassion (or someone else will) when all is said and done. again, we have never granted our enemies such rights in the past. apparently, many in our country have deluded themselves into believing we can never lose or 9/11 was the worst that could happen. I suspect they are wrong but I wouldn't expect an admission of error when it happens.
6.12.2008 4:06pm
frankcross (mail):
advisory opinion, Eisentrager was a 20th century case, and while Scalia analyzes it, his analysis has little originalism about it. You should try reading it. Feel free to quote anything substantial
6.12.2008 4:07pm
frankcross (mail):
I should retract a little, because Scalia does have some legitimate originalism, though less than the majority, but that wasn't my point. My point was that the arguments made by conservatives about terrorism, and the whole first section of Scalia's opinion on terrorism, are utterly irrelevant to originalist interpretation. The question is: why would originalists dwell on such an irrelevancy?
6.12.2008 4:11pm
advisory opinion:
frankcross, you said "originalist or textual criticisms". His analysis of Eisentrager was a textual analysis. I didn't say anything about originalism.

Try reading yourself with a degree of comprehension first, then read the dissent.
6.12.2008 4:12pm
Noops (mail):

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."


Nice case of misdirection. Are you telling me that Habeas Corpus isn't a fundamental tenet of our system of law?
6.12.2008 4:16pm
DangerMouse:
My point was that the arguments made by conservatives about terrorism, and the whole first section of Scalia's opinion on terrorism, are utterly irrelevant to originalist interpretation. The question is: why would originalists dwell on such an irrelevancy?

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.
6.12.2008 4:17pm
frankcross (mail):
advisory opinion, you might work on your reading comprehension. I said "originalist or textual criticisms" in reference to posters on this board, not in reference to Scalia. So your criticism of my reading comprehension is wrong, while yours seems to be off.

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.
6.12.2008 4:19pm
DangerMouse:
Are you telling me that Habeas Corpus isn't a fundamental tenet of our system of law?

Tell you what: why don't you find out if the Barbary pirates had habeus corpus rights, and then get back to me. Thanks.
6.12.2008 4:19pm
Richard Aubrey (mail):
MarkField

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.
6.12.2008 4:20pm
Sarcastro (www):
DangerMouse, this is the internet. Arguing ALWAYS matters.

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.
6.12.2008 4:23pm
ronnie dobbs (mail):

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.


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.
6.12.2008 4:29pm
AngelSong (mail):
Has anyone else noticed that every time the conservatives lose on one of their pet issues, we end up with all of these hysterical cry-baby rants/dissents about how the sky is going to fall and civilization will end as we now know it?
6.12.2008 4:30pm
Oren:
J. Scalia writes:
[Al Qaeda] has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one.
The large reaction to a purported threat proves that it's serious? Really? By that logic, I can make anything into a "serious threat" under his standard just by taking measures against it.

Of course, only liberal Justices invert the customary laws of logical reasoning to support their points . . .
6.12.2008 4:30pm
advisory opinion:
frankcross, no you weren't.

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.
6.12.2008 4:31pm
Sarcastro (www):
I like to judge most of our policies by the standards of the early 1800s. The Constitution and civilzation have only changed for the worse since then.
6.12.2008 4:34pm
MarkField (mail):

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."


Sure that's possible. I already agreed with that. Of course, it's also possible that the case would be dismissed for prosecutorial misconduct.
6.12.2008 4:38pm
Don de Drain:
The majority ruling in this case is a direct result of the politicizing of the how the folks who have been held at Gitmo are treated. There is no question that key elements within the executive branch have politicized this process, witness the release of Hicks to Australia. Fortunately not everyone has put up with the politicization of this process, witness the military prosecutor who resigned and testified for the defense.

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.
6.12.2008 4:39pm
Noops (mail):
"Tell you what: why don't you find out if the Barbary pirates had habeus corpus rights, and then get back to me. Thanks."

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.
6.12.2008 4:39pm
frankcross (mail):
advisory, I can see your point now but don't run away. My series of posts could be interpreted either way, and your interpretation was entirely reasonable, though not what I meant. But instead of a pissing contest, why not engage the issue.

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.
6.12.2008 4:40pm
Richard Aubrey (mail):
MarkField.
Yeah. Possible. Another win for the liberals. But this one would probably be legitimate. As if that mattered.
6.12.2008 4:41pm
DangerMouse:
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.

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.
6.12.2008 4:45pm
Chimaxx (mail):
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.


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?
6.12.2008 4:56pm
anomie:
I wouldn't go so far as you, DangerMouse. While one of the main points of originalism is to make a claim to be objective, it isn't the entire point.
6.12.2008 4:56pm
ejo:
how can one give a generic answer to such a proposition-I would imagine many conservatives would be both shocked and pleased if Obama aggressively went after enemies who attacked this country and murdered thousands of citizens while plotting to murder many more. I certainly can't think of a way, using your analogy, that my rights have been curtailed or limited by anything that has occurred in Gitmo. In fact, I would venture a guess that my safety and security have been strengthened, not weakened. Let us now turn it around-if, as Scalia posits, this full flowering of hc to foreign fighters results in the deaths of americans, how many deaths would be too much, even for a court or committed unthinking liberal? is there a number that is too much or is the thought irrelevant?
6.12.2008 5:00pm
ejo:
purported threat? reaction to a couple of buildings coming down? that constitutes the liberal mindset these days? no wonder the decision came down on the terrorist side of the spectrum-if you can forget about thousands of deaths and continuing threats in such a short period of time, you can justify anything.
6.12.2008 5:08pm
DangerMouse:
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?
6.12.2008 5:09pm
Wilson:
actually, I expect you were voting Dem anyway, so spare us

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.
6.12.2008 5:10pm
Oren:
ejo, the "purported threat" comments refer to the fact that AQ is simply not an existential threat to the US. I have yet to see any plausible hypothetical scenario in which terrorists manage to get anywhere near destroying the US as a country.
6.12.2008 5:16pm
Cousin Dave (mail):
frank: "No, dangermouse, Scalia doesn't make those arguments. The majority is heavily originalist, Scalia has but a throwaway line with little analysis or response."

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.
6.12.2008 5:22pm
Grover Gardner (mail):

tell us what you did on the morning of 9/11


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.
6.12.2008 5:23pm
wfjag:

Ah, yes. All those Germans and Japanese we designated as "illegal enemy combatants" and held without charges indefinitely. Now I remember.


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.
6.12.2008 5:24pm
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.
6.12.2008 5:26pm
frankcross (mail):
cousin dave, the majority opinion contains pages of originalist analysis, much involving the exceptions clause. You can disagree with it, but you can't pretend it's not there.

Though your reference to precedent makes me think you may not understand originalism
6.12.2008 5:36pm
Russ (mail):
Has anyone else noticed that every time the conservatives lose on one of their pet issues, we end up with all of these hysterical cry-baby rants/dissents about how the sky is going to fall and civilization will end as we now know it?

Hello Pot, I'm the Kettle...
6.12.2008 5:44pm
ejo:
do you mean like the hysterical rants that we are heading down the road toward fascism by not extending rights never before extended in a time of war to belligerents-because the left never does that, no sir.
6.12.2008 5:53pm
Justice Kennedy should be impeached (mail):

Frank Cross: 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.



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?
6.12.2008 5:57pm
ejo:
nope, I think everyone was afraid, just like you were, not sitting 7 years after the fact puffing their chests out about what he man non bed wetters they are-time has added a veneer of dutch courage to those that think that the events of 9/11 can't be repeated. we made mistakes before the event which led to those deaths-we continue to make mistakes that could cause it to happen again, here and around the world. a decision like this is one of them-9/11 wasn't a tornado, it was man made and those same men are out there plotting world wide.
6.12.2008 5:58pm
Dogwood (www):
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?

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.
6.12.2008 6:00pm
Oren:
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.
Actually, I agree but the fact is that the process up till this point was so absurdly stacked against the detainee and had such questionable oversight, that I support the decision as being the lesser of two evils.

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. . .
6.12.2008 6:19pm
MarkField (mail):

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.


And, of course, we're proud of that today.
6.12.2008 6:23pm
Grover Gardner (mail):

nope, I think everyone was afraid, just like you were, not sitting 7 years after the fact puffing their chests out about what he man non bed wetters they are



I'm afraid you got the wrong impression from my comment. No matter, it's wasted breath to bother clarifying.
6.12.2008 6:29pm
Don de Drain:
Dogwood--

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.
6.12.2008 6:47pm
PJM (mail) (www):
Scalia writes, brilliantly and sarcastically: "Turns out they were just kidding."
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.
6.12.2008 6:57pm
bonhomme (mail):
Dogwood--

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.
Are you actually arguing that you know the Supreme Court was incorrect, but that because the sitting President acts extra-legally the Supreme Court should as well? Wow! An adult arguing the Two Wrongs Make a Right fallacy.
6.12.2008 7:03pm
PJM (mail) (www):
"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."

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?
6.12.2008 7:12pm
Oren:
.. matters best decided by political branches.
Woe is to us if the Supreme Court actually buys in to the farcical (I had hoped) argument that the provisions of the Constitution that limit the power of the political branches are matters to be decided by those same political branches.

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.
This proves only that human history is rotten, not that Congress is sweet.
6.12.2008 7:38pm
Don de Drain:
bonhomme-- The comment I responded to: "Bottom line, HC should not apply to our country's enemies" expressed that writer's opinion about what he thought the Constitution should say, not whether the majority opinion of the Supremes was "right" or "wrong." My comments were addressed to that writer's opinion as to what "should" be. I did not interpret his comments as saying "this is what I think the Constitution says" but rather "this is what the Constitution should provide". If I interpreted his comment incorrectly, you all have my apologies.

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.
6.12.2008 8:01pm
Perseus (mail):
Woe is to us if the Supreme Court actually buys in to the farcical (I had hoped) argument that the provisions of the Constitution that limit the power of the political branches are matters to be decided by those same political branches.

Quis custodiet ipsos custodes?
6.12.2008 8:07pm
DangerMouse:
I want to get the bad guys as much as anyone.

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.
6.12.2008 8:16pm
jukeboxgrad (mail):
Commenterlein: "Reading the comments on this thread really drives home how democracies decent into fascism in face of real or imaginary external threats."

Some prior commentary on this point, by an expert:

Of course the people don't want war. But after all, it's the leaders of the country who determine the policy, and it's always a simple matter to drag the people along whether it's a democracy, a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger.


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.
6.12.2008 8:34pm
AntonK (mail):
After reading commentary on today's decision from all sides of the political spectrum, one thing emerges as clear: Justice Kennedy should be impeached.
6.12.2008 8:46pm
Oren:
The hysterical bedwetters tend be concentrated in areas that have never been targeted, and are not likely to ever be targeted in the future.
I think you underestimate the terrorist threat to rural Wyoming, dear sir!
6.12.2008 9:34pm
jukeboxgrad (mail):
Exactly. I also think AQ has plans to blow up a trailer park in West Virginia.
6.12.2008 9:52pm
MarkField (mail):

In fact, a large part of the liberal left thinks that the "bad guy" is America. And that liberal left includes liberal Judges.


Do you realize how you discredit yourself with statements like this?
6.12.2008 10:33pm
estebanj (mail):
Am i missing something here? Article 2 Section 2 says Congress can create inferior federal courts, and surely implicit in that power is the power to limit their jurisdiction (e.g., federal bankruptcy courts are limited to hearing bankruptcy-related cases).

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?
6.12.2008 11:13pm
jukeboxgrad (mail):
mouse: "a large part of the liberal left thinks that the 'bad guy' is America"

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.
6.12.2008 11:18pm
Richard Aubrey (mail):
MarkField.

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.
6.12.2008 11:19pm
Michael B (mail):
This, from jukeboxgrad:

"Some prior commentary on this point, by an expert:"
"Of course the people don't want war. But after all, it's the leaders of the country who determine the policy, and it's always a simple matter to drag the people along whether it's a democracy, a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger."
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.
6.12.2008 11:24pm
DangerMouse:
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.

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.
6.12.2008 11:34pm
Perseus (mail):
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.

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.
6.12.2008 11:45pm
PJM (mail) (www):

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.

This proves only that human history is rotten, not that Congress is sweet.

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.
6.13.2008 12:13am
LM (mail):
Oren:

The hysterical bedwetters tend be concentrated in areas that have never been targeted, and are not likely to ever be targeted in the future.

I think you underestimate the terrorist threat to rural Wyoming, dear sir!

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.
6.13.2008 12:22am
Oren:

Am i missing something here? Article 2 Section 2 says Congress can create inferior federal courts, and surely implicit in that power is the power to limit their jurisdiction (e.g., federal bankruptcy courts are limited to hearing bankruptcy-related cases).

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?

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).
6.13.2008 12:53am
PJM (mail) (www):

One question for the conservative critics of the decision. You (and Scalia's dissent) seem very focused on the pragmatic effect of this decision for our anti-terror programs. Yet conservatives seem to oppose consideration of such threats with typical claims about originalism and the rule of law. How do you reconcile this?

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.
6.13.2008 12:54am
Oren:
I should add that, by default, most laws and contracts are considered void if any provision is void in order to avoid unintended consequences and to preserve any pre-deal bargaining.
6.13.2008 12:54am
LM (mail):
DangerMouse:

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.

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?
6.13.2008 1:16am
Michael B (mail):
"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."

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.
6.13.2008 1:27am
PJM (mail) (www):
"So when the majority of the population disagrees with the government, they all hate America? "

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.
6.13.2008 3:03am
Grover Gardner (mail):

If I say 'goddamn that awful 5-court ruling majority', I am disagreeing with a Government decision.


True. But if you say these things...


"If the 'anti-government' types here hadn't seen, over the years, myriad examples of the government doing utterly stupid, immoral things in situations like these, maybe they wouldn't have such strong opinions on whether the government can really handle such a case as this one."

"The government has totally ignored every rule and law that is suppose to protect people against wholesale fishing raids like these."

"While still better than much of the world, the government continues to place themselves in a position of superiority rather than behaving as the servants they actually are."

"The government has a well-documented history of making stuff up after the fact to justify what they already did."

"Calling adolescents 'children' just one more example of the government's increasingly successful effort to infantilize everybody."

"This is what you get when you let the government get out of control."

"…CPS is the closest thing that we have to a Gestapo in this country…"

"If the 'child protection' Nazis can get away with seizing these children on such a flimsy pretext, then nobody's children are safe from them."

"Just add, that the TX Gestapo pays competitive religious groups to 'take care' of children."


...you sound more like Jeremiah Wright.

(Quotes courtesy conservative commenters on VC.)
6.13.2008 4:42am
Richard Aubrey (mail):
PJM. The cases you cite of Gitmo detainees going back to their old ways once freed are a feature, not a bug. Get with the program, willya? To put it another way, that's the idea.

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.
6.13.2008 7:32am
Richard Aubrey (mail):
Grover. Missed again. Do you fall over after whiffing so badly?
Those quotes were about the government, not the country. But you probably quite honestly have no idea of the difference.
6.13.2008 7:38am
jukeboxgrad (mail):
michael: "subject matter that has no precedent"

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).
6.13.2008 10:18am
jukeboxgrad (mail):
Perseus: "given the cult of personality that has arisen around his personage"

I guess you mean like this. Or this. Or this.
6.13.2008 10:18am
jukeboxgrad (mail):
richard: "let's see LM get lied about one tenth as much as Bush does and check his popularity rating"

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?
6.13.2008 10:18am
Michael B (mail):
"I showed that what Bush has been doing has a precedent." jukeboxgrad

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.
6.13.2008 11:14am
jukeboxgrad (mail):
michael: "so many exchanges begin at the most rudimentary, '1 + 1 = 2' level"

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.
6.13.2008 11:27am
Michael B (mail):
Yea, I'll also let you know if I think the moon isn't made of green cheese, and spend a great deal of time attempting to convince various Left/Dems of that notion.

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.
6.13.2008 11:42am
Ray Fuller (mail):
Whatever happened to the doctrine of "political question" in the Supreme Court's recent jurisprudence? Just how does the Court arrogate to itself the power to contradict the executive and legislative branches on issues of treaty (the Geneva Conventions) and war, powers uniquely assigned to the other two branches by the Constitution? Truth be told, if the other two branches did not voluntarily accede to the Court's decision on habeas corpus here, there would be absolutely no way of enforcement, and the Court's own authority and legitimacy would thereby be undermined. The sad thing is that Justice Scalia warned Bush 5 years ago about his failure to obtain a legitimate, congressionally-approved war tribunal regime. The sadder thing is that the terrorists will be liberated from Gitmo by the next President, automatically repatriated to the U.S. mainland for trial (military or criminal), and ultimately released into our communities (due to their family or national connections and wealth, just like American celebrity and rich criminals). They will successfully claim political asylum (like the Egyptian and Chechnyan Islamoterrorists still harbored within this country), because of the threat of torture or violation of their human and legal rights in their homelands. Then they will, irony of ironies, have accomplished entry into the USA, to plan and conduct terror attacks more directly than from abroad. Unfortunately, at some point, perhaps of necessity, Americans will revert to their tradition of extra-judicial vigilantism, and we will face the problem of death squads within this country, to target mosque-based imans advocating violence under the guise of religious freedom, and terrorist cells already implanted by Al-Queda, Iran and other countries. Americans are practical and common-sensical, and will not permit their Constitution to doom them to a suicide pact, Supreme Court or no. I say this as a liberal Democrat, who deeply believes in civil liberties as well as full legal rights for those accused of crimes. I just don't believe in the same for non-citizens, non-residents reasonably suspected of terrorism against my country and my fellow Americans. They would make a mockery of our criminal courts and legal system (as if they have not already), and they surely pose a very real lethal threat to the lives and liberties of us all. Just consider not only what fewer than two dozen men did on 9/11, but also how easily terrified our country had become from an anthrax "attack" (unsolved) or two snipers operating for a few weeks in Virginia and its Washington suburb environs. Americans may today lack the courage of the pioneers, no less the wisdom of our founding fathers.
6.13.2008 12:04pm
PJM (mail) (www):
"The point I made here is that a corrupt leader can always excite support by raising fear of attack"
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.
6.13.2008 12:13pm
Grover Gardner (mail):

But you probably quite honestly have no idea of the difference.


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.
6.13.2008 12:13pm
SG:
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.

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?
6.13.2008 12:20pm
Grover Gardner (mail):

So which is it? Is Bush guilty of ignoring a serious threat, or is he guilty of exaggerating a non-existent one?


It's entirely within the realm of human possibility to do both.
6.13.2008 12:26pm
ejo:
bedwetters are from areas not targetted-Michael Moore made the same point in chastising his heros for attacking a city where the citizens didn't vote for Bush, with the unspoken thought being that it would have been perfectly legitimate to what, bomb a Republican stronghold. it doesn't matter-our enemies didn't care and don't care, they will still kill you. As to the great pride taken by some in assisting our enemies in killing their fellow citizens, I can't imagine a similar group operating in this country to assist nazis in 1943-now, it has been transformed into something to be proud of.
6.13.2008 12:41pm
MarkField (mail):
Ray, you left out the DH rule as a key moment in the Decline of the West.
6.13.2008 12:44pm
ejo:
by the way, was it fearmongering during WWII when workers were told to keep their mouths shut and "loose lips sink ships"? apparently, knowing that we had actual enemies that wanted to destroy us sunk in after Pearl Harbor-now, a similar event is derided as building demolition gone awry or something to not even worry about (and that's by folks in New York).
6.13.2008 12:52pm
jukeboxgrad (mail):
michael: "green cheese"

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).
6.13.2008 1:08pm
jukeboxgrad (mail):
sg: "So which is it? Is Bush guilty of ignoring a serious threat, or is he guilty of exaggerating a non-existent one?"

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.
6.13.2008 1:08pm
ejo:
is quoting oneself "proof" of anything other than one's dementia? I realize the nazi stuff bothers the left-after all, that was an age when evil was recognized and it was thought that defeating it might be "good". today, in our more nuanced and moral view of the world, that would be so just so republican.
6.13.2008 1:31pm
Thomass (mail):
jrww (mail):

"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....
6.13.2008 2:38pm
Clayton E. Cramer (mail) (www):
I think the message that the Court is sending here is: "Take no prisoners."
6.13.2008 5:22pm
Clayton E. Cramer (mail) (www):

If they are not POWs, what are they?
Enemy unlawful combatants. In previous wars, both sides have summarily executed enemy unlawful combatants. The Bush Administration, in trying to be liberal, opened up the door to this.

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.
6.13.2008 5:25pm
estebanj (mail):
Scalia made what struck me as a good point in his dissent when he noted that the hundreds of thousands of german/japanese POWs kept on US soil had no right to plead habeas in federal court, and heck by the Geneva Convention POWs have HIGHER legal standing than "enemy combatants".

So if POWs don't have that right, how can EC's?
6.13.2008 6:58pm
Perseus (mail):
I guess you mean like this. Or this. Or this.

Just the sort of response I'd expect from a tiresome Kosack like yourself.
6.13.2008 10:17pm
jukeboxgrad (mail):
thomass: "They should have been tried as war criminals and shot long ago...."

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.
6.14.2008 7:15am
Richard Aubrey (mail):
juke
The "shopping" think is old, lame, overdone, and a non-sequitur.
Think of something else.
6.14.2008 9:56am
Perseus (mail):
unsubstantiated name-calling

Why I would have thought you'd be proud of your gracious Kos(ack) diary entries.
6.14.2008 3:04pm
jukeboxgrad (mail):
richard: "old, lame, overdone, and a non-sequitur"

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.
6.14.2008 10:45pm
jukeboxgrad (mail):
perseus: "Why I would have thought you'd be proud of your gracious Kos(ack) diary entries."

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.
6.14.2008 10:45pm
jukeboxgrad (mail):
I do want to point out the improvement you made in your answer, though. The gratuitous, unsubstantiated name-calling that you used as a poor substitute for a substantive response has now become only gratuitous name-calling that you used as a poor substitute for a substantive response. Big difference!

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?
6.14.2008 11:34pm
Richard Aubrey (mail):
juke.
"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.
6.15.2008 9:06am
jukeboxgrad (mail):
richard: "' Acting like we're not' has exacty what legal weight?"

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.
6.15.2008 3:36pm
Mark H.:
AntonK
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.
6.17.2008 1:00am