Breaking: Supreme Court says Gitmo detainees must have access to US courts Update: Scalia: “The Nation will live to regret what the Court has done today.”
posted at 10:45 am on June 12, 2008 by Ed Morrissey
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In a 5-4 decision, the Supreme Court ruled today that the unlawful combatants held at Guantanamo Bay in Cuba must have access to American courts to challenge their detention. The ruling eliminates three attempts by the Bush administration and Congress to establish military tribunals that would handle the adjudication of terrorist cases without involving access to the civilian justice system:
The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.
The justices handed the Bush administration its third setback at the high court since 2004 over its treatment of prisoners who are being held indefinitely and without charges at the U.S. naval base in Cuba. The vote was 5-4, with the court’s liberal justices in the majority.
Justice Anthony Kennedy, writing for the court, said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” …
In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”
Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.
This will probably derail the hearings that had just begun at Gitmo for six members of the 9/11 conspiracy. By granting the unlawful combatants habeas corpus, the court has now eliminated the main reason for the military tribunal system — and for that matter, Gitmo itself. If the detainees can access American courts, they may as well be held on American soil.
The previous two rulings that struck down the tribunals forced the government to quickly pass laws that allowed for them. The Supreme Court has basically ruled that the Constitution applies worldwide rather than just to the US and its residents, which makes it pretty difficult to go back to the well a third time. Also, with very little time remaining in the Bush administration, they will not have enough time to push through a third attempt to address the Court’s concerns — and this ruling appears to be much broader than the two that preceded this one.
It seems absurd to apply criminal law to unlawful combatants captured during hostilities abroad. Will they require a Miranda reading, too? Do we have to bring the soldiers and Marines who captured them to the trial? In our 232-year history, when have we ever allowed that kind of access to enemy combatants not captured inside the US itself?
Update: Bear in mind that we do not yet have the full opinion, and it may be less egregious than what we have heard thus far. However, the quote from Kennedy certainly suggests an expansive ruling.
Squid Shark says in the comments that the work-around would be to classify them as POWs and be done with it. That presents a few problems, too. It eliminates the status of unlawful combatant, which then encourages all forces to eschew uniforms, legitimate state backing, etc etc. The unlawful-combatant designation and its circumscribed rights in Geneva intended to penalize those who hide among civilians for their attacks. Are we now to forego that?
Update II: The opinion can be read here. From a cursory reading, the Court says that Congress cannot act to suspend habeas corpus except through the Suspension Clause, which requires an explicit act noting invasion or rebellion. Would infiltration suffice, or does Congress even need that much reason to invoke the Suspension Clause?
Scalia’s dissent is especially scathing:
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 separation-of-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 [sic] 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. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done today. I dissent.
Update III: I’ve read through both dissents, and I have to say that I’m struck by the tone of Scalia and Roberts. Not only do they dissent, they practically accuse the majority of deliberately misreading both law and precedent, especially regarding Eisentrager. They point out that the dissent in that case explicitly noted that the decision gave aliens in detention by American forces outside of our own sovereign territory no habeas rights at all, and yet the majority used it to apply those rights in this case. Roberts scornfully argues that the Court “cashiered” the military tribunal system before it had a chance to show that it addressed detainee rights properly.
I’d say that the end of this session couldn’t come quickly enough for these justices.
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For every Plessy v Fergeson there is a Brown v Board of Education.
Squid Shark on June 13, 2008 at 9:39 AM
Absolutely staggering.
Our branches of government are at war with each other, and with themselves.
JiangxiDad on June 13, 2008 at 9:22 AM
No doubt about that statement JD; and the Judicial branch just stepped on the Constitution big time, while making themselves law makers.
Question for all of us (Liberals included); what are we going to do about this? Liberals may be happy with this development right now, but if the SC turns Conservative, what are you going to say when the same happens against you. Bottom line here folks; as a nation and a democracy, we are in some real trouble…
Keemo on June 13, 2008 at 10:08 AM
One of the big problems with the last Israeli-Hezbollah clash was that the lawyers wer inserted into every step of the process of military command and civillian leadership. The Israeli Attorney General and the military Chief Judge Advocate were proud of this.
It’s time to stop taking prisoners will not work because the platoon or section lawyer (Commissar) will order them not to or, alternatively, charge them with murder.
Moving up the line. There are lawyers advising every chain of command. Who do you think is running the military.
The next logical step of the SCOTUS decision is what has just happened in the UK. The UK justice system has just ruled that a terrorist who was in jail has to be released because he has finishes his time. The courts also said he cannot be deported because his country of origin might, might, torture him (He is considered a ratbag over there as well). The guy is now free in the UK.
We have ratbags in Guantanamo, already released, who do not want to go home to China because the Chinese may have an interest in questioning them about terrorist actions.
We will free them to live among us.
davod on June 13, 2008 at 10:17 AM
what was that ruling that overturned Dred Scott?? oh yeah the civil war. Those decisions that our ‘gods’ the supreme court hand down from sinai are so ‘wise’ aren’t they?
so I totally disagree with your assertion. and the whole point is they should NOT have that kind of power.
its not constitutional, and our refusal over the centuries to reign in that power, shows that we are not a republic, or democracy.
right4life on June 13, 2008 at 10:25 AM
You continue to spout left wing garbage. Yes, the “whole system” which the Supreme Court has constructed, illegally and out of thin air, will collapse. And decision making will be returned to where it belongs – to the peoples elected representatives. That fact that you consider this to be a bad thing is what marks you out as a lefty.
flenser on June 13, 2008 at 10:26 AM
WTF is that supposed to mean?
I suspect that in your left wing mind, Plessy = bad, Brown = good.
The courts are not supposed to be in the business of deciding what is good and what is bad.
flenser on June 13, 2008 at 10:29 AM
It’s not centuries. This problem only began in the 1950’s. Of course, that’s long enough for people like Squidly here to get indoctrinated into the new system where there is only one branch of government which matters.
flenser on June 13, 2008 at 10:31 AM
And the fact that you cant see the forest for the trees marks you as a idiot.
Plessy was a crappy decision that was almost as reachy as yesterdays GTMO crap.
BTW, this will be my last respons to your stupid, I am tired of rolling around in the mud with a pig like you, Im getting dirty and it isnt Kosher.
Squid Shark on June 13, 2008 at 10:34 AM
Squid Shark on June 13, 2008 at 10:34 AM
+1
Limerick on June 13, 2008 at 10:36 AM
actually it has been since Marshall grabbed the power in marbury v madison. Jefferson was very upset by it.
“The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”
—Thomas Jefferson to W. H. Torrance, 1815. ME 14:303
right4life on June 13, 2008 at 10:36 AM
This is the problem, do you feel that there needs to be a method to interpret the Constitution as times change? If not the courts, who would hold that power.
I think constructionist judges are necessary to interpret the law withing te framework of the founders intentions.
Squid Shark on June 13, 2008 at 10:39 AM
what we need is an explicit amendment to the constitution that defines the congress as the ultimate arbiter of the constitution. and any ruling that the supreme court makes can be overturned by a simple majority of the house and senate.
right4life on June 13, 2008 at 10:39 AM
As dangerous as what is happening now. What if Congress throws out the 2d Amendment?
I understand where you are going, just want to make sure that reason and not emotion is the guidepost.
Limerick on June 13, 2008 at 10:42 AM
Then the people throw out Congress and elect a new one. The guardians of our liberties and rights are the people, not the government. And whatever some people think, the courts are the government.
flenser on June 13, 2008 at 10:45 AM
you mean like the supreme court threw out the 5th? the supreme court has a long history of grabbing power. I’d rather have that power in our elected representatives. at least we can get rid of them.
I would also set term limits on the court. no more than 10 years at each level.
Congess can remove power from the courts, but as with this entire mess, they grab it right back. its scary.
right4life on June 13, 2008 at 10:46 AM
threw out the 5th with the kelo decision…
right4life on June 13, 2008 at 10:46 AM
Exactly, but Jefferson would be a Constructionist today. Some of the founders would have likely thought it was a good idea on principle.
Squid Shark on June 13, 2008 at 10:47 AM
The President, and the Congress.
What is your objection to this? Why so anxious to give it to the courts?
flenser on June 13, 2008 at 10:47 AM
This may go through after this decision…
This might be what Sen Grahm was talking about yesterday.
Squid Shark on June 13, 2008 at 10:48 AM
Right,
Would you say Kelo thrww out the first or limited it. I dont think that the working of that case could be extended. Ill take another read on it later to be sure.
Squid Shark on June 13, 2008 at 10:50 AM
That’s a common misconception, but it’s not true. It was not until the 1950’s that the Court began down its current path.
As late as the forties, FDR was ordering the courts around. That was the norm for most of American history. The courts are supposed to be the least powerful branch.
flenser on June 13, 2008 at 10:50 AM
its long overdue. it would be the first good thing that fool Grahamnesty has done.
right4life on June 13, 2008 at 10:51 AM
You always make my day better Limerick
Squid Shark on June 13, 2008 at 10:51 AM
Trying to earn my mensch stripes.
Limerick on June 13, 2008 at 10:52 AM
so you think Jefferson was wrong? the court grabbed the power to interpret the constitution with marbury v madison. I don’t know what you’re talking about with the 50s.
Jackson told the court to try to enforce their ruling, he would not. its been going on for a long time.
right4life on June 13, 2008 at 10:52 AM
Are you Jewish, Squidly?
Incoherent nonsense. I’d like to think that the Navy has some minimum standards for intellectual ability in lawyers.
Mind you, I still find it hard to believe that somebody in the Navy, “working” for the taxpayer, can spend all day every day commenting on blogs. So it’s possible that everything you say is a lie.
flenser on June 13, 2008 at 10:56 AM
JIMV:
The Supreme Court decided the constitutionality of the MCA, which is their job. Simply passing the MCA does not automatically make it constitutional. The court decision regarded constitutionality:
“The primary issue determining whether the GITMO detainees are entitled to challenge their detention after the passage of the Detainee Treatment Act of 2005 and Military Commissions Act of 2006 is whether the detainees have a constitutional right to do so.”
“The practical effect of [the MCA provisions that you cite] is ‘to permanently deny aliens the right to challenge before an independent legal body the reasons, if any, for their imprisonment.’ As there can be no realistic argument that the MCA does not apply to the GITMO detainees’ habeas petitions, the stage is set for the Court’s resolution of whether the GITMO detainees have a constitutional right to challenge their detention, absent statutory authorization.”
Deva Solomon, William Mitchell Law Review, 34 Wm. Mitchell L. Rev. 5155, 2008
“Special Issue: Journal of the National Security Forum: Part III: Can Government Indefinitely Detain Individuals Accused of Being Enemy Combatants?”
The MCA did not decide the Constitutionality of its own text. The Supreme Court is in charge of that. They found that Ҥ7 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.”
The key issue was the interpretation of Johnson v. Eisentrager.
dave742 on June 13, 2008 at 10:57 AM
its too bad bush didn’t stand up and say, as Jackson did:
Kennedy has made his decision; now let him enforce it.
too bad bush doesn’t have the guts…
right4life on June 13, 2008 at 10:58 AM
no, thats not their job.
right4life on June 13, 2008 at 10:58 AM
no they are NOT. why bother to have a president or congress when we have our jack-booted black-robed masters to rule over us?
right4life on June 13, 2008 at 10:59 AM
I agree with you here. FDR feared the courts, even the great Theodore Roosevelt has at least a limited respect for the court.
Squid Shark on June 13, 2008 at 11:01 AM
No, it did not.
The Warren and Burger Courts were where the Court branched off down it’s current path. Look up Earl Warren. Per Wikipedia, “To the surprise of many, Warren was a much more liberal justice than had been anticipated. As a result, President Eisenhower is perhaps apocryphally said to have remarked that nominating Warren for the Chief Justice seat was “the biggest damned-fool mistake I ever made.”
“To conservatives, the Warren Court converted constitutional law into ordinary politics,” according to Mark Tushnet in Constitutional Interpretation, Character and Experience, 72 B.U. Law Review 747, 759. (1992) “The Warren Court justices saw their service on the Supreme Court as just another job on the national political scene.”
flenser on June 13, 2008 at 11:04 AM
As is the case all around the world, the stretching of the law by the Supreme Court majority to suit their sensibilities derives from four inter-related sources:
a) the vanity of the western elites and the desire to demonstrate their moral perfection for all the world to see;
b) the liberal notion that there is no virtue higher than self-destructive charity, particularly towards those who have demonstrated themselves to be your foes;
c) a deep-seated, but not fully consciously realized, loathing of the West by the elites and desire for it to be brought down, if not completely, at least by several notches; and
d) the fact that western elites no longer have the stomach for the type of ruthlessness that civilizational survival demands.
It’s simply a question of will. We, as a society, no longer have any. If we no longer have the stomach for defending ourselves, then we don’t deserve to survive. Everything else is just details. Of course the Supreme Court and our elected representatives will undermine our ability to defend ourselves. They will find a way. They will use whatever opportunities present themselves.
We continue to pretend that our real enemies are the Islamists. The greater enemy, however, is always the enemy within.
Oh well.
pussum207 on June 13, 2008 at 11:04 AM
LOL!
What you know about the law would fit on the back of a postage stamp.
flenser on June 13, 2008 at 11:05 AM
obviously it did.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), established the power of Judicial Review in the U.S. Supreme Court. This power, which was later extended to all federal courts, authorizes the federal judiciary to review laws enacted by Congress and the president and to invalidate those that violate the Constitution.
link
you need to review history. do you think Jefferson was just delusional?
right4life on June 13, 2008 at 11:07 AM
well said.
What do we look like 20 years from now?
JiangxiDad on June 13, 2008 at 11:08 AM
Flenser:
Prognosis?
JiangxiDad on June 13, 2008 at 11:10 AM
Sure, that is the practical effect. And there is nothing in the Constitution to prohibit such a thing. The Court is simply making up their own law here.
No, it was not. the key isse is the scope of the Courts power. Congress stripped the power to rule on this from the Court, and they ignored the law.
Of course, the Court also ignored their own precedent, but that is a less serious sin than ignoring the Constitution.
flenser on June 13, 2008 at 11:11 AM
Its like the battle of the Wikiquotes.
Squid Shark on June 13, 2008 at 11:16 AM
Obviously, it did not, since the country was not run by the courts between the time of Marbury and today. In fact the Courts has virtually no political influence for most of our history.
This was not the law of the land until the 1950’s. In all of American history from 1800 to 1950, you’ll be hard pressed to find more than a small handful of judicial usurpations of power. After 1950 rulings like this current one become the norm, not the exception.
Thems the facts.
flenser on June 13, 2008 at 11:17 AM
Actually, I’m a righty and I don’t think that the all decision-making power should be in the hands of elected representatives.
It is important to recognize that individual liberty and democracy are not the same thing. The former deals with the relationship between the individual and the state. The latter is a method for changing governments and for making governmental decisions. It is possible to have lots of democracy and not so much individual liberty (believe me, I know, I’m from Canada), as long as the majority accepts the loss of liberty.
The Constitution is intended to discipline the exercise of government. It makes no sense to put government in charge of disciplining itself which is what would happen if Congress were to have the last word on interpreting the Constitution.
The better way is to a) enshrine rules of Constitutional interpretation which the Supreme Court must follow, and b) have meaningful procedures for the impeachment of judges that exceed their jurisdiction or for incompetence.
pussum207 on June 13, 2008 at 11:19 AM
i don’t need to review history. For instance, I know that the Anti-Federalists were voicing concerns about the power of the Court even before the Constitution was ratified, and long before Marbury.
flenser on June 13, 2008 at 11:20 AM
you really need to take history 101.
you’re wrong. otherwise Jefferson and Jackson wouldn’t have said the things they have said. and their ruling in Dred Scott sparked the civil war. this is an old dispute.
thats not the facts, sorry, you are misinformed. again, you need history 101.
right4life on June 13, 2008 at 11:20 AM
very frightening…we need some all knowing wise men to guide us. doesn’t work, we end up with dictatorship. what you see happening now.
ah newsflash: the supreme court is part of government
that would be ‘unconstitutional’ according to our divine black-robed rulers.
as we’ve seen in the past 200 years its useless.
right4life on June 13, 2008 at 11:24 AM
Are people like you with the bright ideas talking theoretically, shooting the breeze because we’re already finished and it’s all academic at this point?
Or are you suggesting the way forward, because there is a forward?
JiangxiDad on June 13, 2008 at 11:25 AM
There is a common misconception floating about these days that there is “the government”, which we need to guard against, and there are “the courts”, whose role is to protect us from “the government”.
This is completely false. The courts ARE the government. They are not protecting us from the government, they ARE the government and they are stealing power from us, and taking it for themselves.
Then you are not really a righty, because you reject the basic principles this country was founded on. All power in this country flows from the people. The Founders were very clear on that point.
Of course it is. So what? If the majority will accept the loss of liberty then the game is over in any case. A country is as good or as bad as the people in it. The notion that a country is determined by a piece of paper or by laws is false. Canadas problem is the people of Canada, not its system of government.
flenser on June 13, 2008 at 11:30 AM
I think you arrived at the crux of the problem. The Supreme Court should not be part of government.
It should be manned by people who have spent a great deal of time on Constitutional matters only, with no political leanings, and appointed by their peers – not by politicians.
OldEnglish on June 13, 2008 at 11:33 AM
we’re back to the wise men who rule us.
what you propose is totally unrealistic. all of these people have ‘political leanings’
right4life on June 13, 2008 at 11:36 AM
All right then. Rather than repeating over and over that I need to take history, why don’t you attempt to list all the Roe V Wade type rulings the Court made in the 19th century. If I’m as ignorant of history as you think, you should have a very long list.
If you’re as ignorant of history as I think, you’ll have a very short list. A nice and empirical test.
Their ruling in Dredd Scott was constitutionally correct, so I don’t see why you keep bringing it up. If they had struck down slavery, that would have been judicial activism. Like it or not, slavery was built into the Constitution. That was an issue best settled outside the courtroom. And it was.
flenser on June 13, 2008 at 11:37 AM
right4life:
“See TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 499 (1993) (noting the Supreme Court has the ultimate power to interpret the Constitution)”
Karen M. Marshall, Akron Law Review, 2004, 37 Akron L. Rev. 549
“TRIBUTE TO DEAN STANLEY A. SAMAD: NOTE: Finding Time for Federal Habeas Corpus: Carey v. Saffold”
“The power to interpret the Constitution in a case or controversy remains in the Judiciary. City of Boerne v. Flores, 521 U.S. 507, 524 (1997).”
Owen Rarric, Akron Law Review, 2002, 35 Akron L. Rev. 305
“COMMENT: KIRSCH V. WISCONSIN DEPARTMENT OF CORRECTIONS: WILL THE SUPREME COURT SAY ‘HANDS OFF’ AGAIN?”
“In this same vein, the Judiciary retains the power to interpret the Constitution and whether Congress has exceeded its authority thereunder.”
Christina M. Royer, Akron Law Review, 2001, 34 Akron L. Rev. 637
“ARTICLE: Paradise Lost? State Employees’ Rights in the Wake of ‘New Federalism’”
“The power to interpret the Constitution in a case or controversy remains in the Judiciary.”
Daniel P. Tokaji, Alabama Law Review, 2006, 58 Ala. L. Rev. 349
‘Views on the 2006 Reauthorization of the Voting Rights Act: Intent and Its Alternatives: Defending the New Voting Rights Act”
Citing: Employment Div. v. Smith, 494 U.S. 872 (1990)
“In the words of Martin H. Redish, ‘The drafters of Article III sought to insulate the federal judiciary from potential pressures, from either the representative branches of the federal government or the public, that might skew the decision [*48] making process or compromise the integrity or legitimacy of federal court decisions n24 The established constitutional principles of due process and separation of powers, embodying fundamental principles of American constitutional and political theory, guarantee to the federal courts, or at least to the judiciary as a whole, both counter-majoritarian and decisional independence. These guarantees ensure judicial authorities the power to interpret the Constitution and apply the law to individual cases free from pressure or control of the representative branches.’”
Redish “Federal Judicial Independence: Constitutional and Political Perspectives,” 46 Mercer L. Rev. 697 (1995)
“The Supreme Court’s power to interpret the Constitution is exemplified by the Court’s active role in defining the scope of the fourth amendment. See LEVY, KARST, & MAHONEY, ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1628-35 (1986) (describing Court’s efforts to define ambiguous language of fourth amendment).”
MADELINE A. HERDRICH, American University Law Review, SPRING, 1989, 38 Am. U.L. Rev. 993
“NOTE: CALIFORNIA V. GREENWOOD: THE TRASHING OF PRIVACY”
“Hillman v. Stockett, 183 Md. 641, 645, 39 A.2d 803, 805 (1944) (”It is the province and the duty of the Courts to interpret the Constitution… .”).”
Gregory Care, University of Baltimore Law Review, Fall, 2005, 35 U. Balt. L. Rev. 73
“COMMENT: SOMETHING OLD, SOMETHING NEW, SOMETHING BORROWED, SOMETHING LONG OVERDUE: THE EVOLUTION OF A “SEXUAL ORIENTATION-BLIND” LEGAL SYSTEM IN MARYLAND AND THE RECOGNITION OF SAME-SEX MARRIAGE”
dave742 on June 13, 2008 at 11:40 AM
So we should be ruled by a body of experts, who are even less accountable to the people than at present? By the American Bar Association?
The American Revolution was fought against exactly this sort of arbitary power, and in defence of the right of the people to govern themselves. You know, “government by the people, for the people, of the people”?
flenser on June 13, 2008 at 11:41 AM
Indeed, the Constitution and the courts are there to ensure the rights of the minority are not trampled on by the majority.
Its like a creepy resurgence of Plato.
Squid Shark on June 13, 2008 at 11:41 AM
How do we know that the Supreme Court has the ultimate power to interpet the Constitution?
Because the Supreme Court has said so! And how did they get the power to say so?
Because they gave it to themselves!
If Bush said that he has the ultimate power to interpet the Constituion, would you accept it so casually?
flenser on June 13, 2008 at 11:45 AM
If the gitmo jihadis get court hearings, they will have to be released on the spot for not being read their miranda rights and not getting a speedy trial if they have been held for some time. Anything we learned about them in interrogation would be inadmissible since they didn’t have the option of having a lawyer present.
Or am I wrong about that?
Buddahpundit on June 13, 2008 at 11:48 AM
Oh, shut up. The Constitutuion says nothing about its, or the courts, being there “to ensure the rights of the minority are not trampled on by the majority”.
That’s the excuse the Court has used in grabbing power for itself. This current ruling is justifed on the grounds that it is protecting a minority from the majority.
But nowhere in the Constitution is that job given to the Court. It’s just one more thing they made up.
flenser on June 13, 2008 at 11:48 AM
You are wrong on the surface, because the ruling on its face does not give full rights under Miranda .
This is certainly the slippery slope we are on now, however.
Squid Shark on June 13, 2008 at 11:52 AM
flenser on June 13, 2008 at 11:53 AM
And this person claims to be studying the law! Where, Berkeley?
flenser on June 13, 2008 at 11:55 AM
marbury v madison. dred scott. in Worcester v. Georgia. why do you think jefferson was upset? same for jackson. please. you’re just being ignorant. if you wish to continue, do so. you ignore history to proclaim this just happened in the 1950s. all I can say is you are willfully ignorant.
oh please this is laughable. according to the supreme court every decision they make is ‘constitutionally correct’
the history is clear. you are not.
right4life on June 13, 2008 at 11:55 AM
And just how well is that doing? Sure, you can throw one bunch of crooks out, only to elect another bunch – born of the same mould.
As for the “wise man” spectre, why are so many people frightened by actual wisdom?
The problem is that judges are appointed because of their political leanings, not in spite of them.
OldEnglish on June 13, 2008 at 11:55 AM
ah yeah you just enforce what I said. they granted themselves that power. its not in the constitution. sorry.
right4life on June 13, 2008 at 11:56 AM
because power corrupts.
wouldn’t matter. someone has to appoint them.
right4life on June 13, 2008 at 11:57 AM
Who the hell is Martin H. Redish, and why should we bow before him?
flenser on June 13, 2008 at 11:58 AM
Did someone leave the barnyard door open?
I hear that pig again…
Squid Shark on June 13, 2008 at 12:01 PM
Exactly. Plato proposed this type of plan, it is too utopian. The next best thing is democracy.
Squid Shark on June 13, 2008 at 12:02 PM
Dredd Scott was not a Roe v Wade type decision. They did not make stuff up out of thin air. I gather you think they ruled incorrectly there. Can you explain why you think that? I’m sure you have studied the ruling in great detail.
If the history is clear, and on your side, then I don’t undertand why you don’t school me in it, and expose me as being ignorant.
I asked you to list the many Roe type decision which you think exist prior to the 1950’s, and you came up empty. That seems odd, for somebody who thinks he’s an expert on the law. Maybe you don’t know as much about history as you think you do.
flenser on June 13, 2008 at 12:04 PM
but plato didn’t the new bi-racial messiah OBAMA around….
can you dig it?
right4life on June 13, 2008 at 12:04 PM
Of course the Judiciary Act is where the true power of the court flows from, maybe a repeal?
Squid Shark on June 13, 2008 at 12:06 PM
Shaft!
Right on :)
Squid Shark on June 13, 2008 at 12:06 PM
Its actualy worse than you think. IF we have to somehow “Charge” these guys with something… what do we charge him with?
Attempted murder? Its outside the US Jurisdiction.
I don’t know of any law which makes it illegal to fight in a war against the US UNLESS you are a US citizen.
So, just what “charges” can we make?
Unless you can somehow tie them into the broad terrorism laws (like with KSM)… we have no legal basis to hold them.
The Geneva Convention allows us to keep POWs, but this decision short circuits that whole treaty, by bringing them into the US Judicial system.
Romeo13 on June 13, 2008 at 12:06 PM
newsflash: all those decisions are, because the supreme court does not have the power to interpret the constitution…under the constitution they usurped that power with the marbury v madison decision.
If you want to argue that slavery is constituional, go for it. it would only make you look more foolish.
what do you think I’ve done? you really are clueless.
you’re a liar as well as ignorant.
right4life on June 13, 2008 at 12:07 PM
I would say that Griswold was a made up case, Roe was mostly based on Griswold.
Squid Shark on June 13, 2008 at 12:07 PM
right on, my brother!! ;-)
right4life on June 13, 2008 at 12:07 PM
Face it, squidly. If the facts were on your side, you’d be arguing the facts. Since the facts are not on your side, and since you are not bright enough to argue them even if they were, you either “ignore” me, or make the sort of comments more appropriate to a ten year old.
flenser on June 13, 2008 at 12:08 PM
The question is whether or not the decsion can be extended to POW’s since the G.C. is still in force.
Squid Shark on June 13, 2008 at 12:09 PM
Romeo,
Knowing the makeup of the court now, I would imagine that this is the launching plan for what you described.
Squid Shark on June 13, 2008 at 12:11 PM
The “Court aborts Gitmo” caption is willfully ignorant, Ed, and you know it.
You know that the court ruled on a single narrow issue — the Military Commissions Act — and not the existence of Gitmo nor the military tribunal system itself.
Remember what I told you privately would happen if you put yourself in the thrall of the Hot Air posse? Well, it has.
sdm on June 13, 2008 at 12:11 PM
FYI, debating flenser is like trying to put a rubber band around jello.
JustTruth101 on June 13, 2008 at 12:12 PM
I have been educated today. It would seem that the golden rule is:- trust no-one.
OldEnglish on June 13, 2008 at 12:13 PM
right on!!
don’t forget DENY EVERYTHING!!!
ie at work write NOTHING down
plausible deniability is KEY!!!
right4life on June 13, 2008 at 12:15 PM
I think you have spent a lot of time farting around telling me that I don’t know history, as you think it exists. I think that when I have asked you to back up your talk with some actual cases which support what you are saying, you have blustered and bullshitted me. That’s what I think you have done.
A liar? I asked you for all the cases you could find in the 19th century comparable to Roe. Here is what you said.
Even assuming for the moment that all three actually fit the bill, you came up with ……. three! I can come up with thirty over the last sixty years.
You know even less about the law than does our friend squidly.
flenser on June 13, 2008 at 12:15 PM
I’m not going to waste any more time casting pearls before swine.
right4life on June 13, 2008 at 12:17 PM
But now we have precedent, that is the concern. The MCA is the basis for the Tribunal system today. We can only give them more rights now, we can not go back.
Squid Shark on June 13, 2008 at 12:18 PM
Ive already lost a whole necklace worth, my wife is boing to be pissed.
Squid Shark on June 13, 2008 at 12:18 PM
Problem is that Congress never declared War, so it could be easily argued that you can’t have Prisoners of War, with no War (I don’t know how International law sees the US War Powers Act, and the authorization votes).
And remember, they can shop for Judges now, to get the most Anti war Bush hating Lib they can find to make these ruleings, so expect to see a BUNCH of convuluted rulings.
Romeo13 on June 13, 2008 at 12:18 PM
All you have been casting, and all you seem to be capable of casting, are turds. If you ever cast a pearl I’m sure it will be analogous to the monkey typing for all eternity and arriving at the works of Shakespear.
flenser on June 13, 2008 at 12:21 PM
right4life:
I have been reading a little about the debate over power to interpret the Constitution. This debate didn’t seem to exist before 9/11 (outside of the Merryman case), but now there seems to be a chorus of lawyers arguing that the President has that authority (but it is Chavez that is the dictator, remember). Within this debate, however, “even otherwise ardent academic champions of presidential authority to interpret the Constitution have generally acknowledged a presidential obligation to enforce judicial judgments rendered in particular cases.”
Richard H. Fallon, Jr., Utah Law Review, 2007
“LEARY LECTURE : Executive Power and the Political Constitution”
So argue all you want, but the Supreme Court has made the decision, and even those who argue on your side acknowledge the President’s duty to follow the decision.
dave742 on June 13, 2008 at 12:22 PM
With respect, you need to go read the decision.
It specificly states that Gitmo, even though NOT part of the US by treaty, is to be covered by full US Constitutional rights. As this EXACT same description can be used for ANY US military installation worldwide, it therefore gives full US Habeus Corpus rights, and US Court Jurisdiction, to any and all prisoners ever brought to any US installation.
The rational for having a prison at Gitmo in the first place, was that Gitmo was NOT US soil, and so this legal situation could be avoided…
Romeo13 on June 13, 2008 at 12:23 PM
Good post, glad to get your perspectve.
Squid Shark on June 13, 2008 at 12:25 PM
You and right4life seem to be equally matched in your knowledge of legal matters. This debate has existed since before the Constitution was ratified.
What, because Fallon says so?
flenser on June 13, 2008 at 12:29 PM
Jefferson was having this debate.
I’m making a more basic point, which you seem to miss. of course the courts say they can interpret the constitution, but nowhere in the constitution, or any other law, do they have that right. they granted themselves that right in marbury v madison. so we end up with a tyranny of the judiciary. if Bush said, as Jackson did, let the supreme court enforce their own decision, where does that leave us? Bush does not have any legal obligation to follow a ruling of the supreme court. its not in the constitution.
we need to rethink the role of the courts in our lives
right4life on June 13, 2008 at 12:29 PM
We already know you’re a left winger, you don’t need to keep reminding us.
flenser on June 13, 2008 at 12:30 PM
*Fills up the slop trough*
I wonder if that is what that darn pig wants. I know I shouldnt feed him, but hes just so loud!
Squid Shark on June 13, 2008 at 12:35 PM
Another clear and horrifying sign that our Republic is being flushed down the toilet.
However, my dad will be very happy this Father’s Day. He’s an ACLU supporter who gets all worked up over GITMO and the torturing of terrorists. I think he’s either being tortured in this lifetime or is remembering being tortured in in past lifetimes. Whatever, he’s a nut and I love him anyway. At least i have someone to blame for my own nuttiness.
Christine on June 13, 2008 at 12:44 PM
right4life:
You take a position that no defender of executive power to interpret the constitution takes. You are an extremist. That’s fine. I hope Bush follows your advice. I have no problem watching the country continue on its slide into fascism while people here defend it. It is amzingly interesting to me.
And if Chavez announces tomorrow that he does not have to follow the Venezuelan Supreme Court, I acount on you to defend him.
dave742 on June 13, 2008 at 12:48 PM
Hmmm, by almost every Poll ever taken, Lincoln was the greatest US President ever…
Look it up, he consistantly ingnored his own Supreme Court, on this exact Habeus Corpus issue, even in NORTHERN STATES.
Romeo13 on June 13, 2008 at 12:53 PM
My best friend is an airline pilot for one of the 9/11 airlines. He too suffers from this malady you describe. I can’t figure that one out at all.
Limerick on June 13, 2008 at 12:57 PM
This ruling, by flagrantly ignoring or misrepresenting precedent, does exactly that.
Down goes the system.
FloatingRock on June 13, 2008 at 1:01 PM
I think rather than ignoring precedent, it reached very far back for a rational to support a supposition.
Squid Shark on June 13, 2008 at 1:06 PM
Romeo:
“by almost every Poll ever taken, Lincoln was the greatest US President ever”
I thought we don’t listen to polls here.
“Look it up, he consistantly ingnored his own Supreme Court, on this exact Habeus Corpus issue”
Yes, and that’s why I mentioned “the Merryman case”. In relation to that case:
“The general consensus, even prior to the Civil War, was that suspension did not mean that habeas corpus itself was suspended, but rather that the privilege guarded by the writ was suspended…Also, the fact that the privilege of the writ was suspended did not serve to immunize the official from later liability for an illegal arrest. Thus, while a person who had been illegally arrested and detained while the suspension was in place was precluded from procuring his liberty, he could later bring a civil case for damages against his arrester. In recognition of this fact, the English legal tradition was for the suspension of the writ to be followed by the passage of a law indemnifying the government officials who acted during the suspension. n93 The United States government followed this tradition in passing the Indemnity Act of 1863, which stated that an order of the President should be considered a defense to any civil or criminal claim against a government official for illegal arrest or imprisonment.”
Jeffrey D. Jackson, University of Baltimore Law Review, Fall, 2004, 34 U. Balt. L. Rev. 11
“ARTICLE: THE POWER TO SUSPEND HABEAS CORPUS: AN ANSWER FROM THE ARGUMENTS SURROUNDING EX PARTE MERRYMAN”
Interesting. Does that mean that the Gitmo detainees can sue Bush now? How fun!
dave742 on June 13, 2008 at 1:07 PM
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