Fred! lowers the boom on the Boumediene decision
posted at 6:35 pm on June 13, 2008 by Allahpundit
His main complaint seems to be that they followed their political inclinations instead of the law, but I can’t tell if he’s being rhetorical about that or not. Does he think it’s ever been otherwise in political cases? Or is he simply feigning shock to stoke a little extra outrage at the majority?
Upon reading the opinion in Boumediene v Bush, one must conclude that the majority knew where they wanted to go and simply had to figure out how to get there. The trip was not a pretty one. How could it be when the justices seemingly wrote a map based on ideas cherry picked from over 400 years of established law and backfilled with justifications to create a new right for alien combatants that Americans themselves do not enjoy?…
The majority had simply decided that prior courts had denied such rulings based on “practical considerations.” In other words in prior cases and prior wars it had just been too inconvenient to bestow the right of habeas corpus upon non-citizens in foreign jurisdictions. So, by focusing on what they saw as “practical” instead of those pesky court precedents based upon the issues of citizenship and foreign territory … and the Constitution … the majority reached the conclusion they wanted to, since what is practical is subjective.
He’s right about convenience dictating the decision. If this was a traditional war between armies proper, with tens of thousands of prisoners on each side, they’d have been a lot more circumspect about granting habeas rights in broad strokes to enemy combatants. It’s only because most battles this time are fought in skirmishes against small pockets of jihadis (or without any battle at all, i.e. in snatch and grab operations like the sting Pakistan used to nab KSM) that they’re comfortable with the administrative burden of treating combatants as individual criminals entitled to court access. Which makes this another legal advantage Al Qaeda’s gained vis-a-vis regular soldiers from its M.O.
Follow the link for red meat near the end about the practical consequences of the court’s decision. I read some lefty blogger snarking at Scalia for suggesting similarly in his dissent that people might die as an indirect result of some Gitmo degenerate being sprung on a habeas claim, but I haven’t the slightest idea why. Yes, the rhetoric is alarming; so are the implications of the decision. Why the larf?
Blowback
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PROJECTION
This, of course, is true not for the Supreme Court but for Fred and the 1,000-plus posts on this site. All of you people “know where you wanted to go” with your critique of this case the millisecond the verdict was released. You knew immediately that the verdict was outrageous and completely wrong before you read a single word of the decision. How many of you actually read the decision, including Fred? Probably none. Not one person at Hot Air, or Fred, has pointed to a single issue in the majority decision and clearly showed what was wrong with it. That is the correct way to critique something. Quote something from the decision, then show how it is incorrect. Nobody does this. Why? Because it is you people that “know where you want to go”. You “know” the decision is wrong because you don’t like what it means, and reading the decision with an open mind and researching the history in unnecessary. The legal issues are irrelevant. Critiquing the issue involves coming up with a clever put-down of the court or calling them names. Grade school stuff. The most you can come up with is that the Supreme Court shouldn’t be able to decide Constitutionality issues, that the Justices are really Nazis, and they shouldn’t exist. It’s always the same, never address the issues.
Projection.
dave742 on June 14, 2008 at 9:07 AM
We should just dump McCain at the convention and go with Fred.
duff65 on June 14, 2008 at 9:14 AM
Your agreement with the decision could have been predicted ahead of time as well.
When/if the court overturns Roe, no doubt the minority will be in the right in your view.
JiangxiDad on June 14, 2008 at 9:41 AM
Way late and many dollars short, Fred.
drjohn on June 14, 2008 at 9:43 AM
It worked rather well for Gen. William T. Sherman. Besides, what’s wrong with some hard work now and then?
eanax on June 14, 2008 at 9:47 AM
JiangxiDad:
I never said I agreed with it. I have not read enough about it to make a decision. It’s not that important to me.
dave742 on June 14, 2008 at 9:53 AM
Hmm. The decision isn’t that important to you yet you take the time to criticize others who disagree with the ruling and probably haven’t read the entire ruling either.
Agenda much?
eanax on June 14, 2008 at 10:21 AM
You want a problem with the decision? Here you go. Quoting directly from Justice Scalia:
http://www.law.cornell.edu/supct/html/06-1195.ZD1.html
eanax on June 14, 2008 at 10:26 AM
Those who have to ponder the difference between right and wrong do not know right from wrong.
OldEnglish on June 14, 2008 at 10:47 AM
do you enjoy making a fool of yourself over the same issue in different threads? are you masochistic?
right4life on June 14, 2008 at 11:01 AM
wow, reading is fundamental. perhaps you should take some classes on it. I’ll try to sum it up for you, and type s l o w l y so you can understand…
1) congress restricted them from even hearing the case, and they overruled congress, in other words, they are our rulers….congress and the president only exist to carry out the supreme nazi’s wishes….get it s l o w daveyboy??
2) They confer the rights of citizenship on people who are not only NOT citizens, they are at war against us. and according to the geneve convention, they are classified as spies and saboteaurs…and can be summarily executed.
3) the implications of this are staggering, it opens up our troops to charges ranging from murder, war crimes, not reading them their miranda rights, whateve the court wants
4) and fascist lackeys like you go along because it advances your socialist political agenda. when the shoe is on the other foot, you’ll screech like banshees.
is that s l o w enough for you??
perhaps you should consider taking english 101…but that would require getting your GED first…
right4life on June 14, 2008 at 11:06 AM
Different enemy. This enemy was far more localized, with fewer resources (logistical, command and control, and materiel) with which to retaliate. The irony is this: you prove my point in a way. How many Army posts are in the South? Why do you think they are there? To maintain order and help rebuild the South after the war.
And what do I have wrong “with some hard work now and then?” I’m already fighting this war and I don’t want my sons to have to continue this same fight. I’d rather win it now, the smart way. It’s hard enough, thanks, without such ideas lacking any forethought becoming the paradigm for our current fight.
Send_Me on June 14, 2008 at 11:21 AM
You need to put down the crack pipe.
wise_man on June 14, 2008 at 11:36 AM
Don’t be a fool, Dave…
The business of protecting the United States from enemies abroad is the sole purvue of the Executive. So sayeth the Constitution. So it has been always.
unless you are a mind-numbed Leftist fool, you know that. POW’s taken into custody by US forces and NOT brought into the country, have no rights under the U.S. Constitution, and SHOULD have no rights under the Constitution.
If you think that the SCOTUS decision is correct, I would challenge you to explain (1) WHAT rights you believe no-US-citizen POWs outside of our borders have under the Constitution, (2) WHAT precisely is the source of that “right”, and (3) if all else fails you, WHAT rights YOU believe these people SHOULD have and WHY.
seanrobins on June 14, 2008 at 11:37 AM
Listen, duff (would that be as in the Duff Beer so beloved by Homer Simpson???),
The only people smoking a crack pipe – or who will NEED to do so, or some other hallucinigenic-producing, mind-numbing substance – will be conservatives trying to pull the lever for that dimwit leftist, John McCain.
I can’t stomach BHO – but the amount I can’t stomach John mcCain is only 0.000000000001% less. His position as the Republican nominee almost makes it worse.
If he wins, our battle only begins. Because we will be spending the ENTIRETY of his one-term four years in office fighting against his natural inclinations on just about everything.
seanrobins on June 14, 2008 at 11:41 AM
seanrobins on June 14, 2008 at 11:43 AM
I guess the simple answer is: Take no prisoners.
Big John on June 14, 2008 at 12:04 PM
And you need to tone down the arrogance.
HebrewToYou on June 14, 2008 at 12:14 PM
No kidding.
MadisonConservative on June 14, 2008 at 12:19 PM
eanax:
It is not important enough for me two spend a few days researching it. I would, however, like to know the issue at some level. I come to this site to get the most coherent conservative viewpoint to weigh against what I read in the decision or on liberal sites. Problem is, there is no conservative argument. All I see is name calling and the idea that lawyers should not be allowed to decide legal matters. It makes it quite obvious to me who has the stronger argument. Pretend you are a debate judge, skim the Supreme Court decision, then read Fred’s article, and decide who the winner is. It’s ridiculous. I am not finding a real argument in grown up terms.
What case has this been tested in? The Eisentrager case was not even close to the present one.
Right4life:
Yes. The Supreme Court realizes that, and said so:
“we agree with its conclusion that the MCA deprives the federal courts of jurisdiction to entertain the habeas corpus actions now before us”
The problem is that this action by Congress is Unconsitutional:
“Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ.”
Read their whole argument on this point in the text of the case. Tell me what is wrong with it.
They did not confer the rights of citizenship on anyone. The Gitmo detainees, for example, cannot vote.
The Supreme Courts job is not to make decision based on what the implications are, but based on the law. They cannot say “this is the correct, legal decision, but let’s change it to something else because the implications of the correct, legal decision are staggering”.
I am not a fascist. I am an anarchist. I am not going along with the decision. I am trying to find out who has the best argument. Nobody yet has said a word that would make a reasonable person question the decision.
I graduated from high school.
Seanrobbins:
The Supreme Court said that they do have at least one right. You have not said anything about why their decision is wrong. You have simply proven my point by saying that they “SHOULD have no rights under the Constitution.” This was your emotional opinion before the decision was released. The decision went against your already formed judgment, and when you heard the decision, it was automatically wrong. You did not say to yourself: “I don’t want them to have this right, but I am going to read the decision and see if they really do.” It is quite possible to do this. It is possible to read the decision, acknowledge that it is sound, and say: “they indeed do have this right, even though I think it completely sucks.” That type of action is what people do that have an open mind.
dave742 on June 14, 2008 at 2:06 PM
I keep wondering. Since the Geneva convention doesn’t protect illegal combatants, what legal problem is there with grabbing a couple of our soldiers and holding a battlefield tribunal and executing them on the spot? They would not be covered by protections for legal combatants or for the general populace.
I am not advocating for that. I think it would be barbaric. I just want to know why it would be illegal assuming the Rules of Engagement supported it.
And if it is legal, why is SCOTUS pushing us toward this solution?
OBQuiet on June 14, 2008 at 5:08 PM
Dave742,
It would appear that the court has provided illegal combatants with more rights than legal combatants. The Constitution says “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Therefore, we are bound by the items in the Geneva Convention we ratified.
So POWs who operated under uniform in a lawful manner are prohibited from being tried in our courts and must be freed at the end of hostilities. Illegal combatants get the legal system to play with. This sets up the screwy situation where if it looks like you might be captured, you need only remove your uniform to be given a “Get out of Jail Free” card. Unless the the military can prove in a court of law, beyond a reasonable doubt that you were actually a combatant, they will not be able to hold you. It sets up a system were spies and saboteurs are free to operate with abandon, safe in the knowledge that they can appeal to a friendly court. Sneak in and blow up a factory? No problem as long as you didn’t wear a uniform! No firing squad, you get a lawyer! And with luck, you’re out on bail in a couple of days.
OK, I am exaggerating. But the idea isn’t that far off. We are giving more rights to those who act deceitfully than those who operate honestly. That is bad policy and bad law.
I guess the real solution is to reclassify them as legal combatants.
OBQuiet on June 14, 2008 at 5:34 PM
Personally, I prefer people to make their own mind up, not go with consensus of opinion. As an individual, I prefer dealing with those who know their own mind, and stick with it. Such people are much more reliable over the longer period.
OldEnglish on June 14, 2008 at 6:06 PM
this is really laughable. of course its unconstitutional according to the supreme nazi court, because it limits their power, and anything that limits those fascists power is unconstitutional.
right.
Their entire argument, like yours, is BS. congress can limit the court from anything they would like. but the courts say they can’t. so it comes down to who defines what is constitutional? the courts do not have that power. this is a naked power grab, and the other branches are too gutless to do anything about it. why bother to have a legislature, or president, when the supreme nazis are controlling everything? unchecked power is dictatorship, but as long as its socialist, you have no problesm with it, no surprise.
then you are a fool and an idiot. as is obvious, many other people on this board have questioned the decision. but only a good liberal stooge like you is ‘reasonable’…you really need professional help.
oh yeah since you graduated high school, do you have a Yale MBA?? just curious, since you think bush is so dumb, where did you get your master’s degree at?? and whats it in??
right4life on June 14, 2008 at 7:14 PM
I’d say you’re wrong on pretty much every point. I read the whole 144-page PDF of the Supreme Court decision: the summary, the majority opinion, the extra concurring opinion of Stevens where he rebuts Chief Justice Roberts’ dissent, the dissent by the afore mentioned Chief Justice where he incidentally rebuts Stevens’ rebuttal, and the concurring dissent opinion by Scalia. The majority opinion was clearly reaching very far to argue that Gitmo was sufficently under U.S. jurisdiction to not be immune to habeas corpus. But their opinion rested on a great many questionable claims. Specifically, they dismissed the precedent of habeas corpus being limited by actual sovereignty by arguing that those limits in the past were for purely practical reasons rather than as a matter of law. They answered the charge that there was insufficient evidence for their view of habeas corpus by arguing there was insufficient evidence on the other side of the question.
Roberts’ opinion was remarkable for the way he sliced through their arguments for their version of habeas corpus precedence, and showed they turned the one real precedence of the Eisentrager case on its head to draw conclusions that were the exact opposite of that case’s actual findings. All very politely and clearly, and without a hint of personal rancor.
For all that, Scalia’s opinion was more blunt and clear-spoken, and much easier to read. It was also considerably more scornful of the majority opinion. Significantly, where Roberts had ended by saying, “With respect …. I dissent,” the last sentence of Scalia’s opinion was two words: “I dissent.” Not, “I respectfully dissent” as is far more common.
So did you just project that no one had read the opinion because you hadn’t read it?
I’m sorry, but there were multiple people in this thread and the prior thread who showed at least a passing familiarity with the issues at hand. Your dismissal of every bit of it as projection does not do them credit.
theregoestheneighborhood on June 14, 2008 at 10:03 PM
OBQuiet on June 14, 2008 at 5:34 PM
There are many consequences of the present regime classifying “terrorists,” who have traditionaly been classified as criminals, as “enemy combatants”. The reason this has traditionaly not been done is that:
“calling opponents ‘combatants’ and declaring the struggle against them ‘war’ elevates their status above that of mere criminals.”
Mary Ellen O’Connell, Columbia Journal of Transnational LAw, 2005
“Essay on Honor of Oscar Schachter: Enhancing the Status of Non-State Actors Through a Global War on Terror?”
See also:
“In the language of international law there is no basis for speaking of a war on Al-Qaeda or any other terrorist group, for such a group cannot be a belligerent, it is merely a band of criminals, and to treat it as anything else risks distorting the law while giving that group a status which to some implies a degree of legitamacy.”
Christopher Greenwood, Current Legal Problems, 505, #7, 2003, “War, Terrorism and International Law”
Bush’s desire to start a world-wide never-ending war after 9/11 instead of hunting down and prosecuting a bunch of criminals has legal consequences.
right4life:
So Congress can write a law that says Congressmen can steal, and include a clause that says the courts are not allowed to prosecute them? That’s quite a scam.
My highest degree is a PhD in medicinal chemistry. I prefer not to say from where since some people on this site are trying to hunt me down. It is not an Ivy League school. A state school.
dave742 on June 14, 2008 at 10:17 PM
theregoesthe neighborhood:
I skimmed it, which means I spent about 45 minutes reading it, which is nothing close to what it would take to make an educated opinion on the whole matter. It would take quite a while to familiarize myself with every case mentioned just to start off with. The reason I wrote what I did above is that if the situation were reversed, and the decision went the other way, I would make none of the ridiculous comments that have been made on these threads without first educating myself of the issue and spending at least a full day studying the case. I would not prejudge the correctness of a verdict I do not like without researching it first. I would admit that the verdict I didn’t like may be correct, and it may just be that I don’t like it.
The reason I prod people here is to get at the heart of the issue without having to study it. And since I have not studied it, I will not say if I agree with it or not. Personally, I was convinced by the majority by what time I spent reading the case. I do admit that I did not read Scalia’s dissent. As soon as he started off with the 9/11 booga booga crap, I threw up and stopped reading it. I guess I can be juvenile sometimes as well.
I want someone who knows a lot about this type of law to dissect the opinion, quote exactly what is wrong and why, citing case law and history. I hasn’t happened. I am sure articles will appear in the law journals that explane the opposing viewpoints in clear language in the coming months.
dave742 on June 14, 2008 at 10:37 PM
As does the liberal’s desire to treat terrorirsm as just another crime. Andy McCarthy, lead prosecutor of the 1993 WTC bombers, has written a book about this appraoch, and the assorted problems that go with it.
Of course I didn’t read Kennedy’s 70 page opinion. I have no clue what the cases he cites mean. I don’t have any legal training, and I wouldn’t understand the damn thing if I did read it.
That doesn’t stop me from using my critical thinking skills to apply what his decision means in the real world. And having read Andy’s book, I think it is a major mistake to treat terrorists like criminals. Also, if Scalia, in his learned opinion (one that doesn’t resort to ‘international law,’ natch) thinks this is a poorly decided case, then I’d tend to believe him over people who can find a right to abortion in the Constitution.
VolMagic on June 15, 2008 at 3:16 AM
The Consitution is not a suicide pact. If the inevitable consequence of following the rule of law is national suicide, then we have an obligation to subvert it.
VolMagic on June 15, 2008 at 3:19 AM
Or did I just make you throw up with my 9-11 booga booga crap?
VolMagic on June 15, 2008 at 3:19 AM
Hmm. And that’s how we were able to finish off the Germans, Italians and the Japanese as well. Different enemy. Right? Right…
And, yes, we still have bases in all of those countries — just like there are bases in the southern United States.
The point is simple — Sherman’s approach did the job. Our approach in World War II did the job. Two different conflicts and basically the same methods.
Here’s the deal. If you don’t want your sons to fight, then it’s time for a different approach — one in which lawyers aren’t consulted on almost every move. That’s the difference…
eanax on June 15, 2008 at 10:11 AM
All this proves to me is what I have said many times in the past – Liberals ARE the enemy within.
jdawg on June 15, 2008 at 10:35 AM
Ahh, again, it’s NOT important enough for YOU to spend the time researching it, however you state that others need to spend their time researching the decision before commenting on the case.
Interesting concept.
Sure there is. Read both Scalia’s and Roberts’ opinions…
eanax on June 15, 2008 at 11:02 AM
Haven’t read Roberts’ Dissent then, huh?
http://www.law.cornell.edu/supct/html/06-1195.ZD.html
eanax on June 15, 2008 at 11:06 AM
yeah they can. its in the constitution. and at least if they write that law we can vote them out of office. unlike the supreme nazis allowing the murder of unborn babies. we can’t vote them out office. its called tyranny, but you cannot see the difference.
This just shows the decline of edukahsun in this country. I honestly hope you’re lying. if its true, it shows that all that education has not taught you how to think, or apply logic, or critical analysis to a problem.
you are unable to respond to the points that I have raised, and I only have a MS degree. you are sneeringly arrogant towards bush, and yet you have not shown yourself to be his intellectual equal, much less his superior. The quote from Orwell does apply to you:
“One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool.”
you fancy yourself an intellectual, but you are a legend in your own mind only. you bend over for the courts because you think they are ‘wise’ and all-knowing. but if they were not implementing your socialist agenda, you would be singing a different tune. you think that going along with the ‘conventional liberal wisdom’ makes you look wise, but really it proves you to be a fool
right4life on June 15, 2008 at 11:08 AM
The facts come out. You believe, as the vast majority of Leftists/Liberals do, that what happened on 9/11/01 was a criminal act and not an act of war.
You believe this should be handled via law enforcement rather than using the strength of our military to take care of this problem.
Typical and naive.
eanax on June 15, 2008 at 11:13 AM
another quote from you dave that shows your intellectual level is limited to parroting left-wing wacko talking points. it also proves you are a liar, as well as a fool.
Bush didn’t ‘start a word-wide never-ending war’ we’ve been in it for the last 1,400 years, since the founding of Islam. why don’t you try history 101? ever hear of the battle of Tours, and Charles, the Hammer, Martel?? I bet you think BOOOOOSH provoked the muslims into invading france…..in 732 AD…..
just because left-wing wackos don’t think we’re in a war, doesn’t mean the islamofascists don’t think we’re in a war. I do find it amusing that you left-wing wackos take their side. I think its the total control they wield over a society that appeals to left-wingers such as yourself. not having to worry about a vote, or ‘the will of the people’ its why you like the supreme court’s power, they are unelected and unaccountable. it shows the tyrannical nature of those on the left. and the lust for power.
right4life on June 15, 2008 at 11:18 AM
yet another decision by the court that just proves they are making rulings based on nothing other than political beliefs.
Mark Levin has the court pegged!
jdsmith0021 on June 15, 2008 at 4:10 PM
Watch Fred on This Week with George Stephanopoulis. Video seems to cut off, about 4min. 10sec.
http://youtube.com/watch?v=FwdEmSbkYSs
redneck hippie on June 15, 2008 at 6:13 PM
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