Terrorism

Is the Habeas Ruling Really One of the Worst Decisions in American History?

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As Matt Welch recently noted, John McCain is none too happy with Boumediene v. Bush, calling the Supreme Court's recognition of habeas corpus for enemy combatants "one of the worst decisions in the history of this country." Could that possibly be true? As a measuring stick, I'd suggest using The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, a new book by the Cato Institute's Robert Levy and the Institute for Justice's Chip Mellor.

On issues ranging from eminent domain abuse to the restriction of civil liberties during wartime, Levy and Mellor paint a consistent—and consistently depressing—picture of the Court upholding and enhancing government actions at the expense of individual rights. That's as good a definition of a "worst decision" as you'll ever get: state power trumping individual liberty.

Where does Boumediene fall on that scale? Even if you accept Chief Justice John Roberts's dissent, which argues that the Court permanently weakened the separation of powers by substituting its judgment for that of "the people's representatives," the decision hardly sinks to the depths of, say, Korematsu v. United States, where the majority upheld Franklin Roosevelt's internment of Japanese Americans during World War II.

In Roberts's view, Congress already protected "whatever rights the detainees may possess" via the Detainee Treatment Act, making the Court's actions both unwarranted and unnecessary. Moreover, his dissent predicts that, "the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces." If this is correct, then the real problem with Boumediene isn't the risk it poses to national security (as McCain has stressed) but its long-term political fallout. That's at least a debatable point, though I'd argue that the Court has upheld the separation of powers by exercising a necessary check on the other branches. Furthermore, as legal blogger Marty Lederman has noted:

On the basic habeas question, perhaps the most explanatory line of the majority opinion is this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." In other words, because the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base.

But for the last word, I turn to the increasingly libertarian George Will, whose column yesterday made short work of McCain's legal scholarship:

Did McCain's extravagant condemnation of the court's habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court—meaning, which candidate would select the best judicial nominees—a campaign issue.

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  1. Not to disagree with Will’s assessment, but I think McCain’s statement is code for “See, this decision proves that liberals (and Obama in particular) want your children to die in a terrorist attack so they can protect their muslim allies.”.

  2. Even if you accept Chief Justice John Roberts’ dissent, which argues that the Court permanently weakened the separation of powers by substituting its judgment for that of “the people’s representatives,” the decision hardly sinks to the depths of, say, Korematsu v. United States, where the majority upheld Franklin Roosevelt’s internment of Japanese Americans during World War II.

    Damon, don’t be silly. The people who denounce Boumediene think that Korematsu was a good decision.

    “But it’s wartime!” trumps everything to these people, so it’s perfectly acceptable for a bunch of yellow people to be put in camps if it’s war.

    Read the dissent[s]. The dissent[s] quote precedents from cases allowing the state to ignore the Constitution in the territories, in the Phillipines, and [naturally] in matters related to FDR’s conduct during the Second World War. The minority specifically embraced the most shameful elements of our history in their dissent[s]. If they didn’t single out Korematsu as a great precedent that supported their dissent[s], it’s only because they didn’t have the guts.

  3. “But it’s wartime!” trumps everything to these people, so it’s perfectly acceptable for a bunch of yellow people to be put in camps if it’s war.

    The authority fetish is so strong with these people that I sometimes wonder if they would have a problem with themselves being put into camps “for their own protection”.

    Maybe a trial program is needed to check.

  4. The authority fetish is so strong with these people that I sometimes wonder if they would have a problem with themselves being put into camps “for their own protection”.

    Maybe a trial program is needed to check.

    You’d have to get them to view themselves as savages with no moral values or souls. It’s always the other guy who is a heartless heathen and we’re just protecting good god-fearing folk from those who would help our enemies.

  5. Maybe one of you “brilliant” Reasonoids can cite the section of the Constitution that addresses giving enemy combatants the right to be tried in an American court?

    Failing that, prehaps you can cite the previous rulings that allowed such a disgrace.

    It never happened in all of our history and it should not have happened now.

    I eagerly await your response.

  6. You’d have to get them to view themselves as savages with no moral values or souls. It’s always the other guy who is a heartless heathen and we’re just protecting good god-fearing folk from those who would help our enemies.

    Set ’em up in a Milgram-style experiment, and then right afterward when they feel all ashamed for what monsters they’ve become, you could probably get away with it.

    I like this idea, and am excited to be a part of it. Let’s do it!

  7. JohnD —

    I’m gonna go ahead and assume that you’ve never been held in a cell for a long period against your will without the opportunity to challenge the validity of your captivity, so I’ll excuse your idiocy on the grounds that you simply lack imagination rather than assume that you are an amoral monster who should be put down for the good of the species.

    As for the Constitution, the Great Writ’s history predates that venerable document by several hundred years, and it’s purpose is to curtail executive (read: monarchial) abuses. I seriously doubt the inventors of the writ gave a shit exactly who was being held; it was the *holding* that was the problem, the precedent it sets.

  8. Well, JohnD, Article 3, Section 2 of the Constitution begins:

    Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

    In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

    The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

    The judiciary clearly has ultimate power over any case arising under the laws of the United States and under its treaties. That would include ALL criminal law and ALL military law, as well as under the Geneva Conventions and various other international treaties regarding the treatment of prisoners.

    The fact that previous courts did not claim powers as wide as this court is not relevant. As I noted above, the problem with stare decisis in this case is that if you rely on it, you are relying on the history of incidents like our occupation of the Phillipines, where we murdered tens of thousands of people and held hundreds of thousands in concentration camps. Any case history that supported that action should be rejected out of hand.

  9. OT: Great news from Florida. The Florida Governor has reversed his silly position (and that of the previous Governor) on offshore drilling near the Sunshine State.

    Now, all the President has to do is modify an Executive Order, from a previous President, that had those areas off-limits at the request of Floridians.

    Now for ANWR and that pesky Congress.

  10. I like this idea, and am excited to be a part of it. Let’s do it!

    OK! The camp will be called the United States of America. It will be divided into sub-camps called states. We will issue IDs required for travel to control movement. Entering and leaving the camp will be rigidly controlled by virtually unaccountable goons. Yeah, this sounds like a plan!

  11. As a recent deserter of the GOP, this ruling has quickly become a litmus test for me and my former colleagues-in-thought. I hope the glaring inhumanity of the issue at its heart pulls more folks like me away from the the monstrosity the GOP has become.

  12. OK! The camp will be called the United States of America…

    And the Ghostbusters reference zooms by like a phantom in the night.

  13. http://www.cnn.com/2008/US/06/18/gitmo.detainees/index.html

    Also OT:

    Retired US Major General Antonio Taguba and Physicians for Human Rights released a report today claiming that the torture of detainees at Guantanamo and elsewhere was much more widespread than previously believed.

    Taguba was the general assigned to investigate the Abu Ghraib scandal.

    Administration apologists generally point to the investigation of Abu Ghraib and the subsequent trials of low-ranking guards as evidence that the inmate abuse problem was “dealt with”.

    This is despite the fact that General Taguba has repeatedly shouted at the top of his lungs that he wasn’t allowed to investigate the full chain of command in the scandal and despite the fact that General Taguba is now shouting at the top of his lungs that there’s a lot more torture out there to uncover.

  14. Worst ever? Seriously?

    Plessy v. Ferguson?

    Dred Scott case?

    Abrams v. US?

    Really, so many deserving candidates. All this statement shows is that John McCain’s ignorance (feigned or otherwise) of our judicial history is so great that it should preclude him from being president.

  15. And the Ghostbusters reference zooms by like a phantom in the night.

    Shit. My bad. It’s so much easier to get when you can hear the quasi-hysteria in Bill Murray’s voice as he says it, which is impossible for you to convey on the internet.

    Gozer the Traveller–he will come in one of the pre-chosen forms. During the rectification of the Vuldronaii, the Traveller came as a large and moving Torb! Then, during the third reconciliation of the last of the Meketrex supplicants, they chose a new form for him–that of a giant Sloar! Many Shubs and Zuuls knew what it was to be roasted in the depths of the Sloar that day, I can tell you!

  16. “Even if you accept Chief Justice John Roberts’ dissent, which argues that the Court permanently weakened the separation of powers by substituting its judgment for that of “the people’s representatives,” the decision hardly sinks to the depths of, say, Korematsu v. United States, where the majority upheld Franklin Roosevelt’s internment of Japanese Americans during World War II.”

    Very true. In a sense it may be that case the majority had in the back of their minds. They do not want history to judge them as it judges the members of the court who voted that it is okey-dokey to hold someone as a prisoner just because that person’s ancestors came from a country with which we are at war.

  17. JohnD says:

    Maybe one of you “brilliant” Reasonoids can cite the section of the Constitution that addresses giving enemy combatants the right to be tried in an American court?

    And I say to JohnD ‘How the F*** do you know that they are enemy combatants, and not just random folks picked up off the streets (as actually appears to be the case).
    The Bill of Rights is designed to force the gubmint to prove that these guys actually did something wrong, not just assert it without evidence, and especially not in secret.
    That’s what a rule of law and limited constitutional government is all about. Making government accountable when it punishes people protects YOU! And me, so I’d just as soon keep it that way.

  18. I am constantly amazed by the complete lack of empathy displayed by so many people on this topic.
    What would be your reaction if you called your kid at college, and were told nobody had seen him for weeks?
    What would you do if you heard, after a year, that he had been accused of horrible crimes, kidnapped by foreigners, and taken thousands of miles away and locked up in a dog kennel without being allowed to dispute the charges, or have recourse to due process?

    If these people are so evil, and guilty, proving the allegations against them should not be a significant burden on our government. But they’re just a bunch of greasy brown ragheads, so who really gives a shit?

  19. I think what gets lost for some (but which has been said here and that I reiterated in my latest blog entry) is that habeas is not about the citizenship of the prisoner or where he or she is being held, it is about what power the government has to hold them. The constitution binds our government no matter where they stand. The jailors, our government, are ALWAYS bound by the constitution, and they are limited to the powers therein – and the constitution simply does not grant the power to lock people up without justification. The government doesn’t have this power and never had it and cannot suddenly get it just because some government official bought a plane ticket to cuba.

  20. Please do not misconstrue what I am about to say as justification for any of this behavior. I agree that these detainees deserve their day in court. Now, with that caveat stated: One of the problems is that we are legally in uncharted waters. In past wars we were fighting a nation-state or at the very least an entity that claimed to be a nation-state or wanted to establish one. This is very different. These people are not part of any “military” in the normal sense. Knowing when you have defeated Imperial Japan or even the Confederate States of America is far easier than knowing when you have defeated al Quida. If we had Japanese prisoners of war (no, I am not referring to a third generation American) we could set them free after the Emperor surrendered. If we have a “prisoner of war” in this war when do you let this person go? It is a very different situation.

  21. JohnD | June 18, 2008, 8:51am | #

    Maybe one of you “brilliant” Reasonoids can cite the section of the Constitution that addresses giving enemy combatants the right to be tried in an American court?

    When a ruling comes down granting “enemy combatants the right to be tried in an American court,” we’ll let you know.

    Because that’s not what this ruling did.

    You don’t know what a petition for a write of habeas corpus is, do you?

  22. Ah, yes, the “write of habeas corpus.”

    joez Law strikes again.

  23. Shit. My bad. It’s so much easier to get when you can hear the quasi-hysteria in Bill Murray’s voice as he says it, which is impossible for you to convey on the internet.

    Happens to everyone. Hey, I botched a deadpan last night. Like I said then, the Internet is a fickle bitch (which prompts the latent teenager in me to exclaim, well, heck, at least she’s a chick!)

    “Back off, man. I’m a scientist.”

  24. LMNOP,

    You really CAN make a point without the hysterics and childish ad hominems. Try it sometime.

  25. The judiciary clearly has ultimate power over any case arising under the laws of the United States and under its treaties. That would include ALL criminal law and ALL military law, as well as under the Geneva Conventions and various other international treaties regarding the treatment of prisoners.

    Well, except that Congress has the power to limit the Court’s jurisdiction. Furthermore, Congress has the right to suspend Habeas Corpus “when in Cases of Rebellion or Invasion the public Safety may require it.”

    Whether Congress should have passed the Detainee Treatment Act which had the effect of suspending habeas for detainees is a policy question with good arguments on both sides, but I think Congress had the clear Constitutional authority to pass it.

    While this decision is hardly the worst, it does seem to be a power grab by the Supreme Court over an issue which the Constituion specifically grants to Congress. And there’s good reason for Congress to have power over habeas–because we can change our legislature every two to six years (depending on the chamber). The current Democratic congress could have repealed the DTA (interesting that the current congress didn’t feel that it was necessary). Furthermore, a legislature is better equipped to create or modify sweeping changes to detention procedures.

    We can’t change our justices as easily as our legislators. If cirucmstances ever warrant suspension or limitation of the writ of habeas corpus, the Supreme Court has effectively given itself the right to veto that decision. This creates uncertainties: should soldiers collect evidence when detaining potential targets? How much evidence? Do detainees deserve a warning that whatever statements they make could be used against them in a future proceeding? All of these questions will have to filter up through appellate courts.

  26. Damn, Fluffy, you gonna mount the whole head on your wall, or just the antlers?

    You could have also quoted the part of the Constitution that declares ratified treaties to have the force of law, and referenced the Geneva Conventions.

    Our courts, in essence, found that the kangaroo courts planned for Gitmo do not rise to the level of what Geneva describes as a “regularly constituted tribunal.”

  27. Episiarch: About your Firefox 3 problem. . . .

    Also, type in about:robots in your “Smart” location bar.

    Frankly, I think the branches should be fighting it out over their respective prerogatives more often, not less. It’s all that buddy-buddy crap that’s gotten us into this mess.

  28. Episiarch the Episiarchian,

    There’s also the oldbar add-on.

  29. Well, except that Congress has the power to limit the Court’s jurisdiction.

    Actually, the Congress has the power to control the judicial order of appeal. They don’t have the power to just eliminate the judiciary altogether. If they did, they could just eliminate judicial appeal from every law they wrote using boilerplate text and voila – no judiciary. It’s not a reasonable reading of the Article to conclude that the Congress has that power.

    Furthermore, Congress has the right to suspend Habeas Corpus “when in Cases of Rebellion or Invasion the public Safety may require it.”

    That would be more relevant if we were experiencing rebellion or invasion.

    And since the Constitution places that limitation on the Congressional ability to suspend habeas, it cannot allow the Congress to be the sole arbiter of when such conditions exist. That would make the limit essentially no limit. What we’re seeing here is a reverse of the poor logic employed in the Kelo decision, where the legislature was ruled to be entitled to interpret a Constitutional limit upon itself. If you disagreed with Kelo, you should agree with Boumediene.

  30. The Supreme Court was basically saying “6 years of fucking around is enough”. And they are right.

  31. If you want oldbar you could just download Iceweasel which is basically an even more open source version of Firefox.

  32. David:

    There is no “code” involved here–Scalia explicitly stated that in his dissent.

  33. I don’t want the old bar, I just want control over the new one, and ProL’s link gave me that. Thanks.

  34. That would be more relevant if we were experiencing rebellion or invasion

    Several of the detainees were involved in planning or carrying out attacks on American soil or embassies. There’s no real factual dispute about this. That’s arguably an “invasion.”

    Actually, the Congress has the power to control the judicial order of appeal. They don’t have the power to just eliminate the judiciary altogether.

    Article III, Section 2: “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

    The DTA didn’t “eliminate the judicary altogether.” It made an exception on appellate jurisdiction.

    I understand why people like the result of this case. It seems to grant more transparency to the detainee process. However, the Supreme Court overstepped it’s bounds. Congress is currently controlled by a party in opposition to the executive and could consitituionally expand on the liberty interests at issue here. Congress has chosen not to do so. But if it does so in the future, a more conservative court now has the authority to say “that’s not consitituional” and cite Boumediene.

  35. What does the partisan makeup of Congress have to do with any Constitutional issues?

    I think you just tipped your hand.

  36. Several of the detainees were involved in planning or carrying out attacks on American soil or embassies. There’s no real factual dispute about this. That’s arguably an “invasion.”

    Isn’t that like saying that punching someone in the mouth is arguably “kidnapping”?

  37. Abdul,

    Several of the detainees were involved in planning or carrying out attacks on American soil or embassies. There’s no real factual dispute about this. That’s arguably an “invasion.”

    It may be arguably an “invasion”. But it isnt an invasion.

    Also, congress isnt granted power to suspend the writ in case of a potential invasion, only in case of rebellion or invasion. AFTER the invasion occurs, then their power kicks in.

  38. The exception for rebellion or invasion is of practical significance – it is meant to provide an exception where the courthouse is burning and the judges are on the run. Basically, it is for when there can be no hearing because the judiciary itself isn’t functioning normally because the government is too busy putting down a rebellion or defending the streets to get the courthouse open. This is simply not happening now, so there is no basis for Congress to susbend habeas.

    I’m sorry, a handful of people do not an invasion make. Otherwise you could just round up one crazy fellow each year who has mad plans to overthrow the government and use that as the basis to suspend habeas. Sorry, doesn’t work that way.

    The United States is NOT facing rebellion and there has been no invasion – hell, half of the bogus reason used to justify the government’s position was that these were supposedly foreign fighters captured on foreign soil (which turns out to be singly or doubly false for many of them). It is difficult to contemplate how foreigners rounded up abroad constitute an “invasion.” And if they were taken from the US, then that rather undermines the claim that habeas doesn’t apply because they were captured abroad. Funny how the authoritarians try to have it both ways, no?

  39. Episiarch,

    You’re welcome. Remember, with great power comes great responsibility.

    I’m definitely noticing a performance improvement in Firefox 3.0.

  40. Did McCain’s extravagant condemnation of the court’s habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court-meaning, which candidate would select the best judicial nominees-a campaign issue

    Or worse – he’s actually one of those people who thinks like the people he’s allegedly pandering to

  41. I’m definitely noticing a performance improvement in Firefox 3.0.

    Oh yeah. But I want my adblocker.

  42. Try it sometime.

    Booooooring!

    Several of the detainees were involved in planning or carrying out attacks on American soil or embassies. There’s no real factual dispute about this. That’s arguably an “invasion.”

    No, that’s “planning to attack a target”. *Invasion* is when one nation-state’s armed forces attempts to occupy another nation-state’s land. One would be hard-pressed to find a more clearly defined concept in international law.

    That is clearly not what was happening or even about to happen. So, no, I don’t think it reaches the Constitutional standard for suspension.

  43. You guys are really arguing that blowing up American ships and embassies abroad, and buildings on American soil, does not consitute an invasion unless it reaches a quorum? What’s the number? Apparently, there’s also a qualitative factor as “invasion” requires “the courthouse is burning and the judges are on the run.” Do any other buildings have to burn? DMV’s? Schools?

    The idea that Congress has to wait for a certain quorum of attacks to be effectively carried out is an absurd interpretation. Warships waiting off the coast shelling american cities would not consititute an “invasion” until the buggers actually land? The Supreme Court also never reached the issue of whether there is an “invasion” (however defined) in this term. They merely said that a law passed by Congress which limited the writ and the jurisdiction of courts (both powers reserved to Congress in the consitution) was somehow unconsitutional.

    is difficult to contemplate how foreigners rounded up abroad constitute an “invasion.”

    Right, because when English troops invaded America in 1812, no one in England was responsible for that.

  44. This case, imho, seems to only get a complainants foot in the federal court house. It hardly give him any other constitutional rights.
    Looking at the big picture, imho, the Superme Court stood up to a war time president and said, “hey, you can’t do that.” I have mocked this institution because of it craven disregard to reason and justice. But I think they deserve some respect for this opinion.

  45. I tend to think that the Constitutional exception for rebellion or invasion hasn’t been met here.

    I think the more interesting question is whether habeas corpus even applies at all to foreign nationals who are not on US soil.

    The constitution binds our government no matter where they stand. The jailors, our government, are ALWAYS bound by the constitution, and they are limited to the powers therein – and the constitution simply does not grant the power to lock people up without justification.

    Now we’re getting somewhere. Historically, though, this simply has not been the case. Constitutional restrictions have not been read to apply to the military in a war-fighting situation. I don’t think the writ has been applied (before) to someone (a) captured overseas (b) held overseas (c) during active hostilities, but I haven’t had time to look into it. If anyone has run across a discussion of this issue, I’d appreciate it.

    The other concern I have is, what is the limiting principle on this extension of the right to habeas, especially in light of the fact that it cannot be limited by treaty?

  46. I’m definitely noticing a performance improvement in Firefox 3.0.

    Me, too.

  47. The prisoner of war thing is a red herring, for the simple reason that the government has designated that none of these individuals held are POWs.

    Plus, it is easy for the government to justify holding someone when that someone actually is caught on a battlefield, carrying a gun, in uniform, at war. So really, it isn’t even an issue here and this ruling does nothing to prevent the capture and holding of POWs in time of war.

    The situation with Gitmo is an entirely different thing, by the government’s own admission, no less.

  48. You guys are really arguing that blowing up American ships and embassies abroad, and buildings on American soil, does not consitute an invasion unless it reaches a quorum? What’s the number? Apparently, there’s also a qualitative factor as “invasion” requires “the courthouse is burning and the judges are on the run.” Do any other buildings have to burn? DMV’s? Schools?

    I tend to think that if the founders meant *attack* instead of *invasion*, they would have used that word.

    Maybe I’m giving Madison a little too much credit here, but he and the others understood that a mere attack (no matter its extent) did not disrupt civilian law enforcement to the extent that Habeas petitions would become unreasonably burdensome, whereas on the other hand one might imagine if a pitched battle on one’s own land was being fought, it might be hard to get the judge and his powdered wigs together long enough to hear cases on the legality of detention.

  49. Congress is currently controlled by a party in opposition to the executive

    Good one, Abdul.

  50. You guys are really arguing that blowing up American ships and embassies abroad, and buildings on American soil, does not consitute an invasion unless it reaches a quorum? What’s the number?

    Enough to prevent our courts from being able to function. I thought that point was made pretty clearly.

    RC,

    I think the more interesting question is whether habeas corpus even applies at all to foreign nationals who are not on US soil. Gitmo is US soil, as much so as our embassies.

    Constitutional restrictions have not been read to apply to the military in a war-fighting situation.

    Amd the phrase “warfighting” has not been applied to the arrest of people off the battlefield who are not known to have been combatants or to have violated any laws, being held in a prison camp, subject to detention and treatment beyond that appropriate for POWs.

    If this was a platoon of Taliban/Afghan Army soldiers who put up their hands when they were surrounded and were being held at Baghram, we wouldn’t be having this discussion. Heck, we wouldn’t be having it if they built a camp for them in Kansas, either.

    I don’t think the writ has been applied (before) to someone (a) captured overseas (b) held overseas (c) during active hostilities

    Leaving aside “overseas,” I think you’re right. On the other hand, we never held people in a situation like this before. This isn’t a Wehrmacht unit that got captured, its mainly a group of men who some Afghans swore up and down used to give gootrubs to Osama bin Laden, in exchange for cash.

  51. The idea that Congress has to wait for a certain quorum of attacks to be effectively carried out is an absurd interpretation.

    The idea that 19 men committing a series of violent crimes constitute an invasion is the absurd interpretation.

    I’m sure that 19 Dominican, Haitian, Mexican, or Canadian nationals will commit violent crimes in the US or against Americans at some time in the next month. But it would be patently absurd to use those crimes as evidence that the US had been “invaded”.

    They merely said that a law passed by Congress which limited the writ and the jurisdiction of courts (both powers reserved to Congress in the consitution) was somehow unconsitutional.

    Again, the power to suspend the writ is limited in the Constitution, and your expansive interpretation of the Article 3 language regarding Congress’ power to regulate the appeal process would eliminate the entire concept of a judiciary from our legal system. A much more reasonable reading of the clause you cite would be that Congress can create intermediate appellate courts, or set limits at law as to the Court’s ability to overturn certain findings of fact. It’s just not reasonable to think that the Constitution would devote an entire article to creating a judiciary, but then say, “Oh yeah, whenever the Congress wants, it can close all the courts.”

  52. when English troops invaded America in 1812, no one in England was responsible for that.

    Wow.


  53. While this decision is hardly the worst, it does seem to be a power grab by the Supreme Court over an issue which the Constitution specifically grants to Congress. And there’s good reason for Congress to have power over habeas–because we can change our legislature every two to six years (depending on the chamber). The current Democratic congress could have repealed the DTA (interesting that the current congress didn’t feel that it was necessary). Furthermore, a legislature is better equipped to create or modify sweeping changes to detention procedures.

    This is a really good point. The left loves to talk about the system of checks and balances, but the truth is that they don’t really want or believe in having any checks or balances against the judicial branch which they secretly believe should have the final say say on every issue, whether the Constitution gives it to them or not. Which isn’t surprising, as today’s left has achieved such a strong grip on the legal system through a generation of control over the law schools.

    If the other two branches combined can no longer effectively check an out of control and unaccountable judiciary, then the system is out of balance.

  54. The left loves to talk about the system of checks and balances, but the truth is that they don’t really want or believe in having any checks or balances against the judicial branch which they secretly believe should have the final say say on every issue, whether the Constitution gives it to them or not.

    The federal judiciary is the only branch whose members are appointed and confirmed by the other two branches.

    How can you complain that there’s no checks and balances in a system where judges are appointed by the President and confirmed by the Senate?

    And whether you like it or not, the limitations on Congressional power in the Bill of Rights and in the 13th-15th Amendments are so broad that the judiciary plausibly DOES have the final say on a vast number of issues.

  55. All I have to say is that only a fucking retard would call what the people being held in Gitmo for: “invasion.” Seriously? Do you have absolutely NO respect for the English language?

  56. Whether or not it is the worst ruling in history is of course subjective. That is frankly beside the point.

    In my opinion it is a very bad ruling and it is dangerous. It gives terrorists, foreign enemies, rights of criminals. Where will this stop? Should we also give them miranda rights? Should they have the right to silence without a lawyer?

    If habeas is sacrosanct what else is sacrosanct.

    This belief that terrorists have the rights of criminals is one of many common misconceptions that liberals make. I listed them here…

    http://theeprovocateur.blogspot.com/2008/06/liberal-misconceptions-lies-and.html

  57. I’m sure that 19 Dominican, Haitian, Mexican, or Canadian nationals will commit violent crimes in the US or against Americans at some time in the next month. But it would be patently absurd to use those crimes as evidence that the US had been “invaded”.

    Nobody tell LoneWacko!

  58. *reads Mike Volpe’s post*
    *slams own forehead on desk*

  59. The federal judiciary is the only branch whose members are appointed and confirmed by the other two branches.

    True, and they’re also the only branch with guaranteed lifetime appointments as well, which is beginning to look more and more like a founding mistake these days.

    I can complain about the judiciary very easily if they are attempting to usurp their authority. The framers did NOT intend for the judiciary to be the strongest branch which has the final say on every issue, in fact they feared a tyranny of the judiciary nearly as much as they feared the tyranny of a monarchical executive. The legislative branch was always intended on balance to be the strongest of the three, and it is now of course by far the weakest.

    It’s bad enough that the judiciary has been gradually usurping the authority of the legislative branch for decades, but now, apparently unsatisfied with that, they are actually attempting to usurp the authority of the executive branch as well. They are creating an intolerable situation, and one which I don’t believe the people will tolerate indefinitely.

  60. In my opinion it is a very bad ruling and it is dangerous. It gives terrorists, foreign enemies, rights of criminals. Where will this stop? Should we also give them miranda rights? Should they have the right to silence without a lawyer?

    Uh, you’re joking, right?

  61. The court has not overstepped its bounds in this case because it is a case about constitutionality of a law. Yes, congress can limit the courts jurisdiction in cases like this, as the DTA specifically does. The DTA prevents prisoners at gitmo from appealing to federal court in regards to habeus corpus. However, in Article 1 Section 9, the constitution bars congress from making a law suspending the right to habeus corpus except in times of rebellion or invasion. Only the loosest interpretation of those terms could lead someone to consider the detaining of these prisoners a matter of “public safety” stemming from an “invasion”. The word “invasion” cannot possibly be construed to mean any form of hostile act or planning, including those of individuals in foreign territory which we sought out in their territory and captured.

    Yes, congress can limit the court’s appellate jurisdiction, but it cannot do so by passing an unconstitutional law. It would be insane to think that congress could simply pass an unconstitutional law and then within that law bar the courts from reviewing the constitutionality of the law. I think this decision strengthened the separation of powers rather than weakened it.

  62. Hmm, advertisement for his own blog in a comment… filtered.

  63. The legislative branch was always intended on balance to be the strongest of the three, and it is now of course by far the weakest.

    The problem with this line of argument is that the total amount of federal power was intended to be so much less than it has become that we can’t make valid comparisons.

    If the executive and legislature were reduced to the number of functions and powers they possessed through the Presidency of, say, James Buchanan, the SCOTUS would not have nearly so much to do and as a result would have much less apparent “power”.

    Of course the number of times the judiciary pre-empts the legislative and executive branches will expand as those branches exponentially expand their activities and power. What the hell else do you expect?

  64. The legislative branch was always intended on balance to be the strongest of the three

    The American Republic has three CO-EQUAL branches of government. You’ve probably come across that phrase before.

  65. Mike Volpe-

    You do not have the right to impose your fear upon me. Oh, am I supposed to buy to buy the propoganda that there is an Atta in every attic waiting to fly airplanes into buildings.

  66. Mike Volpe and others that agree with this ruling,Your WRONG!!!

    Anyone Arrested by Police, the miliary, the president, etc should have to right to a hearing were they can atleast say “It’s not me.”

    EVERYONE arrested of ALL Crimes Must have the right to a hearing…at the least.

    It’s bad enough that we eliminated the concept of the WARRANT.

    If you, and the like, wouldn’t mind you and your children being arrested and held without the opportunity of a hearing…UR not just cruel, UR UN-American.

    Ben Franklin:
    Any man that would trade liberty for security deserves neither!

  67. I’m not sure I completely understand what the right is afraid of. Are they afraid that if these “terrorists” or “POWs” or “invaders” or whatever-else have you are given a trial, that they will all just be set free? If these people are being held without evidence sufficient to classify them as anything other than a captive, they must therefore be evil and be secretly planning to destroy our country?
    Please, someone enlighten me as to what crazy, horrifying things will happen if these detainees are treated like human beings.

  68. It gives terrorists, foreign enemies, rights of criminals.

    No, it gives ACCUSED terrorists, ACCUSED foreign enemies, one particular right, to be applied to the process of determining whether they are, in fact, terrorists or foreign enemies. Once they have been found to be such, they are subject to military justice.

    It is specifically because of the different nature of how they were captured…you know what? I’m done typing this. I, and many others, have raised this point about 100 times in the last three days, and not a single goddam one of the pro-Gitmo apologists has even attempted to answer this point. This tells that they A) cannot or B) simply don’t care whether the people being held are actually guilty, and more than the former lead Gitmo prosecutor who said that “We can’t acquittals” because it would be look bad politically.

  69. If you look into how many times in history the courts have deferred to legislative authority on nearly every issue, you would never say that the courts have taken more authority than was intended. The court has given the legislative branch power to spend on anything, the commerce clause, ability to legislate via agencies, etc etc etc. In fact, it would seem that the courts have given the legislature SO much power that when they finally actually check that power, people say its overstepping their bounds.

  70. Reinmoose,

    What are they afraid of?

    Colonel Morris Davis, the former chief prosecutor for Guantanamo’s military commissions recounted a statement from the Chief Counsel in the DoD, General Haynes:

    Haynes said, “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.”

    They’re not afraid they’re guilty; they’re afraid they’re innocent. So we can’t have a process that allows them to challenge their detention, because it might demonstrate that we’ve been holding innocent people.

  71. The job of the judiciary is to be an impenetrable bulwark against every invasion of individual liberty mounted by the legislative and executive branches. THis is what Madison commanded.

    The framers recognized and ordained that the vindication of individual liberty is a far higher value than respecting what two wolves and a sheep decide for lunch. They were well aware of the evils that men do with power. They were well aware of the propoensity of those in public office to cry wolf and create “problems’ that required more power and money for them. They warned us not to be persuaded by the rent seekers, crony capitalists (communists) and the losers screaming patriotism as the last refuge of a scoundrel is patriotism.

    There are those who will buy almost anything their “authority” idols are selling-there are people stupid enough to buy the war on drugs, the war on poverty and the war on terror. How could any person not a few fries short of a happy meal buy what a 4th generation anglo saxon protestant blue blooded ivy league legacy admittee mediocrity is selling?

  72. The main reason I want Obama to win this fall is because I suspect that with a Democrat in the White House, folks like JohnD, John McCain and Mike Volpe might finally then be capable of understanding why it’s a bad idea to let people be locked up indefinitely on little more than the Chief Executive’s say-so.

  73. I’m sure that 19 Dominican, Haitian, Mexican, or Canadian nationals will commit violent crimes in the US or against Americans at some time in the next month. But it would be patently absurd to use those crimes as evidence that the US had been “invaded”.

    Unless your name is lone wacko or Lou Dobbs 🙂

  74. They’re not afraid they’re guilty; they’re afraid they’re innocent. So we can’t have a process that allows them to challenge their detention, because it might demonstrate that we’ve been holding innocent people.

    Permit me to rephrase my question:
    What are those who defend the right’s position afraid of? (Mike Volpe, etc.)

  75. If I had to guess, I’d say that they afraid that one of the Gitmo detainees has been secretly hiding a tactical nuke in his colon for the past six years, and if acquitted at trial will immediately head for Miami to detonate it. And then the liberals will rejoice!

    Something like that sounds about right.

    I’m surprised that no one has argued that court’s decision constitutes “providing material aid and comfort to an enemy” and tried to play the treason card.

  76. The job of the judiciary is to be an impenetrable bulwark against every invasion of individual liberty mounted by the legislative and executive branches. This is what Madison commanded.

    And yet, most of the pro-judiciary left in America was basically AWOL on the Kelo decision. I know that Reason was an exception to this rule, but that’s all they were, a small dim voice in an ever-increasing left wing wilderness.

    All I can say is that those who love to cloak themselves in the mantle of individual liberty had damn well better hope that the court makes a good and strong ruling in the Heller D.C. gun ban case.

  77. Permit me to rephrase my question:
    What are those who defend the right’s position afraid of? (Mike Volpe, etc.)

    I think they’re genuinely afraid that any restriction on the President’s and executive branch’s powers will inevitably lead to Khalid Sheik Mohammed being allowed to hire O.J. Simpson’s defense team, demand a civilian criminal trial before the ACLU’s favorite judge, and get their case dismissed because they were served orange juice that was too pulpy. Then turn about and win a $billion verdict against the segeant and two lance corporals who took him prisoner.

    Seriously. Think of the anti-miranda, anti-judicial, anti-lawyer propaganda the right has been pumping out in every conceivable sphere for the past 40 years. A lot of people have taken that to heart.

  78. These people are not part of any “military” in the normal sense.

    It appears that some of them are not part of any “military” in any sense. See the McClatchy series.

  79. Mike M-

    Wait a minute. Some of us here are dogmatic libertarians aand proud of it. Hence, of course the supremes should reaffirm that not only does the 2nd amendment protect our god given right to keep and bear arms but just as important, the primary motivation of the framers in enacting the 2nd was to enable folk to jump ugly on the uniformed ugly.

  80. The libertarian party’s prospects will never improve if the party accepts the welfare/warfare state paradigm.

  81. I’m surprised that no one has argued that court’s decision constitutes “providing material aid and comfort to an enemy” and tried to play the treason card.

    Give it time. I’m sure Michelle Malkin and Sean Hannity won’t disappoint you.

    We’ve come to expect the very *best* demagoguery; I guess we’re all a little spoiled by FOX News.

  82. Malkin never disappoints when it comes to drumming up artificial disgust at things like Dunkin’ Donuts spokeswomen wearing scarves, but her real strength is being able to switch gears and opine that detention of people based on their race is a good thing. When it comes to demagoguery, she’s tough to beat (no pun intended?)

  83. If this was a platoon of Taliban/Afghan Army soldiers who put up their hands when they were surrounded and were being held at Baghram, we wouldn’t be having this discussion.

    Maybe, maybe not. It depends on what the limiting principles are for habeas corpus rights. I’m not sure how you say, for example, that habeas is required for someone held in some kind of US facility overseas, but not required for someone who is in US custody but not held in a US facility.

    I’m not sure how you define what kind of US facility counts, or what kind of US custody counts, for this purpose. We’re looking at some pretty arbitrary lines here, but that’s the nature of the beast, I guess.

    As an aside, the Taliban does not meet GC requirements for lawful combatants, so they can’t be lumped in with soldiers in a good GC army. But, I’m not sure that matters, because I don’t think you can say that any person otherwise entitled to a habeas hearing because they are in a US facility can be denied that hearing because of treaty, like the Geneva Conventions. What’s the Constitutional basis, now, for denying habeas rights to a POW?

  84. Hence, of course the supremes should reaffirm that not only does the 2nd amendment protect our god given right to keep and bear arms but just as important, the primary motivation of the framers in enacting the 2nd was to enable folk to jump ugly on the uniformed ugly.

    Agreed, but you know as well as I do that it’s going to be a very close run thing. If anyone thinks that the Ruth Bader Ginsburg wing of the court cares about our 2nd amendment freedoms a fraction as much as it cares about foreign prisoners in Guantanamo Bay, I have a bridge in Brooklyn to sell them.

    The 2nd amendment essentially rests entirely in the hands of one capricious and somewhat vacuous man on the court, and that’s precisely what I’m talking about. Our government isn’t supposed to work this way.

  85. Is Roberts actually arguing that the court overrode the judgement of the people’s representatives because Congress secretly intended to suspend habeas for “enemy combatants”, a virtually unknown category of prisoners at the time the authorization for the war in Afghanistan was passed?

  86. Masturbatory Fantasy-

    The proposition that if libertarians become more like democrats and republicans we will do better at the polls. Why would an authority lovin nanny state needin loser vote for the cheap immitation when he already has the real deal?

  87. RC Dean,

    The principle expressed in this decision is that the power of American judges to issue writs of habeas corpus for people in military custody extends to the point that the military is competant to handle their quasi-judicial responsibilities in accordance with the principles of our Constitution.

    There are no quasi-judicial responsibilities associated with holding POWs as POWs. Hence, no habeas corpus writs from the civilian courts.

    But when the military has to try somebody, because they want to delcare them criminals, they have to do it in a manner consistent with our laws and principles as determined by the Constitution and the Anglo-Saxon legal tradition.

    The issue is not “held,” the issue is “tried.”

    As an aside, the Taliban does not meet GC requirements for lawful combatants, so they can’t be lumped in with soldiers in a good GC army. That’s a fine statement, but when we’re talking about Ahemd in cell 4B, the segeant on duty (or his superior, or HIS superior, even on up to the POTUS) doesn’t get to unilaterally declare that this dude is an illegal combatant under Geneva. There has to be a “regularly constituted tribunal” to make that decision.

    In a sense, because these tribunals were not “regularly constituted,” they can’t be trusted to operate without a level of oversight from the real judiciary.

  88. BTW, RC, didn’t the Germans use “they’re not lawful combatants according to the laws of war” to justify the summary executions of Free French soldiers in North Africa?

    Didn’t the British use that excuse to justify their treatment of Patriots?

  89. Michelle Malkin-

    One fugly Faux feline. I wouldn’t touch that with a ten foot taser equipped with a 9 foot handle. R C Dean, J sub D and Art P.O.G.? I bet that beast has them undulating in their undies.

  90. I can’t come up with any moral justification for denying any person the right to challenge their imprisonment. Regardless of who holds them or where. The power to arrest is one of the most frightening powers a government commands and should be totally transparent and easily challenged at all times.

  91. liberty mike,

    I am not a fan. However, I find your obsession with me troubling. Any confusion about your sexual orientation is of course understandable. It happens to a lot of people.

  92. They do not want history to judge them as it judges the members of the court who voted that it is okey-dokey to hold someone as a prisoner just because that person’s ancestors came from a country with which we are at war.

    It is precedent for future cases. Stare decisis requires that this ruling be used to judge the constitutionality of future court cases with similar facts.

    There is nothing illegal about the government holding someone prisoner because that person’s ancestors came from a country we are at war with, like it or not.

    Legality does not always coincide with morality.

  93. “As Matt Welch recently noted, John McCain is none too happy with Boumediene v. Bush, calling the Supreme Court’s recognition of habeas corpus for enemy combatants “one of the worst decisions in the history of this country.” Could that possibly be true?”

    Whether it’s one of the worst ones or not – it was still an incorrect decision.

  94. What matth just wrote should have been the entire supreme court decision. Those 3 sentences are more than enough to justify the decision.

    Some might call that judicial activism, but if our country is founded on a natural rights basis (as the Declaration seems to make clear) then the constitution must also not conflict with natural rights. Not sure many people who have spent a day or two in law school would agree, but I havent, so I dont have that bias.

  95. the constitution must also not conflict with natural rights

    I agree.

    But if the constitution does conflict with natural rights, judges must uphold the constitution.

  96. Michael Ejercito,

    The constitution CANT conflict with natural rights, where it does, it is invalid. Thus, the 2nd part of your statement makes no sense.

  97. The constitution CANT conflict with natural rights, where it does, it is invalid. Thus, the 2nd part of your statement makes no sense.

    But judges swore to uphold the Constitution, not natural rights.

    The Constitution should not conflict with natural rights. If it does, it should be amended properly .

  98. Michael Ejercito,

    The Declartion establishes the legitimacy of our country, under certain principles. If the constitution violates natural rights, then the legitimacy of our country is void and we have no constitution for them to have an oath to.

  99. What part of the Constitution authorizes detaining people based on ethnicity?

    I’d like to see some language.

  100. Michael Ejercito-

    Natural rights philosophy undergirds the constitution.

  101. joe,

    What part of the Constitution authorizes detaining people based on ethnicity?

    Good point. After all, as any strict constuctionist will tell you, any power not specifically granted to the government doesnt exist (or is reserved to the states/people blah blah blah).

  102. The American Republic has three CO-EQUAL branches of government. You’ve probably come across that phrase before.

    As a matter of fact, I have, but you really ought to know that you’re wrong.

    The myth of three CO-EQUAL branches of government is admittedly a popular and enduring myth, but a myth is all that it is. Nowhere in the Constitution does it say that they are. On the contrary, it very specifically outlines what their various roles are supposed to be.

    And if you read the Federalist Papers, it is plain to see that most of the Founders intended that the Congress was intended to be the strongest of the three branches.

    Unfortunately, when the Court decided to arrogate power to itself it wasn’t intended to have in Marbury vs. Madison, they were permitted to get away it.

  103. I somehow doubt that any provision of the Constitution would demand legislation attempting to repeal the 2nd Law of Thermodynamics, or violate the integrity of the Space-Time Continuum. Beyond that, I have always failed to see ho so-called “Natural Law” had any place in the formation of governmental restrictions and governing policy.

  104. Unfortunately, when the Court decided to arrogate power to itself it wasn’t intended to have in Marbury vs. Madison, they were permitted to get away it.

    It’s hard to see how applying Articles III and VI in a commonsense manner is an arrogation of power. If the Constitution is the Supreme Law of the Land (III), and the Supreme Court is the final arbiter of questions that arise under the Constitution (VI), then their role seems pretty fucking obvious.

    Of course, Justice Marshall went out of his way in his opinion to muster the most ridiculous and obscure arguments to support that conclusion. So, there is that.

  105. Switch the (III) and the (VI) in the prior post.

    Damn it.

  106. It’s only hard to see it if you don’t want to see it.

    I can fully understand why lawyers and judges absolutely love the fact that lawyers and judges basically run the country today, but I assure you that most of the Founders would have found the idea utterly repugnant (as would have the wise old bard William Shakespeare). It makes a mockery of the idea of a true Republic.

    Of course, part of the fault lies with we the people for allowing it to happen. I’m not sure that will last indefinitely though the way things are going though.

  107. Hopefully, someone will correct that silly mistake in Marbury vs. Madison, and when the Supreme Court can no longer use the Bill of Rights to restrict government action, Mike M. will catch a bullet in the skull during the ensuing revolution / coup / civil war / series of all three.

  108. robc,

    The Declaration of Independence was a rhetorical document with no legal standing. The legitimacy of our country came at the point of a bayonet, the same source that the legitimacy of every country on earth comes from, directly or indirectly.

    Or do you think that natural law somehow determined the borders on the world map?

  109. The principle expressed in this decision is that the power of American judges to issue writs of habeas corpus for people in military custody extends to the point that the military is competant to handle their quasi-judicial responsibilities in accordance with the principles of our Constitution.

    So why does it apply in Guantanamo? Isn’t the military competent to handle quasi-judicial responsibilities in Guantanamo? If not, why not?

    There are no quasi-judicial responsibilities associated with holding POWs as POWs.

    This assumes the conclusion, I believe. Why couldn’t I say just as well that there are no quasi-judicial responsibilities associated with holding illegal combatants?

    Basically, what I’m struggling with here is the attempt to overlay a civilian judicial template on a warfighting situation. The two paradigms are fundamentally incompatible, and I think we are going to experience innumerable difficulties as a result of this case.

    Which, I admit I still haven’t read. I plan to print it off today and read on my flight to NM for my fishing trip this weekend.

  110. Hopefully, someone will correct that silly mistake in Marbury vs. Madison, and when the Supreme Court can no longer use the Bill of Rights to restrict government action

    Marbury is widely regarded as a masterful political stroke by Justice Marshall. The Constitution never says that the SCOTUS interpretation of the Constitution is privileged above that of the other two branches. Marshall brilliantly built that fundamental bit of Con Law as dicta in an opinion where the SCOTUS, as I recall, concluded it didn’t have jurisdiction.

    I’m not saying its wrong, I’m just pointing out that SCOTUS as the supreme arbiter of what the Constitution means is not hard-wired into the system.

  111. The Constitution never says that the SCOTUS interpretation of the Constitution is privileged above that of the other two branches.

    Article III, Section 2:

    The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.”

    How are we to understand this sentence, then?

    Also, there is the Federalist #78, in which Hamilton says in part:

    The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

    He was pretty sure, it sounds like.

  112. Has Senator McCain commented on whether he believes Korematsu was correctly decided? Has any representative of the media even asked him?

  113. Elememope-

    Even Hamilton was influenced by the natural rights philosophy. The framers were natural rights devotees. Take John Adams. He observed James Otis argue the writs of asistance cases against the filthy, slimy crown. Otis contended that the writs of assistance were void “because they violated the natural right of Englishman.” David McCullough, John Adams, 61-62 (Simon & Schuster 2001).

    Adams noted “then and there the child independence was born.” Edwin S. Corwin, The Higher Law Background of American Constitutional Law, 42 Harv. L. Rev. 149 (1928).

  114. One of the tenets of the natural rights philosophy was the proposition that “fundamental” or natural law could be invoked to void legislative enactments. The colonies relied upon the notion that the higher law or natural law superceded parliamentary acts. Suzanna Sherry, The Founders Unwritten Constitution, U. Chi. L. Rev. 1128-1129 (Fall 1987).

  115. Robc-

    Though I bore you, you are right about natural rights. See above posts.

    As to the Declaration of Independence, Jefferson’s language reflects “the essence of the natural rights and social contract theories of JOhn Locke, whose Second Treatise of Government was widely read and all but universally subscribed to by the founding generation,” Kimberly C. Shankman and Roger Pilon, Revising the Privileges or Immunities CLause to Redress the Balance Among States, Individuals and the Federal Givernment, 3 Texas Rev. of Law and Policy 1, 12 (1998).

  116. Whether Congress should have passed the Detainee Treatment Act which had the effect of suspending habeas for detainees is a policy question with good arguments on both sides, but I think Congress had the clear Constitutional authority to pass it.

    But do they have the authority to apply the law post facto? One of the reasons the Constitution denies Congress reto laws is to prevent the authority from wrongfully imprisoning someone, then getting a law passed to just to make the wrong, right.

    “””Several of the detainees were involved in planning or carrying out attacks on American soil or embassies. There’s no real factual dispute about this. That’s arguably an “invasion.”””

    How many of these detainees carried out attacks on American soil? How many invasions of this country have we had? If planning attacks to be carried out met the definition of invasion, we need to revisit history because we have way undercounted. At what point in our existence do you think no one was planning aggressions against us?

    “””I think the more interesting question is whether habeas corpus even applies at all to foreign nationals who are not on US soil.””””

    What authority would America have to bring foreign nationals on foreign soil to any court? A military tribunal in wartime, right? So the question is about applying habeas to military tribunals. We have already answered that so why not drop all of Bush’s kangaroo court BS and give them an old fashion mitary tribunal.

  117. Contemporary Conservatives==New Rightys in a fraudulent wrapper.

    First,those of you who ask where the Constitution “gives” rights to the detainees, really ought to get off of your high horse, and turn that saddle around. You’ve got it ass-backwards. The Constitution does not grant rights which are secured in their possession by the people. They are instead Natrural Rights which were never ceded to the state.

    Second, there is no need to drift off into the realms of the unprovable mystical, to posit a rational Natural rights theory. There are two, ways to do it, which will end-up at near the same point, and given the variability in in scope that is a natural function of the population, it is insignificant. A) Natural rights are rights which a people cannot cede to the state and remain free. B) Natural Rights are the set of liberties that this Nation’s Founders posited as being preeminent and preexistent to the state. You can also claim that your Natural Rights came to you from your creator, as long as you do not try to claim that your creator is necessarly mine, because that would be oppositional to the very bedrock of this Nation’s Foundation: “All men are created equal and endowed BY THEIR creator”. Jeffersoin knew his shit.

    It is utterly asinine to assert that habeas corpus is NOT a Natural Right, at least under both of the definitions I proferred for them. Habeas corpus is obviously preexistent the The United States, and far too many of This Nation’s Founders also believed that it was preeminent to the state also.

    A Natural Right is also by definition, a Universal Human right. It is NOT bounded by citizenry. If it is only a right of American citizens, then it is not a Natural Right, nor is it a right secured in its possession by the peolple. It is instead a right that a benevolent state has gifted to its citizenry. It then becomes insecure. What a state has given, it will assuredly someday decide to take away.

    Now for the constitutional side of the argument.

    Article VI.; Clause 2 of the US Constitution states:

    “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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    The Geneva Conventions are a treaty made “under the Authority of the United States”, therefore the Geneva conventions are “The Supreme Law of the Land”. The Geneva Conventions cannot be abrogated by a signatory after hostilities have been initiated. The relevant date for the purpose at hand was September 11, 2001.

    The Geneva Convention relative to the Treatment of POWs, Article 4(A) defines 6 separate classes of humans who are POWs at the moment of their capture by a signatory power. Article 4(B) defines two additional classes of humans to “likewise be treated as prisoners of war”.

    Article 5, 2nd paragraph in its entirety states: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

    Mr. Bush, of and by his determination alone, cannot rationally be defined as a “competent tribunal”. The original designation of the detainees as “unlawful combatants” is itself a Constitutional Violation, because the Geneva Conventions are The Supreme Law of the Land. Another little magical part of being the Supreme Law of the Land is that as long as humans are being legitimately held as POWs following the dictates of the Geneva Conventions, the US Government can legitimately detain them without first securing a conviction against them in a trial that adhered to due process of law.

    The very moment that the detainees were stripped of their Geneva Convention Protections, and held as “unlawful combatants”, they were by the Bush Administration’s own definition of them, being held as criminal actors. The direct prohibitions against taking life liberty and/or property of the Constitution at that time were given control. The Constitutional rationale for this is found in the 13th Amendment; Section 1.: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” To assert that ANY U.S. Military Base, directly under the control of the USA, and not under threat of being overtaken in an enemy attack is NOT a place subject to the jurisdiction of the United States’ government is a great leap of fantasy. I believe that this also covers anyplace where a presidential order can be carried out without violent opposition. The sovereignty argument does not stand in any honest textual reading of the 13th Amendment. Jurisdiction is the standard, and it is not even complete jurisdiction it is just jurisdiction.

    Now we traverse to the phrase “duly convicted” and look to the 5th Amendment for guidance: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    NO PERSON is the standard here, the 5th Amendment is NOT bounded by citizenry, it is instead a bar placed in front of the state before it can legitimately take life, limb or property form ANY Person. Even if one were to assert that somehow a former member of an enemy military could actually be included in the 5th amendment’s exclusion, the clause only excludes what precedes it. What follows it remains inviolate. The prohibitions against coerced testimony and double jeopardy, plus the Natural Right to due process of law remain.

    Due process of law is defined in the 6th Amendment, which begins with “In all criminal prosecutions”. Clearly another bar to the state that has universal applicability. Any human charged with a criminal offense by the state remains in possession of minimally the following rights until a conviction has been fairly secured against the defendant:

    1) a speedy and public trial,

    2) an impartial jury of the State that understands the burden of proof for guilt rests entirely upon the state

    3) an open and public presentment of the criminal charges

    4) a right to confront prosecution witnesses, and to impeach any evidence the state presents for the prosecution

    5) to have available methods of obtaining witnesses and evidence for the defense

    6) to have competent law counsel dedicated to the defense.

    Finally, since this delves deeply into the realm of Natural Rights, it is not the Executive, the Legislature. nor the Judiciary that is the ultimate arbitrator. It is instead the people, the pronouncements of nine old blathering fools with fetishes for black satin moo moos, notwithstanding.

  118. @ AbdulSeveral of the detainees were involved in planning or carrying out attacks on American soil or embassies. There’s no real factual dispute about this. That’s arguably an “invasion.”

    This is not even close to being “arguably” an invasion. What kind of anti-semantics is this?

    An invasion of several guys in a Nation that stretches across a continent and has over 250,000,000 people living in it?

    Anyone who actually believes this would constitute an invasion would be well-advised to fully stock-up on supplies of the survival need essential for his homeland’s defense in the event of a national emergency: Depends?.

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