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Sunday, June 15, 2008
Lest you think there might possibly be precedents to support Boumediene, consider Justice Kennedy's admission: There aren't any!
Often it's very difficult for lay readers, or even insufficiently motivated lawyers, to figure out whether there really is or isn't strong precedent from prior cases to support a particular Supreme Court decision. The majority opinions almost always say, "Oh, yes, rest assured that this is just one more in a long, straight line of decisions; our result today was practically compelled by them, lest we violate the rules of stare decisis." The dissent typically quibbles over that assertion and argues that the prior precedents are being misread, or that others were more on point.
Not so with last week's decision in Boumediene v. Bush. You don't have to slog through the many dozens of pages of Justice Kennedy's torpid prose, nor even glance at either Chief Justice Roberts' or Justice Scalia's dissents, to find out just how much support this decision actually has in the prior case-law of the U.S. federal courts. Instead, consider this remarkable paragraph (at page 49 of the .pdf file; italics in original; boldface mine):
It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure [i.e., formal legal] sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.
You could not possibly seek a more candid admission that Justice Kennedy is making up not just law, but constitutional law, out of thin air. And a more conspicuous or egregious example of "legislating from the bench" would be hard to imagine, particularly since this time, the Court is not only legislating itself, but sweeping aside as unconstitutional the legislation actually passed by Congress and signed by the President.
(If, nevertheless, you actually do go on to read the dissents — and if you're wondering why Hermann Göering and his crew weren't permitted to assert their supposed Fourth or Fifth Amendment rights under the U.S. Constitution at Nuremberg — you'll find that Justice Kennedy and the majority also disingenuously disregarded contrary precedent that is on point, most particularly Johnson v. Eisentrager, 339 U.S. 763 (1950), which quite sensibly held that such foreign nationals who acted, and were captured and tried, entirely on foreign soil, had no rights under the U.S. Constitution, and could not use habeas corpus to claim any.)
Posted by Beldar at 11:26 AM | Permalink
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(1) hunter made the following comment | Jun 15, 2008 3:18:45 PM | Permalink
Why is this not the equivalent of an unlawful order?
(2) DRJ made the following comment | Jun 15, 2008 3:40:07 PM | Permalink
The Supreme Court can do whatever a majority of its members agree to. The only check on its actions are the powers exercised by the Executive and the Legislature branches, whose members ultimately answer to the people who elect them. Historically, the Supreme Court changed law slowly, like the turning of a ponderous aircraft carrier as opposed to a nimble speedboat, but that has been criticized as well. For instance, many have criticized the Court for maintaining the status quo and not moving more decisively on subjects like civil rights, e.g. Dred Scott. However, there have also been notable occasions where the Court moved swiftly to set new precedent, such as this case.
As the ultimate arbiter of US law, the Court walks a fine line and that's why many people want the Court to adhere to precedent. It's difficult for people and society to adjust to significant changes where the results are unclear. It's especially difficult when that change happens in the blink of an eye.
(3) hunter made the following comment | Jun 15, 2008 4:36:21 PM | Permalink
I have no problem with rapid change.
I have a problem with change based on made up rationales, like in this case.
The SCOTUS, I am pretty certain, was not set up as an unlimited arbiter- one with the power to simply impose judicial solutions without regard to law or precedent.
But here we are.
What our lefty friends had best think very seriously about is that this new power can run against them, as well as for them.
(4) yonason made the following comment | Jun 15, 2008 5:14:07 PM | Permalink
Found at Lucianne.com
... a breakdown of the broken down not so Supreme Court, by idiological bent.
(5) Carol Herman made the following comment | Jun 15, 2008 9:20:46 PM | Permalink
It's alwasy been in the "interpretation." Sort'a like the Oracles at Delphi. To be a justice means "what you say it means."
As to Anthony Kennedy, you're looking at the slop that passed for muster because of abortion. Believe it or not! He came in on the tails of a republican president. You got crap when Reagan selected justices. And, ditto, again, when the Elder Bush did. As if you could buy "ideological merchandise" ... horse feathers.
It could'a been worse. Ken Starr thought he was supreme court material. And, he never got busted for putting out, into public view, grand jury testimony.
So Anthony Kennedy "guessed" there's no downside. He can interpret against the military,as easily as that.
5-4 isn't exactly "precident setting, either.
While Kozinski is caught with pictures of farm animals and men, engaged in sexual activity.
Well, you can no longer start from scratch.
And, by the way, all those conservatives who went to DC? They're not in Congress, anymore.
You've got McCain, because there are fears in the GOP, that the favorite son candidates, would have you losing the White House, as well.
Time to reconsider what brought to you a dog like Kennedy? Or are women's rights to seek abortion still a religous mission to some folks who can't even get pregnant?
(6) DRJ made the following comment | Jun 15, 2008 9:58:31 PM | Permalink
To me, this Dahlia Lithwick excerpt is a perfect example of what is wrong with the Court and with the people who watch the Court:
"This approach certainly represents judicial minimalism, or humility, and it was the young chief justice's confirmation promise to the American people. But it also does very little to guide future litigants. It's a deflection -- a constitutional push of the pause button that allows legislatures and the electorate to catch up. This new conciliation is a way for the younger justices to defer ideological disagreements and for the aging justices to pass the baton to their more energetic successors. And it may simply reflect an understanding on the part of various justices that some of them have big dreams but very little time remaining, while others have big dreams and all the time in the world."
This excerpt suggests Lithwick thinks the Court's and the Justices' role is not to influence American policy to the greatest extent possible. I think that is dead wrong. The Court's role is to officiate court proceedings, nothing more and nothing less.
(7) DRJ made the following comment | Jun 15, 2008 10:00:56 PM | Permalink
I'm sorry - I said the opposite of what I intended to say. My last paragraph should read as follows:
This excerpt suggests Lithwick thinks the Court's role is
not to influence American policy to the greatest extent possible. I think that is dead wrong. The Court's role is to officiate court proceedings, nothing more and nothing less.
Hi, Carol. I've missed you.
Ken Starr was on the track to being a Supreme Court Justice until, as Solicitor General, he opposed the Attorney General in a civil rights case. His boss. Really. I should remember the case but it's late and it's Father's Day ... you know.
In any case, I'm glad you're back to commenting here and I hope you will stay.
What Kennedy is saying is that just because there is no "precise historical parallel" to Gitmo does not relieve us of the RESPONSIBILITY of applying the writ of habeas corpus to the detainees to make sure that they are there for good reason.
As this McClatchy study makes clear, many of the detainees were there by mistake or did not present the kind of threat that would justify such treatment.
As to the comparisons to Nuremberg, I would just note that there was little doubt as to who those people were - that they were indeed high officials in the Nazi regime and had been at war with the U.S. and thus a habeas corpus appeal would not have met with any success anyway. We cannot say the same thing about all the detainees still at Gitmo today.
(10) Carol Herman made the following comment | Jun 16, 2008 2:08:05 PM | Permalink
Do lawyers ever discuss, among themselves, what motivates a judge?
One thing Anthony Kennedy wanted more than anything else, was to rise up into Renhquist's chair. Kennedy wanted to be chief justice!
And, he's ANGRY he isn't!
So he looks to screw Bush wherever he can. And, in the process, make Roberts look "innept."
Don't forget, Roberts promised that as chief justice, he'd try harder to "get along." And, yet? He's still very isolated.
Anthony Kennedy is a DISASTER. And, you got him because it was Reagan, I think, who had to look around and come up with somebody that wouldn't get tossed out of Congress.
As you know, Ken Starr turned himself into a parody of a "good judge." And, he, too, is very angry he's not sitting up on the Supreme-O's.
Ditto, Robert Bork, who still bears a grudge against Reagan.
That's about all I know that deals with "insider" information.
But Kennedy's tack here? Why be surprised at all. The idiot bears a grudge.
All those justices are growing old. Too bad if it's Obama who gets to replace them. But one never knows what the public can do, when the public goes out to vote.
Sort'a like juries. But on a gigantic scale.
And, all because the right wing nutters can't help themselves. In a secular country they want to bypass the People. So there ya go. Anthony Kennedy got "selected." He's worse than a abortion. Let me tell ya.
(11) DRJ made the following comment | Jun 16, 2008 2:09:20 PM | Permalink
You seem to believe in tailoring the law to deal with different situations, Mike Thomas.
(12) Carol Herman made the following comment | Jun 16, 2008 6:03:48 PM | Permalink
FROM CAROL HERMAN
Why blame Mike Thomas? Laws have been "interpreted" since ancient times. Unless you think religious dicta are quite clear.
Plus, even though I am not a lawyer! Nor do I respect many who are. I am aware that John Marshall cut his teeth on what was happening to our Revolutionary troops, as they starved at Valley Forge.
To help you out, here, back then, each state was an isolated "nation." And, very few saw the whole. Very few really cared about much except their own "favorite son" topics.
We've grown a great nation since that beginning, when the Revolutionaries bested the British. In other words? A rag-tag band against the pro's. Doesn't happen all that often.
Yet Marshall became the Chief Justice; and very wisely planted a non-elected system on top of legislators; not matter what whoring they'd have to do to get into office.
And, once in office, what they'd do keep keep themselves imbedded.
By now, you can actually see what's happened to the GOP; which in 1948, as country clubs go, decided NOT to select General Douglas MacArthur to head the ticket against Truman. Here, the pros went with the loser, Dewey.
By 1952, with MacArthur "fired" by Truman. And, Truman playing ball with the UN, where the case was presented to give America a "stalemate in Korea" ... shows ya that in politics there's no such thing as shame.
Or even a cohesive look at what can go wrong with complex machinery.
Yes. You've got Anthony Kennedy "benched." And, he's pulled some doozies. Including a reliance on, of all things, "international law." Plus, whatever else is in his underpants.
But, boy, is Anthony Kennedy mad! He's furious! At Bush. And, at Roberts. So, it shows you that the GOP is stuck in a rut. Voters have placed democrats, instead of republicans, in Congress, 'for the majority.'
And, ya know what else? It's like watching Tiger Woods playing a golf game. Yup. It can keep ya at the edge of your seat. And, in the final stroke, it all depends on how good you are to the ball. In the cup. You win. Short, or long of the cup, you lose.
While Bush has managed to get lots of people angry at him. Disgusted.
Well? You remember James Monroe? We had troubles, in the beginning, with the pirates. And, the fact that the British signalled the pirates that "open season" on America's fledging sea trade business was okay.
Even Thomas Jefferson didn't flinch to "pay the tribute."
Not until our 5th President, James Monroe, reaches office; and sticks the MONROE DOCTRINE OUT THERE; did people even learn that forcing America to play, isn't exactly good for your health.
Today? Most people couldn't even tell you who James Madison was. Or where he fits into the presidential guys we've had in office. His doctrine? Perhaps to war-like to make a lot of softer folk happy.
ANd, that's part of Bush's problem. The other part? He was very innept in putting people into Iraq. So you got one mess after another. While at least he did take Paul Bremmer OUT. He still got stuck with his original choices.
Man is in DC, and he's less liked than Anthony Kennedy. And, there's nothing you can do about this.
Part of the idea of a Republic is to understand that unlike despotic regimes; IF you want the People to come along, you can't just force them over.
I could go on. But, basically, I don't see a way out of these woods for the GOP.
Putting Ken Starr into the Chancellor's chair at Pepperdine ... isn't going to turn Pepperdine into Yale. While the East Coast has even less to fear.
Again, if you want to be good at law, it takes more than a suit, "and knowing the judge." Very few very clever people end up at the top. So it's frustrating to see Anthony Kennedy getting away with it! And, owing no one the time of day.
Now, long wars are a hell of a thing to sell to the public. Especially when they involve arabs. Heck, even Bill Clinton ran into problems at Kosovo. Because too many people don't even give a rat's patootie.
Still, what's a lawyer got except an ability to convince others that his argument is best?
My guess? You'd never start talking into the wind, because you don't get heard.
And, as far as the legal profession goes? You can notice, since Anthony Kennedy doesn't topple; he can, in fact, take out his revenge on the hides of Bush and Roberts.
(13) hunter made the following comment | Jun 16, 2008 7:15:06 PM | Permalink
Just wondering- is there a sort of jazz music underscore that is better to read your free-form verse by?
(14) hunter made the following comment | Jun 16, 2008 7:22:07 PM | Permalink
Beldar, Can it be that the SCOTUS has violated the law in this ruling?
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005.
(15) Gregory Koster made the following comment | Jun 16, 2008 7:29:26 PM | Permalink
Dear DRJ: I've read this sentence of yours many times. It still seems empty to me:
"The Court's role is to officiate court proceedings, nothing more and nothing less."
"Officiate court proceedings?" What does this mean? No need to write opinions, just sit on the bench and listen to oral arguments all day long, periodically taking a swig from the absinthe bottle? What do "officiated court proceedings" mean in the Texas FLDS ranch case?
Dear Mr. Dyer: I'd be interested to hear your notion on how much of Kennedy's opinion actually came from the old boy, compared to what his four clerks contributed.
(16) cboldt made the following comment | Jun 16, 2008 7:56:18 PM | Permalink
-- "Officiate court proceedings?" What does this mean? --
I was intrigued by this later comment, which seems to assert a general principle that legal "tailoring" is to be deprecated.
You seem to believe in tailoring the law to deal with different situations
(17) DRJ made the following comment | Jun 16, 2008 8:13:09 PM | Permalink
Here's what I meant by my earlier statements:
Legislatures write laws and courts interpret the laws as written. I agree that courts should tailor specific decisions to do justice in specific cases, but that doesn't mean courts can rewrite laws because they would have written them differently in the first place. The role of the courts is to officiate proceedings, not to make law out of whole cloth.
(18) cboldt made the following comment | Jun 16, 2008 8:38:50 PM | Permalink
-- Legislatures write laws and courts interpret the laws as written. --
Was Marbury v. Madison wrongly decided? At some point, and there is a wide range of opinion on exactly where this occurs, statute and constitution in fact diverge in a way that represents a conflict between the two -- both written.
"Common law" is an assertion by a court that it's entitled to make certain species of law out of its own accord. "Common law" is part and parcel of our form of government. Habeas is part of that.
While I find many SCOTUS decisions inimical to my sense of the way things ought to be, I recommend caution in cutting the third branch too short.
Mr. Koster: I really have no clue how much of Justice Kennedy's opinion is from his own pen in the first instance, and how much instead was drafted by one or more of his law clerks. This case was extensively briefed, meaning by the time it was argued, one side or the other, or one of the many amici curiae, had probably located and cited almost all of the precedents he referenced (some of which are quite obscure and ancient). When there's been such thorough briefing, that has the effect of encouraging some judges to undertaking drafting that they might otherwise farm out. All I can say for sure is that he's accountable for his vote and its consequences.
Hunter: If one accepts the premise that enemy aliens with no connection to the U.S. (other than making war on it from abroad) are entitled to use the writ of habeas corpus, then there is indeed a constitutional dimension to the case. That's because the Constitution, via the Suspension Clause, back-handedly incorporates the common-law writ of habeas corpus that American colonies and then states adopted from our English common-law history. And that's why so much of Justice Kennedy's and Justice Scalia's respective opinions go back to pre-1789 legal precedents; that's why it's a big deal (to me and to Justice Scalia) that, for example, the common-law right to habeas corpus in England never extended to Scotland, even though the Crown definitely controlled Scotland to a far more thorough degree than even the U.S. military now controls Gitmo. Having reached the (erroneous, I think) conclusion that anyone in the practical custody of the U.S. government can invoke the writ, however, it would logically follow that Congress couldn't entirely strip the federal courts of jurisdiction over such writ applications.
That's a long-winded way of saying that I think there is a fig-leaf of legitimacy to the declaration of that section of the MCA unconstitutional. If he were right that the writ so extends, Justice Kennedy would also be right about the constitutionality of the jurisdiction-stripping section, in other words.
That being so, I cannot argue in good conscience that either the Executive or the Congress ought to ignore this opinion. It has to be complied with unless and until it's overridden, either by constitutional amendment (which ain't gonna happen) or by a change in the membership of the Court (which might).
Mike: You'll forgive me if I credit the McClatchy study at zero. What I credit instead would be the Combatant Status Review Tribunals designated by Congress and the president to find the equivalent of "probable cause" for each detainee, and the further commission trials that were to be held under the Military Commissions Act of 2006 to determine actual guilt or innocence. We don't open or close our prison doors on what the newspaper reporters write in this country, no more for enemies captured on the battlefield than for common criminals.
I'm not arguing, and have never argued, that everyone at Gitmo is necessarily guilty. A great many detainees have been released already, either as a result of the CSRT procedure or otherwise, and some of those have immediately shown up again as suicide bombers or other sorts of combatants, which suggests that perhaps the decision-makers have erred too much on the side of presuming innocence. But what I, too, want to see are trials of the hard-core detainees who are accused of war crimes, and based thereupon, the exoneration of the innocent and the punishment of the guilty.
I fully expect that, as part of that process, some who are genuinely guilty will nevertheless go free perhaps because the prosecutors deem the damage to national security that would be done by giving them (and/or their counsel) access to intelligence sources and methods is greater than the harm they'll be likely to do if released, or perhaps because of simpler failures of proof. But the guilty sometimes go free in the civilian criminal justice system, too, which I nevertheless believe in and support. (See, e.g., Barack Obama's longtime comrade Bill Ayers, self-professed to be "guilty as hell, free as a bird what a country!")
What I find revolting to consider, however, is the prospect of the detainees filing a flood of habeas corpus petitions around the United States, with dozens of federal district judges then suddenly finding themselves obliged to undertake the creation and supervision of a system to resolve these detainees' fates. That's exactly what Justice Kennedy has decreed, however. And it's one of the aspects of this ruling that makes it, in my judgment, easily the worst Supreme Court ruling of my lifetime, and quite possibly the worst ever.
(20) cboldt made the following comment | Jun 16, 2008 8:47:27 PM | Permalink
-- Can it be that the SCOTUS has violated the law in this ruling? --
The statute you cited is, I think, 28 USC 2241 (e) (Supp. 2007), which is the very section SCOTUS ruled to be unconstitutional.
So, not only did they violate it, they shredded it and claimed it was to have no effect.
(21) cboldt made the following comment | Jun 16, 2008 8:59:33 PM | Permalink
-- It has to be complied with unless and until it's overridden, either by constitutional amendment (which ain't gonna happen) or by a change in the membership of the Court (which might). --
Theoretically, and maybe even practically (depending on how much gumption Congress has - I'm not holding my breath) the Boumediene decision holds open the route of adequate substitute for habeas.
(22) cboldt made the following comment | Jun 16, 2008 9:04:27 PM | Permalink
-- a flood of habeas corpus petitions around the United States, with dozens of federal district judges then suddenly finding themselves obliged to undertake the creation and supervision of a system to resolve these detainees' fates. --
Disambiguate that a bit -- I'm reluctant to mount an argument one way or the other, other than to note Justice Kennedy's comment about the power of the courts to focus certain classes of cases as a matter of judicial efficiency.
(23) cboldt made the following comment | Jun 16, 2008 9:13:43 PM | Permalink
-- I fully expect that, as part of that process, some who are genuinely guilty will nevertheless go free --
Any of the reverse?
I fully expect the courts to entertain ex parte in camera hearsay evidence.
Some seem to think the courts are adversarial as against the executive, and that's a conceptual step that I am not ready to take, in the realm of warmaking. Are the courts contrary? Of course, they just said "no." But there is a difference between disagreement and adversary.
(24) hunter made the following comment | Jun 16, 2008 10:06:42 PM | Permalink
What limits, if any, are on Judicial misuse of power?
Are they the only branch unconstrained, except by the tedious and unlikely use of impeachment and removal or Amendment?
If a law is passed telling the Court they are not to rule on something is ignored by the Court, is their ruling still valid?
(25) DRJ made the following comment | Jun 16, 2008 10:39:30 PM | Permalink
Do you really think I'm "cutting the third branch too short" because I object to this Supreme Court decision? When the judiciary decides to chop down an entire forest, it's odd to complain that objecting to that is unfair tree-trimming.
(26) cboldt made the following comment | Jun 16, 2008 10:47:14 PM | Permalink
-- Do you really think I'm "cutting the third branch too short" because I object to this Supreme Court decision? --
I think it's a mistake to view the Court as an adversary, if it's demands can be reasonably accommodated.
(27) DRJ made the following comment | Jun 16, 2008 11:11:58 PM | Permalink
I don't think of it as an adversary. I think of it as the most important court in the country and a vital part of making our democracy work. I'm concerned that this decision is frustrating the ability of the President and Congress to conduct the war on terror when, historically, the court has exercised restraint regarding the war powers.
Hunter: Most of what the Supreme Court does, the Congress and president acting together can undo. Most of the federal courts' collective dockets consist of cases brought under various federal statutes, either criminal or civil, or federal regulations passed under statutory authority. In all of those cases, Congress can simply pass new legislation that overrides what the federal courts have done.
But when, as here, the Supreme Court is purporting to base its decision on the Constitution itself, then there are fewer ways to overcome its rulings.
You note the impeachment alternative, which indeed is a theoretical check on the federal courts' powers, but one that's never been used as anything but a check on individual judges, and never based on any judge's rulings. Likewise, the Constitution gives Congress the power to set the size of the Supreme Court; FDR, when unhappy with a string of SCOTUS decisions invalidating his New Deal legislation, threatened to "pack" the Court by persuading Congress to increase its size so substantially that his new appointees could outvote the sitting Justices who'd been his nemesis. (Congress balked, FDR backed down, and a series of vacancies in the normal course combined to moot that threat.)
Either of these methods of rapidly changing the composition of the Court is going to face enormous and probably insurmountable resistance. And the more straightforward check on federal court power — amending the Constitution — isn't much more likely. (The Constitution was amended to overturn Supreme Court precedents finding the federal income tax to be unconstitutional, but that's been a unique exception.)
For this particular case, there's also, I suppose, the possibility that Congress could legislate to formally suspend the right to habeas corpus of non-U.S. citizens who are detained abroad based on actions abroad. The Suspension Clause hasn't been much litigated; perhaps Congress can say that 9/11 was a sufficient "invasion" to justify an indefinite suspension so very broad in geographic scope and limited to a particular class of persons. But I suspect Justice Kennedy and the liberal wing would find that unconstitutional, too.
So what's left, at least for most cases in which the SCOTUS purports to be basing its decision directly on the Constitution, is changing the direction of the Supreme Court in the "ordinary course," i.e., through regular appointments to fill vacancies as they occur.
There will likely be at least two vacancies in the term of the next president, and those most likely will come from among the five who were in the Boumediene majority.
cboldt suggests that there still might be some habeas substitute that Justice Kennedy might find acceptable. I see no reason to believe that. There's simply nothing in the Boumediene majority opinion which identifies as being "key" or "crucial" any particular differences between the process due to the detainees under the Military Commissions Act, and that which would be due to them were they citizens of the U.S. accused of crimes in our civilian courts. Basically, now the federal district courts are going to have to guess: Unanimous jury trials? Sentencing done by the jury? Right to compulsory world-wide process to confront and cross-examine hostile witnesses? Brady v. Maryland-type disclosure of exculpatory evidence? Bars on capital punishment for mentally ill or juvenile defendants? Miranda rights? Freedom from unreasonable searches-and-seizures? There are layers upon layers of legal process that's "due" in our regular civilian criminal courts that Congress and the president did not see fit to fully incorporate into the MCA. We have no clue which, if any, of them the Supreme Court now thinks are indispensable rights belonging to these detainees; as far as one can tell from the opinion, they are all essential.
On the other hand, many of those same protections are also absent in prosecutions under the Uniform Code of Military Justice for our own service personnel. It's hard for me to state any good reason why, post-Boumediene, the UCMJ procedures can be constitutional either for our own citizen-soldiers or even for classical POWs: Those folks are equally subject to the "de facto" custody of the U.S. government, so why can't they use writs of habeas corpus to claim all the rights that criminal defendants have in U.S. civilian courts? (Some observers have said, with considerable justification, that the Supreme Court has just bestowed superior rights on terrorists as compared to those enjoyed by our own service personnel; but the premise of their observation is that the UCMJ is constitutional, and I'm not at all sure that premise remains true after Boumediene.)
(29) cboldt made the following comment | Jun 16, 2008 11:41:48 PM | Permalink
-- I'm concerned that this decision is frustrating the ability of the President and Congress to conduct the war on terror when, historically, the court has exercised restraint regarding the war powers. --
Being held to account is always frustrating.
And there is always tension between "war" (no check on the warrior) and regular order.
I suggest a steely-eyed reflection of a world where Congress and the executive wage war with -NO- SCOTUS to temper the stew - that is the logical result of "SCOTUS has no business here, except to agree."
(30) cboldt made the following comment | Jun 16, 2008 11:51:25 PM | Permalink
-- vital part of making our democracy work. --
As a natural extension of advocating a republican form of government, let it be known that I find democracy to be abhorrent.
(31) hunter made the following comment | Jun 17, 2008 12:04:08 AM | Permalink
Thanks. What I am seeing here is that the court, far form settling difficult cases, is now in fact a competitor in ruling setting the policy of the nation.
It is not bound by nothing, outside of flagrant corruption, except what five unelected people want to bind it to.
This is uncheckable power. That is not what the Founders had in mind.
(32) cboldt made the following comment | Jun 17, 2008 12:05:32 AM | Permalink
-- There's simply nothing in the Boumediene majority opinion which identifies as being "key" or "crucial" any particular differences between the process due to the detainees under the Military Commissions Act, and that which would be due to them were they citizens of the U.S. accused of crimes in our civilian courts. --
I predict that the District Courts will find substantial space between those two extremes.
The Courts could accept the procedures and conclusions of the CSRT, provided only the additional concession that the court be permitted to view the evidence in camera and ex parte.
(33) cboldt made the following comment | Jun 17, 2008 12:17:04 AM | Permalink
IOW, I trust the District Courts to (in the lawyer-driven process) consider more "law" than is expressed in the Boumediene decision standing alone. The fact that the Boumediene decision is incomplete and therefor "uncertain" in details does not mean that the process of dealing with POW/criminal/wannabe as a whole is all unplowed ground.
(34) cboldt made the following comment | Jun 17, 2008 12:26:59 AM | Permalink
The cases are inevitably going to unfold in Federal District Court.
Watch for that "parade of process horribles" that Beldar speculates as possibilities.
If the US courts treat these cases as "common criminals," shun me as a loon, if you haven't already.
If I were a federal district judge who had one of the anticipated habeas petitions land in my lap, and I were sitting anywhere other than our nation's capital city, the first (and last) thing I'd do would be to transfer the case, sua sponte, to the U.S. District Court for the District of Columbia under 28 U.S.C. § 1404(a). That's the one useful suggestion anywhere in Justice Kennedy's opinion.
In other words, I'd punt. Quick-kick, even.
(36) Gregory Koster made the following comment | Jun 17, 2008 1:29:55 PM | Permalink
Dear Mr. Dyer: The reason I asked about law clerk participation was that this decision has been tossed off with no real anticipation of consequences. Scalia's dissent as usual was blistering, pointing out that American soldiers have died abroad because prisoners were released. "Kennedy's" response: Five is bigger than four, whaddaya gonna do about it? This attitude, full of intelligence to justify itself, but devoid of wisdom, is what makes me think clerks were involved. You mentioned that this case has been thoroughly briefed, and hence, Kennedy might have been more willing to let the clerks take a crack at it. I think just the opposite: this decision isn't based on precedent, as you've pointed out. If you're going to wave your magic wand and make it up, why not let the clerks do the work? They're the cream of the crop---that's the definition of being a clerk, plenty of IQs, no wisdom required.
So far as "punting" the case to the DC District Court, I don't read the statute the way you do. 28USC1404(a):
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other
district or division where it might have been brought."
"For the convenience of parties and witnesses..." NOT for the convenience of district court judges. The parties might go along with it---or they might not. Consider this scenario: Geo W. suddenly reveals a sense of humor, and transfers all the Gitmo prisoners to the high security prison in Lompoc California. This prison is smack in the middle of the Central District of California, so the prisoners will yelp habeas to the Central District. Among the judges in the Central District is the notorious Manuel Real. 84 years old, with a long history of making up law to suit his tatstes out of the fuzz in the bottom of his pants pockets. Why on earth should any prisoner consent to transfer his case to DC when such a gaudy zany is available to spring you? This is unlikely to happen because a) Geo W. knows, even if Anthony Kennedy doesn't, that the release of prisoners is a serious matter and b) the bulk of judges are, as you imply, nervous about the outcome, and will take good care that the "random" allocation of cases won't bring any Gitmo cases to Real.
For cboldt and Mike Thomas: you have gotten your wish. The cases will flow to the district courts, and we will see what happens. The odds are stacked in your favor: it's unlikely that when some of the detainees kill Americans or allies abroad, that the press will put it on Page One. No indeed.
-- For cboldt and Mike Thomas: you have gotten your wish. --
Not that my wish matters, but you are completely and utterly mistaken as to what my wish is. I was mostly rendering my opinion as to how history played leading up to this decision, and how it might play from here forward. And from that, you, sir, jumped to a conclusion.
I didn't wish for this outcome. I'd have preferred a slightly different legislative and CSRT history leading up to this point, where SCOTUS says "job well done, carry on."
As for your suggesting "odds in my favor" either as to a battlefield casualty or press burying of a court failure, well, I can't print what I think of YOU for having the unmitigated gall.
Mr. Koster: Section 1404(a) has been read very broadly, and there is ample caselaw confirming that judicial economy contributes to the "convenience" of the parties and witnesses. It's district judges who decide what's convenient for them anyway. A plaintiff is normally given considerable deference in choosing among several "permissible" venues, but one factor that courts traditionally consider under section 1404(a) is whether the plaintiff actually resides in the district he's chosen, or he or the case have other ties to it. Obviously, none of these plaintiffs reside in any of the districts where they might sue, and none of the underlying events took place there, so their choices of which district to sue in ought be accorded very little, if any, weight. Bottom line: Kennedy was right to suggest that district judges have the power to transfer and, presumably then, to consolidate these cases.
But the enormous practical danger is that there will be self-righteous, crusading district judges who've been identified by forum-shopping detainees and their counsel; such judicial activists are likely to want to keep these cases, rather than transferring them. The likely result will be many different, inevitably conflicting, rulings from them, each of which may be appealed, but to different circuits. There's a rude but very accurate compound word to describe the likely result, and it starts with "cluster-."
(39) DRJ made the following comment | Jun 17, 2008 3:25:28 PM | Permalink
Given that we're stuck with this decision, my current preference is for Congress to designate or establish a specific court to hear these cases.
-- The likely result will be many different, inevitably conflicting, rulings from them, each of which may be appealed, but to different circuits. --
Justice Kennedy said, "the Government can move for change of venue to the court that will hear these petitioners' cases, the United States District Court for the District of Columbia."
Considering the possibility that a District Court would deny such a motion (even though it's expressly suggested by SCOTUS, and even though Congress clearly intends for the cases to be brought before a minimum number of courts), would the denial be appealable?
Just piling on the evidence of SCOTUS' expectation on the matter of forum shopping, Justice Kennedy describes evidentiary and secrecy questions being handled in the first instance by "the" District Court, in the singular.
cboldt: Denial of a section 1404(a) motion is an interlocutory order, not directly reviewable on appeal until a final judgment is reached, by which time such determinations are moot. A losing movant can seek extraordinary review via a mandamus petition in the court of appeals — which one would depend on the location of the district court — but in mandamus proceedings, there is traditionally a high degree of deference given to district judges, especially on discretionary rulings like transfer motions, and appellate courts are extremely reluctant to find the necessary "abuse of discretion." The forum-shopping habeas petitioners will find some fig-leaf of a connection to the district in which they've filed, if even no more than that local counsel is located there, and a "heroic" district judge might well deem that enough to keep a case he's really eager to keep anyway.
Trying to get a coordinated, logical approach to multi-district problems among federal courts is worse than herding cats — it's herding cats who each have life tenure, each of whom also fancies himself a legal lion.
I haven't yet given any thought to whether the Panel on Multidistrict Litigation ("MDL") might be able to solve the forum-shopping problem. It typically deals with commercial cases, though, not habeas petitions or criminal law matters.
Both 1404 and the multidistrict statutes appear to operate in civil cases. The government used the MDL to consolidate the FISA cases, and the consolidation went off over any objections any party had.
But looking back at the Padilla case, notice the Courts decide propriety of venue based on which court (if any) has the power to issue orders to the jailer.
I don't see any way for a cohort of petitioners in one jail to obtain hearings in multiple districts.
cboldt: Technically, habeas petitions are civil cases.
Kennedy's opinion also suggests that venue is technically proper anywhere the defendants may be "found," which means in any federal district.
-- Kennedy's opinion also suggests that venue is technically proper anywhere the defendants may be "found," which means in any federal district. --
-- The likely result will be many different, inevitably conflicting, rulings from them, each of which may be appealed, but to different circuits. --
I hate to make any assumption about your assumptions. When you speculate as to the "likely result;" and when you refer to the part of Kennedy's opinion; are you limiting the comments to the context of detainees currently in GTMO, or are you thinking about larger group, e.g., the universe of detainees that the US will ever control?
I don't see any way for a cohort of petitioners in one jail to obtain hearings in multiple districts. See Padilla v. Rumsfeld.
The reason I quit blogging is because I came to the conclusion that it's a complete waste of time. The liberals have slit America's throat and she is bleeding to death. Decisions like this merely confirm my suspicions.
Enjoy your freedom while you can folks. For it is not long in the offing.
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