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Thursday, June 12, 2008

SCOTUS disgrace: Foreign terrorists captured abroad held to have same rights under U.S. Constitution as U.S. citizens

It's a sad, sad day for our country. A majority of the members of the United States Supreme Court have shown themselves unable to distinguish between an existential military struggle — quite literally, a war over the very existence of western civilization — and ordinary street crime committed by U.S. residents wholly within America. The obvious and inevitable consequence of today's Supreme Court decision will be that terrorist killers presently in captivity, captured at the cost of American soldiers' lives and limbs, will be released instead of punished, and they will return to killing both Americans and others again.

The Supreme Court ruled today that terrorists who are citizens of foreign countries, who have never set foot within the United States, and who have systematically forfeited all the protections of the organized laws of warfare that would entitle them to be treated as prisoners of war, are, when captured on foreign battlefields by the U.S. military, nevertheless entitled to access to the federal court system of the United States — in most essential respects, exactly as if they were lawful, taxpaying citizens born here, raised here, and arrested here by the domestic police for alleged crimes committed here.

If Osama bin Laden, wearing no uniform, surrounded by children as human shields, and in mid-stroke while he's sawing the head off a captured American nurse, is captured by American soldiers tomorrow in Pakistan or Afghanistan, then his rights to use the federal writ of habeas corpus to guarantee him the protections afforded by the United States Constitution will be, so far as I can determine, indistinguishable from my own if I were arrested at my home by the Houston Police Department on a warrant for overdue parking tickets.

The Supreme Court has so ordered notwithstanding the fact that the people's lawful representatives — through statutes passed by their Congress, and signed into law by their president — had otherwise decreed. Instead, five members of the Supreme Court have set themselves up above the rest of the people and government of the United States of America, and they have proclaimed that even acting together, the Congress and president lack the constitutional power to make other provisions for these foreign barbarians and monsters captured on foreign battlefields while trying to destroy America and everything related to it. In the measured words of Chief Justice Roberts' dissent:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation.

And in the more fiery dissent from Justice Scalia:

THE CHIEF JUSTICE’s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires [i.e., beyond the Supreme Court's own power].

Make no mistake about it: This was a naked, arrogant power grab of wartime, war-fighting power by the liberal wing of the Supreme Court. This is Anthony Kennedy, John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer doing their dead-level best — not to protect you and me from the terrorists, but to protect the terrorists and to prevent Congress and the president from protecting you and me!

The readily foreseeable, and indeed inevitable consequence of this decision is that the United States government — when forced to fight a military war as if it were street crime, and when forbidden to punish war criminals unless it can comply with the full range of procedural safeguards from our domestic criminal justice system — will have to release captured terrorists who will then immediately return to killing. Their victims will be not just American soldiers, but innocent civilians of every nationality and religion (including Muslims). Again from Justice Scalia's dissent:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.

This decision is a disgrace and a travesty. It's awful law and even more disastrous policy. It's the single worst decision of the United States Supreme Court in my lifetime, and quite arguably its worst in American history. It can't be sugar-coated. It can't be minimized. In all probability, it can only be thoroughly undone by a constitutional amendment, or by a pronounced change in the membership of the Court that will deprive the liberal wing of a crucial fifth vote in such cases and open the possibility of this decision being overruled.

(There is, still, a chance that Congress and the president could sidestep the decision by formally invoking the Suspension Clause based on the invasion of 9/11, and I think Pres. Bush should immediately propose such legislation, so that it becomes a campaign issue in November races for both Congress and POTUS if Congress doesn't promptly go along. But Congress and the president ought not have to "suspend" habeas corpus rights for foreign terrorists who never, ever in American history have been construed to have them in the first place.)

John McCain says he will appoint Supreme Court Justices in the mold of the four Justices who dissented. Barack Obama admits he will appoint more Supreme Court Justices in the mold of those in today's majority — which means Justices who are eager to seize this sort of power from the American people and their elected representatives, claiming a constitutional entitlement to run this country. There is no difference between the two candidates remotely as stark as this one, and I don't think there is any difference that is more important.

Our enemies will never defeat us. We have the power to defeat ourselves, however, and today's decision by the Supreme Court is a terrible, tragic step toward such a defeat. What will you do in November? Will you help accelerate these judicial power-grabs? Or will you help reverse them?

Posted by Beldar at 03:42 PM in 2008 Election, Global War on Terror, Law (2008), Politics (2008), SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to SCOTUS disgrace: Foreign terrorists captured abroad held to have same rights under U.S. Constitution as U.S. citizens and sent a trackback ping are listed here:

» SCOTUS as CinC of American military [Darleen Click] from protein wisdom

Tracked on Jun 14, 2008 4:34:55 PM

» Lest you think there might possibly be prior precedent to support Boumediene, consider Justice Kennedy's admission: There isn't any! from BeldarBlog

Tracked on Jun 15, 2008 11:28:50 AM

» Boumediene isn't a rebuke to Bush, but a judicial grab of power over war from the Executive and Legislative Branches from BeldarBlog

Tracked on Jun 15, 2008 11:29:18 AM

» SCOTUS: We'll Take That Presidential & Congression from Rovian Conspiracy: Right Looking for Fingerprints

Tracked on Jun 16, 2008 9:08:30 AM

» Beldar on Yoo on Boumediene; and related thoughts on Obama's preference to rely on criminal prosecutions to fight international terrorists from BeldarBlog

Tracked on Jun 17, 2008 4:16:16 AM

» The important point that Kennedy v. Louisiana proves about Boumediene v. Bush from BeldarBlog

Tracked on Jul 6, 2008 6:12:54 PM


(1) A.W. made the following comment | Jun 12, 2008 4:18:42 PM | Permalink

This might very well be remembered the day that Barack Obama lost the election.

But yes, a travesty. even if the exclusion clause did apply, how is it invalid to invoke it? we have been invaded. they invaded this country on 9-11, and you would be kidding yourself to think we are not presently infiltrated. I don't say this to knock anyone in government--i am sure they are doing their best--but these terrorists are like cockroaches, and it is not easy to get them all.

I am at a loss to understand why people want to innovate our constitution in order to protect these animals. i can understand the idea that we should give them the same rights that were already established, but NEW ONES?

If I was the president, i would write a scholarly letter telling the supreme court to buzz off. I would assert, as president, my right to interpret the constitution, and declare that the courts have no lawful power to issue the writ. therefore, i would say, i refuse to honor it just as i would refuse to honor a congressional statute that declared a certain religion to be the official religion of the U.S. an invalid law is no law at all.

But we know Bush won't dare do that.

(2) Beldar made the following comment | Jun 12, 2008 4:26:45 PM | Permalink

A.W.: The framers, in their wisdom, imposed checks and balances even on the SCOTUS' power. It's time for the other two branches of government to use them; and if they won't, then November will be the time for the voters to determine the composition of the other two branches in a fashion which ensures that they will.

(3) cboldt made the following comment | Jun 12, 2008 4:31:52 PM | Permalink

I think you exaggerate the scope of today's decision, but to good effect.

I also think the gap between what has gone on, and an alternative history where this case comes out the other way, is not large. Had Congress and the president worked together in 2001/2002 to craft a MCA, Hamdan would have been decided differently. If the CSRT process left a substantive factual trail, SCOTUS may have found the process an adequate substitute for habeas.

(4) Beldar made the following comment | Jun 12, 2008 4:41:50 PM | Permalink

cboldt: Today's decision is by a Court majority that has neither regard nor respect for the Court's limited role in American government. Anthony Kennedy thinks its his job to micromanage the fighting of wars now. I don't think it's possible to exaggerate the scope of today's decision.

(5) cboldt made the following comment | Jun 12, 2008 4:59:53 PM | Permalink

-- I don't think it's possible to exaggerate the scope of today's decision. --


(6) Paul Zrimsek made the following comment | Jun 12, 2008 5:27:31 PM | Permalink

Our opinion does not undermine the Executive's powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch when he does only what we let him, no one is left wondering whether he's got our permission.

Fixed that for you, Andy.

(7) JMW made the following comment | Jun 12, 2008 6:13:24 PM | Permalink

"What will you do in November? Will you help accelerate these judicial power-grabs? Or will you help reverse them?"

You know, you just continue to amaze me, Beldar.

Three of the five justices who affirmed this particular bombshell were appointed by Republican presidents.

So, do tell me -- what WILL I do in November? Elect the first President in U.S. History who can predict with certainty the ideological bent of his appointees? Note that two of the above justices came from Presidents with questionable conservative credentials (H.W. and Ford).

Also, food for thought: is this decision not in many ways a failing of John Roberts in his ongoing quest for "unanimity" on the court?

(8) Gregory Koster made the following comment | Jun 12, 2008 6:36:10 PM | Permalink

Dear Mr. Dyer: First, a small correction. Let's not forget to include Stephen Breyer in the Gang of Five.

I'm mildly surprised at your vehement response. After all, the Gang of Five are honorable men and women, just doing their job, calling it as they see it. Just as the panel from the Fifth Circuit did when they took testimony about the "alleged" sexual harassment Judge Samuel B. Kent of Galveston. Any result of that testimony was never released to the public, something I wrote was outrageous. But you chastised me, saying I was being far too cynical. How can we fail to give the same deference to these honorable men and women in this case, who are operating on the ancient legal principle of "Five is bigger than four and whaddaya gonna do about it, sucker?"...OK, I better haul up. This is pretty rich malarkey even for me, and besides, if I keep it up, who would blame you if you knocked me endways with a brick?

You've said what needs to be said about the awfulness of this decision. Where do we go from here? Already you can hear the mocking from the left (see SLATE's "Convictions" blog) that if the situation is that bad, just follow the Constitution and have congress pass a law suspending the writ. The liberals would like nothing better than for Geo W to propose such a measure. Think of the political hay they could make, while never coming close to actually passing it. And if he doesn't propose it, he can be denounced as a fraud who won't put his money where his mouth is.

You are right: Americans and allies will die as a result of this decision. That doesn't seem to count as much as "restraining" the Executive. It will be interesting to watch Kennedy reverse himself should Obama be elected, and suddenly find that he needs some of the methods Geo W. has used. So far as the micromanaging goes, that's no problem: different cases will be brought to different district court judges, who will come up with different approaches (thus, democracy in the mind of Anthony Kennedy.) The court can pick the correct approach when the cases are appealed. Democracy at work

Beyond that, there's your call to vote for McC, saying there couldn't be a sharper distinction between him and Obama. I think you are wrong. McC is making the right noises now, but I can't forget that he was the driving power of the Gang of 14, settling for less than a half loaf of nominated circuit judges. This tells me that for McC, judges aren't of the same interest as foreign affairs are. I think you are right, that he would try to nominate, say, Janice Rogers Brown to the top bench. But the President only nominates. The Senate must confirm. If they don't, nothing happens. No one is arguing that the GOP will regain control of the Senate by a filibuster proof majority this election. So: imagine McC facing Harry Reid (or Hillary Clinton) who smirks and says, you send up Rogers Brown, John, and that nomination'll go nowhere. Here's a list of who we'll confirm. Pick from that. What's McC going to do? He knows that the Senate has left the Fourth Circuit nominations hanging for years. The Democrats are perfectly capable of doing the same to the Supreme bench. And if Obama is Prez, they can move the court to the Democratic National Committee's headquarters. JMW is quite right when he bemoans the GOP's inability to appoint judges who are as consitently conservative as the Democrats are liberal. The last Democrat who might be characterized as "flipped" is Byron White, appointed in 1962. On the GOP side we have Blackmun, Powell, Stevens, O'Connor, Kennedy, and Souter.

Beyond all this, the majority opinion does address one issue, though it is not explicitly mentioned. It is this: this conflict is not a war, and is not really being fought like one. It is one thing to suspend statutes and even constitutional guarantees "for the duration of the war." When is this conflict going to end? Whatever the evil effects of this decision, and they are great, such a question is legitimate and fundamental. Geo W. has no real answer, and because he hasn't been able to answer it, history is going to look harshly on him. All the rest of his presidency is going to be pocket change compared to the struggle against radical Islam.

Sincerely yours,
Gregory Koster
(not of CUNY)

(9) cboldt made the following comment | Jun 12, 2008 6:40:17 PM | Permalink

I see this decision as a firestop by SCOTUS, faced with failures by a derelict Congress and over-reaching executive. It's tough for the supposedly impartial branch to come out looking "right", when the public is partial.

As betting between Democrats and Republicans being inclined to choosing qualified and impartial judges, hands down easy bet.

Of course, there is never a guarantee. See Harriet Miers.

(10) JMW made the following comment | Jun 12, 2008 7:19:14 PM | Permalink

In light to Mr. Koster's comments, I'd like to add:

The confirmation "struggle" in the Senate is by itself just political showmanship. Of the 3 justices I named who were appointed by Republicans, all were confirmed by at least 90 votes and two were nay'd by 0.

Of the liberals in the affirming group, both were handily confirmed, Ginsburg with 97 votes (!).

Presidents don't predictably appoint conservative justices. The Senate doesn't oppose liberals, or vet them very well. Bush came damned close to appointing Meiers, as Mr. Koster points out.

Ultimately the question here isn't about political tactics, it's about a systemic weakness in the American government.

Personally, though, I think Beldar is overstating his case. There are unintended consequences to these decisions because, when our troops know that Gitmo detainees will simply get off, then they have more incentive to "shoot to kill." I suspect more terrorists will die as a result of this decision as well.

(11) hunter made the following comment | Jun 12, 2008 7:38:00 PM | Permalink

It is difficult to overstate the case for this Court to be considered out of control.
The 5 who fabricated these new rights for foreign enemy combatants ahve tossed out centuries of law and precedent and have literally told the legislative and executive branches that they do not count.
We did not give over running this nation to 5 unelected people.
Yet here we are: law, precedent, common law, the Geneva convention, citizenship, geographic location - none of this counts. Only an agreement among five people.
This is not how to run a Majority rule nation under the law
My only hope is that the five who performed this coup are forced to reap the whirlwind they have sown.

(12) DRJ made the following comment | Jun 12, 2008 7:49:09 PM | Permalink

This is a sad day.

(13) Beldar made the following comment | Jun 12, 2008 7:59:42 PM | Permalink

Mr. Koster: Thanks for the catch, duly corrected.

JMW: There are no guarantees that a president's wishes and expectations will be fulfilled. However, I don't think anyone can contend that Roberts, Scalia, Thomas, or Alito have been surprises; nor, certainly, were Ginsburg or Breyer. Stevens and Souter were poorly vetted for judicial conservativeship. Kennedy is the biggest "surprise" currently on the Court, and if the Gipper is watching, he's mightily disappointed today. I have my own doubts about McCain's understanding of and commitment to the principle of nominating judicial conservatives in practice, but he at least mouths the words. And I take Obama absolutely at his word that he would appoint clones of Ginsburg. (I don't think he'd try to appoint an unqualified, overtly political figure like Hillary Clinton or a Carolyn Kennedy; rather, he'll find someone else like Ginsburg whose objective qualifications are impeccable and whose commitment to both judicial activism and liberal philosophy has also been tested and proved. There are many such candidates out there.) It's a sucker's bet to hope that he'd be disappointed, and so the best bet on the table is to hope McCain will do the right thing. Those are the only two choices.

(14) nk made the following comment | Jun 12, 2008 9:51:19 PM | Permalink

I am not as pessimistic as our host. America is where her power is. And where her power is, her law is.

(15) nk made the following comment | Jun 12, 2008 9:56:56 PM | Permalink

There is very old precedent. As a Roman citizen, although a Jew born in a Roman province, St. Paul could not be punished by more than 40 lashes. Since the flagrum had three lashes, he only received 39 (3 X 13).

(16) stan made the following comment | Jun 13, 2008 5:37:47 AM | Permalink

Kennedy is hubris.

(17) hunter made the following comment | Jun 13, 2008 7:20:14 AM | Permalink

What does your 'precedent' with St. Paul show that could relate to non-citizen enemy combatants in time of war?

(18) steve sturm made the following comment | Jun 13, 2008 8:35:43 AM | Permalink

This decision can should be viewed as (unfortunately) just another example of the judicial system declaring that it, and it alone, will decide where it will stick its collective nose, just another case of what I call 'outcome first, rationale later' ("We want detainees to have habeas corpus rights, we'll figure out a way to get there", and "we don't like executions, we'll figure out a way of stopping it").

And this isn't behavior that is limited to liberal justices and judges, as so-called conservatives have had no problem stepping in and asserting jurisdiction where and when they want ('we want Bush, we'll figure out a way of getting there, even if it does require sticking our nose where its never been stuck before'). Very few judges share Roberts' view (in the infamous DC subway french fry case) that because they don't like an outcome does not mean a particular law is unconstitutional (as an aside, we'll see how long Roberts sticks to this view).

The old line "First, they came for the ____ and I didn't speak" has been making the rounds in the past couple of days as regards the treatment of the detainees. I think those who are upset over this decision could direct that view towards themselves, as they've had many, many opportunities to rein in out-of-control judges but have never done so. Well, this is what happens. Those who were quiet (on both sides of the aisle) in the past because the judges sometimes ruled in 'their' favor have no grounds to start complaining now.

As for the consequences of this, chill. First, it's not as if the Bush Administration was doing a great job of keeping terrorists locked up. Even without the benefit of a sympathetic judge, they've been releasing terrorists from custody who have returned to the battlefield. Second, even if the Court had ruled otherwise, both McCain and Obama will likely institute similar procedures (to what the Court mandated) for prisoners to challenge their detention.

(19) A.W. made the following comment | Jun 13, 2008 8:57:11 AM | Permalink

> It's time for the other two branches of government to use them; and if they won't, then November will be the time for the voters to determine the composition of the other two branches in a fashion which ensures that they will.

Agreed. Which means ultimately it is on us.

Btw, a little pop quiz for the people who support this decision... where was the full-blown trial for John McCain before he was taken in by the NVA? And yet if you ask him today, he wouldn't say they had no right to hold him, instead it was the torture the failure to treat injuries, starvation, etc. that violated his rights. in other words it was not the detention itself that violated his rights, but rather the conditions of his detention.

(20) nk made the following comment | Jun 13, 2008 10:42:19 AM | Permalink

hunter, 7:20:14 a.m.,

It was part of the genesis of human rights in western civilization as opposed to the citizens'rights which had existed before. St. Paul, under the Hellenists and under earlier Roman law, would have remained little more than a slave. But by his time, a degree of "citizenship" had been extended to Rome's conquered people. He would not have been eligible to hold any of Rome's magistracies, but he had many of the protections of full citizens.

(21) hunter made the following comment | Jun 13, 2008 11:42:10 AM | Permalink

You seem to have read a history not based on facts, regarding St. Paul.
Paul was not accorded his citizenship by way of a magnaminous Rome, but due to his father's being a citizen.
And, he was living in and subject to, Roman law. The people of that day, and until our bizzare SCOTUS ruling of yesterday, the present, knew that if they were captured in the field of battle they were not subject to civil law.
St. Paul was not a combatant against Rome.
Frankly using St. Paul to justify anything regarding terrorists in Gtmo. is an insulting and dishonest thing to do.
St. Paul brought a message that directed peopel to obey the authority of the Emperor and to live in peace.
The terrorists you are so worried about have none of those characteristics.
Not only is your feeble effort dishonest and insulting to the issue, it demonstrates how sick a society is that would find anything in common between an apostle of the gospel and terrorists.
You would be at home in Obama's former Church, I think.

(22) Mike Thomas made the following comment | Jun 13, 2008 11:48:53 AM | Permalink

Let's run through some facts first that seem to have been overlooked:
There were initially 775 detainees brought to Guantanamo. So far, 420 have been released without charges.
And here is the kicker:
Of the roughly 355 still incarcerated, U.S. officials said they intend to eventually put 60 to 80 on trial and free the rest.

So, out of 755 people, they only plan to charge 60 to 80 with war crimes and free the rest.
Are the ones who have already been freed or will be freed still "terrorist killers" or "foreign barbarians and monsters" as Beldar puts it?
And honestly, what does Beldar or any of the commenters here really know about these people? Do you know for a fact that they were "captured at the cost of American soldiers' lives and limbs" or that they are intent on "trying to destroy America and everything related to it."
I understand that many of these detainees were rounded up on the battlefield in Afghanistan, but there were also some who were apparently turned over to U.S. forces by Afghan officials collecting bounties. That means they could be terrorists. Or they could be political foes or enemies of the local officials. Or they could just be unlucky stiffs picked up on the street and turned over so the official could make a quick buck.

Moving on to Habeus Corpus.... why is everyone treating it like it is a “Get Out of Jail Free” card? The purpose of Habeus Corpus is to keep innocent people from being detained, not to let guilty people go free. And I do not look at that as a right bestowed upon citizens, but as a responsibility placed on ourselves as a society. It does not benefit society to incarcerate innocent people. It is morally and ethically wrong and it places an undue financial burden on taxpayers. So why shouldn’t we do everything within reason to assure that we are not incarcerating innocent people?
Is Habeus Corpus unreasonable? Will it result in Osama bin Laden going free as in Beldar’s ridiculous example?
I don’t believe so. I have faith in our judicial system to do the right thing.

(23) nk made the following comment | Jun 13, 2008 12:24:10 PM | Permalink

Ok, genius (hunter), can you think of another reason why conservatives should be glad that the Court did not buy the administration's argument that a U.S. naval base is not U.S. sovereign territory? I'll give you a hint: The reason's first name is John and his last name is McCain.

And, BTW, how did St. Paul's father acquire his Roman citizen ship? Was he descended from Romulus or from Remus? Maybe Aneneas? On second thought, never mind. I have no interest in anything further you have to say.

(24) hunter made the following comment | Jun 13, 2008 1:44:37 PM | Permalink

Great way to win an argument.
As to the your (mis)use of the recognition that Americans born lawfully on anAmerican military base are American as an excuse to over turn common law, treaty, Geneva Convention, precedent, and history, not even a decent effort.
As to St. Paul, however his father acquired his citizenship, it is a safe bet he did not get after being caught trying to kill and murder Romans.

(25) DRJ made the following comment | Jun 13, 2008 2:11:38 PM | Permalink

Mike Thomas,

You might be interested in this interview with an Army nurse who worked at GTMO, especially section 2 that describes the detainees:

"For many of them, think Ted Bundy. Educated, charming, and without conscience for those they consider infidels. Some are truly ill and were taken advantage of because of it. For example, one routinely asked us for an explosive suicide vest so he could assassinate Osama Bin Laden or George Bush for us, whoever he could find first (he was completely serious)."

And this was his response to whether any detainees were innocents caught up in a wide net:

"I believe that the majority of the guys there are true terrorists, and they follow the Manchester Document to the letter."

(26) Mike Thomas made the following comment | Jun 13, 2008 3:26:01 PM | Permalink

Thanks for the link, DRJ.
But that raises the disturbing question that if they are really all a bunch of Ted Bundys and "true terrorists" then why are they planning to release all but 60 or 80 of them?
Also, he says "many of them" and "the majority", but what then about the minority that are left. Why are they still there?

(27) DRJ made the following comment | Jun 13, 2008 3:57:21 PM | Permalink

As I said earlier, Mike Thomas, you should read the links.

(28) Beldar made the following comment | Jun 13, 2008 5:39:17 PM | Permalink

Mike Thomas: A habeas corpus petition is indeed a "get out of jail free" card — that's exactly what it is unless and until the government satisfies the court that it has lawful grounds to continue holding "the body."

Don't twist what I've written, please. I didn't say Osama bin Laden would go free if captured. I said that immediately upon being captured, he would have the same access to the American civilian courts to protect his quote-unquote rights under the U.S. Constitution as you or I have. That's not an exaggeration at all. That's precisely the result of yesterday's holding.

You have faith in our civilian judicial system to do the "right thing." But that begs the question of whether our judicial system is supposed to have anything to do with foreign terrorists, captured on foreign soil, doing battle contrary to the laws of war with American military forces.

Your reaction, my friend, is typical of Democrats, who've been inclined to treat this struggle as a law enforcement matter both before and after 9/11. Gosh golly gee, why didn't FDR respond to Pearl Harbor with a federal indictment and arrest warrant for Prime Minister Tojo? Maybe because the Japanese attack wasn't just a crime, but an act of war?!? D'ya think?

Our enemies understand that we're at war; they've been openly saying exactly that at least since the early 1990s. When are you liberals going to believe them? How many more American bodies in the streets of America will it take to persuade you that we're at war, and that this isn't just some international crime conspiracy at work?

Per Anthony Kennedy and four other Supreme Court Justices, the American civilian court system now acquires jurisdiction over their treatment and fates almost immediately upon their capture by American military forces. (And, by the way, there's no apparent reason why yesterday's decision doesn't also apply with equal force to true POWs, if we ever again actually fight an army who adheres to the international laws of war.)

As a lawyer, I have no doubt that the quickest way to bring about the end of the United States and its system of liberties is to put civilian judges in charge of the conduct of war against existential enemies. That's why I can, with a completely straight face, describe yesterday's decision as the worst in the history of the Republic — worse than Dred Scott, vastly worse than Korematsu (the WW2 Japanese internment case), or any other modern decision.

"We say the Constitution applies to everyone everywhere, and only we may say what the Constitution requires." That's what it boils down to, friends and neighbors. So decide for yourself how you wish to greet our new imperial masters in their black robes.

(29) hunter made the following comment | Jun 13, 2008 7:01:30 PM | Permalink

Very well stated.
WE have in effect had a coup d’état, and like most usurpations of authority, there are fools who welcome it, either by lack of understanding or driven by hatred of the system being over turned.
Kennedy, in his fabricated rationalization, offers nothing but circus for those driven mad by their hatred of this country and its President.
It even drives some to confuse St. Paul with a murderous terrorist.
We are in deep trouble.

(30) Gary D made the following comment | Jun 13, 2008 9:46:00 PM | Permalink

Beldar, You know that is pure BS.

One of the most conservative courts in history has simply said that Bush&Co. cannot abrogate the most fundamental part of the rule of law, the right to be charged with crimes instead of being held indefinitely, in presidential frat boi pique.

(31) bridgeguy made the following comment | Jun 13, 2008 10:11:35 PM | Permalink

The most obvious response to an over-reaching judiciary is impeachment. The Constitution allows for impeachment for incompetance. Would not the fact that the majority opinion in this case patentently did not follow the Constitution nor proper law as passed by Congress make a valid case that the majority judges are not fit to continue as Supreme Court justices? I realize that impeachment is wishful thinking considering the current make up of Congress. but maybe we should start talking about it now and laying the groundwork for it.

(32) hunter made the following comment | Jun 13, 2008 10:48:17 PM | Permalink

So you think Beldar is simply Bs'ing.
How typical. How projected.

(33) hunter made the following comment | Jun 13, 2008 11:47:00 PM | Permalink

If Beldar is 'full of BS', then I guess so is Scalia:
"But, instead – as Justice Scalia pointed out in his dissent – they for the first time in our nation’s history, conferred a Constitutional right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war – a broader right than has been given to our own citizens."
And calling this one of the 'most conservative courts in history', when in fact it is not, is sort of dishonest, not that you necessarily care.

(34) David Blue made the following comment | Jun 14, 2008 12:19:36 AM | Permalink

"Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

Maybe that was part of the problem.

American constitutional courts seem to favor a "damned if you do and damned if you don't" approach to increased protection for classes of people they favor. You must be generous to that class - very generous - or else. If you do not show a sufficiently generous spirit, as in the constitutional amendment in Colerado, even a freshly authorized amendment to a constitution can be nullified. And the federal Supreme Court effectively gave federal legislators strong instructions to be generous to foreign illegal combatants (or foreign suspected illegal combatants) detained abroad by the American military. The way the courts play it, less than abundant generosity is in effect lawbreaking.

But generosity can be a slippery slope, and it seems impossible to advance far enough along that slope to satisfy the courts without getting a judicial push in the back and feeling your feet go out from under you. Go on then, the judges say you have gone too far now to stop at less than everything. In California, the court decided that domestic partnerships that gave homosexuals everything but the name of marriage were a basis to conclude that the constitution said that homosexual partnerships must have the name of marriage too.

And now again, the relevant court has said: nothing less than the best, the maximum, is acceptable. The dance has played out to its usual finish, where the imperious court takes the initiative in demanding various protections, the legislature complies, up to the point of crossing some symbolic or practical line that seems to be important, and the court demolishes the weak position of those who have been pressured to say "of course I'm all in favor of..." (insert protections for those the courts are determined to protect) by insisting, logically then you must be all in favor of it to the maximum, with no half-measures. The constitution requires that you give them everything, and damn your taboos and how it was done in the past.

There is no middle ground. The judges won't allow it. And if you have a choice at all, the wisest course seems to be don't give them an inch (where "them" is any group the courts want to specially favor) or the courts will give them a mile.

Americans are supposed to have "a genius for compromise". I think that now requires an asterisk:

* Not where judges are concerned - and it's the judges that ultimately decide everything.

(35) David Blue made the following comment | Jun 14, 2008 12:32:28 AM | Permalink

And on the other hand, when the court is determined to deny a disfavored class of human beings protection, as in Dredd Scott and Roe, it's all the way - no compromise.

(36) Gregory Koster made the following comment | Jun 14, 2008 12:38:03 AM | Permalink

Dear Bridgeguy: Nope, a lot of folks on the right roared for the impeachment of Earl Warren in the 1960s using the same arguments you did, and got nowhere. There has to be actual misconduct (Fortas would likely have been impeached if he hadn't resigned) and serious misconduct at that (the effort to impeach Douglas failed abysmally, nearly wrecking Gerald Ford's career)

For Gary D: "One of the most conservative courts in history?" You've hurt the feelings of Democrat Roger Taney, the author of Dred Scott, and Democrat Rufus Peckham, author of Lochner. Too, this "conservative" court has spit in the eye of caution, rared back, waved the amgic judicial wand and---Presto! Noncitizens now have habeas rights even outside the United States. (This raises an interesting subsidiary question: why bother to be a citizen of the US? The trend is toward getting all the rights citizens have, so why bother with actually becoming one? I'd be astonished if this notion even crossed Kennedy's mind, but you can sure Breyer and Ginsburg have filed this decision with the "rights of undocumented immigrants" ideas they have when the proper case bawling for amnesty comes forward.) If this is your idea of conservatism, I congratulate you on your decision to start injecting it instead of snorting it. Much more efficient.

For Mr. Dyer: Worse than Dred Scott? Or the collective New Deal internment cases? No, that's too strong. What has happened is Kennedy has learned the lessons of the internment cases too well. Fifty years from now, his grandson will have learned the lessons of this idiotic decision, but that won't help us now. Further, this case is not going to cause us to lose a war. It will hamper efforts to fight a war. Americans, civilian and military, will die because of it. But the nation will have not Osama bin Laden dictating peace terms at the White House (he'll be an honored guest at Harvard when he gives his speech on how America is bad.) I think this decision will correct itself when the evils become grossly apparent, e.g. someone blows up the Supreme Court building on a Sunday when no one is working, and Kennedy gives the following press quote:

"Why---why they tried to kill me! ME! As if they thought I was part of America! I was just trying to give them a fair shake, we can't have indefinite detention, though there's much to be said for effective action---I better talk to Antonin, excuse me."

We'll all have a good laugh over that one, rather sour it is true. But this decision does address a fundamental concern, one that no one has yet gotten a satisfactory answer to. It is this:

What is victory in this conflict?

It is one thing to hold combatants "for the duration of the war." But what is the duration of this conflict? I won't call it a war, there is no declaration of war. I know, lawyers will assure me that an Authorization to Use Military Force (AUMF) is just as good. I will note that every war we have declared, we have won, something that can't be said for AUMFs. I have said this before, a Declaration would let this country know that it is in hostilities up to its neck, and act accordingly, complete with, say, higher taxes, and a draft. Instead, five years have gone on, and no one is really sure where we are. The nation is frustrated and worse, bored. Thus the jingle I have quoted before:

"America is not at war.
America is at the mall.
The Marine Corps is at war."

Kennedy's answer, however idiotic, is trying to get at the question, What is victory? The Administration has not successfully done so. To the contrary, they have frittered away much of the confidence they had when they began (and that wasn't exactly a record breaking level) and conducted this conflict badly. Douglas Feith's book is fascinating, but there's way too much self-justification, not to mention disclosure of what should stay under wraps for some time. In his very different way, Feith has done as much damage as the New York TIMES did when it outed the communications monitoring that the Executive was doing.

Well, I'm off the main point. But this decision follows from the Administration's limp performance. I think once the costs become evident, it will be reversed by an equally all-knowing court. ("We are not final because we are infallible, but we are infallible only because we are final," wrote Justice Jackson of the 1950s Court. The old boy knew a thing or two.) But the underlying question remains.

Sincerely yours,
Gregory Koster

(37) cthulhu made the following comment | Jun 14, 2008 12:58:01 AM | Permalink

The underlying issue is a belief that modern society is a state of Nature. People who support this decision are the same folks that think meat comes in refrigerated polystyrene trays wrapped in cellophane out of some sort of magic box. We can have rational debates with megalomaniacs and sociopaths, and strongly worded letters can shame nations into better behavior.

In reality, this reflects merely the outer shell of an onion-like series of inner layers. At the center is complete anarchy, Hobbes' "nature red in tooth and claw". From the outside, one can drill through "polite society" into "law and order", and find that the law doesn't normally concern itself with hurt feelings, but rather with property, persons, and injuries. People at the "law and order" stage are litigants or criminals. People at the "polite society" stage are boors or cads.

Underpinning the "law and order" stage is the "civic culture" layer. There are no formal laws and there are no formal courts to administer justice, but a society has traditions to enforce a certain "fairness". This level operates in things like calls of "hey, rube" or "money!" and lynch mobs or vigilantism. Technically, it may be sometimes be unlawful, but it works within the society. Much of mafia-type activities fit within this layer, as well as playground "don't be a squealer" or "tit-for-tat" actions.

Further in, we come to layers of war. There is a layer where a specific regime is threatened, but the cultural norms are maintained. Deeper, there are wars over resources and economic well-being. Deeper still, there are layers where one culture intends to exterminate another...and even closer to the center, a people intends to eliminate a people.

Each of these layers has its own set of actions, controls, and responses. You don't get a restraining order against a mafia hit. You don't seek money damages for genocide. You don't socially snub someone who wants to confiscate your farm.

And every layer has the fortunate who wish to extend the rules they profit from to other layers. Mafia dons want judges in their pocket; Presidential candidates want to negotiate with those who would impose sharia; and Supreme Court justices would afford constitutional protections on parties who spurn the Geneva Conventions.

(38) Kevin Murphy made the following comment | Jun 14, 2008 2:59:41 AM | Permalink

I side with the impeachment crowd somewhat. Since this Congress and its leadership SUPPORT judicial supremacy, it would be unlikely to work at this time. Come the day that this is no longer the case, the Congress should throw down a warning that extreme judicial overreach is considered an impeachable offense. And then impeach the first judge that pisses them off.

Then again, the simpler thing is to replace Ginsberg or Stevens with someone sane and then start undoing some of this crap.

And to do that we need to elect McCain, because he's the only game in town. Obama's election will put the day off another decade, and add more crap to the pile.

(39) willem made the following comment | Jun 14, 2008 3:58:59 AM | Permalink

Still, I'm struck by the tortured oddity of a dominant premise in the majority's reasoning -- essentially the point that military facilities/operations constitute federal domain to such an extent that it matters not whether the facilities/operations are on US soil; i.e., the Constitution controls and shall be afforded wherever federal operations or facilities exist regardless place or the nationality or status or context of the individuals geographically associated therewith.

The function of Guantanamo in this subject role is to serve as an extension of the battlespace where combatants could be proctored beyond the reach or intervention of their brothers in arms. The purpose was to serve the strategic interests of the military in the prosecution of its mission. One can argue many things about Guantanamo, but it's status as a strategic military endeavor in support of the Iraq and Afghani campaigns is impossible to logically refute.

The SCOTUS majority seems to turn this on its head, essentially finding American battlespace is an extension of American Jurisprudence.

War is also a military operation occurring under the federal aegis. If indeed Constitutional rights and protections have now been extended by SCOTUS to all such individuals involved, how are combat operations to be conducted? Do we send investigators and lawyers to interview potential combatants and armies to certify their status as eligible for attack? Do we lawyer the pulling of each trigger? Do we deploy attorneys in flight suits to preserve the due process rights of those about to be bombed? Will they now need a court order to launch a cruise missile or storm a bunker or enemy position?

Preposterous? No less so than the ruling itself.

(40) Mike Thomas made the following comment | Jun 14, 2008 3:49:14 PM | Permalink

Beldar: You say "A habeas corpus petition is indeed a "get out of jail free" card", so I looked up the success rate for such petitions today. A whopping 2 percent. And I suspect that will be even LOWER during actual combat situations.
As for reacting like a "typical Democrat" I would remind you that the majority opinion was authored by Reagan Republican Anthony Kennedy. I would never consider him a Democrat in light of his vote on what was truly the worst Supreme Court decision in modern history - "Bush vs. Gore".
And yes, I do have faith in our judicial system as well as the common decency of the American people. You keep falling back on these unproven labels and suppositions like "foreign terrorists, captured on foreign soil, doing battle contrary to the laws of war"...
Is that so? You know without a doubt that all the detainees are "terrorists"? And that they were committing war crimes when they took up arms against an invading army in their own country?
You know, it would be one thing if we were at war with Afghanistan. In that case, all the citizens of Afghanistan might be suspect. But we're not. We're not technically at war against any country. We are supposedly at war against "terrorism", but what the hell is that supposed to mean? It's like saying we are at war against evil. It's nonsense.
As such, there is no way to ever declare victory in this kind of "war". So we now have this dilemma where we gathered up all these people during the initial confrontation six years ago and now we don't know what to do with them. The Supreme Court has simply said that we have to demonstrate that there is some legitimate reason for continuing to hold them now and you call that the worst Supreme Court decision ever?? That's nuts.
It is common decency. It is the basic goodness at the core of our society which makes it a good place to live. And I am horrified that we have people like Scalia, Thomas, Roberts and Alito on our Supreme Court who can't seem to understand this.

(41) DRJ made the following comment | Jun 14, 2008 3:57:58 PM | Permalink

Mike Thomas,

What kind of proof do you think will be required for the government to retain custody of a detainee who files a habeas petition? At the very least, I think the US military will have to bring the military personnel who captured the detainee to a US court so they can be interrogated regarding the circumstances of the detainee's capture. Doesn't that seem to you like it would present a problem in the way the military fights a war? It does to me. It's much more involved than bringing police officers into court, is it?

(42) Sweating Through Fog made the following comment | Jun 14, 2008 5:13:58 PM | Permalink

As I wrote on my blog, McCain could - if he goes further and really throws down the gauntlet - win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision. He could use the spectre of Osama Bin Laden and his lawyers in Federal courts to beat Obama like a rented mule.

(43) SmokeVanThorn made the following comment | Jun 14, 2008 9:46:36 PM | Permalink

Beldar - extremely well said. The Mike Thomases of the world just don't (and probably never will) get it.

(44) Ric Locke made the following comment | Jun 14, 2008 10:26:36 PM | Permalink

One aspect I don't see being addressed.

The basic postulate underlying the Geneva Conventions is that captives are not to be tried under the laws of their captors. A moment's reflection should be sufficient to see why that is so.

This decision declares that captives must be treated according to the laws of the United States. As such, it constitutes an abrogation of the Conventions by denial of their basic principle.

I'm not sure Mr. Kennedy had that in mind.


(45) nk made the following comment | Jun 14, 2008 11:22:06 PM | Permalink

Congress created, and the president signed, laws creating an elaborate system for trying these detainees

Why? We already had laws that had worked in one war that split this country in half and killed half a million Americans on American soil, and in another war that killed a 100 million people worldwide.

Was the "elaborate system" the result of malice or incompetence? I suspect both but lean towards incompetence. Alberto Gonzalez tried to design something due-process-proof and failed.

And I am sorry to see you, Beldar, use the term "detainees". They are prisoners. Or do you follow the same logic that says Gitmo is not under U.S. sovereignity? Stone walls do not a prison make nor iron bars a cage?

(46) Ric Locke made the following comment | Jun 15, 2008 12:00:27 AM | Permalink

Well, nk, let's put it this way: If I were an airman at Ramstein AFB arrested by the stadtspolizei for drunk driving, this would be an extremely interesting legal principle.


(47) Michael Ejercito made the following comment | Jun 15, 2008 3:03:13 PM | Permalink

One effect of this ruling is that there would be fewer incentives for American troops to take prisoners.

It is already lawful to summarily execute people who were caught fighting while dressed as a civilian or as an allied combatant.

(48) hunter made the following comment | Jun 15, 2008 3:26:15 PM | Permalink

The more I read of what Kennedy wrote in this opinion, the more certain I am that Kennedy was not thinking of anything at all.

(49) Ric Locke made the following comment | Jun 15, 2008 6:13:16 PM | Permalink


Oh, Kennedy was thinking, all right.

But as a commenter at Protein Wisdom put it, he was thinking "internecine power struggle, need to assert the primacy of the Judiciary." Beldar's post today demonstrates that he acknowledges flouting precedent, the will of the Legislature and Executive, and international law -- the latter being a bit of a surprise, coming from somebody previously concerned with "emanations" and "penumbras".


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