Thursday, June 12, 2008

Boumediene v. Bush

In the Habeas case recently decided by the Supreme Court, they have miraculously extended the right to the Writ of Habeas corpus so far beyond any historical or legal meaning of the term, and even beyond the great leaps the have taken in prior rulings... to the point of contradicting themselves and almost every precedent they cite to defend the indefensible.

Shockingly, they argue that the protections they have established for U.S. citizens detained as enemy combatants within the U.S. are too strong for non-citizens who have never stepped foot within, nor being held within, sovereign U.S. territory.

That's right. The Supreme Court has given foreign terrorists more protections under the law than U.S. citizens. Even after the government went way beyond any historical precedent to remain within such prior rulings. Only for the court to change its mind and declare the judiciary to have some grand power to not only throw out the procedures established by our elected representatives, but reserve to the judiciary the power to establish such law on their own... beyond any democratic influence or input.

Here's an excerpt from Roberts' dissent, whom Scalia, Thomas, and Alito joined:

The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed Forces overseas and found to be enemy combatants:

  • The right to hear the bases of the charges against them, including a summary of any classified evidence.

  • The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. Some 38 detainees have been released as a result of this process. Brief for Federal Respondents 57, 60.

  • The right, before the CSRT, to testify, introduce evidence, call witnesses, question those the Government calls, and secure release, if and when appropriate.

  • The right to the aid of a personal representative in arranging and presenting their cases before a CSRT.

  • Before the D. C. Circuit, the right to employ counsel,
    challenge the factual record, contest the lower tribunal’s legal determinations, ensure compliance with the Constitution and laws, and secure release, if any errors below establish their entitlement to such relief.

In sum, the DTA satisfies the majority’s own criteria for assessing adequacy. This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees—whether citizens or aliens—in our national

* * *

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

I respectfully dissent.

Scalia took the opportunity to go off on a total rant against the ramifications of the majority's mind boggling expansion beyond all history with no basis in precedent or the Constitution itself to justify it:

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.

“Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (BREYER, J., concurring).1

Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the roleof civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act... represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” Brief for Respondents 10–11 (internal quotation marks omitted).

But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante, at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

His brief summation pretty well says it all:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separationof-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent.

It's worth noting he did not "respectfully dissent."

It didn't deserve a respectful one.

Meanwhile, McCain appears unlikely to comment about the decision itself as opposed to maintain his position that Gitmo needs to be closed. Given the damage it has done to U.S. law and judicial precedent thanks to the loose constructionist majority... that one would have thought had peaked in their insanity to thwart the Constitution for their own agenda with the Kelo decision on eminent domain and declaring that public meant private... no that wasn't good enough.

Now they're redefining a concept that relies upon sovereignty so that it can extend to capture enemies with no connection to the United States other than their desire to destroy it... and afford them even more protections than they were willing to afford U.S. citizens.

If McCain does decide to comment, he'll have to tread carefully so it doesn't turn into another GI Bill propaganda spree against him. Being right or having the smarter answer doesn't sell well if your opponent will paint you as a monster, with the full backing of the media parroting the smears as fact.

With the GI Bill, McCain's smarter expansion of it was almost wholly ignored... while the media regurgitated the DNC talking point that he opposed the GI Bill. Period. And people got the message. Even my vet friends were shocked and outraged that McCain wanted to take away education benefits for veterans!

The fact that he supported expanding it in a different way that made more sense, or hell, even at all... got lost in the constant chanting of how he was opposed to being generous to veterans... or how his response to such an indictment of his devotion to them was actually some attack on all non-veterans from having an opinion. A gross distortion of his chastising of Obama for suggesting that he didn't care about vets when McCain was a vet himself.

With this the facts will be equally difficult, if not impossible, to get to the public without it being distorted into "McCain opposes Habeas rights" or "McCain wants to detain people indefinitely without trial" on top of every possible twisting of any support of the logical arguments of the dissent, either written by or joined by Bush appointees, as more proof that he's running for Bush's 3rd term. All of which would be far more guaranteed to dominate the media presentation over anything he has to say... regardless if it is factual or intelligent.

If he decides to merely maintain his position on Gitmo, he can avoid that distortion and maintain a distance from Bush, though I'm sure many strict constructionists, myself included, would love to see him tear these justices a new asshole over it.

Doing so will only jeopardize his ability to replace the yahoos who did it though.



Repack Rider said...

This is a victory for freedom. Are there really people who would imprison other people for life on the basis of an accusation by the same people who assured us there were WMDs? Without even finding out if the charges are true?

I guess so, but I always thought their names were Josef Stalin, Pol Pot or Mao. Now there are actual Americans who want to do the same as these murderous dictators.

The administration claimed the right to capture citizens of other countries, imprison them and torture them and never even have to show that there was a reason for the capture. They even claimed that they could do that to American citizens, and they lost that one also.

I prefer Democracy and the rule of law to that.

I am a United States Army veteran (and you are a chickenhawk), and I will defend anyone's right to admire activities reminiscent of Stalin or Mao, but I don't have to admire them myself.

Glock21 said...

The precedent for detaining people like those in Gitmo predates the Bush Administration. If you read the cited cases, they involve circumstances in which our country lawfully detained such combatants and of course had no habeas rights.

POWs generally have no habeas rights, nor are they generally tried for any crime, but held indefinitely until the end of the conflict to prevent them from rejoining the fight.

The problem with the enemy combatants in this case is they weren't legal combatants in the fight per Geneva. I am far closer to John McCain's views on how we should deal with those combatants than Bush, but I feel people greatly exaggerate in many of the arguments... even if we may agree that Bush has overstepped his bounds.

To put him in the same league as someone like Stalin or Mao who each are responsible for more deaths of their own people than even Hitler... well that's a gross exaggeration. To put Bush in league with the man who created the Killing Fields in Cambodia... with the vivid memories of the mass death still fresh in our minds... well that's a gross exaggeration.

The brutal oppression of those that survived their brutal reigns in each case are a very recent scar on humanity, as is communism in general, imho. To try to put Bush in league with them... well, that's a gross exaggeration.

We can certainly agree that Bush has done some really boneheaded things... has overstepped his authority... and we can be glad to see him go together. But I'd prefer to do so because I have rational reasons to do so... not out of pure emotionally charged hyperbole.

Thank you for your service.

I will humbly remind you that your service does not negate the value or legitimacy of opinions of those who have not served out of hand. You may feel it gives you some sort of superior status for your opinions over your fellow citizens, but the Constitution fortunately disagrees. You can call your opponents, chickenhawks or any other derisive name in an attempt to deny the value of their opinions... but it won't win you very many friends.

If you read my blog you'll find that I'm adamantly anti-communist, pro-liberty, and for limited government. We obviously disagree on the history of and the appropriateness of the extent of Article II powers on the detention of combatants in a conflict. Your exaggerations and accusations at me are entirely uncalled for.

You seem more interested in scoring worthless ad hominem than defending your position with any objectivity.

Shall I be Satan as well? I'll gladly be the Devil's Advocate to make a reasoned argument if that be the case.

For the record, I enlisted exactly two weeks after 9/11, so you may call me a "chickenhawk" all you want, but you'll only embarrass yourself by doing so. As a veteran yourself I'd strongly suggest you learn to appreciate the reasons behind the Constitutional provision that puts the military under civilian leadership prior to any future insults of those you feel do not have the military credentials to have an opinion on military matters.

Remember you swore to uphold and defend the Constitution. Written and established in part by many men who served their country in ways beyond just military careers. Perhaps you should have some appreciation for those that you deride as "chickenhawks" who have contributed so much to this nation.

In other words: Grow the fuck up.