“It shouldn’t be necessary for the Supreme Court to tell the president that he can’t have people taken into custody, spirited to a remote prison camp and held indefinitely, with no legal right to argue that they’ve been unjustly imprisoned – not even on grounds of mistaken identity,” columnist Eugene Robinson wrote about the court’s Guantanamo Bay detainee decision. “But the president in question is, sigh, George W. Bush, who has taken a chainsaw to the rule of law with the same manic gusto he displays while clearing brush at his Texas ranch.”
But a Wall Street Journal editorial complained that the court had declared judicial supremacy over Congress and the White House. “Justice (Anthony) Kennedy’s opinion is remarkable in its sweeping disregard for the decisions of both political branches,” the editorial said. “In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the president had worked out painstaking and good-faith rules for handling enemy combatants during wartime.”
44 Comments
It wasn’t a declaration of “judicial supremacy over Congress and the White House.”
It was a declaration that the Constitution of the United States of America is supreme to them all!
Any government, of any philosophy, which can target any individual, incarcerate that target, and deny that target habeas corpus, is out of control.
The SCOTUS merely established that there’s something about our Constitution that stands up to the whims of challenge.
That makes America a pretty good country, in my opinion. If we can live up to it.
The military and CIA have detained suspected terrorists.
The way I see the SCOTUS decision is this; they said prove it.
“Justice (Anthony) Kennedy’s opinion is remarkable in its sweeping disregard for the decisions of both political branches,”
Well, damn, if the SCOTUS is going to defer to the president and Congress, what the Hell do we need THEM for?
Also, according to the WSJ editorial, which was conveniently left out by the WE
“To reach yesterday’s decision, Justice Kennedy also had to dissemble about Justice Robert Jackson’s famous 1950 decision in Johnson v. Eisentrager. In that case, German nationals had been tried and convicted by military commissions for providing aid to the Japanese after Germany’s surrender in World War II. Justice Jackson ruled that non-Americans held in a prison in the American occupation zone in Germany did not warrant habeas corpus. But rather than overrule Eisentrager, Mr. Kennedy misinterprets it to pretend that it was based on mere “procedural” concerns”
In this case, as in all cases, it really doesn;t matter if it was judicial fiat or good jurisprudence as to effect. It is the law of the land. NOW.Deal with it. COmply with it. Quit bitching about it. That is the reality of it. The theory of it, well, the decision was 5 4. I am sure there were enought affirms and dissensions for everyone to pick over.
Executive Branch—THe Judicial branch has done it’s COnstitutionally provided job and responsibility. Leave it at that and comply.
“Justice (Anthony) Kennedy’s opinion is remarkable in its sweeping disregard for the decisions of both political branches,”
That iS THEIR DAMN JOB!
Why oh why does anyone with a lick of sense care about what the Wall Street Rupert has to say about anything anymore?
Habeas corpus is what keeps us free, it is the first thing every tin-pot dictator in the world throws away on his road to power and corruption. We lose it at our mortal peril.
Dennis
littlejohn,
Agreed. And if the Wall Street Journal, or Dick Cheney, or Lindsay Graham, or Antonin Scalia, or Rush Limbaugh don’t like the separation of powers, they should go where the Constitution doesn’t apply.
Thank God for the Supreme Court. And as I said on the Open Thread, the fact that this no-brainer decision was only 5-4 and not 6-3 or 7-2 is all the reason anybody needs to vote for Barack Obama rather than John McCain.
Imagine the WSJ (owned by Fox) having a problem with the rule of law being upheld and George not getting to wipe his backside with the Constitution!
So “activist” Judges like Souter (appointed by BushI) Stevens (By Ford) and Kennedy (By Reagan) are “legislating” from the bench?
I don’t buy it.
The Prez to an aide: ” Can we declare SCOTUS lego-terrorists and send their asses to Gitmo? Get AG AG on the phone and lets figure out how to turn this bus around!”
What’s really scary is that the dissent really didn’t have a leg to stand on. The majority opinion was painfully wordy, but it really came down to this: You can’t pluck people from a foreign country, and then put them on a U.S. base in Cuba, and somehow declare it a Constitution-free zone.
Kennedy also detailed at length the huge degree of due process accorded the accussed in Eisentrager, in contrast to the ridiculous sham of justice set up in the so-called “military commissions.” And, as I recall–by the way–that was under the jurisdiction of allied forces, not the U.S. per se.
Only true fascists could take the positions of the Wall Street Journal.
I haven;t read the opinion yet, so I shall reserve judgement on who doesn;t have a leg to stand on.I would suspect that Rage would be correct there, but I will wait and see. However, it makes no difference. The SCOTUS has done it’t job, the other branches need to comply.
I do not seek social remedies from the Apellate courts. I do not seek economic remedies from the Apellate courts. I do not seek that the Apellate courts take in mind the supposed consensus of the people, or the legislature, or the executive branch. I care not one whit what is happening in Europe or Sourth America, or Asia, when it comes to the courts decisions. I seek one thing. That the Constitution of the United States, or their juridiction if a State court judge, is upheld.
That is their job. Rmedies are for the executive branch and the legislative branch, the peoples representatives. THe Supreme Court does not represent the people, but the COnstituion. That is my belief
I haven’t read the opinion yet
Heh, keep a carafe of coffee handy, lj. While it has some pretty sharp language, Kennedy went out of his way to lay out each particular in excruiciating detail, as if to put the matter to bed for once and all. Compelling prose it’s not.
However, I think I can provide some color for my specific claims. One (relatively) small snippet:
*****************
Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in theformal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President thepower to acquire, dispose of, and govern territory, not thepower to decide when and where its terms apply. Even when the United States acts outside its borders, its powersare not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions
involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit
a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President,not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).
P.S. Eisentrager vs. the Sham:
In the instant cases, by contrast, the
detainees deny they are enemy combatants. They have been afforded some process in CSRT proceedings to determine their status; but, unlike in Eisentrager, supra, at 766, there has been no trial by military commission for violations of the laws of war. The difference is not trivial.
The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their detention. The Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them. See 14 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 8–10 (1949) (reprint 1997). To rebut the accusations, they were entitled to representation by counsel,
allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution’s witnesses. See Memorandum by Command of Lt. Gen. Wedemeyer,
Jan. 21, 1946 (establishing “Regulations Governing theTrial of War Criminals” in the China Theater), in Tr. ofRecord in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.
34–40.
In comparison the procedural protections afforded to thedetainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. Although the detainee is assigned a “Personal Representative” to assist him during CSRT proceedings, the Secretary of the Navy’s memorandum makes clear that person is not the detainee’s lawyer oreven his “advocate.” See App. to Pet. for Cert. in No. 06–1196, at 155, 172. The Government’s evidence is accorded
a presumption of validity. Id., at 159. The detainee is allowed to present “reasonably available” evidence, id., at 155, but his ability to rebut the Government’s evidenceagainst him is limited by the circumstances of his confinement
and his lack of counsel at this stage. And although the detainee can seek review of his status determination in the Court of Appeals, that review process cannot cure all defects in the earlier proceedings. See Part
V, infra.
Rage-
Thanks for posting that
You’re welcome, lj.
Damn pinko, liberal judges need to be force to strip search all the smell terrorists for lice’s!
No I do not mean any of it, it just seem to be missing in this thread. I have been working so many hours this week I had not had a chance to get on here till now.
McCain: Guantanamo Ruling One of the ‘Worst Decisions’ in History
“These are people who are not citizens. They do not and never have been given the rights that citizens in this country have,” he said. “Now, my friends, there are some bad people down there. There are some bad people.”
http://tinyurl.com/5l7clz
Such compassion for people who are held prisoner without charges, without the ability to defend themselves. Guess he knows for sure of their guilt and its not necessary they have any rights! Do you think those who held him captive had the same opinions about him?
Here’s a little more detail on McCain’s rantings about the recent Supreme Court decision.
http://www.time-blog.com/swampland/2008/06/mccain_slams_the_supreme_court.html
This makes me physically ill; from Linda’s link:
We are now going to have the courts flooded with so-called … habeas corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate because we need to go ahead and adjudicate these cases,” he said at a town hall meeting in New Jersey.
Leaving aside that habeus corpus petitions don’t have shit to do with the dinner menu, I have to wonder how this on Earth asshole could rot in a Vietnamese prison for 5 years and say things like these. He’s on record for wanting to close Gitmo, understandably; this utterly contradicts that position. Politics is indeed a very strange beast.
Terror attack on US soil, May 2009. 6,000 dead.
Please remember all of your postings here today.
But I’m sure then I’ll be reading “Bush didn’t do anything to try and keep us safe. It’s all his fault.”
Gene, ya know what I see when I examine your posts? 11010111 01110111. Binary thinking.
Except my PC is smarter than you.
Do you think those who held him captive had the same opinions about him?
Yes Linda because “Songbird” McCain readily confessed his crimes against the people of Viet Nam.
I’ve got a Mac and it is infinitely smarter than any Con on the blog.
Bi deal KansasNative. I have a 45-year-old slide rule that is infinitely smarter than the Cons.
But I still can’t type … BIG deal …
:)
“Terror attack on US soil, May 2009. 6,000 dead.”
And your gleeful prediction has what to do with todays SCOTUS ruling?
In the conservative world…………………….
Judicial activists, legislating from the bench = I disagree with the ruling.
Strict constructionists, upholding the constitution = I agree with the ruling.
You know another I find frightening? You’d think such a shocking statement of the reality–”Our basic charter cannot be contracted away like this”–would be bouncing off of every news desk in the country. It would appear not:
“http://news.google.com/news?hl=en&um=1&ie=UTF-8&tab=wn&q=%22Our+basic+charter+cannot+be+contracted+away+like+this.&filter=0
Might it be that many of the same corporations that own most of the news organizations are just a little too involved in contracting away everything we hold dear for their own profit?
OOPS! Clickable link:
http://news.google.com/news?hl=en&um=1&ie=UTF-8&tab=wn&q=%22Our+basic+charter+cannot+be+contracted+away+like+this.&filter=0
Rage,
I don’t see how McCane can say those things without choking on his words after having spent all those year as a prisoner of war either. Suppose maybe they got it mixed up and he was in some other Hilton hotel cheating on his wife?
I’m telling ya…Sydney McShame IS the Manchurian Candidate.
Brainwashed and programmed during the five years he spent as a POW.
Obama is NOT a Muslim but McShame is a Red Chinese Patsy.
; > chortles
I know most people in McCain’s position have advisors, does he have like, handlers? And, can they get a handle on him?
Handle what? Sydney is Bush all over again.
McShame would sell his grandmother, wife, and kids for a taste of power.
Cool, now the terrorists will know which courthouses to bomb or which judges cars to set bombs in.
For everything there is a price.
Bush’s Gulag… what a legacy! It’s well-know that 3/4 of the detainees don’t belong there at all and were simply bystanders in the wrong place at the wrong time.
“Cool, now the terrorists will know which courthouses to bomb or which judges cars to set bombs in.”
Huh?
Can I get a dime of what you are smoking?
Reggie,
“For everything there is a price.”
I guess we all know yours now. You’d sell our Constitution and our freedom for what? A bit of illusory security? I had you pegged for a bigot, I didn’t realize you were a coward to boot.
Pakistanies know how to handle Dictators that abrogate the constitution:
Pakistan’s Sharif suggests Musharraf might be hanged By Zeeshan Haider
Fri Jun 13, 9:04 PM ET
ISLAMABAD (Reuters) – Pakistan’s former prime minister Nawaz Sharif stepped up his attack on President Pervez Musharraf on Saturday, suggesting he could be hanged.
ADVERTISEMENT
Sharif said the president must be held accountable for abrogating the constitution and the 1999 coup, when then army chief Musharraf ousted Sharif.
Bush counted on Judicial Indifference. Thought he had the SC in his pocket, yet again. Good to see them try to reclaim some degree of dignity.
Scalia believes that giving alleged criminals a trial will lead to terrorist attacks. When Timothy McVeigh was given a trial how did that result in more attacks?
I’m understanding that the fascist Republicans just want to round people up off the streets and throw them into concentration camps without a trial. What a lovely vision of America the neo-cons have. I suppose they have a lot of faith that they’ll never be thrown into their own prisons, but since when is innocence a defense in a country that has no justice?
Well, Straight Talk now has told us what he thinks of the Supreme Court’s 5-4 decision to uphold Habeus Corpus:
“The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country,” McCain said.”
Yeah: defending the bedrock principle of English Common law is as bad as the Dred Scott Decision. Uh-huh. Wonder if he thinks that it stinks as bad as Bush v. Gore.
I guess that, if elected President, John McCain wants carte blanche to do unto others what was done unto him at the hands of his North Vietnamese captors.
Kind of makes you wonder whether the Bush operatives in the 2000 South Carolina primary weren’t on to something when they circulated this rumor:
““A smear campaign of the ugliest sort is now coursing through the contest for the presidency in 2000. Using the code word “temper,” a group of Senate Republicans, and at least some outriders of the George W. Bush campaign, are spreading the word that John McCain is unstable. The subtext, also suggested in this whispering campaign, is that he returned from 5 1/2 years as a POW in North Vietnam with a loose screw. And it is bruited about that he shouldn’t be entrusted with nuclear weapons.””
http://www.bartcopnation.com/dc/dcboard.php?az=show_topic&forum=8&topic_id=522
Fortunately for all of us and for the Constitution, John McCain will end up nowhere near the Presidency.
Every complaint I’ve read, every comment critical of the decision makes it sound a great deal like “they” are afraid of the numbers of prisoners who are innocent and when charges must be made known there will be none.
Rule of law? Not with this corrupt bunch of idiots! There are many other ways they’ve trampled rights and Constitutional guarantees. Let’s investigate, investigate and investigate some more!
McCain is horrible. As mentioned earlier McCain thinks that it’s better that people are considered property than for people to be allowed to have a trial as guaranteed under our Constitution.
How long has McCain hated our country?
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