I’m with Scalia and Hewitt on this one
In extending the writ of habeas corpus to unlawful enemy noncitizen combatants the law has proved once again that it can be an ass.
It’s also an example of why the next President will be so important in shaping policy for decades to come, not just four years or eight years, because he will be appointing several Supreme Court justices.
The decision was a close 5-4 vote. It features a very sharply worded dissent by Justice Scalia, who writes that the Court has perpetrated a game of “bait-and-switch” (the ruling seems to contradict previous decisions of this very same court on the matter) that almost certainly will cause needless American deaths.
The decision has some strange and troubling characteristics. Even the majority opinion concedes its unprecedented (literally) nature:
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 sovereignty have any rights under our Constitution.
There better be an awfully good reason to now say so. But the Court has failed to offer one. The comments section at Volokh is instructive as well; I haven’t plowed through all of them, but the vast majority that I’ve read seem to be scathing in their criticism of the Court and its reach in this case.
I’m outraged about this decision.
This decision and all the other nonsense going on in this country must be confirmation to the Jihadis that we’re declining rapidly.. that our downfall is assured. It sickens me.
re: Vince P’s comment immediately above:
Ditto (but with several exclamation marks for added emphasis)!!!
I suspect a back patting rationalization about “The Great Writ” of habeus corpus eased the majority’s conscience. The premise flaw is the majority’s automatic assumption that a civilian judge and jury comprise “peers” moreso than a military judge and jury comprise “peers”.
Further, I suspect the limited military experience amongst the SC majority … encouraged the majority to (unconsciously) buy into the media and left side meme that military detention and military court proceedings are to some degree barbaric and unjust circumstances … which, in the interest of justice and humanity, must be counteracted and remedied … by the high minded and noble minds and hearts of enlightened judiciary. Whew.
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An inhumane consequence: more enemies will be killed instead of captured.
The long Western Civilization tradition of trying captured enemies in military courts actually makes the capture of POWs more likely. No soldier wants to risk his career, his reputation, or even his freedom via: testifying in a civilian courtroom, before judge and jury who possess little understanding of battlefield reality.
Old law enforcement saying: “Dead men tell no tales.” This is sometimes quoted as “Dead men tell no lies.” Why should soldiers endanger their lives in order to capture POWs who have been trained to lie to the kuffar in every circumstance?
In addition: no soldier wants to risk a civilian court loosing a murderous, no-holds-barred, sworn-enemy-for-a-lifetime back into the world.
I conclude the military court system humanely encourages the capture of POWs. Conversely, the extention of civilian habeus corpus rights will encourage the killing of more enemy.
An aside:
For similar reason: “enhanced interrogation techniques” humanely encourage the capture of POWs. If there is little possibility of gaining valuable intelligence from POWs: why should soldiers put their lives at extra risk in order to effect such capture? It makes more sense to call in a killing airstrike.
It’s playing into the terrorists hands. That’s one of their biggest strategies. They use the liberalism (rule of law, juries, rights, etc) against us. The freedom they hate so much, they love to utilize for their devious ends. This is going way too far. The fact that 5 of the Justices ruled this way, is sickening. It really shows how “smart” people can be so stupid. Unfortunately for us, their idiocy affects all of us in a profound way.
We are a couple progressives away from not being able to debate this… Talking about ‘kuffar’ and our incitement against the court are hate speech after all…
True, we don’t have laws against it and there is no US legal tradition supporting it…. but all the Supremes have to do is stop protecting free speech when ‘hate’ (re: anything a lefty does not like = hate) speech is involved and it becomes a defacto exemption… Sorta like they did here.
regarding my conflation, above, of “habeus corpus” and “peers”: I am using the terms loosely.
The military is kind of like it’s own country. The military has it’s own types of laws and it’s own type of loose constitution.
My point: in this case, the laws of the “Military country” are more apropros than the laws of the “civilian country”. The SC majority has automatically, reflexively assumed the superiority of the laws of the “civilian country”. It’s a flawed assumption – which we hope will only be fatal to small numbers of U.S. citizens, as opposed to large numbers of U.S. citizens.
This is a dark moment for the nation. Long lasting consequences will ensue – not least b/c the majority’s power grab invalidated the SC’s own decision of only 2 years ago. Our nation will stagger under the unelected thumb or such arbitrary and capricious robed rulers.
Well at least we know exactly what 5 people to blame when the terrorists walk free on technicalities. I can see liberal defense lawyers foaming at the mouth.
How about someone call for the impeachment of these judges? This is grossly in violation of the balance of powers in our federal government. By granting habeas corpus to terrorists captured in the battlefield three continents away and imprisoned off US soil and who are non-US citizens, the US Supreme Court has negated the our ability to defend ourselves in war.
Furthermore, they have usurped the power of both the Legislative and Executive Branches of government by issuing a decision where both branches agree. They’ve overtured 15 centuries of Anglo-Saxon law. The judiciary has traditionally not had jurisdiction over matters of national security where both the legislature and executive branches are in agreement.
Articles of impeachment should be brought against these people for creating an oligarchy.
Thomas Says:
“How about someone call for the impeachment of these judges?”
It would probably be seen as an overstep.. the same as what the court has done here. So, it wouldn’t work / would blow up in our face…
There is check on the courts that the legislative branch just never uses. You can simply write into the law that it is beyond review by the federal courts… it’s constitutional to do so…. But the legislature doesn’t have the guts to do it… or they’re not really serious about keeping the courts out of these things.
Anyway, the next check on the court is for the candidates for the executive to run against the court in their election… and to promise to not appoint more people like those to it…
anyway, ‘issues’ keep falling in McCain’s lap. This, energy, and affirmative action have been popping up over the last few days… great issues to force Obama out from behind his ‘change’ curtain.
If he looses, it’s due to his failings.
An inhumane consequence: more enemies will be killed instead of captured.
As the syrupy-sentimental-stupid variety of liberalism infests the court, it will become more important to kill the enemy in battle instead of capturing them. As witness to the whiney weeping over the apprehension and trial of Nazi murderer John Demjanjuk, I’ll bet once these current batch of monsters with human masks attain old age there will be crying out against any attempts to bring them to justice, too.
This paragraph from Chief Justice Roberts’ dissent, via http://www.powerlineblog.com:
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 to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.
Also, worth noting on the powerline site is a posting “about … a 12-step program for recovering Democrats patterned along the lines of Alcoholics Anonymous.”
My recovery from being a liberal democrat is in it’s 33rd year — there’s no going back.
I think the “political branches” should have given the majority of these prisoners POW status early on. Any captive who required “special treatment” because of rank or possession of useful information would simply have been officially unaccounted for.
Bugs Says:
“I think the “political branches” should have given the majority of these prisoners POW status early on.”
Yeah, and tried for war crimes and shot already…
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An inhumane consequence: more enemies will be killed instead of captured. –gcothcarn
Cappy seconded and I third this.
Next thing you know our soldiers will have to read the enemy Miranda Rights before an ambush.
I believe we are already well along the road of civilizational suicide. What the contemporary recrudescence of Islamic jihad has exposed is the shocking indifference of most of the population and our elites towards the heritage that is called Western civilization. Moreover, very significant elements of our populations actively despise our civilization and everything it stands for. Yesterday, after reading Justice Souter’s comments about the deliberations and the decision of the majority, one gets the clear impression that they feel sorry for the detainees, referencing their long detainment as having weight in their discussions. Clearly, these people have utterly no grasp the scimitar poised above our heads.
What’s even more maddening, is the reality that our legal elites think these jihadis are more criminals than they are warriors of Allah. After all, in the final analysis prisoners of war or illegal combatants are still warriors. They serve a political ideology (Islam is that) and do indeed have a state, borderless as it is (the Ummah). The armies of Allah almost never had uniforms anyway. And most of their fighting, down through the centuries, has consisted of the kind that we in our country saw out in Missouri and Kansas during the Civil War. Raiders. Terrorists. Brigands. This was how Muhammad fought. They see themselves as warriors, and logic, fact, the evidence of history back up that claim. I give them that respect. Just because they have no official state is no reason to consign them to the nomenclature of “criminal.” Criminal acts are exactly how Muhammad modeled warfare. But, it is a grievous error to legally brand them as criminals. That is the error which leads to decisions like this: they are then slotted into criminal law reasoning, so decisions like this flow from that premise. The minority opinion fundamentally grasps the nature of this enemy: a lethal threat to our country and to civilization itself. The majority opinion sees a specific American administration and government as the enemy.
The Muslims are right about us. We are weak. We have no confidence in our civilization, its laws, our religions, our cultures, all of it. And sizeable minorities within our countries make common cause with Islam to destroy us.
There is one very certain outcome from this decision: we will be taking extremely few prisoners on the field of battle. It will be perilous to do so. Now that our soldiers and Marines know that these captured minions of Allah are to be treated as Mirandized criminal suspects, they are not going to want to bother with capturing them. Dead men indeed tell no lies. Kill them all.
This decision also has another very deleterious aspect to it: it greatly cripples our ability to gather intelligence from these mutts. If we do try to get it from them, it all has to happen far from the ability of the courts to protect the prisoners and guard their rights. And because the CIA is riven with people who will be glad to leak this information about our black op intelligence gathering by breaking down these swine, it is going to take some extraordinary measures to wall this off from normal channels. It will require an intelligence/terrorism organization that Congress does not know about. “Vince Flynn” anyone?
Those of you complaining about this decision have completely missed the point. The issue here was not whether habeas corpus can be suspended in certain circumstances, which this ruling does not overturn. In this specific case, it comes down to the definition of “enemy combatant.” In the past, an enemy combatant was clearly someone captured on the battlefield. The current definition of “enemy combatant” in the law the Supreme Court just overturned was so broad as to say that essentially the executive branch could designate anyone an “enemy combatant” at whim, without any Federal court review. Note that initially the Bush Administration even said they could designate a citizen an “enemy combatant” just on their say-so, and that citizen had no right to challenge this in civilian court. Furthermore, many of the “protections” that Justice Roberts spoke of came into being only after earlier Supreme Court decisions and massive political pressure was brought to bear.
It is *this* exceptionally broad power of suspension of the Great Writ which the Supreme Court obviously correctly overturned today. I am quite shocked that “conservatives” who ordinarily seem eager to protect individual rights would so blithely ignore this fundamental assault on our freedoms. If the executive branch, solely on their own say so, can designate anyone an “enemy combatant” regardless of the circumstances under which they were captured, because of the endless “war on terror”, what is the point of having the rule of law at all?
The other odd thing here is that everyone seems to assume everyone being held in the military tribunal system is guilty, a terrorist, etc. However there have already been numerous stories of severe mistakes that our government has already made with respect to civilians we designated as threats who ended up being tortured or abused before we realized they were in fact innocent. To think that everyone being held is automatically guilty is quite absurd — how would we ever find out whether they are unless they are given some sort of due process?
Yes, one can argue that the military tribunals have been improved recently, and thus they do provide some modicum of due process. However, the standards of the process afforded military detainees is nevertheless far short of what we expect in civilian courts. Since the broad powers of the law the Court just overturned were so broad as to potentially affect anyone the Administration deemed an “enemy”, with no court review whatsoever, this is not a minor issue. This decision was so clearly the correct one that it is truly bizarre to me that in this country we’re even debating it at all.
Another note: if the prisoners at Guantanamo Bay were designed POWs, i.e., enemy combatants in the ordinary sense … there wouldn’t be a problem. This ruling does not change the status of POWs. The problem here is the Bush Administration wanted the power to designate anyone at all, including citizens originally, though later they changed this to be only foreigners, because of an earlier Court decision, as “enemy combatants” who were, nevertheless, not POWs, and imprison them without Federal court review. THAT is what the Court overturned, quite rightly. This does not mean that the Court now says POW status gets to be reviewed in war forever, etc. It simply says: you don’t have unlimited power to designate people enemy combatants with no POW rights just because the executive says so with no court review. That’s all this ruling says.
Mitsu: I have been making the following arguments on the JohnnyDollar blog (for Fox News). Here
http://www.haloscan.com/comments/johnnydollar/bgn234994163/?a=50600
So, “mitsu” finally gets right to the point about what she thinks is the burning issue all along: that the captured enemy mujahadeen were not designated POW’s and given Geneva Convention rights. It’s all about not being able to interrogate them because they will have the right to speak name, rank, and jihad number. Muslim countries are not signatories to the Geneva Conventions. That’s one way of looking at it. I’ve read dozens of opinions on this matter since the Court Jesters have rendered this decision, and the bottom line seems to be that the US Supreme Court does not trust the military tribunal system which Congress had authorized.
The Left does not trust military justice.
Final note: One of the unintended consequences of this decision for our military men in combat: shoot, shovel, and shut up.
@Mitsu
The “battlefield” is now everywhere: villages, buses, pizza parlors.
Enemy combatants are not designated via harem scarem random abandon. This is a false construct by you. Enemy combatants are designated according to military rules.
The issue…
When an “enemy combatant” designation is challenged by a defendant, which entity is better designed to consider the challenge: military courtroom or civilian courtroom? The SC majority (reflexively?) answered “civilian courtroom”.
Both you and the SC majority seem to automatically discount the legitimacy, fairness, and justice of the military justice system. For example, you make this statement:
I assert that – in the matter of adjudging enemy combatants’ actions and status – military courts are superior to civilian courts. In such matters, military courts are more legitimate, more fair, and more just. Think of the military as a nation which is designed and brought into being partly for the purpose of deciding such matters. The military has rules and laws and procedures which have been carefully considered – just like the rules and laws and procedures of most nations.
You (and the SC majority) are against enemy combatants being designated as such w/o Federal Court review. I say Federal Court review is inferior to Military Court review.
I’m not saying, at all, that Military Courts are perfect. I am saying, in this instance, Military Courts are superior, and are less imperfect than Federal Courts.
Except they’re not POWs, any more than the 9/11 hijackers would be had they been captured. They’re terrorists, straight-up, and should be hanged forthwith.
Illegal combatants can (like spies, saboteurs) be shot on the spot, after a determination by an officer in the field.
First of all, this decision doesn’t apply whatsoever to enemy combatants captured by the military and held on foreign soil. It refers only to those held at Guantanamo Bay or on American soil. Secondly, as you may not remember, the original position of the Bush Administration was the executive branch could designate anyone an enemy combatant with no guaranteed review whatsoever, even within the United States and even if the person was a citizen — and they wouldn’t even have to tell anyone they had done so. Thankfully in the Hamdan case they were forced to institute some sort of review process. The Court ruled here that this review process was inadequate. However, the fear that somehow this case opens the floodgates to enemy soldiers detailed by the military in a war situation challenging their detention in Federal court — that’s silly. That is not what this decision was about.
The issue here is quite simple: a balance between the need for the executive to detain potential threats, and the need for those innocent of crimes to have some way of challenging their detention. The Bush Adminsitration has held a very bizarre theory in which the executive has unlimited power to detain even citizens with no recourse to the courts … this Supreme Court has rightly ruled that this is not constitutional, on a number of occasions. And I am surprised that conservatives, so concerned about freedom and liberty, don’t seem to care about this blatant grab for excessive executive power. I thought conservatives were suspicious of an overly powerful central government?
We are.
It’s just that we’re also suspicious of all enemies, foreign and domestic.
And let’s face it, we’ve got ’em.
Mitsu Says:
“Those of you complaining about this decision have completely missed the point.”
Actually, that’s not what this decision was about and you completely missed the point.
Mitsu Says:
“First of all, this decision doesn’t apply whatsoever to enemy combatants captured by the military and held on foreign soil. It refers only to those held at Guantanamo Bay or on American soil.”
Ding ding ding… to get Guantanamo in the mix they so expanded the definition of ‘American soil’ as to include anywhere we are in control… so.., no. Your mistaken.
I agree with Thomas. This is a slippery slope expansion of “American soil” which will eventually encompass locations all around the world, if not the entire world. The men who wrote our Constitution never imagined anyone would contemplate what the SC majority has given us.
Mitsu, I don’t understand your repeated complaint about habeus corpus for U.S. citizens prior to Hamdan. What do you want from us?
I haven’t studied Hamdan enough to fully know if I agree with it, but: no one here is complaining about Hamdan. I’m not complaining about it. On the contrary: we are complaining that this SC majority overturned Hamdan 1) only two years after deciding it, AND 2) after both the Executive and the Legislative went to great lengths to forge legsislation which complied with Hamdan. THAT overturn of their own ruling is crazy SC instability which will undermine our nation just as easily as anything else.
The majority in this case made it quite explicit their determination did NOT apply to foreign battlefields. Kennedy specifically said it did not apply in those cases, so unless he is going to suddenly change his mind on that, I think many of you are overly worried about this ruling. What it does do, in my view, is establish a reasonable limit on the extent of executive power — that is to say, just because we’re under threat of terrorist attack does not mean that the executive branch can act as though the entire country is a battlefield indefinitely. Sure, right now you may trust the Bush Administration to use this power to protect us and not use it for nefarious purposes — but that’s because you happen to support this Administration. What if the executive branch were controlled by someone you didn’t trust? The point of checks on executive power is that you can never be sure who is in power, or what they’re going to try to use it for. Today, they’re working for you, tomorrow they may not be. To have limits on executive power is in our long-term interest. That’s the American way.
(By the way, for clarification: I am male, not that this ought to matter).
Your argument is one big straw man.
Not yet. A preview of coming attractions.
Thirty years ago that those opposing decriminalization of sodomy said doing so was to proceed down slippery slope of mainstreaming homosexuality that would eventually lead to homosexual marriages. Those supporting decriminalization pooh-poohed that argument as ridiculous.
And yet, here we are.
Here is the SCOTUS decision:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1195.pdf
Let us search to understand each other at the points where we disagree:
1. Slippery Slope
It was nice of Justice Kennedy to assure us the slippery slope is not to be feared. Justice Scalia disagrees:
2. Reasonable limit on the extent of Executive Power
Chief Justice Roberts believes the majority wishes to limit Executive Power b/c they misunderstand that CSRT(Combatant Status Review Tribunal) has power to review habeus rights and to release defendants. Roberts alleges the majority’s ruling turns on the (ack, I can’t believe I’m going to say it)straw man propped up by the majority’s lack of understanding.
Mitsu, I do not understand your comment that the Executive cannot act as if the entire country is a battlefield indefinitely. I don’t know what domestic U.S. citizen’s rights have to do with this case, if that is what you are referring to.
Finally, I am all for limits on both Executive power and Judicial power.
Mitsu Says:
“The majority in this case made it quite explicit their determination did NOT apply to foreign battlefields.”
A: Yes Sen Obama, I know. But we are not talking about battlefields. We are talking about places under American ‘control’… like bases in Cuba… what about things like bases…elsewhere?
B: Since they can shred the constitution to include places, at will, in this instance… why can they not do so again next time it comes up? That one is on the clear side too… There is no reason.
This provides an additional opportunity for defense lawyers to demand mountains of classified material. If provided, it will be broadcast to the enemy. If not provided, the case will be dismissed.
Does anybody think Lynn Stewart was a solo act?
We already know–see Haditha–that the enemy, by which I mean the media, along with terrorist propagandists posing as journalists, are attempting to hamstring our military operations by promoting major scandals about non-existent crimes.
This is more of the same.
Oh, yeah. Newsweek’s bogus Koran flushing story is in another example.