The Supreme Court's Troublesome Decision on Terrorists

The Supreme Court ruled in Rasul v. Bush that federal courts will conduct habeas corpus review of alien enemy combatants' detentions outside the United States to ensure the detainee is really an enemy combatant. In Hamdi v. Rumsfeld, the justices held that U.S. citizens detained in the war have the right to a lawyer and a fair hearing before a neutral judge. The court's rulings -- quite rational, legally defensible, and moderate at the philosophical level -- are a disaster at the practical level.

Well-respected conservative commentators stress these decisions are not a body blow to the Bush administration's war against terrorism. Instead, they argue that the court showed appropriate deference to the executive branch in national security and military affairs, affirming the president's right to detain enemy combatants.

They argue not to overreact to granting the federal judiciary the power to decide whether it agrees with the president's contention that someone is an enemy combatant, because Congress can step in to define the procedures of review with things such as -- per Justice Sandra Day O'Connor's suggestion -- a presumption in favor of the government that could only be rebutted by evidence more persuasive than the government's.

The reality is that I would be perfectly comfortable to grant enemy combatants all the due process they could possibly want, with fries on the side, if I actually trusted the judiciary to decide cases according to the law and the facts. But too many judges have proved time and again in the habeas corpus death-penalty arena that, because they oppose the death penalty on moral grounds, they will find endless, previously unknown procedures that were "not quite" done to their satisfaction. They find endless hypothetical possibilities of innocence even though the non-hypothetical evidence is to the contrary. They find endless chances for the petitioners to look for, and present, new evidence, even though guilt is not in doubt.

These judges are expert at disguising their opinions as somehow within what "due process" requires or what the evidence shows, but only the intentionally naïve refuse to see that the motivating factor is their view that the death penalty is immoral, which they are therefore morally obligated to oppose by any means available.

The same thing is going to happen in the war on terrorism, with every judge who disagrees with the president's war policy.

Think I'm overreacting? Do you remember those Florida Supreme Court justices who ignored numerous provisions of the Florida Elections Code to extend various voting deadlines, and change procedures, even though the U.S. Constitution made it perfectly clear they could not substitute their view of how to run a federal election for the state Legislature's? Only the intentionally naïve failed to notice that these judges were partisan Democrats who believed they had a higher moral calling to make sure that every vote was counted, even if not cast or interpreted according to the law.

These judges embodied the liberal ethos that places personal views of what is "right" above the rule of law.

Former Florida Supreme Court Justice Rosemary Barkett sits as a federal judge on the 11th U.S. Circuit Court of Appeals. She will be one of those in the federal judiciary charged with deciding whether she agrees with the president's determination that someone should be held as an enemy combatant. Barkett's admitted moral opposition to the death penalty routinely affects her ability to decide death-penalty appeals by the facts and under the law.

Barkett voted against executing the killer of an 8-year-old girl because of the murderer's "learning problems." She voted against executing a killer who sent tape recordings to the victim's mother describing her son's murder because, in Barkett's view, it was not a homicide but a "social awareness case."

The black murderer of a white child, Barkett said, was merely trying "to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow and rejection." She voted against the execution of a double murderer just shy of his 18th birthday because, to her, youth crime is "a failure of family, school, and the social system." She voted against execution for a killer who had grown up in a "milieu of violence." She voted against executing the leader of the Black Liberation Army for slaughtering a white hitchhiker, blaming the crime on "discordant racial relations."

Remember the "American Taliban," John Phillip Walker Lindh, a.k.a. Suleyman al Faris, a.k.a. Abdul Hamid? He was the 19-year-old American captured fighting for the Taliban, who declared his support for what the terrorists did on Sept. 11, 2001. The media widely questioned whether he was the unfortunate victim of misguided parenting, which his father certainly bolstered by saying, "I don't think John was doing anything wrong," and "We want to give him a big hug and then a little kick in the butt for not telling us what he was up to."

It doesn't matter whether the debate du jour is over pesky laws that allow the government to execute killers, pesky laws that keep Florida chad from being counted so that the "right" man cannot win the election, or pesky laws that allow an unintelligent and slightly unbalanced president to prosecute an unjust war to reap revenge for his father and enrich his oil buddies. They believe it is their moral duty to step in and right these wrongs, the law be damned.

This liberal tendency, while annoying, does not usually kill anyone. Even in death-penalty cases, when the prisoner's petition is granted, typically they are merely transferred off of death row and back to the general prison population, but not released. But these terrorists who win their habeas petitions will go free to return immediately to their previous occupation -- plotting the deaths of thousands upon thousands of U.S. residents [see "Afghans Released From Gitmo Return to Terrorism"]. That is why what the Supreme Court has done here will be a life and death disaster.

We are cutting our own throats with the "law." Take a look:

Guantanamo detainees are to be advised of their right to challenge their detentions in court.
http://www.washingtonpost.com/wp-dyn/articles/A35423-2004Jul7.html

The inspiration behind this is a very young lawyer named Rachel Meeropol
(some media accounts give her name incorrectly as Meerpool).
http://news.yahoo.com/news?tmpl=story&u=/afp/20040707/pl_afp/us_attacks_guan
tanamo_040707234052

She is the grandaughter of the Julius and Ethel Rosenberg, the communist atomic spies who gave Stalin the bomb. Rachel is the child of one of their sons, who were adopted by a family called Meeropol. The Rosenberg/Meeropol
family has scorned the justice of the trial the Rosenberg spies got. They call the Rosenberg trial "justice" with quotes around it.

The Lawyers' Guild, often described in the old days as a communist front, is helping. Do you think they get oil for food voucher money? All the other communists did. You can find out the breaking news about who got the money
at www.memri.org Check the news ticker, too.

Now a communist movement--and many communist parties have been getting money from Saddam in recent years--is going to waste our money by trying to make us have a trial for each combatant we catch during a battle. That's going to
make it very expensive to fight a war. And since when did communists care about about human rights and law?

I doubt Meeropol's minions care about the detainees. The purpose of such legal maneuvers is not to provide justice to the detainees but to discredit our justice system in the eyes of our public and to cripple it so that we
will have even fewer legitimate weapons to fight this terrorist war. I think this same group worked to smear the FBI case against Peltier, who was convicted of the murder of two FBI agents.

How come newspapers always show what party money is behind political agendas unless, of course, it is the communists? How come people in the media can tell everything about Richard Mellon Scaife and identify him with the
Republican-agendas, but this is a "smear tactic" if people point out communist money and agendas?

Communists don't care about people wrongfully detained. They hate the United States and will only happy when the justice system is cutting its own throat
and when the the terrorists are crashing American planes and incinerating American citizens. They want America to lose the War on Terrorism.

Meeropol and the folks behind her are giving aid and comfort to America's enemies.

See sources:

http://www.selvesandothers.org/view898.html
and

http://info.equaljusticeworks.org/fellowships/profiles/fellowprofile.asp?fgu
id=7998764375

Note: The lawyer Rachel Meeropol is the grandaughter of Julius and Ethel Rosenberg. Her father and uncle were adopted by the Meeropol family. Has anyone ever read a book by Brian Crozier called The KGB Lawsuits?

The real point is not to get justice for some poor guy who may have been caught by mistake, but to waste money and time, discredit law enforcement and legal institutions in the US. Meeropol sarcastically calls the trial her grandparents got "justice." So trials won't satisfy her, either. Even letting all the detainees go wouldn't satisfy her, either. What she wants is to discredit the FBI, CIA, Bush, the legal system.

Notice the article doesn't "smear" her by telling you where she is coming from. If Richard Mellon Scaiffe were bringing something to the Supreme Court, I bet the media would editorialize plenty. And of course, do we really want the detainees talking to communist lawyers?? Would they just represent their client, or would they further the criminal conspiracy??

Meeropol's group is called The Center for Constitutional Rights. That's a laugh. In Stalin's Constitution the Communist Party was the guiding force and the "nucleus of all social institutions." Courts served a political party.
The lawyers in the USSR call it telephone justice. The politicians call the court and tell them how to rule. We know this because sometimes the description of the trial and the verdict have appeared in the paper before the trial even happened--oops.

If released, the detainees are sent to their country of citizenship. Assuming they are not locked up or killed, they can go back into business as terrorists. Here is an article about Meeropol:

Guantanamo detainees to be advised of right to challenge detentions in court: officials

Wed Jul 7, 7:40 PM ET

WASHINGTON (AFP) - Newly created military tribunals will review the legal status of prisoners at Guantanamo Bay, Cuba and advise them that they can challenge their detention in US federal court, senior US officials said.

The officials said the new process was being created in an attempt to satisfy due process concerns raised in recent Supreme Court rulings that also affirmed the right of detainees at the US Navy base in Cuba to
challenge their detention in US federal courts.

A senior Justice Department (news - web sites) official said it was quickly put together over the past week "so that when, if, there are habeas
petitions filed challenging the detention the government will be in a position to fully satisfy our legal obligations."

Rachel Meerpool, an attorney for a group representing 51 detainees, called the new review procedures "inadequate and illegal, and they fail to satisfy the Courts ruling."

In a related development, President George W. Bush (news - web sites) designated nine more war-on-terror detainees as eligible for trial by military commissions, raising the total to 15, the Pentagon (news - web
sites) said. Only three detainees have been charged so far.

The military commissions are separate from the so-called combatant status review tribunals created Wednesday by an order signed by Deputy Defense Secretary Paul Wolfowitz.

The status tribunals, consisting of three "neutral" military officers who have had no previous connection with a detainee, will review the cases of each of the estimated 595 detainees at Guantanamo and determine whether they
are being held lawfully as enemy combatants.

"By July 17, each detainee will be notified of the review of his detention as an enemy combatant, of the opportunity to consult with a personal represenative, and of the right to seek review in US courts," the Pentagon
said in a statement.

The reviews will begin 30 days after military officers assigned to assist the detainees have been given access to files on their case and had an opportunity to discuss it with them.

Detainees will be given access to lawyers if they challenge their detention in US court, but not to prepare or present their case before the status
tribunal, said two senior officials who briefed reportes at the Pentagon on condition of anonymity.

How access to lawyers will be arranged has yet to be worked out, the officials said.

"The government has already indicated that for the lawyers who are already handling the habeas petitions for certain detainees and sought access, that arrangements will be made for them to have access to detainees involved in
those cases," the Justice Department official said.

The access "will be subject to security arrangements and other arrangements that need to be worked out," the senior defense official said.

One issue that remains undecided is whether lawyers will be granted unmonitored access to the detainees.

The Center for Constitutional Rights, a legal advocacy group, is representing 51 detainees at Guantanamo. The names of the prisoners have never been made public by the Pentagon, and it was unclear how the remaining
detainees might go about obtaining lawyers.

The officials noted that the Supreme Court held in a ruling last week involving Yasser Hamdi, a US citizen being held at a US Navy brig in Charleston, South Carolina, that due process would be satisfied by providing
notice and an opportunity to be heard.

Justice Sandra Day O'Connor (news - web sites), in a plurarity opinion in
that case, suggested that military tribunals called for under army regulations to determine the status of captured prisoners were sufficient to meet the due process standards, the officials said.

They said the process the Pentagon has created for the Guantanamo detainees was similar to that set forth in the army regulations, except that detainee also are provided assistance from a military officer who is cleared to
review classified information.

Detainees will be allowed to attend tribunal proceedings, present evidence, testify, call and question witnesses if they are reasonably available.

If a tribunal decides that the detainee should no longer be classified as an enemy combatant, the State Department will be advised to coordinate the detainee's release to his country of citizenship.

Sorry for the delay in responding. But I did read the case(s) and, well, anyone who knows me won’t be surprised that I find Scalia’s dissent to be absolutely right on – if perhaps a bit too polite. But I couldn’t just read the dissent in a vacuum. And the majority opinion is, well, troubling, as we like to say.
I was familiar with Ahrens and Eisentrager but, frankly, not with Braden.
For good reason.
It has next to nothing to do with Ahrens – as Scalia so well points out. It’s almost apples and oranges, for crying out loud. Braden involves a convicted criminal held in an Alabama jail under indictment by the Indiana courts for another offense. You can accept the courts finding in Braden for what it is as long as you note that they argue venue and forum non conveniens to address, perhaps even, override jurisdiction.
But to the point of how it was glommed on to be used in Rasul, note particularly the way the Braden court glossed over a very specific point at the heart of the Ahrens decision. In Braden the court said:
“But respondent insists that however the balance of convenience might be struck with reference to the question of venue, the choice of forum is rigidly and jurisdictionally controlled by the provision of 2241 (a) that "[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." 28 U.S.C. 2241 (a) (emphasis supplied). Relying on our decision in Ahrens v. Clark, 335 U.S. 188 (1948), respondent contends - and the Court of Appeals held - that the italicized words limit a District Court's habeas corpus jurisdiction to cases where the prisoner seeking relief is confined within its territorial jurisdiction. Since that interpretation is not compelled either by the language of the statute or by the decision in Ahrens, and since it is fundamentally at odds with the purposes of the statutory scheme, we cannot agree. “
Look at that last sentence, but “since that interpretation is not compelled by either the language of the statute or the decision in Ahrens…”
B***s***.
Look at what they said in Ahrens:
“The history of the statute supports this view. It came into the law as the Act of February 5, 1867, 14 Stat. 385. And see Act of August 29, 1842, 5 Stat. 539. Prior to that date it was the accepted view that a prisoner must be within the territorial jurisdiction of the District Court in order to obtain from it a writ of habeas corpus. See Ex parte Graham, Fed.Cas. No. 5,657, 4 Wash.C.C. 211;2 In re Bickley, [335 U.S. 188 , 192] 3 Fed. Cas. page 332, No. 1,387. Cf. United States v. Davis, Fed.Cas. No. 14,926, 5 Cranch C.C. 622. The bill as introduced in the Senate was thought to contain an infirmity. The objection was made on the floor that it would permit 'a district judge in Florida to bring before him some men convicted and sentenced and held under imprisonment in the State of Vermont or in any of the further States.' Cong. Globe, 39th Cong., 2d Sess. 730. As a result of that objection Senator Trumbull, who had charge of the bill, offered an amendment which added the words 'within their respective jurisdictions.' Ibid. at 790. That amendment was adopted as a satisfactory solution of the imagined difficulty. 3 Id. Thus the view that the jurisdiction of the District Court to issue the writ in cases such as this 4 is restricted to those petitioners who are confined or detained within the territorial jurisdiction of the court is supported by the language of the statute, by considerations of policy, and by the legislative history of the enactment. We therefore do not feel free to weigh the policy considerations which are advanced for giving dis- [335 U.S. 188 , 193] trict courts discretion in cases like this. If that concept is to be imported into this statute, Congress must do so."
What you had was the Braden court blithely said the Ahrens decision didn’t apply and gave as its reason that they didn’t think the Ahrens decision applied. Self-definition at its worst. And wrong. The Ahrens court based its ruling expressly on the language of the statute AND public policy AND legislative history. For the present court to use Braden to undermine Eisentrager is…..ah, you fill in the blank.
Oh, and note this quote:
“Under Braden, then, a habeas petitioner who challenges a form of “custody” other than present physical confinement may name as respondent the entity or person who exercises legal control with respect to the challenged “custody.” But nothing in Braden supports departing from the immediate custodian rule in the traditional context of challenges to present physical confinement.”
Know where that’s from?
Rumsfeld v Padilla.
You know, one of the first year courses in law school – at least it used to be – is Civil Procedure, the mechanics of how the process and the system work. One of the first things my Civil Procedure professor, a self-acknowledged cynic, told us was to accept the fact that judges decide how they want to rule and then construct the opinion to reach the desired end.
Okay, we’re all grown-ups here. That’s life.
But what I don’t understand is WHY the court wanted so badly to reach this conclusion. Ominous conspiracy theories aside, it is no less frightening to have our security played with for what I suspect is, at least in part, nothing more than a juvenile intellectual elitism that requires findings they can self-congratulate themselves on as proving they see things that others don’t.

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