Supreme Court rebukes itself

Waterbury Republican-American ^ | June 21, 2008 | Editorial

[Graybeard58]

Last week's 5-4 Supreme Court decision creating a new right of access to civilian courts for prisoners of war is being described as a rebuke to the Bush administration. Not exactly. The court essentially is rebuking itself. As Paul Mirengoff explains at powerlineblog.com, the court ordered a collaborative effort by Congress and the White House two years ago to resolve disagreements over the rights of terror suspects held at Guantanamo Bay, Cuba, then voided the result of that compromise.

Chief Justice John Roberts called the majority's ruling "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Justice Antonin Scalia was more blunt: The ruling "will make the war harder on us. It will almost certainly cause more Americans to be killed."

Both are right, and not because the ruling will result in any of the 270 terror suspects at Guantanamo being set free anytime soon. By intruding into what long has been the wartime domain of the military under the commander in chief, the court has sown confusion by endowing avowed enemies with unprecedented rights. Specifically, the court decided prisoners of war can appeal to civilian courts by wielding habeas corpus rights that never have been applied to prisoners of war.

There is ample legal and practical justification for that limitation. First, prisoners are wholly unlike political prisoners who typically want to change or reform government policy. They're soldiers of an enemy power that wants to destroy America. That's a quantum distinction that should have been obvious to the majority justices. Second, the numbers often are unmanageable. If the 270 Gitmo inmates have the right to petition the civilian courts for a review of their status, so did the 400,000 German POWs held in the United States during World War II. The law must be just and consistent, but it also must be practical.

Nevertheless, the administration shares some of the blame for the high court's blundering. It and the military have not demonstrated a sense of urgency in using the trial powers granted by Congress in 2006. Worse, some Gitmo alumni have returned to the field. Just three weeks before the Supreme Court ruled, the Pentagon confirmed Abdallah Saleh al Ajmi, a Kuwaiti held at Gitmo from his capture in Afghanistan in 2002 until his release in 2005, was one of three suicide bombers in Mosul, Iraq, who killed seven Iraqis.

This is the dark side of the human-rights imbroglio surrounding Guantanamo Bay, and one the five majority justices only can hope does not become their legacy.

[Graybeard58]

Ping to a Republican-American Editorial.

If you want on or off this list, let me know.

[Steely Tom]

Eventually, the court will grant the right to vote in American elections to citizens of countries in which American soldiers are conducting operations.

[rabscuttle385]

Eventually, the court will grant the right to vote in American elections to citizens of countries in which American soldiers are conducting operations.

Without the right to pay taxes, too! Talk about representation without taxation...while Americans get taxation without representation.

[Jeff Head]

This is an assanine ruling clearly not in the best interest of the United States or its people.

It must be overturned soonest before any real harm is done by those whose avowed purpose is our destruction, and upon whom these foolish, assinine judges have conferred rights unbefitting to such avowed enemeis.

In fact, those being held captured in such a manner, captured on the battlefield as irregulars, deserve to milked for every ounce of information they possess and then executed.

The President should order the carcass of any such enemy combatant delivered to the court room should any one of them ever be brought to the US for trial.

But of course, as he has already stated, this ruling, which seems tailor made for him, is supported by Barack Hussein Obama.

THE GREAT SEAL OF OBAMANATION



THE AUDACITY OF TRUTH ABOUT BARACK HUSSEIN OBAMA

[MarkT]

Or, eventually the Court will grant the rag-heads to have only other rag-heads (i.e. a jury of their peers) on the jury.

[Lazarus Starr]

More likely the soldiers involved will be tried for hate crimes against terrorists.

[aquila48]

“Supreme Court rebukes itself”

Maybe it should read...

Supreme Court repukes on itself

[I see my hands]

"the five majority justices only can hope does not become their legacy"

Their legacy? A stain on their legacy is their fear? They should be fearing the people of this nation.

[Nuc1]

As Paul Mirengoff explains at powerlineblog.com, the court ordered a collaborative effort by Congress and the White House two years ago to resolve disagreements over the rights of terror suspects held at Guantanamo Bay, Cuba, then voided the result of that compromise.

It cannot be said enough that the SCOTUS had no authority to hear this case at all. NONE. Congress took jurisdiction away from the court in 2005. Please see below.

Summary

The Detainee Treatment Act of 2005 is part of the Department of Defense Appropriations Act of 2006 (Title X, H.R. 2863). It prohibits the “cruel, inhuman, or degrading treatment or punishment” of detainees and provides for “uniform standards” for interrogation. The Act also removed the federal courts’ jurisdiction over detainees wishing to challenge the legality of their detention, stating that “no court, justice or judge shall have jurisdiction to hear or consider” applications on behalf of Guantanamo detainees. (Emphasis added.)

Excerpt

IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following:

`(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--

`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

`(A) is currently in military custody; or

`(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.'.

Please sperad this word as you can. Our fellow citizens are not aware of the rouge court that regularly shreads their constitution.

[vanishing liberty]

“It must be overturned soonest before any real harm is done by those whose avowed purpose is our destruction, and upon whom these foolish, assinine judges have conferred rights unbefitting to such avowed enemeis.”

All of the people appealing to the Supreme Court denied that they were terrorists or that they had aided the Taliban in Afghanistan. In short, they denied that they were our enemies at all. All appellees had already been in detention for six years. Don’t you feel like they should have a fair hearing to determine if they are enemies of the US before we send them to prison indefinitely?

[Current Occupant]

Nevertheless, the administration shares some of the blame for the high court's blundering. It and the military have not demonstrated a sense of urgency in using the trial powers granted by Congress in 2006.

I've always wondered why haven't the Tribunals started long ago. Seems like we've just let about half the detainees off already.

Seems like we should have had many hangings already.

[Jeff Head]

If they were taken on the battelfield as irregulars in a time of war, then no, I do not believe they should be afforded any such luxury if a military tribunal finds them as such.

We have already killed several of those we released, who then went back and took up arms against us.

As I said, if they were taken on the battlefield as irregulars (meaning no organized national army, no uniform, etc.) then according to the Geneva convention they can and should be summarily executed after a military tribunal.

I believe we should glean information out of them to help protect our personnel before we do so.

[vanishing liberty]

What percentage of the Guantanamo detainees are battlefield irregulars? I don’t know.

This is from oral argument:

Petitioner’s attorney: “...Because the D.C. Circuit — because the D.C. Circuit is reviewing a record that was adduced ex parte, in camera, with a presumption to boot that it is — that the evidence is both accurate and complete, and the D.C. Circuit is — has already said it will not hear any new evidence and it must apply that same presumption that that evidence that was heard ex parte in camera with its own presumption is correct.

And here’s — let me just give you an example of what difference this makes. You have the unredacted version of Judge Green’s district court opinion. I don’t. She discusses — she does address the adequacy of the substitute. And she addresses the case of two individuals.

One is Mr. Ait-Idir, who is my client, and you have both in her opinion and our brief this truly Kafka-esque colloquy at his hearing in which he is accused of associating with a known Al-Qaeda operative, which he denies, but he can’t be told the name.

Mr. Kurnaz is the other Petitioner who is discussed in her brief. He was a Petitioner in this Court, but he has since been released by the government because of the fact that he had what the CSRTs won’t give him, which is a lawyer. He was told, two years after he was detained — he’s a German permanent resident — he was told at his CSRT, as many of these individuals were not, that he was being held because he associated with a known terrorist. And he was told the name.

He was told that he associated with somebody called Selcook Bilgen who, the government contended, was (a) a terrorist, who was — had blown himself up while Mr. Kurnaz was in detention — may I simply finish this account — while he was in detention and in a suicide bombing; and all that Mr. Kurnaz could say at his CSRT where he had no lawyer and had no access to information was “I never had any reason to suspect he was a terrorist.”

Well, when the government, in the habeas proceedings, filed its factual return in Judge Green’s court, it filed as its factual return the CSRT record.

His counsel saw that accusation. Within 24 hours, his counsel had affidavits not only from the German prosecutor but from the supposedly deceased Mr. Bilgen, who is a resident of Dresden never involved in terrorism and fully getting on with his life.

That’s what — and that evidence would not have been allowed in under DTA review. It wouldn’t have been in the CSRT, and it won’t come in under DTA review.
And that’s why it is inadequate.”

CHIEF JUSTICE ROBERTS: Thank you, Mr. Waxman.
The case is submitted.

[Jeff Head]

As I understand the ruling, it will apply to all of the detainees. If I am correct in this, then the percentage is moot, because those with that designation will have the avenue opened to them.

As I said, I believe under the circumstances that the ruling should be overturned soonest before real harm is done and American personnel, or American citizens suffer at the hands of these enemies as a result.

...and of not, then the sentence of death should be carried out against any such irregulars before they are sent to any US court.

[VOA]

bump

[vanishing liberty]

“It cannot be said enough that the SCOTUS had no authority to hear this case at all. NONE. Congress took jurisdiction away from the court in 2005.”

If Congress passed a law which removed the Supreme Court’s jurisdiction over cases involving freedom of speech, freedom of religion, and the right to keep and bear arms, would that be legal?

[vanishing liberty]

“If I am correct in this, then the percentage is moot, because those with that designation will have the avenue opened to them.”

Avenue to what? Avenue to a fair hearing?

“As I said, I believe under the circumstances that the ruling should be overturned soonest before real harm is done and American personnel, or American citizens suffer at the hands of these enemies as a result.”

Why would Americans suffer if those imprisoned in Guantanamo are given a fair hearing? Do you think that we will have to release a significant number of prisoners if we have to inform them of the charges and evidence against them?

[Jeff Head]

Avenue to American judicial rights for enemy combatant irregulars taken on the battlefield fighting us. Such a premise and desire is preposterous on its face.

As I said, according to the Geneva conventions, which we and other nations have signed onto, such individuals are deserving of summary execution...military tribunal followed by the same at best.

I do not want, or intend, to be "fair" to someone whose avowed purpose is to kill me and mine, and destroy everything I value.

We were not "fair" to our enemies in World War II. We fought all out war against them and their populations. The Nazis and Imperial Japanese were just as fanatic as today's Jihadists and their people (the vast majority of them) had bought into the swill. So we ended up having to fire bomb their cities and kill them indisciminately until their armies and their people had had enough and surrendered unconditionally.

The result? We won and we survived...and then we helped those defeated rebuild and after sufficient time rejoin the civilized group of nations. Today Germany and Japan are amongst our best allies...and never doubt for an instant that it is precisely because we defeated them so absolutely. In essence we have made good Germans and good Japanese out of them in so doing.

It is time we made "good" Islamic Jihadists in the same manner IMHO.

If that offends your sensibilites...sorry, but too bad. Beleive me, if these animals ever take one of your own, like Daniel Pearle was taken...then you will change your perpsective as to what can and must be done to stop them.

[vanishing liberty]

“If that offends your sensibilites...sorry, but too bad. Beleive me, if these animals ever take one of your own, like Daniel Pearle was taken...then you will change your perpsective as to what can and must be done to stop them.”

I’ve got no beef with locking terrorists up and throwing away the key. I’ve got no beef with dealing with battlefield irregulars as you say.

I’m not in favor of locking up innocent people for the rest of their lives because we were afraid to tell them what they were charged with and the evidence against them. If that offends your sensibilities, so be it. When one of your own is locked up like that, you will change your perspective.

[Jeff Head]

I am not in the least offended. None of my own are, or will ever be, fighting abjectly against America and freedom and liberty. If they were, and were taken, I would expect them to suffer the consequences for their actions.

I have made it clear from the get go who I was talking about. Which is those enemey combatant irregulars taken on the fioeld of ballte against our forces.

I would happily extent that to enemy combatants who are caught in the act of planning terror attacks against our people even if not taken on "the field of battle".

THAT is who I am talking about and I am four square against a ruling by the supreme court that opens to such individuals US judicial rights in our domestic courts.

As I have said, and as the dissenting judges indicated, such a premise is dangerous, it will lead to more US deaths, and it is, IMHO, assinine and preposterous on its face.

If you are talking about that same group of people (such combatants getting an avenue to this type of judicial recourse), then we disagree directly and unequivocally.

If you are talking about a different group of detainees, then we are talking about two seperate issues.

[Gilbo_3]

When one of your own is locked up like that, you will change your perspective

if one of 'mine' were picked up on a battlefield fighting against US troops...let em rot...

[YOUGOTIT]

“If Congress passed a law which removed the Supreme Court’s jurisdiction over cases involving freedom of speech, freedom of religion, and the right to keep and bear arms, would that be legal?”

It is legal according to the Constitution:

Article III, Section 2 of the Constitution states:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Since the US Congress has made the Exceptions and Regulations for the captured terrorist so that they will be tried by Military Court and to keep them confined how can the Supreme Court make a direct violation of the Constitution when they say that these terrorist killers can be released and tried in the US Federal Court. If this is so then those Nazi and other war criminals should have never been tried nor kept in prison during the WW II.

The Constitution further states that the Congress and the Congress ONLY can: Under Article I, Section 8 ….make Rules concerning Captures on Land and Water.” And Section 9 states that: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or invasion the public Safety may require it.” It is required for these Terrorist Killers and in this case the Congress, since we have been invaded and are at WAR, may suspend Habeas Corpus which the capture law they passed for these terrorist states.

[Lonesome in Massachussets]

One solution: take fewer prisoners.

[Graybeard58]

One solution: take fewer prisoners.

My solution as well. The one military prisoner they did take, that I'm aware of, Matt Maupin, was murdered by them.

[vanishing liberty]

If Congress can remove the Supreme Court’s jurisdiction over any of the restraints on the federal government (the Bill of Rights, habeas corpus) then we all live at the will of the majority, and can kiss our supposedly immutable freedoms goodbye at any moment. The Supreme Court disagrees with this interpretation, of course, and I’m glad they do and I’m glad that the American people have enough respect for the Court that its opinions are followed by the other branches of government. If you would feel safer living in a country where Obama and a Democratic congress could suspend the Constitution, take everyone’s guns, and lock away all of his political enemies (including, no doubt, quite a few Freepers) then you are a good deal more sanguine than I am about these things.
________________________

“...how can the Supreme Court make a direct violation of the Constitution when they say that these terrorist killers can be released and tried in the US Federal Court. If this is so then those Nazi and other war criminals should have never been tried nor kept in prison during the WW II.”

Nowhere does the Supreme Court say “these terrorist killers” are to be released and tried in US federal court. It said that these particular individuals, who had already been confined for six years without what the Court considered to be a fair hearing to determine if they were in fact “enemy combatants”, were entitled to such a hearing. Future hearings for Guantanamo detainees can be afforded military hearings so long as the hearings meet the basic muster of habeas corpus—the right to learn the charges and evidence against you (so far as practical), a chance to respond, and a chance for review of the decision. For instance, people are being retained there for associating with “a known terrorist” but not being told who that person is. It’s hard to defend yourself against that sort of accusation.
_____________________

“If this is so then those Nazi and other war criminals should have never been tried nor kept in prison during the WW II.”

The Nazi war criminals were tried for crimes, not to determine their status as combatants. That was admitted. They were given a full and public hearing, had lawyers, knew the charges against them, and were able to present what evidence they had to rebut the charges. They were given more rights than is required in a habeas type of hearing.
________________________

Habeas corpus cannot be selectively suspended. We cannot suspend it for those in Guantanamo without suspending it for the whole of the United States. This has not been done. Since we have not been attacked since 2001, it is probably not appropriate to do so. I, for one, would like to have a hearing if I am locked up.

[YOUGOTIT]

If you do not believe in and respect the Constitution then you support the The Supreme Court as being the Dictators. What the Constitution says is the Supreme Law and must be followed by all branches of Government Period@!!!!!!!

[evangmlw]

"Professing themselves to be wise, they have become FOOLS."

The Bible

"STUCK ON STUPID"

[narses]

“Habeas corpus cannot be selectively suspended.”

LOL, what stunning arrogance. Of COURSE it can. It has been many times before.

[vanishing liberty]

“If you do not believe in and respect the Constitution then you support the The Supreme Court as being the Dictators. What the Constitution says is the Supreme Law and must be followed by all branches of Government Period@!!!!!!!”

I am in 100% agreement with you!!!!!!

[vanishing liberty]

““Habeas corpus cannot be selectively suspended.”

LOL, what stunning arrogance. Of COURSE it can. It has been many times before.”

I’m not sure what you are talking about. When did Congress selectively suspend habeas corpus?

[Nuc1]

If Congress passed a law which removed the Supreme Court’s jurisdiction over cases involving freedom of speech, freedom of religion, and the right to keep and bear arms, would that be legal?

Yes. Also, due to the tack of your question, where in the constitution is judicial review authorized?

[vanishing liberty]

Article Six:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

[Lancey Howard]

Whew....
This nation could not survive having that homosexual crackhead Obama appointing liberal activist justices to the Supreme Court.

[Lancey Howard]

Did you happen to see Bush's response to that crazy ruling?:

"I certainly appreciate one of the nation's three co-equal branches of government, the Supreme Court, weighing in on this important issue. However, as Commander-in-Chief I am responsible for the safety of all American citizens and I respectfully disagree with today's 5 - 4 ruling. Therefore, under my watch non-citizen enemy combatants will not be given access to the American civilian court system. Thank you."

LOL, just kidding!
(Right! - - Like Bush has a spine!)

[Nuc1]

I am with you!