Rasul v Bush - Scalia Dissents

SCOTUS ^ | 6/28/04 | Justice Scalia et al

[jwalsh07]

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting. The Court today holds that the habeas statute, 28 U. S. C. §2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contra-dicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U. S. 763 (1950). The Court’s contention that Eisentrager was somehow negated by Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973)—a decision that dealt with a different issue and did not so much as mention Eisentrager—is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field. I would leave it to Congress to change §2241, and dissent from the Court’s unprecedented holding.

As we have repeatedly said: “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree....

Rasul v Bush. (PDF file)

[Torie]

If everyone was as informed and judicious as you on this forum, when it came to legal issues, this forum on that topic would be an absolute joy. I mean that. :)

[The Scourge of Yazid]

And to think, two eminently worthy jurists, Douglas Ginsburg and Robert Bork, were immolated by the Democrats, just so that this poseur could don the garb of a Supreme Court justice.

[jwalsh07]

Kennedy dove head first into the Libertarian Pool and it was empty.

O'Connor is like cheap beer, in one end out the other with little to no substance and absolutely no panache.

[jwalsh07]

Arlen Spector, the next head of the Judiciary Committee, Borked Bork.

[The Scourge of Yazid]

And not even a real judge!

Since when does being the majority leader of the Arizona State Senate constitute an appropriate job qualification for the nation's highest court?

[FreeBSD]

Have you read his dissent in Hamdi?

[The Scourge of Yazid]

Along with Joseph Biden, John Warner, Jim Jeffords, and every other simpering, East Coast lightweight that went back on their word to confirm eminently qualified jurists.

[jwalsh07]

:-} Flattery will get you a free 18 holes of golf.

I think you should read up on this one. You know the law, you know the Constitution and you know how the system works. I'm real interested on your take on the emanations. My amatuer take is that the ramifications are legion.

After all, if geography is no issue and citizenship is no issue and shooting at American soldiers is no issue, then lawsuits can be filed on behalf of enemy combatants held anywhere in the world in US Courts. And guess who pays attorneys fees and court costs?

And that doesn't even touch on the effect this ruling will have on active duty soldiers hunting and killing bad guys.

[jwalsh07]

Yes.

[El Gato]

Saddam Hussein are released from custody

Saddam will be released alright, into the tender mercies of the Kurds and the Shiites. The trial will not be lengthy. Wonder if Al-Jazzera or Al-Arabya will cover the execution? Probably not, there's a much larger audience for infidel beheadings these days.

[The Scourge of Yazid]

I don't know.

If I was in charge of the CPA...we'd be in deep s***! Seriously, I would have turned him over to Barhem Salih, or whoever is responsible for providing security for Kurdistan.

A second option would have been turning him over to the governor of Najaf, provided that he was under the strict supervision of United States/British/Polish forces.

I just don't trust the incipient Iraqi government with such a monumental task yet.

[dila813]

Time to change the Constitution to make this clear

[FreeBSD]

Is he out of control?

[mrsmith]

Both dissents revolve aound the judiciary taking power not constitutionally given to it.

Hamdi:
In Milligin the court changed the meaning of "in cases of invasion or insurrection" to "unless the courts are open"( Thomas touches on this- and the debate between the two is a treat).
And of course courts won't allow a person to be arrested over and over and over again as Jefferson recommended.

He certainly holds our weenie congress's feet to the fire to suspend Habeas Corpus- and it may come to that yet.

[The Scourge of Yazid]

There's no constitutional preregotive-especially one that's been clearly enumerated in the Constitution as having been delegated to another branch of the government-that these power hungry thieves will not arrogate to themselves.

[jwalsh07]

I am more persuaded by Thomas dissent in Hamdi than Scalias joint dissent with Stephens for several reasons that I'd be happy to discuss.

I don't think he is out of control however.

I do think that the justices, like Kennedy, who cite the mores of European Nations as cause to dissolve the Tenth Amendment are out of control.

How's that?

[jwalsh07]

Justice Scalia gives Quirin the boot and embraces Milligan but Justice Thomas says, oh no you don't, Milligan does not obtain. Pretty good stuff that even a blue collar guy can wrap his arms around.

[supercat]

Scalia, Thomas and Rehnquist, are the only three members of the Court that are sane.

Though on some other issues I wonder about them. For example, unless I misunderstood something (possible), they ruled that a police officer can demand a person's name without offering any justification for doing so, and arrest/fine the person for refusing to comply if the officer happens to have some undisclosed legitimate reason for demanding it.

IMHO, if the facts of the case are as I understand them, the case should have been remanded to a lower court to determine whether the officer had informed the defendant of at least some reasonable basis for suspicion (unless the facts were stipulated that the officer had not, in which case the defendant should have been acquitted outright).

Such a holding would not interfere with police practice, except to require that before police can demand anything of someone they must offer some legitimate reason (even if not necessarily the "real" reason). To my mind at least that should pose any noteworthy hardship on legitimate police activities.

[FreeBSD]

sounds fair. Didn't scalia have an international cite in the recent sentencing case? I haven't read it, just heard it on the rumor mill.

[kdot]

I agree. And while they are off their meds, they are scrwing up our country.

Bush has to stick around for a few more years to make sure Kerry doesn't have the ability to put his, I mean Hillary's, judges on the bench. She'll probably start with Cuomo.