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)

[Ken H]

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.

As I recall, Bill Bennett was the one who kept Douglas Ginsburg off the Court.

[jwalsh07]

“To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation for shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever wit-nesses the prisoners desired to call as well as trans-portation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war ef-fort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the le-gal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be conflict be-tween judicial and military opinion highly comforting to enemies of the United States.” Eisenstrager 339 U. S., at 778– 779.

[oceanview]

Mark Levin talked about that aspect of it today - he said that the use of miltary courts to conduct these hearings - can now also be challenged. So what do you think the 9th circuit is going to do when they get the first case? They are going to toss the use of military tribunals right out the window. These detainees will have access to US federal courts - just like people in our own US prisons do.

Try and deal with the practical realities of what this decision will mean in light of the makeup of the federal bench - that's alot more important them quoting some decision from 1953, which is meaningless in today's world with the federal judiciary as currently assembled.

[jwalsh07]

Now, perhaps a reasonable argument can be made whether or not public safety required suspension of the privelege of the writ of habeas corpus in this case - for a time which has probably now long passed, but that is very different from finding no right to said writ in the first place.

This country is 228 years old and has participated in numerous wars and conflicts over that time.

Why don't you cite the case of one alien POW held outside of American sovereignty granted the privilege of the great writ?

[AndyJackson]

The concurring opinion of Kennedy also argues:

The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify “a limited opening of our courts” to show that they were “of friendly personal disposition” and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considera-tions. It allows friends and foes alike to remain in deten-tion. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

[jwalsh07]

Kennedys opinion is feel good garbage. Try another tact. His concurrence is based on nothing more than his "feeling" that the jihadists have been confined for too long. It is crap.

[oceanview]

Levin must have read that passage as part of his show prep for today - he touched on exactly those points. He said that the courts are now free to do exactly this - toss the use of military courts in the field, require that the prisoners appear before a federal bench, require that soldiers act as police officers would when making an arrest; either appearing in person or filing timely affadavits describing the details of the capture of each prisoner from the battlefield. and on and on. the ACLU and the liberal courts will ram a truck through this opening created today.

[AndyJackson]

You cite Eisentrager. That is fine, but this case argues what distinguishes these circumstances from Eisentrager. If the military had set up a tribunal to determine their status, then the case would have been much weaker it appears. The problem is NO DUE PROCESS whatsover, military or civilian. That is what the majority, including Kennedy, claims distinguishes these cases. The German prisoners of war in Eisentrager did have a hearing. The Guantanamo detanees have had none.

[The Scourge of Yazid]

It's possible.

But, to be honest, that was really more of Nina Totenberg's baby.

If it weren't for the hatchet-job done by the mainstream media, the guy would have eventually been confirmed by a majority vote of the U.S. Senate.

Granted, Bennett is a bit of a hard-ass when it comes to the "War on Drugs", but I don't think Ginsburg's nomination was withdrawn because of objections originating within Bennett's office.

[AndyJackson]

Levin ... touched on exactly those points. He said that the courts are now free to do exactly this - toss the use of military courts in the field, ...

That is not what the opinion held. The fact is that these individuals were accorded no hearing in a military court either. What can you not understand about "no hearing."

[jwalsh07]

So what? They are prisoners in an ongoing war.

Why don't you address the salient points made in Eisenstager and while you're at it just how far does due process carry for enemy combatants? Do they have to be Mirandized? When the CIA sent a missile from a drone up the ass of an Al Qa'ida shmuck in Sudan who was born in America did they committ murder? Do ambushes no longer obtain?

[oceanview]

that will be the practical implementation of what was done today. let's say we have your military court hearings, why can't an ACLU lawyer then go into a federal court and ask that the military court judgement against a prisoner be set aside? I see no reason why they can't march into the federal court in Miami and do that. they can, they will, and eventually some liberal federal judge will go along. so what happens then?

[jwalsh07]

What can you not understand about "no hearing."

What part of prisoners of war are you having trouble with?

[AndyJackson]

In Eisenberg their status as prisoners of war was reaffirmed by a military tribunal. The Guananimo detainees have had no hearing at all.

[hershey]

What? You have a problem with activist judges who trample on our rights because they're liberals and that's okay? Well, I agree with you and hope they have the courage to face the families of the next victims of these terrorists when they get out and strap on bomb-belts and blow up the Sears tower or the Mall of America.

[AndyJackson]

Who decides that they are legitimately prisoners of war - a little Austrian corporal with a mustache and a Napolean complex? Or is their a process?

The USSC merely asserted their needs to be a process.

[AndyJackson]

Their = there

[AndyJackson]

Which SC opinion argues for turning terrorists lose? Tell me, which? I think you very much misunderstand what happened.

[jwalsh07]

The Guananimo detainees have had no hearing at all.

Nor the POW's at Abu Graib or any other detention camp in Afghanistan or Iraq in Gulf War 1 or 2. Should the hundreds of thousands of Iraqis taken in Gulf War 1 have been entitled to government paid lawyers and court costs if they had grievances?

[oceanview]

indeed, if they weren't arraigned within 48 hours of capture - they should have been freed according to the logic from the SCOTUS today.