Supreme Court Asked to Transfer Padilla (Please, Your Honor, Can we Conduct a War on Terrorism?)

Rueters ^ | Dec. 28, 2005 | unknown

[ndt]

"if the Padilla case goes to the SCOTUS, will they not be stripping away the enemy combatant designation power?"

Padilla's case has nothing to to with foreign nationals in gitmo.

[ndt]

"even Ginsburg says the reasoning in Roe is non-existent. just words on a page, the arbitrary opinion of the men deciding it at the time."

Quote please.

[oceanview]

what does it matter what I think. its what 5 members of the SCOTUS think; they make the law, not me.

it is quite obvious from the machinations in this Padilla case - that the administration has made the judgement that they will lose the ruling. let's stop pussyfooting around here. if we had 5 Clarence Thomas on the SCOTUS, the judgement would go the other way - at which time, Padilla could be given the military tribunal he is due.

[oceanview]

the thread is probably here somewhere, that story made the news some months ago. not that Ginsburg wouldn't find some new "emanations and penumbras" to legalize unlimited abortion if the case came up before her again, but she commented that the ruling was a little weak the first time around.

[oceanview]

I know, I was giving you two examples of where the courts are limiting executive power - the Padilla one being a future prediction (unless by some miracle, one of the liberals switches sides).

[oceanview]

Supreme Court Justice Ruth Bader Ginsburg, a supporter of abortion, has acknowledged the difficulty of justifying the judicial activism of Roe: 'Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court.'

[ndt]

"what does it matter what I think"

I'm only responding to commend your use of the word "machinations". It's not often I have to open a dictionary to see if that was actually a word :)

[PerConPat]

That is not a leftest thing, that is a law thing. In law, especially in regards to government powers, precise wording is absolutely critical. The Weimar Republic was lost with a single poorly worded sentence. (ndt)

It, social engineering, is a leftist attitude which judicial activists employ at every opportunity.

Hmmm...one sentence? I would say that the lack of a sufficiently energized middle class with healthy conservative underpinnings was as much to blame as anything else one might point to in those troubled times. I prefer to avoid reliance on legalism as a guarantor of freedom and national security.

...the judiciary should have nothing to do with fighting wars. (oceanview)

The judicial will always insert itself into any area it can. But no one could seriously believe that a nation engaged in a fight for it's survival would pay attention to a group of hairsplitting jurists where operational matters are concerned.

They are purposely unaccountable, by design. That they are not democtratically appointed is only another sign that we have a republican not democratice form of government. Bush is as fallible. (The Cuban)

Actually they, the folks in black robes, are at the mercy of the other branches of government. If a President with Congressional backing chooses to ignore them, what happens? Short answer-- the judges condemn the Executive and Legislative branches, and then they go home. The minute the Judiciary is perceived by the majority as seriously impeding the nation's security, they will be removed from that area of concern.

[ndt]

"Hmmm...one sentence?..."

That one sentence was what allowed the legal formation of a dictatorship out of a constitutional democracy.

"I prefer to avoid reliance on legalism as a guarantor of freedom and national security"

As opposed to what, blind faith in the leader? Seriously, if you don't want to rely on the law, what are you suggesting we use?

"But no one could seriously believe that a nation engaged in a fight for it's survival would pay attention to a group of hairsplitting jurists where operational matters are concerned."

Judges rule on the laws written by congress, if you have a problem with the law, take it up with them. For a judge to ignore the law as written by congress is the epitome of judicial activism.

"If a President with Congressional backing chooses to ignore them, what happens?"

That could potentially result in bloody battles between the national guard and federal marshals.

[PerConPat]

That one sentence was what allowed the legal formation of a dictatorship out of a constitutional democracy.

Yes, it was a law. And the people allowed the formation of a dictatorship; the sentence was nothing without the inability of the people to see through its inherent danger.

As opposed to what, blind faith in the leader? Seriously, if you don't want to rely on the law, what are you suggesting we use?

I would suggest that a chief executive and hundreds of legislators could do nicely most of the time without the "help" of the professional pettifoggers on the bench when it comes to national security.

Judges rule on the laws written by congress, if you have a problem with the law, take it up with them. For a judge to ignore the law as written by congress is the epitome of judicial activism.

Judges make law, as well. I remember Lenny Bruce's observation that the US is run by judges and that elected officials are merely clerks. I would hate to see that come about, in the event it hasn't already done so.

I know exactly what you mean by judges ignoring the law; I was especially impressed of late by the SCOTUS failing to protect private property.

That could potentially result in bloody battles between the national guard and federal marshals.

Please forgive me, but this point is a bit of a stretch. I could believe that a member of the legal profession, and I'm not directing this at you since I don't know your area of expertise, might actually buy into this. But there is no chance of this sort of fairytale occurring; the Marshals are not likely to have the bloated sense of self-importance necessary to engage in this madness.

[ndt]

"I would suggest that a chief executive and hundreds of legislators could do nicely most of the time without the "help" of the professional pettifoggers on the bench when it comes to national security."

So you basically disagree with the central tenet of three separate but coequal branches of government as laid out in the constitution. There is no exception in the constitution for "national security" and I do not think that was an accident. Considering the state of the nation just prior to it's signing, national security was most assuredly on their minds.

" Please forgive me, but this point is a bit of a stretch."

I would hope it never came to that, but no sadly, it's not a stretch. The branches of government only exist in the context of the Constitution. The scenario you laid out where the President and Congress "ignored" the judiciary, in it's most extreme form, would be best described as an overthrow of the legitimate U.S. Government.

The correct process in cases where the executive was found by the judiciary, to be in violation of the law, assuming congress approved of his actions, would be for congress to change the law after the fact and refuse to impeach. There is no provision for "ignoring".

"I could believe that a member of the legal profession, and I'm not directing this at you since I don't know your area of expertise, might actually buy into this."

No offense taken, I'm not a lawyer, I'm a software programmer, similar only in our fussiness over details.

[xcamel]

Not for the last 3 years it hasn't been...

[Soul Seeker]

Trust AS IN the Supreme Court following the Constitution rather then making law. It is this aspect I suspect they have no Faith in, with due cause.

[PerConPat]

So you basically disagree with the central tenet of three separate but coequal branches of government as laid out in the constitution. There is no exception in the constitution for "national security"

There is no mention of "judicial review" either, and it was discussed by the framers of the Constitution according to this source.

Do you seriously believe that the founders intended the Judiciary to have the last word? The Judiciary, whether designating Dred Scott as property or overturning honest elections, has become the last refuge of the lunatic fringe. The Constitution itself gives power over the Judiciary to the Legislative branch. As I recall, the SCOTUS avoided major overhaul by FDR only by doing deals in Congress.

The scenario you laid out where the President and Congress "ignored" the judiciary, in it's most extreme form, would be best described as an overthrow of the legitimate U.S. Government.

This is becoming a "chicken or the egg" argument. But for the sake of discussion, the Congress is empowered to impeach justices, pack the Court, and make law overturning decisions. Based on this I must conclude that the Judiciary has been afforded "coequal" status at the pleasure of the Legislative.

There is no provision for "ignoring".

Based on my observations above, I would say that there is provision for much more than "ignoring." Yes, I am mindful of the Judicial branch's role in protecting the minority; but it was never intended to cripple the majority. This last point, IMHO, is probably where most discussions on this topic will ultimately arrive. We will not resolve it.

[ndt]

" Do you seriously believe that the founders intended the Judiciary to have the last word?"

They don't have the last word, congress can change the law and even amend the constitution, thereby overriding any ruling made by the court.

"The Constitution itself gives power over the Judiciary to the Legislative branch."

The constitution does not "give power over" the judiciary, that is a wildly, overly broad description and not at all what the Constitution says.

"I must conclude that the Judiciary has been afforded "coequal" status at the pleasure of the Legislative."

That is a very novel interpretation. So you are confirming my contention, that you do not believe that our government was intended to be composed of three separate but equal branches. If legislative writes laws, and the executive executes those laws, who do you propose is to judge those laws? Is the executive now prosecutor, judge and executioner as well? If the executive itself oversteps the laws as written by congress, who is to hold him accountable?

You are making arguments that go well beyond those that the administration is making. The administration is asserting that their actions are legal. You are asserting that the executive is above the law. You are arguing for a totalitarian dictatorship.

[lugsoul]

Seems you are missing the point completely. The 4th Circuit agreed completely with the Administration on its need to fight a war on terror, and allowed them to do whatever they pleased with Padilla as an 'enemy combatant.' It was only after the Administration backtracked and said "wait, we want to charge in civilian court with lesser crimes that have nothing to do with the terrible secret evidence we presented before" that the 4th balked and questioned what they were doing. Because the Administration did not want the 4th's decision tested on appeal. Because they apparently thought they would lose.

The Constitution has served us well in every prior war. No need to throw it overboard in this one.

[PerConPat]

The constitution does not "give power over" the judiciary, that is a wildly, overly broad description and not at all what the Constitution says.

The power to remove justices and to overturn decisions speaks for itself.

So you are confirming my contention, that you do not believe that our government was intended to be composed of three separate but equal branches.

My previous responses to you outline the Judicial branch's limitations. They are precluded from being "coequal" by the provisions already discussed. If the Courts want a law or decision enforced, they must rely on the other branches of government.

Is the executive now prosecutor, judge and executioner as well? If the executive itself oversteps the laws as written by congress, who is to hold him accountable?

The Congress, of course, is charged with this responsibility. However, the political situation at any given time, is in reality the power base for any branch of government; but the Courts at best, are allowed only the latitude granted by the other two branches. Currently, that latitude is wide; however complications, in the area of national defense, can quickly change this.

You are arguing for a totalitarian dictatorship.

No more than you are arguing for a dictatorship of judges who have the power to tie a President's hands in time of clear and present danger. It's a messy business, isn't it? Not at all perfect.

[ndt]

"My previous responses to you outline the Judicial branch's limitations. They are precluded from being "coequal" by the provisions already discussed."

So you think that the President is also not coequal since he too can be impeached by congress?

" The Congress, of course, is charged with this responsibility."

How could congress possibly hold the President accountable if the judiciary can not find him guilty? Without high crimes and misdemeanors, there can be no impeachment. If you remove that authority from the courts, you also remove it from congress.

"No more than you are arguing for a dictatorship of judges who have the power to tie a President's hands in time of clear and present danger."

Actually that would be a "kritarchy" and that is not what I have argued at all, I'm arguing for three coequal branches (strange since this was settled long, long ago) and you are arguing for the subservience of one to the other two. Beyond that, whether you realize it or not, by removing the indapendance of the judiciary, you are in fact creating a de facto dictatorship, because the congress would lose their impeachment powers over the president.

[PerConPat]

Seems you are missing the point completely...

I'm sure that it does seem so to those who would not wish to support a strong President in a time of national danger unprecedented in our history. I too am concerned for the protection of our civil liberties; but what good are civil liberties in the midst of the death and destruction brought about by the detonation of a suitcase nuke in a major city.

It was only after the Administration backtracked and said "wait, we want to charge in civilian court with lesser crimes that have nothing to do with the terrible secret evidence we presented before" that the 4th balked...

Could there be reasons having to do with protecting our intelligence gathering capabilities etc. that have convinced the Administration to proceed with other charges? Either a majority of Americans are more concerned with national security or with civil liberties in a period of grave danger. Time will tell. Temporary measures taken to prevent terrorist attacks can be dispensed with at later, safer times. How do we dispense with a nuclear explosion in our midst?

The Constitution has served us well in every prior war.

So, Lincoln and FDR never swayed from the task of protecting civil liberties during time of war? Seems that I may not be the only one missing the point completely.

[lugsoul]

"a time of national danger unprecedented in our history"

I could hardly be more tired of this kind of ridiculous assertion. It would seem pretty clear that having an avowed enemy with thousands of nuclear-tipped missles targeted on our nation constitutes a 'time of national danger' that dwarfs the purely theoretical possibility that a terrorist could obtain a functional suitcase nuclear device and detonate on our shores.

For the most part, the radical Islamic terrorists are a bunch of hacks who want to think that their most miserably failed attacks are grand successes for Allah. They got really, really lucky, once. They have had milder success on a few occasions. They have utterly failed most of the time. Yet their greatest success to date has been to convince self-described conservative Americans that we need to rearrange our entire system of government to deal with a theoretical threat they might pose on their best day but probably couldn't pull off.

You need to manage your fear. It makes you terribly easy to control.