Boumediene-Chief Justice Roberts and Justice Scalia- DISSENT (on Gitmo ruling)

Bench Memos at National Review ^ | 12 June 2008 | Ed Whelan

[savedbygrace]

Kennedy et al flayed alive by Roberts & Scalia.

[kenmcg]

It’s hard to believe what these morons are doing to this country. Let’s release the bad guys bring them to the states and buy houses for them right next to the liberal SC judges. These morons on the SC won’t be happy until we are in worse shape then S. Africa or Zimbabwe.

[SE Mom]

Grand dissents, eh? I loved reading them! Give em hell:)

[brityank]

Bump for my tag-line.

[SE Mom]

LOL! good one:)

[AuntB]

Thanks for posting these dissents. Fascinating reading. Amazing words. Why doesn’t some of this rub off on the others?

[jagusafr]

Because they’re smarter than the rest of us - you know, we’d all just head off willy-nilly without our black-robed keepers...I’m sure those in the majority will sleep well knowing they’ve protected somebody...

[SE Mom]

I don’t know, Aunt B, I simply don’t know.

http://volokh.com/archives/archive_2008_06_08-2008_06_14.shtml#1213280702

The Court then goes on to talk a lot about the history of habeas, and then distinguishes Eisentrager very much along the lines of Justice Kennedy’s concurrence in Rasul v. Bush. The Court then concludes that the detainees have a constitutional right to habeas:

(Kennedy)
It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.

We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. . . . The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.

[Jacquerie]

Way back in my high school history class days, I chuckled at the thought of the ancient Druid class in forested glens passing mystic decisions on life and death. Oh, and how about the Oracle at Delphi who got high on vapors from the earth and advised kings?

You know where I am going and I see little difference.

[Christian4Bush]

mark

[Miss Didi]

The Last Days of the United States

Outrage Over Supreme Court Decision

[SE Mom]

Thanks:)

OMG I just heard Geraldo get into it about this ruling- he’s THRILLED with 5 of the 4 justices.

He and Judge Nappy are delirious with joy.

[Miss Didi]

The Judge is happy??? Tomorrow's Friends will be unbearable as it's Geraldo Friday with the Judge weighing in, I'm sure.

[vollmond]

The only logical result is to take no prisoners, then.

[SE Mom]

Yep- both of them.

I don’t understand it, they’ve GIVEN the right of habeas to the ENEMY, in OUR courts. This is not a uniformed enemy of another state, these are a whole other category. They now have rights under OUR constitution reserved for US CITIZENS.

[Earthdweller]

Combatants, even suspected foreign combatants, should have NO access to American courts. None.

Exactly, they will exploit a system that was created for our citizens..not our enemies.

I'm happy that this is being undertaken. The loop holes that these new enemies can jump through need to be addressed.

You can not be a shining city on a hill if the enemy is allowed to flatten the hill.

[Miss Didi]

RUSH: The moral of the story is don't take any prisoners.

[Carry_Okie]

Never mind the military arguments, the most concerning thing about this ruling is that it is fundamentally imperialist. To extend and enforce rights to foreigners without treaty or reciprocity is to literally extend a claim on their lives. It is a violation of the essence of social contract that is the foundation of nationhood for which the Court majority now shows no respect.

Rights may be God-given, but the power to enforce them is not. These clowns have inverted the concept of limited government not only by exceeding powers given to them in the Constitution, but extending that power to global scope.

[SE Mom]

Welcome to the New World Order.

[WOSG]

This is a terrible decision.
Another example of judicial arrogance run amok.
As usual, Scalia cuts the heart out of the decision, puts it on a skewer, dissects it, and shows how rotten it is.

“What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.”